Report to/Rapport au :

 

Election Compliance Audit Committee

Comité de vérification de la conformité pour les élections municipales

 

8 April 2011 / le 8 avril 2011

 

Submitted by/Soumis par : M. Rick O’Connor, City Clerk and Solicitor/ Greffier municipal et chef des contentieux

 

Contact Person/Personne ressource : Leslie Donnelly, Deputy City Clerk

City Clerk and Solicitor/Greffier et Chef du contentieux

(613) 580-2424 x28857, leslie.donnelly@ottawa.ca

 

City-wide

Ref N°: ACS2011-CMR-CCB-0041

 

 

SUBJECT:

REQUEST FOR COMPLIANCE AUDIT OF ELECTION CAMPAIGN FINANCES OF MR. PETER CLARK, RIDEAU-ROCKCLIFFE WARD

 

 

OBJET :

demande de vérification de la conformité des finances de la campagne électorale du M. peter clark, quartier rideau-rockcliffe

 

 

 

REPORT RECOMMENDATION

 

That the Election Compliance Audit Committee consider whether the request for a compliance audit of the election campaign finances for the 2010 Municipal Election campaign of Mr. Peter Clark, Rideau-Rockcliffe Ward be granted or rejected.

 

RECOMMANDATION DU RAPPORT

 

Que le Comité de la vérification de la conformité en ce qui a trait aux élections municipales examine si la demande de vérification de la conformité des finances de la campagne électorale municipale de 2010 du M. Peter Clark, quartier Rideau-Rockcliffe, est accordée ou rejetée.

 

 

BACKGROUND

 

Pursuant to Section 81 of the Municipal Elections Act, 1996, a request for a compliance audit of the election campaign finances of Mr. Peter Clark was filed with the City Clerk on April 5, 2011.  A copy of the request is attached as Document 1 to this report.

 

Subsection 81(1) of the Municipal Elections Act, 1996 states that, “An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of this Act relating to election campaign finances may apply for a compliance audit of the candidate’s election campaign finances.”

 

Section 81.1 of the Act requires that the municipality establish a committee for the purposes of considering applications for compliance audits.  Furthermore, Subsection 81(5) states that “within 30 days after receiving the application, the committee shall consider the application and decide whether it should be granted or rejected.”

 

DISCUSSION

 

This report does not comment on the merits of a request for a compliance audit nor does it make a recommendation with respect to same as the determination of the matter rests solely with the Election Compliance Audit Committee.  The Committee is required under the Act to consider the application within 30 days of receipt and to render a decision as to whether the request for an application should be granted or rejected.

 

In the event that the Committee decides to reject the application for a compliance audit, the decision of the Committee may be appealed to the Ontario Court of Justice within 15 days of the decision.  Under the Act, the Court may make any decision the Election Compliance Audit Committee is authorized to make (e.g. granting the request for a compliance audit).

 

In the event that the Committee decides to grant the request for a compliance audit, the Election Compliance Audit Committee is required to appoint an auditor, licensed under the Public Accounting Act, to conduct a compliance audit.  The auditor shall be responsible for promptly conducting a compliance audit of the candidate’s election campaign finances to determine if the candidate complied with the election campaign finance rules of the Act.  The City is responsible for the auditor’s costs related to performing the compliance audit.

 

In conducting the compliance audit, the appointed auditor shall have access, at all reasonable hours, to all relevant books, papers and documents of the candidate.  This includes the candidate’s financial statement, receipts and campaign expenses. 

 

Upon completing the compliance audit, the auditor shall prepare a report outlining whether a contravention of the election campaign finance provisions of the Act occurred.  When the auditor has completed his/her report, the report shall be forwarded to the following individuals:

 

·         the Candidate;

·         City Council;

·         the City Clerk; and

·         the Applicant. 

 

The City Clerk will then forward the report to the Election Compliance Audit Committee within 10 days of receipt.  Within 30 days of receiving the report, the Committee shall hold a meeting for the purposes of considering the auditor’s report.  As part of its consideration of the auditor’s report, the Committee may:

 

  • Decide whether legal proceedings should be commenced against the candidate, if the report finds a contravention did occur; or

 

  • Decide whether there were reasonable grounds for the application, if the report finds that no contravention occurred.

 

Following its decision, the Committee will submit a report to City Council, for information, outlining its findings and decision as a result of the auditor’s report.

 

In the event that the auditor’s report finds that there was no contravention of the election campaign finance rules and the Election Compliance Audit Committee has found that there were no reasonable grounds for the application, City Council is entitled recover the auditor’s costs from the Applicant.

 

 

CONSULTATION

 

No public consultation was undertaken in the preparation of this report.

 

 

COMMENTS BY THE WARD COUNCILLOR(S)

 

N/A

 

 

LEGAL/RISK MANAGEMENT IMPLICATIONS

 

There are no legal/risk management implications associated with this report.

 

In the event that legal advice is sought by the Election Compliance Audit Committee, independent legal counsel will be provided.

 

CITY STRATEGIC PLAN

 

N/A

 

 

TECHNICAL IMPLICATIONS

 

N/A

 

 

FINANCIAL IMPLICATIONS

 

The costs of the Election Compliance Audit Committee’s operations and activities will be funded from the Election Reserve Fund.

 

 

SUPPORTING DOCUMENTATION

 

Document 1:   Request for a Compliance Audit of the Election Campaign Finances of Mr. Peter Clark

 

Document 2:   Extract from the Municipal Elections Act, 1996

 

 

DISPOSITION

 

City Clerk to advise the candidate and the applicant of the Election Compliance Audit Committee’s decision.

 

 

DOCUMENT 1

 

Request for a Compliance Audit to the City of Ottawa Election Compliance Audit Committee, concerning the financial statements submitted by Peter Clark which were incurred during the 2010 Municipal Election

 

There is reason to believe that Peter Clark, Councillor for Rideau- Rockcliffe (Ward 13), won by using a powerful Federal  Liberal electoral tool which was not  accounted for in his  financial statement for the 2010 municipal election.

 

It is my allegation that Peter Clark had access to a top secret electoral tool called the Liberal List.  It is a very sophisticated campaign weapon. It is current, honed and targets constituents that have voted Liberal in the past. Yet there is no mention of it in his financial statement.

 

According to marketing industry reps, to have such a list targeted, updated with automated phone call capacity, could cost between $40,000.00 to $50,000.00.  Peter Clark’s financial statements give no indication of the cost of this tool. 

 

While I was campaigning three days before the election, when most candidates were knocking on doors in the rain, a constituent complained to me that she had received five automated calls from Peter Clark.  Peter Clark had never knocked on her door and she wondered how he had acquired her telephone number.  She played back one of these messages so I could hear it.  This is what I heard, “Hi, my name is Peter Clark.  October 25 is election day. Vote for Peter Clark”.  The recording prompted the listener to push a certain button in order to speak directly to a representative from the Peter Clark campaign.

 

University of Ottawa professor and prominent Liberal party member, Gilles Levasseur,  told me that Peter Clark was given the Liberal list because “he just didn’t have it”.  In other words he needed all the help he could get in order to be elected.

 

Former Councillor Georges Bedard told me that  Peter Clark had access to the Liberal list but added that in his opinion, it was not illegal to use this list.  When I suggested that it was certainly unethical he merely shrugged his shoulders.

 

Under oath, I would swear to the veracity of what I am recounting about these two encounters.

 

 

The all encompassing database of Liberal supporters is provided to every riding in Canada.  It is purchased by the Party and offered to Liberal candidates and sitting Members.  The list contains tested names of Liberal supporters, and more importantly their phone numbers and addresses and can be used to make automated phone calls.

 

This list is confidential and only the sitting MP and the President of the local Liberal Association can access it.  The security is such that the password is changed every 4 weeks. To gain access the user must register his name, new password and the reason the “list” is being viewed. The “list” has been  perfected over the years, to the point where it gives any municipal candidate who has access to it a huge advantage over his (her) opponents. 

 

You might ask why, Mauril Belanger a Liberal MP would support Peter Clark a well known Conservative.  Mauril Belanger worked as Mr. Clark’s Executive Assistant when he was Chairman of the Ottawa-Carleton Regional Government from 1991to 1994.  Peter Clark had been instrumental in getting Mauril Belanger nominated and elected in Ottawa-Vanier.  After Peter’s defeat as Chair in 1997, Mauril had .Peter Clark appointed as Head of the Canadian Standards Association, a lucrative patronage appointment.

 

These lists are not the property of the sitting member or any candidate. It is not the right of a member of a party to share lists with a candidate for another level of government.

 

In the federal riding of Ottawa Vanier, of which the municipal ward of Rideau-Rockcliffe is a part, it’s estimated that there are 15 to 20,000 names and numbers.  In addition the list also contains the names of financial contributors, campaign teams and Party Executive members.

 

An election campaign is essentially identifying your supporters and then getting them out to vote on election day.  For example, to identify 100 committed voters and finding their phone numbers the traditional way is very time consuming and labour intensive and could take weeks of canvassing and research.  In a 4 month campaign you could have up to 1400 identified voters.  With this federal list, little or no effort is required to gather the names and numbers of potential supporters

 

 With this list there is no need to knock on doors because it provides you with all the names and phone numbers and automated telephone equipment required to get the votes out.

 

The official City of Ottawa election results clearly show that the runner-up candidate, Maurice Lamirande won the Advance polls with 41% of the votes. It wasn’t until the dying days of the campaign, when constituents started receiving automated calls from the Peter Clark campaign that Mr. Lamirande’s edge was eroded and Mr. Clark’s numbers took off and he skyrocketed to a solid win on election day.

 

Moreover it would be clearly undemocratic if candidates knock on doors for 4 months only to be soundly defeated in the last few days by the federal representative’s candidate of choice.

 

Should these allegations prove to be true, a winning candidate would be indebted to the federal MP who gave him the list.  A member of a senior level of government could be controlling some councillors votes and influencing council decisions.

 

 Improper sharing of these lists is unethical.  It eliminates the concept of a level playing field and undermines the democratic process.

 

It is clearly stated in the financial statement Auditors report form 4 Box C that a candidate must include the value of the contributions of goods and services received during the campaign.

 

In Peter Clark’s audited statement no goods and services were noted and consequently no monetary value was attached.

 

It should be up to the sitting MP under oath to prove that the “list” was not used inappropriately.

 

I wish to point out that I personally have nothing to gain by bringing forth this allegation.  The election results show that I came in fifth.  My only reason for asking for an audit is is to prevent Mauril Belanger from manipulating the democratic process so that his favoured candidate will win the election. As a 16 year veteran backbencher I don’t believe he has any thing to do with his time other than meddle and control municipal councilors and provincial MPPs from his riding.

 

 

This practice makes municipal elections a farce.  Before the election to save time and money just ask your local MP to whom the “list” is being given to because with this “list” in hand no other candidate has a chance of winning. 

 

Richard Cannings
DOCUMENT 2

 

Excerpt of Municipal Elections Act, 1996

 

Compliance audit

Application

81.  (1)  An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of this Act relating to election campaign finances may apply for a compliance audit of the candidate’s election campaign finances. 2009, c. 33, Sched. 21, s. 8 (44).

Requirements

(2)  An application for a compliance audit shall be made to the clerk of the municipality or the secretary of the local board for which the candidate was nominated for office; and it shall be in writing and shall set out the reasons for the elector’s belief. 2009, c. 33, Sched. 21, s. 8 (44).

Deadline

(3)  The application must be made within 90 days after the latest of,

(a) the filing date under section 78;

(b) the candidate’s supplementary filing date, if any, under section 78;

(c) the filing date for the final financial statement under section 79.1; or

(d) the date on which the candidate’s extension, if any, under subsection 80 (4) expires. 2009, c. 33, Sched. 21, s. 8 (44).

Application to be forwarded to committee

(4)  Within 10 days after receiving the application, the clerk of the municipality or the secretary of the local board, as the case may be, shall forward the application to the compliance audit committee established under section 81.1 and provide a copy of the application to the council or local board. 2009, c. 33, Sched. 21, s. 8 (44).

Decision

(5)  Within 30 days after receiving the application, the committee shall consider the application and decide whether it should be granted or rejected. 2009, c. 33, Sched. 21, s. 8 (44).

Appeal

(6)  The decision of the committee may be appealed to the Ontario Court of Justice within 15 days after the decision is made and the court may make any decision the committee could have made. 2009, c. 33, Sched. 21, s. 8 (44).

Appointment of auditor

(7)  If the committee decides under subsection (5) to grant the application, it shall appoint an auditor to conduct a compliance audit of the candidate’s election campaign finances. 2009, c. 33, Sched. 21, s. 8 (44).

Same

(8)  Only auditors licensed under the Public Accounting Act, 2004 or prescribed persons are eligible to be appointed under subsection (7). 2009, c. 33, Sched. 21, s. 8 (44).

Duty of auditor

(9)  The auditor shall promptly conduct an audit of the candidate’s election campaign finances to determine whether he or she has complied with the provisions of this Act relating to election campaign finances and shall prepare a report outlining any apparent contravention by the candidate. 2009, c. 33, Sched. 21, s. 8 (44).

Who receives report

(10)  The auditor shall submit the report to,

(a) the candidate;

(b) the council or local board, as the case may be;

(c) the clerk with whom the candidate filed his or her nomination;

(d) the secretary of the local board, if applicable; and

(e) the applicant. 2009, c. 33, Sched. 21, s. 8 (44).

Report to be forwarded to committee

(11)  Within 10 days after receiving the report, the clerk of the municipality or the secretary of the local board shall forward the report to the compliance audit committee. 2009, c. 33, Sched. 21, s. 8 (44).

Powers of auditor

(12)  For the purpose of the audit, the auditor,

(a) is entitled to have access, at all reasonable hours, to all relevant books, papers, documents or things of the candidate and of the municipality or local board; and

(b) has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the audit as if it were an inquiry under that Act. 2009, c. 33, Sched. 21, s. 8 (44).

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (b) is repealed and the following substituted:

(b) has the powers set out in section 33 of the Public Inquiries Act, 2009 and section 33 applies to the audit.

See: 2009, c. 33, Sched21, ss. 8 (45), 13 (2).

Costs

(13)  The municipality or local board shall pay the auditor’s costs of performing the audit. 2009, c. 33, Sched. 21, s. 8 (44).

Power of committee

(14)  The committee shall consider the report within 30 days after receiving it and may,

(a) if the report concludes that the candidate appears to have contravened a provision of this Act relating to election campaign finances, commence a legal proceeding against the candidate for the apparent contravention;

(b) if the report concludes that the candidate does not appear to have contravened a provision of this Act relating to election campaign finances, make a finding as to whether there were reasonable grounds for the application. 2009, c. 33, Sched. 21, s. 8 (44).

Recovery of costs

(15)  If the report indicates that there was no apparent contravention and the committee finds that there were no reasonable grounds for the application, the council or local board is entitled to recover the auditor’s costs from the applicant. 2009, c. 33, Sched. 21, s. 8 (44).

Immunity

(16)  No action or other proceeding for damages shall be instituted against an auditor appointed under subsection (7) for any act done in good faith in the execution or intended execution of the audit or for any alleged neglect or default in its execution in good faith. 2009, c. 33, Sched. 21, s. 8 (44).

Saving provision

(17)  This section does not prevent a person from laying a charge or taking any other legal action, at any time, with respect to an alleged contravention of a provision of this Act relating to election campaign finances. 2009, c. 33, Sched. 21, s. 8 (44).

Compliance audit committee

81.1  (1)  A council or local board shall, before October 1 of an election year, establish a committee for the purposes of section 81. 2009, c. 33, Sched. 21, s. 8 (44).

Composition

(2)  The committee shall be composed of not fewer than three and not more than seven members and shall not include,

(a) employees or officers of the municipality or local board;

(b) members of the council or local board; or

(c) any persons who are candidates in the election for which the committee is established. 2009, c. 33, Sched. 21, s. 8 (44).

Term of office

(3)  The term of office of the committee is the same as the term of office of the council or local board that takes office following the next regular election, and the term of office of the members of the committee is the same as the term of the committee to which they have been appointed. 2009, c. 33, Sched. 21, s. 8 (44).

Role of clerk or secretary

(4)  The clerk of the municipality or the secretary of the local board, as the case may be, shall establish administrative practices and procedures for the committee and shall carry out any other duties required under this Act to implement the committee’s decisions. 2009, c. 33, Sched. 21, s. 8 (44).

Costs

(5)  The council or local board, as the case may be, shall pay all costs in relation to the committee’s operation and activities. 2009, c. 33, Sched. 21, s. 8 (44).