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Whig Standard -- July 11 2008

Judge reserves conflict decision

Complaint against mayor could be ordered to trial


A judge is considering whether mayor Harvey Rosen is guilty of violating municipal conflict of interest law.

"I'm going to reserve my decision," Mr. Justice Stanley Kershman, of the Superior Court of Justice, said yesterday, following a two-hour hearing sparked by a complaint by former city councillor Rick Downes.

Downes filed the civil action in March, accusing Rosen of breaching conflict law in 2004 when city politicians were debating and voting on plans to build what became a $46.5-million marquee arena.

Kershman did not say when he'll release his decision.

Rosen has denied the accusation, and yesterday his lawyer, Wilfrid Menninga, attacked the complaint.

He said Downes contends that businessman John P. Wright stood to pocket a "bucket of money" from the sale of a property on Wellington Street to the city, where councillors first considered building a new arena.

Wright would use that money to pay a lease for office space for K-Rock radio in a building owned by Rosen Corp., the family business of which Rosen is president, Menninga said, explaining Downes's argument to the judge.

"It's just so tenuous, so strung out, that any reasonable person would not accept that there's any conflict of interest," Menninga argued.

Downes says Rosen should have declared a conflict of interest in 2004 when he voted in favour of building the rink on the Wellington Street site.

Because of public outcry, the rink was built at another downtown location.

If the rink had been built on the Wellington Street site, the city would have had to purchase the Kingston Marina property, a 2.2-acre site that Downes claims is owned by Wright, through a numbered company.

"Can it reasonably be said that [Rosen] is sitting there licking his chops, thinking that, 'If this goes down, I'm certainly going to be much better off financially,' " Menninga said. "How does that work?

"He doesn't benefit directly or indirectly ... from the sale of the Kingston Marina."

Menninga noted that Rosen and Rosen Corp. have no financial stake in the Kingston Marina or in the city's new arena.

"There isn't any tittle of evidence that there's a conflict of interest here," the lawyer argued.

Yesterday's courtroom confrontation was a lopsided battle, with Menninga, a local lawyer with 34 years of experience, facing Downes, who represented himself.

The imbalance was quickly evident.

Downes made submissions first and about five minutes into his presentation, as he tried to discuss aWhig-Standard story from April 2004, Menninga rose to object.

He noted that Downes had produced a 155-page application record that was full of documents, including City Hall meeting minutes, newspaper stories and searches of government databases.

"None of that was properly placed into evidence," Menninga said.

The judge told Downes he can't simply file a pile of documents.

"That's not the way this court process works," Kershman said.

Downes was left to review the information contained in affidavits that he and Rosen filed in advance of the hearing.

Downes noted that Rosen declared a possible pecuniary interest in February 2008 when city councillors were voting on a naming rights deal for the new arena with K-Rock.

Rosen declared the conflict because of the lease between the radio station and Rosen Corp.

"This business relationship was exactly the same on April 20, 2004," Downes said, referring to a vote at city council to proceed with a plan to build the arena on the Wellington Street site.

Menninga noted that Downes was not on council when the February 2008 vote was taken, so his affidavit referred improperly to events for which he did not have personal knowledge.

The lawyer said Downes presented no real evidence that John P. Wright has a financial interest in K-Rock or a financial interest in the Kingston Marina.

"Even if we cure the evidentiary and procedural difficulties in the application ...we still don't get anywhere close to establishing a conflict of interest in 2004," Menninga told the judge.

Downes acknowledged his naivete. "I've never done this before and I'm

very grateful for your patience as I go through this process," Downes told the judge.

Rosen declined to comment after the hearing.

"I have nothing to say," he said. "The court has heard all of the evidence."

In an interview outside the hearing, Downes said he was "very satisfied" to get his day in court.

"We need to have more transparency in our municipal government and that's what this case is all about for me," he said.

Rather than make a finding on Downes's allegations, the judge could order a trial.

Downes said he'll hire a lawyer if that happens.

"If he orders a full trial, then I really need to have counsel because I want to make sure that all the evidence that is brought to trial is brought in such a way that it is accepted by the judge," he said.

He said he did not believe it was a mistake to argue the case himself.

"I think that every citizen in the City of Kingston should have the opportunity, when they see elected officials behave in ways that make them feel uncomfortable, that they should be able to bring a petition to the court," he said.

Downes was narrowly beaten by Rosen for the mayor's job in the 2006 municipal election.

Menninga filed material with the court yesterday indicating that Rosen will ask Downes to pay legal fees of roughly $9,700 if the mayor wins the case.