April 23, 2011

To: The Auroran & the Aurora Citizen (www.auroracitizen.ca)

Re: Conflict of Interest and Phyllis Morris v. Johnson et al.

Furthermore to my letter earlier this month, entitled “Please help me understand how litigation against three Aurora citizens was approved”, I would like to add the following information in regards to the defamation action of Phyllis Morris v. Johnson et al.

I reference the Ontario Municipal Conflict of Interest Act. (R.S.0. 1990, Chapter M.50) found at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m50_e.htm .

The Act helps control the actions of our elected officials who hold the public trust. Its main purpose is to prevent them from benefiting financially from a decision in which they were involved in the process. The Act generally states that if there is a matter that comes before Council that would touch on a member of Council’s direct or indirect pecuniary (of or related to money) interest then it is the duty of that member not to participate in the decision-making process for that matter and to declare this conflict of interest.

I would draw your attention to the following sections taken from the above online reference:

Duty of Member

When present at meeting at which matter considered

5.  (1)  Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration, the member,

(a) shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof;

(b) shall not take part in the discussion of, or vote on any question in respect of the matter; and

(c) shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question. R.S.O. 1990, c. M.50, s. 5 (1).

Where member to leave closed meeting

(2)  Where the meeting referred to in subsection (1) is not open to the public, in addition to complying with the requirements of that subsection, the member shall forthwith leave the meeting or the part of the meeting during which the matter is under consideration. R.S.O. 1990, c. M.50, s. 5 (2).

Record of Disclosure

Disclosure to be recorded in minutes

6.  (1)  Every declaration of interest and the general nature thereof made under section 5 shall, where the meeting is open to the public, be recorded in the minutes of the meeting by the clerk of the municipality or secretary of the committee or local board, as the case may be. R.S.O. 1990, c. M.50, s. 6 (1).

Idem

(2)  Every declaration of interest made under section 5, but not the general nature of that interest, shall, where the meeting is not open to the public, be recorded in the minutes of the next meeting that is open to the public. R.S.O. 1990, c. M.50, s. 6 (2).

As referenced by the minutes of the Aurora Town Council meeting of September 14, 2010, then Mayor Morris participated in the closed session portion of the meeting that subsequently resulted in the motion “THAT the Town Solicitor be directed to retain external legal counsel and to take any and all actions to bring resolution to this matter”. She participated in the closed meeting but did not vote on this motion as she left once coming out of closed portion of the evening. It is this motion that eventually led to the litigation against Johnson et al.

The first agenda item of a Council Meeting is the “Declarations of Pecuniary Interest”. For the September 14 meeting Councillor Collins-Mrakas had a declaration on another matter but there were no other declarations in the minutes.

I will allow the reader to formulate their own perspective, but from one side it could be interpreted that ex-Mayor Morris may have violated the Municipal Conflict of Interest Act. She may have done so by not declaring a conflict of interest and through her subsequent participation in the closed session meeting concerning the Town’s direction that lead to the litigation against Johnson et al. In this litigation she would be the sole beneficiary and not the Town. She could be seen as having a pecuniary interest and that she failed to declare a conflict of interest.

As taken from George Rust-D’Eye’s Executive Summary: “The retainer letter signed by the Mayor and the Town on October 6, 2010 leads to the conclusion that both are jointly and severally liable for paying the legal expenses incurred for the defamation action.”

Even if for argument’s sake Ms. Morris sought $0 damages, the fact that the Town was liable for expenses in her legal matters could possibly still show pecuniary interest as there could be either a reduced or no out of pocket expense for her in proceeding with this private action. It is noted that although this action started with the plaintiff as Mayor Phyllis Morris it was later changed to a plaintiff of Phyllis Morris to express that it was a personal matter and not one for the Town of Aurora. Also please note that the Town as per its March 29, 2011 council meeting minutes passed the motion to “pay the legal accounts of Aird & Berlis LLP for the services up to and including December 15, 2010 and for additional outside counsel, Paterson MacDougall for services rendered up until December 21, 2010.”

I note from Mr. Rust-D’Eye’s Executive Summary: “at the same time, Phyllis Morris appeared to have a pecuniary interest in the matter under consideration by the Council, in view of the fact that the debate involved a proposal that the Town provide or pay for legal services for her defamation action against third parties, at that time without any undertaking on her part to repay the Town, whether she was successful or not – the Town appeared to assume the entire financial risk, with the Mayor standing to obtain a personal benefit from success in the proceedings”.

For some it may be thought that her participation in the closed session meeting and the failure to declare a conflict of interest was perhaps committed through any oversight or by reason of an error in judgement. But for others they may ask whether this would be the mistake of a politician with numerous years of experience. As taken from her own website (www.phyllismorris.net) Phyllis Morris had 6 years as a Councillor, 3 years as Deputy Mayor and 4 years as the Mayor with this incident occurring at the end of her mayoral term. Sampling a review of council meeting minutes in recent years, councillors and the mayor for a variety of reasons express a conflict of interest at the start of the meeting. Ms. Morris had in the past (Town of Aurora, Council Meeting Minutes No. 08-22, Tuesday August 12, 2008) declared a conflict on a particular matter. But with this incident at the September 14^th meeting she did not declare a conflict of interest nor did she do so at any subsequent meeting in regards to her attendance to the closed session meeting that started the action against Johnson et al.

I allow the reader to interpret the information to their own accord and I stand open to correction on any of the information that I have presented.

Paul Sesto

(289) 221-1450