Conflict of interest findings can't stop former councillor from running in municipal election
Caroline Barghout | CBC News | Posted: August 29, 2018 10:00 AM | Last Updated: August 29, 2018
Ombudsman found Dan Garcea in conflict of interest on more than 20 West St. Paul council items
Former West St. Paul councillor Dan Garcea is considering running in the next municipal election, despite being found to be in a conflict of interest more than 20 times when he was on council.
There are no rules in Manitoba preventing those found to be in a conflict from running again. Experts say the act governing conflict of interest at the municipal level doesn't go far enough.
"Certain provinces have stronger legislation and more options to deal with matters," said Calgary-based lawyer Orvel Currie, who specializes in municipal law and practises in Ontario, Manitoba, Saskatchewan, Alberta and B.C.
"In Ontario, you wouldn't be allowed to rerun. They would give an order that you can't run for the next term. And the court can do that. That's also true in Alberta but not in Manitoba and Saskatchewan."
Garcea, who sat on the RM council for West St. Paul, just north of Winnipeg, for 12 years, left his seat in 2014 in an unsuccessful bid to run for mayor.
A year later, a Manitoba ombudsman's investigation revealed Garcea had been in "an apparent conflict of interest" on more than 20 occasions during the 2010-2014 council term.
Garcea has lived in West St. Paul for 28 years and said he's worked hard for his community. He is listed as a registered candidate in this fall's election but told CBC he hasn't fully decided if he will run again.
"I've had community behind me in really asking that I stay involved and help wherever I can, so that's really what it's about — helping your community," said Garcea.
Watch a 2014 report on the controversy surrounding the West St. Paul fire hall:
The conflict of interest investigation was launched in December 2013 after the ombudsman received six anonymous complaints about Garcea's role in awarding contracts to companies belonging to, or affiliated with, his brother John Garcea.
John Garcea owns the Garcea Group of Companies, S&J Construction and a number of other construction-related companies — some of which were awarded part of the $3-million dollar contract to build West St Paul's fire hall.
According to the ombudsman's final report, which was released Nov. 26, 2015, the complainants were concerned not only that Garcea, who was also employed by S&J, was involved in awarding the fire hall contract, but also that the councillor and his brother both sat on the RM committee responsible for managing the multimillion-dollar construction project.
"As the MCCIA [Municipal Council Conflict of Interest Act] states, a municipal officeholder must declare a direct or indirect conflict of interest whenever and wherever it occurs and immediately withdraw from the discussion. The councillor in question failed in this responsibility numerous times," said the 2015 ombudsman's report.
Involved in discussion on nephew's proposed subdivision
That report found that while the fire hall project accounted for the majority of cases where Garcea should have declared a potential conflict and recused himself, it was not the only issue.
For example, the ombudsman said Garcea also participated in discussions involving his nephew's proposed subdivision application. While it might not have benefited him financially, he should not have been part of those conversations, the ombudsman said.
"When a council member is believed to be too close to an issue — in this case because the matter before council related to a nephew — the council member should recuse himself from discussing and voting on the matter," said the report.
Garcea was a councillor from 2002 to 2014. The ombudsman examined the last four years of his term and found Garcea declared a direct or indirect conflict of interest and withdrew from votes or discussions eight times.
It also found more than 20 agenda items where he participated in discussions or votes he shouldn't have.
CBC News looked at West St. Paul meeting minutes from 2004 to 2010 and found an additional 14 times where Garcea recused himself and eight times where he participated in discussions or votes involving his brother's companies or properties. There are no minutes posted prior to 2004.
"There are definitely times when I would declare direct or indirect conflict," Garcea said in a phone interview with CBC News.
"If there's a pecuniary interest for myself then for sure I declare. But when it's another company altogether and I have nothing to do with it then I may not."
Garcea said that unless he was benefiting financially he didn't see an issue as a conflict, even if it involved properties or companies owned by his family members.
No reprimand
Garcea faced no reprimand as a result of the ombudsman's findings.
Manitoba's current acting ombudsman, Marc Cormier — who was appointed to the role July 31 — said there were no offences under the Municipal Council Conflict of Interest Act and therefore charges can't be laid under the act.
"If we were to find that a council member, in our view, contravened the MCCIA, we might choose to make recommendations to the municipality to promote better governance and improve municipal administration," said Cormier.
And that's what the ombudsman did in 2015, making four recommendations to the RM, including calling for better training for councillors and staff on conflict of interest legislation, RM policies and the principles of procedural fairness.
"I'd like to see more teeth in the ombudsman's office on these issues of conflict," said Orvel Currie, adding the ombudsman should have recommended the RM take the case to court.
"If they were finding that he was in this many conflicts, that recommendation could have been made."
There's a lot more that's still going on that could be done different and better. - Dan Garcea
Under the Municipal Council Conflict of Interest Act, there are only two possible penalties for a breach of the act and both have to be ordered by a judge. That means the case would have to be brought to the courts either by a constituent or on the recommendation of the RM, neither of which happened in Garcea's case.
If a judge finds a councillor violated the act, the councillor can be removed from office or ordered to pay restitution if it's found they benefited financially. But there's nothing in the act that would prevent them from running for office again.
A January 2016 report by the Manitoba Law Reform Commission examined the MCCIA and made a number of recommendations to strengthen it, including establishing a municipal conflict of interest commissioner who would have the ability to enforce it.
The commissioner would also assist councillors with questions about the act and have the authority to investigate complaints.
In February 2018, West St. Paul released a new code of conduct to address some of the issues raised by the ombudsman.
The RM also followed in Winnipeg's footsteps and appointed an integrity commissioner to assist council with any questions related to conflicts of interest.
'There was lessons learned': Garcea
As for the 2015 ombudsman's report, Garcea said "there was lessons learned."
He said in some cases he didn't realize he was in a conflict and would have appreciated the opportunity to do better.
"If there's some assistance from both sides when there's something that's even remotely known, just bring it to my attention," said Garcea.
"There's so many things that could be done better," he said.
"A lot of these votes are unanimous votes. It's not like I'm the deciding vote in many cases. I don't need to be there for every vote. I mean, I have no problem stating if there is a direct or indirect [issue. There's] nothing I've ever wanted to hide."
Garcea said there are still problems in the RM, and that the ombudsman is currently investigating at least a dozen complaints, which the ombudsman's office wouldn't confirm or deny.
"There's a lot more that's still going on that could be done different and better," said Garcea.
West St. Paul's municipal election is on Oct. 24, 2018. The deadline for candidates to register is Sept. 18.