Councillor appears to take a pass on Conflict of Interest Advice from Integrity Commissioner

By Pepper Parr

March 1st, 2023

BURLINGTON, ON

 

Council met is as a Standing Committee on Tuesday – it was a long day with a complex agenda.

Heritage and the designation of properties took up a lot of time which we will report on else in the Gazette.

At the beginning of each meeting the Chair asks if there are any Conflicts of Interest that Councillors may have. The practice is for Council members to declare that they have an interest and to recuse themselves from the portion of the meeting at which the item is to be discussed.

The Tuesday session has morning, afternoon and evening meetings.

During the evening session a development application for a two tower project – 32 and 30 storeys, was discussed.

The proposal is to facilitate the redevelopment of the subject lands with two high-rise mixed-use buildings with heights of 30 storeys to the south and 32 storeys to the north, connected by a shared podium with a height of 6 storeys fronting Cooke Boulevard and Masonry Court and 3 storeys to the rear. Overall, the development includes a total of 809 residential units and 2 retail units. A total gross floor area of 49,743 square metres is proposed with a FAR of 9.51. The gross floor area of the ground floor retail is 581 square metres. A total of 641 parking spaces are proposed within two levels of underground parking as well as ground floor parking, of which 118 are visitor spaces and 523 are residential spaces.

The concern heard from the two delegations was about the lack of parking space.

The orange structures are the Camerro Group buildings, the three towers to the left are part of the ADI development that have yet to be built. The space to the left of the ADI buildings is park space

No one declared a Conflict and it wasn’t until the evening session that it became evident to this reporter that ward 1 Councillor Kelvin Galbraith appeared to have a conflict.

The practice is for the member of Council to make the declaration.

The Gazette asked Councillor Galbraith for some comment on how he handled himself during the Tuesday evening meeting.

He said: “My advice from the Integrity Commissioner was to declare a conflict when the final MTSA policy work and implementing land use policies are completed by city staff and being recommended to council for approval.

“As for individual applications I was advised to use a general rule of thumb of 120 meters from my properties to trigger a conflict of interest.  Last night, the application was 550 meters from my property.”

In a follow up question we asked Galbraith:

“When did you get the advice you refer to in the comment you sent me this morning ?  To be more specific – have you met with the Integrity Commissioner since your meeting in March 2022 on the Aldershot MTSA developments ?”

Galbraith responded: “I had met with the Integrity commissioner a few times as I had declared conflicts on 2 MTSA developments as per his advice dating back to 2019.  I have not met with him on any MTSA developments specifically since the Advice memorandum provided in March 2022.”

In March of 2022 Galbraith met with the Integrity Commissioner, explained his property interests and was given clear and explicit instructions is as to the procedure he should follow.
Tuesday evening, while Council was discussing a development application that would result, if approved, in the construction of two towers; at at 30 storeys and the other at 30 storeys. Both were on Cooke Blvd where it meets Masonry Road.

The proposal is to facilitate the redevelopment of the subject lands with two high-rise mixed-use buildings with heights of 30 storeys to the south and 32 storeys to the north, connected by a shared podium with a height of 6 storeys fronting Cooke Boulevard and Masonry Court and 3 storeys to the rear. Overall, the development includes a total of 809 residential units and 2 retail units. A total gross floor area of 49,743 square metres is proposed with a FAR of 9.51. The gross floor area of the ground floor retail is 581 square metres. A total of 641 parking spaces are proposed within two levels of underground parking as well as ground floor parking, of which 118 are visitor spaces and 523 are residential spaces.

In March of 2022 the Integrity Commissioner advised Galbraith:

This is in response to our conversation and your inquiry of February 24, 2022 regarding whether you might have a conflict of interest if you participate in consideration of planning changes affecting properties you own within the area known as the Major Transportation Study Area (MTSA) for the Aldershot GO, in Burlington.

You have advised that you own two properties along Waterdown, 1016 and 1018 Waterdown Road and one property located at 15 Plains Road West from which you operate your business, The Fitness Firm.

These three properties effectively book-end, abutting at the rear, the property which sits directly at the corner of Waterdown and Plains Roads.

You have advised that the two Waterdown Road properties were formerly residential dwellings, which were removed a number of years ago, and that your future plans include integrating them into a larger development through land assembly.

The relationship of your properties relative to the MTSA Aldershot Hub area as presently delineated is depicted on the following map view:

The yellow line indicates the location of the Galbraith properties

The Integrity Commissioner provided a map to help explain specifically where the Conflicts are.

As a Member of the Council you are subject to subsections 5(1) and 5(2) of the Municipal Conflict of Interest Act (“MCIA”) Those sections require that you not take part in discussions or voting on a matter, or attempt in any way before, during or after a meeting, to influence the voting on a question related to the matter when you have a direct or indirect interest in the matter. Those sections also require you to disclose the general nature of the interest, and where the matter under consideration takes place in a forum not open to the public, to not be present.

Where a member … has any pecuniary interest … in any matter and is present at a meeting of the council … at which the matter is the subject of consideration, the member, shall, prior to any consideration of the matter at the meeting, disclose the interest and the general nature thereof; shall not take part in the discussion of, or vote on any question in respect of the matter; and shall not attempt in any way whether before, during or after the meeting to influence the voting on any such question.

A matter which has likely financial impact (positive or negative) on your own property constitutes a pecuniary interest to you.

Your properties all fall clearly within the area being contemplated as the study area, and which will be subject to policy amendments to support and guide future development under the relevant official planning document.

Accordingly, we conclude that, now that the plans include reference to proposed designations affecting your properties, you are required to recuse yourself from the discussion and voting on consideration of the Aldershot GO MTSA. This includes refraining from participating and attempting to influence the outcome during the open house and other occasions at which the public, staff and Members of Council are contemplating proposed policies affecting the Aldershot GO MTSA.

Any time consideration of the matter is before Council or any of its committees, your specific declaration might go something like this:

As the owner of several properties within the study area which will be affected by the proposed land use designations being contemplated, I have a pecuniary interest and will be recusing myself from participating in or voting on this matter.

Ward 1 Councillor Kelvin Galbraith discussing the development during a Statutory meeting on Tuesday February 28th, 2023

The Camerro development in orange; the last part of the ADI development on the other side of Masonry Court.

At no time during the evening meeting at which the matter was discussed did Galbraith declare a conflict. He spoke directly about the development on at least two occasions and was the Council member who moved the motion.

Related news stories:

Integrity Commissioner advises Councillor Galbraith

Galbraith statement on his conflicts

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8 comments to Councillor appears to take a pass on Conflict of Interest Advice from Integrity Commissioner

  • Caren Burcher

    The City Council is talking more bike lanes again! I agree with the comments above. Give it up. Not everyone rides a bike or wants to ride a bike or can physically ride a bike! We don’t live in Europe with small towns and narrow village streets. The vast majority of residents and visitors don’t ride bikes. Most residents commute to adjacent cities to work via Go Train and car power. The Bike lanes we already have are completely under utilized. You are lucky if you happen to pass even one cyclist on your way to and from work each day. Just because you build them, doesn’t mean they will come!!

    • Eric Hoffer

      Totally agree Caren! Now wait for compulsory, lengthy Bike Lobby apologia. They are “True” but not necessarily realistic “Believers”.

  • Penny Hersh

    The other issue regarding the last 2 days of meetings was the fact that one of the councillors was unable to attend. This resulted in 3-3 ties that meant some motions did not pass.

    A seven (7) member council is obviously too small. Residents need to push for a change in the size of our council.

    This is not something that the councillors will advocate for. An increase in the size of the council would result in smaller salaries, and is definitely not in their best interests.

    • Blair Smith

      Penny – you raise an excellent point. In fact, Burlington has amongst the (if not “the”) least number of Councillors per capita of any Tier One or Independent Municipality in Ontario. The need to reform Council – increasing size and rationalizing function to ensure more effective representation – should become an issue for the 2026 election. Although it is early days and both the groundwork and business case need to be developed, there is the distinct possibility that a referendum will be put before Burlington citizens within the next 3 years. The following dataset from the AMO is quite illuminating.

      https://www.amo.on.ca/size-municipal-council-and-population

  • Penny Hersh

    Here we go again…..I also have to question Councillor Nissan’s response to a delegator’s question concerning the number of parking spaces allocated in the development.

    At no time did the delegator indicate that she was against the height of the buildings but indicated that presently in the area there are problems with the number of parking spaces with an existing 11 storey ( I think) building. Presently this results in overnight on the street parking that is only good for 15 days and creates major issues. She simply asked council to look into the problems that would definitely acerbate with only 641 parking spaces and 809 residential units.

    Councillor Nissan’s response was that the lack of parking spaces was in fact a good thing because residents would then have to cycle, walk or take public transit.

    We live in a city where there are many seniors. We deal with cold weather for at least 4 months of the year ( and the snow plows push the snow to the curb where the bicycle lanes are). Our public transit system is limited at best. Where is the common sense?

    Does Councillor Nissan cycle or walk to the grocery store in the winter, or during any other time during the year, or take public transit? Does his wife? Do they strap their child onto their cycle for a family grocery trip? Do the groceries hang from the handlebars?

    It is so easy to tell others what to do when you are able to sit at home and access your job on zoom.

    • Lynn Crosby

      Bingo! We also have extremely hot humid summers and increasing storms. We can’t and won’t ride bikes, walk everywhere, etc, lugging things home on our backs. Most residents don’t work from their house on zoom as you so aptly put it. The arrogance of saying residents “will have to” do something, as if everyone just can. He really should get out more. See how people of all ages and situations live. He has no idea.

    • Jim Thomson

      Penny,
      There is no common sense.
      The report on Bateman for tomorrow’s committee is still talking about having segregated bike lanes on New Street sometime in the future. Cause that worked so well a couple of years ago.

  • Lynn Crosby

    Wow if I had a business 550 metres or several miles from such a huge development, I’d be happy about it and all the new business I’d get too. Of course I’m not a councillor participating in discussions about it let alone voting on it. Oh, and wow, 2 whole rental units!! Way to make a dent in the affordable housing problem

    I question the 120 metre rule anyway. I note that’s the rule for distance required to tell people who own property within that measurement about variances. At this point, after all we’ve seen, I have very little faith in the city integrity commissioner whom the city pays. Regardless of any of it, anyone who thinks this is ethical isn’t someone I want on my council.

    Perhaps we citizens need to file some complaints.