December 6, 2007
Bernard G. Nayman
1110 Finch Avenue West
Dear Mr. Nayman:
A Compliance Audit was recently conducted by yourself in the Municipality of Chatham-Kent. While I strongly disagree with your findings on the grounds that interpretation of the relevant rules and legislation was inconsistent, erroneous, and not accordant to the intent of the Act, I have made a point of accepting them. It certainly was a convenient verdict. However, there are some issues surrounding the matter with which I am unclear.
Would you be so kind as to answer some questions that I have?
A Compliance Audit is a commission under Part II of the Public Inquiries Act:
Was I considered to be a witness when I appeared before the inquiry?
Did Randy Hope, Mary Lee, or any other party to the inquiry give testimony under oath?
As candidates under investigation, were Randy Hope and Mary Lee also considered to be witnesses under R.S.O. 1990, c. P.41, s. 9 (1)?
Were any attempts made to politically influence the findings?
Further, please consider the following fictional scenario based on your conclusion that Mary Lee's advertised endorsement of Randy Hope constituted third-party spending that was not subject to any campaign contribution limits on the basis of Hope denying knowledge of Lee's endorsement. Any parallel to the recent situation in Chatham-Kent is purely coincidental. I would be most interested in hearing your opinion:
John Doe decides to run for mayor in 2010. John's long-time friend Blake is a developer who is disliked by the present mayor, and his proposals are always opposed. He wants John to win, and will do whatever it takes, but John reminds him that the law states he can only accept a maximum contribution of $750. This rule exists to make campaign contributions more transparent, and avoid pressure on a successful candidate to provide political favours in return.
Since Blake remembers a 2007 public inquiry in Chatham that affirmed the existence of an important democratic right to get involved in the political process, he calls a press conference, attended by John Doe, to announce his high-profile endorsement. Blake then takes it upon himself to purchase advertising that promotes his friend's campaign. He has some difficulty with the media because they are unsure whether it is ethical for somebody else to promote a candidate without his permission, but Blake is a big advertiser with his business ventures, so his cheques totalling $50,000 alleviate any concerns.
When John Doe sees television ads and full-page colour spreads in the newspaper, he is secretly pleased even though the information is not entirely factual. He even discovers that there are extra campaign signs when he picks up his order, and he notices signs around town that his campaign didn't erect. He knows that such spending is allowed as long as he pretends to know nothing.
During the campaign, this advertising becomes more embellished, but if he lets on that he knows about it, he might have to claim all of it as a campaign expense. He pretends not to notice, but starts wishing he could have some control over his campaign.
Already, the situation appears problematic. Here are some possible outcomes:
John Doe defeats the incumbent mayor, and Blake begins expecting all kinds of political favours. He figures that Doe owes him big-time for his campaign help, and begins to exert his influence, because Doe could not have won on his own. Mayor Doe finds himself consulting with Blake over everything to appease him.
Blake's advertising goes overboard, and John Doe asks a mutual friend to suggest changes to Blake's promotion. The official campaign message gets incorporated into Blake's ads, and Doe has plausible deniability based on your precedent if his spending is ever questioned.
John Doe becomes mayor, but isn't able to push Blake's proposed development past Council. Blake becomes angry and files an Application for a Compliance Audit alleging Doe didn't claim his spending and accepted contributions that exceeded the limit. Doe denies knowing that Blake was endorsing him, even though it is well known that the two were friends, and Blake's support even received media coverage. A Compliance Audit is ill-suited to examine this kind of paper trail and turns up nothing amiss. It boils down to who's word to believe.
If the Auditor rules against the mayor, he'll forfeit office and have to pay $49,250 plus costs to the Clerk, which will disrupt municipal governance and possibly bankrupt him. However, a ruling against the applicant would conveniently dismiss the matter.
What is your opinion with regards to each individual outcome or combinations thereof? How is your decision consistent with the intent of applicable legislation? Does it look like there could be unintended consequences resulting from your findings in Chatham? If (C) were litigated, how might a Judge rule? I look forward to your prompt response on this interesting matter.