Niagara-on-the-Lake Lord Mayor Gary Zalepa should not have taken part in a discussion on the Rand Estate’s future two months ago, according to the town’s integrity commissioner.
But while a town protocol requires sustained complaints to be reported to council, the commissioner says this one was not sustained — so the finding won’t go before council.
The conflict-of-interest decision stems from a complaint filed by resident Kathryn Podrebarac on July 8 over Zalepa’s participation in a conversation about development plans for the historic Rand Estate during June 2’s committee of the whole planning meeting.
“I filed this complaint only after the lord mayor declined my written request that he declare a conflict and step aside,” Podrebarac said.
Jeffrey Abrams and Janice Atwood-Petkovski of Principles Integrity, the town’s integrity commissioner, found Zalepa should have declared a pecuniary interest at that meeting because of his proximity to the development.
The lord mayor’s property is about 65 metres from the lands covered by the development application — within the 120-metre area used to notify nearby property owners, which Abrams and Atwood-Petkovski said created a presumption of pecuniary interest.
They nevertheless concluded in their Aug. 10 disposition that his participation was an “error in judgment made in good faith” and closed the file.
If the Rand Estate applications return to council or committee, Abrams said he should seek advice on whether he may participate, but that they would expect him to declare a conflict of interest and recuse himself from the conversation.
If that doesn’t happen, a complaint can be filed with Principles Integrity or its successor, or an application made to a judge under the Municipal Conflict of Interest Act.
Zalepa, meanwhile, said he co-operated with the investigation and sought professional advice.
“While others may continue to debate the disposition or advance their own interpretations of the applicable rules and legislation, I do not intend to litigate those issues through the media or social media,” Zalepa said in an emailed statement to The Lake Report.
“I remain committed to transparency, accountability and adherence to the guidance provided by the appropriate authorities.”
The Lake Report called Zalepa several times and contacted him by text with specific questions, including his previous conflict declarations, the advice he received from past integrity commissioners and whether he will recuse himself from future Rand Estate matters. He declined to answer those questions, referring The Lake Report to his statement.
Podrebarac, a lawyer who lives near the Rand Estate, provided The Lake Report with copies of her correspondence with Abrams and Atwood-Petkovski, including their Aug. 10 disposition and Aug. 18 response.
The commissioner defended the decision not to send the ruling to council, saying the town’s rules have to be read alongside the laws and other rules governing the integrity commissioner’s work.
The town’s complaint protocol says if a complaint is sustained in whole or in part, the commissioner “shall” report the findings to council.
Abrams, however, says that rule does not apply here because the complaint was not sustained.
He told The Lake Report Wednesday that Zalepa’s participation was an error in judgment made in good faith, an exception he said is defined under the Municipal Conflict of Interest Act.
This meant the complaint was not sustained and no report to council was required, or in the public interest, he said.
The town’s protocol says the commissioner can recommend no penalty when a contravention resulted from a good-faith error. Podrebarac argues that is what should have happened here.
“He was entitled to recommend to council what should happen, a penalty, or none. He wasn’t entitled to make that decision himself and close the file,” she said.
“That decision belongs to council, and council never got the chance to make it.”
But Abrams said that rule only applies after the commissioner decides to send a report to council.
“It is not a case of ‘disregarding’ provisions,” Abrams said. “It is a question of providing reasonable interpretation to the policy.”
He said integrity commissioners sometimes have to make sense of gaps or conflicting rules by considering the law, town policies, best practices and the facts of each case.
Abrams said Principles Integrity did that here with the goal of serving the public interest and avoiding the “politicization” of whether a breach serious enough to warrant a report occurred.
If there are concerns about how the commissioner handled the case, Abrams said they should be taken to the Ontario Ombudsman.
For Podrebarac, the case raises a broader concern about decisions that never reach council chambers.
“When an integrity commissioner makes a finding like this, it’s supposed to go to council so council can deal with it,” she said.
“If that doesn’t happen, and a resident isn’t able to catch it, the finding just disappears, as if it was never made.”
The Lake Report also asked the town how many complaints it has received regarding Zalepa’s participation in Rand Estate matters and other questions about the case. The town did not answer the questions, saying they were “best answered directly” by the integrity commissioner.
