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Whig Standard -- April 10 2008

Legal challenge calls for mayor's job; Former councillor Rick Downes alleges Harvey Rosen violated conflict of interest act

By Rob Tripp

A former city councillor has asked a judge to throw Mayor Harvey Rosen out of office because he violated a conflict of interest law.

Rick Downes, who ran unsuccessfully against Rosen in the 2006 municipal election, filed a civil action claiming that Rosen violated the Municipal Conflict of Interest Act.

It is the first time in a decade and a half that a Kingston citizen has taken the unusual step of going to court in a bid to prove that a politician has taken advantage of his public position.

Downes filed the application March 17, and the following day, a bailiff served the mayor with a copy of the documents, according to records on file at the Superior Court of Justice in Kingston.

Rosen has not filed any material with the court. A hearing is scheduled for July 10.

"The matter is before the courts and it would be inappropriate for me to comment on it at this time," Rosen said in an interview yesterday.

He said he has retained a lawyer.

None of the allegations have been proven in court.

Downes claims that Rosen failed to declare a conflict when he took part in debates and votes on issues related to the selection of property on Anglin Bay as a preferred site for construction of a new downtown arena.

The application also claims that Rosen attempted to influence voting by speaking in favour of the Anglin Bay site.

"Mayor Harvey Rosen of the Corporation of the City of Kingston did not declare the interest or general nature of his business relationship with Mr. John P. Wright at any time before February 5, 2008," the application states.

In April 2004, Rosen announced that a task force he hand-picked identified 11.7 acres of land on the Inner Harbour as the ideal site for a new marquee arena.

At a news conference April 16, 2004, Rosen explained that to build there, the city would have to buy 2.2 acres of land from Wright, who owns the Kingston Marina. He also owns K-Rock radio.

Rosen said the city had talked to Wright but no deal was in place.

Wright's radio station rents office space in a building at 863 Princess St. that is owned by Rosen Corporation, according to Downes's court application.

Harvey Rosen is the president and a director of Rosen Corp., according to the application.

"This business relationship establishes a pecuniary interest between Mayor Harvey Rosen and Mr. John P. Wright," Downes claims in an affidavit filed with the court.

The release of the 2004 task force report sparked a furious and sometimes bitter public debate about the plan to build a new rink.

Many citizens condemned the location.

On June 15, 2004, city councillors voted to move forward with the project, based on the task force report, according to city hall minutes. The minutes show that Rosen voted in favour of moving forward. He did not declare a conflict.

The city did not build the arena on the Anglin Bay site, moving it because of the public outcry to city-owned property on Ontario Street. The $46.5-million facility opened in February this year.

On Feb. 5, city councillors debated and voted on a proposal to sell the naming rights for the facility.

Rosen declared a conflict and did not vote because "the corporation of which he is president and a director has business relations with the naming rights proponent," according to the minutes of the meeting.

The building is now called the K-Rock Centre under a 10-year deal in which Wright's station gives the city $3.3 million in cash and services.

Under a Kingston bylaw, the city may pay Rosen's legal costs of defending himself against the court action, provided that the application is dismissed.

He would not say if he'll take advantage of the provision.

Downes also declined to comment, citing the fact that the case is before the court.

After nine consecutive years on council, Downes sought the mayor's job in 2006, running against Rosen, then the incumbent, and councillor Kevin George.

In a mayoral race that attracted nearly 38,000 votes, Rosen beat Downes by a little more than 700 votes.

Downes is the vice-principal of Amherstview Public School.

Rosen told the Whig-Standard in an interview in November 2003, shortly after he was elected to his first term as mayor, that he expected few conflicts between his public role and his job in his family's land-development firm.

"I don't see a great deal of potential for conflict," Rosen said in the 2003 interview. "As a matter of fact, I know when there is a conflict as opposed to ones that are artificially erected to avoid having to take a position on an issue."

Rosen said that he had been an employee of Rosen Corp. for just under three years and had closed his law practice shortly after the 2000 municipal election. At that time, he went "in house" as vice-president and counsel for Rosen Corp., he said.

Rosen said he didn't expect there would be many conflicts that would prevent him from leading debate on important civic issues.

"I don't see it," he said. "If there were a lot of projects that were before council, if it was a matter of policy change or a political decision with respect to some project on an ongoing basis, I would have a great deal of difficulty.

"But that's not going to be the case. It's not in the cards."

Rosen said his job with Rosen Corp. was not very demanding.

"I know how the company operates in terms of our dealings with the municipality and it's pretty run-of-the-mill stuff," he said.

In 1993, three Kingston councillors were found guilty of breaking the Municipal Conflict of Interest Act.

A judge ruled that Don Bristol, Ian MacInnis and Dave Meers should not have taken part in Sunday shopping decisions at City Hall.

MacInnis and Meers lost on appeal. Bristol did not appeal.

The judge imposed no penalty, essentially ruling that the politicians made an honest mistake, but the case was costly and divisive and revealed simmering tensions between some politicians and the business community.

Taxpayers forked over roughly $24,000 for the legal bills of the councillors. The councillors complained that the experience hurt their families and their reputations and they accused downtown merchants of seeking to manipulate council.

The case was launched by businessmen Richard Kizell, Ron Southward and Tom Barrett.

Bristol worked as a commission salesman at Sears. Meers ran a Princess Street tobacco shop and MacInnis operated a Sunday flea market. The court ruled that they had a personal financial stake in Sunday shopping.

At the time, it was prohibited in Ontario, with some exceptions.

The councillors had voted to block the ability of downtown businesses to seek exemptions.

The law

In a court action filed last month, Rick Downes claims Mayor Harvey Rosen violated these two sections of the Municipal Conflict of Interest Act:

"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.

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."