Ottawa 2014 municipal election compliance audits seriously 'lacking' in detail
December 31, 2015
Mr. Ted McMeekin, Minister of Municipal Affairs and Housing
On December 14, 2015 the City of Ottawa Election Compliance Audit Committee (ECAC) received two Compliance Audit Reports on the campaign finances of two candidates from the 2014 Municipal Elections.
The sole purpose of those Audits was to determine if the candidate(s) complied with the provisions of the Municipal Elections Act (MEA) relating to campaign finances, and prepare a report outlining any apparent contraventions.
Those Audits are an integral part of the entire ECAC process and fundamental to ensuring accountability when there are apparent violations by candidates. They are also instrumental in allowing the ECAC to exercise their legislated authority to make an informed decision on whether a prosecution should be pursued against candidate(s) for apparent contraventions.
Under the MEA, the ECAC’s decisions are predicated on thorough and accurate audit reports clearly identifying apparent contraventions. The two audits in question failed to identify numerous apparent violations of the MEA, and glossed over other apparent violations as clerical errors. The biggest question that remains unanswered is why.
The specific apparent contraventions not identified in the audits were well documented (http://tinyurl.com/plk5duj) in a submission to the ECAC through the City Clerk’s office in advance of the December 14 meeting. Despite the concerns surrounding the veracity of the audits, the City maintained its recommendation that the ECAC receive the audit reports.
It appears as though ECAC was unable to exercise its authority, pursuant to statutory power conferred on it by legislation, as the Audit did not identify multiple apparent violations. The ECAC was left to make decisions predicated on the contents of those Compliance Audits which were kindly described as lacking. The ECAC subsequently decided to pursue a prosecution against one candidate, and not pursue a prosecution against the other.
The role of the City Clerk's office in relation to a compliance audit under the MEA is to implement the committee's decision to grant a compliance audit. Essentially, it’s an administrative role.
Considering the two candidates in question are now members of City Council, an increased level of scrutiny of City Clerk’s role in the process of the Audits is absolutely necessary to maintain faith in the integrity of the process.
Based on events leading up to the release of the Audit reports, there’s a perception the City Clerk’s office may have become a participant in the Audit process itself. In doing so, they may have sacrificed Procedural Fairness and exceeded their authority under the MEA.
Prior to the Audits, at least one committee member was concerned that the Audit had ‘a narrow scope as opposed to provisions provided in the Municipal Elections Act. Ms. Donnelly replied that the preliminary meetings with the Committee approved auditor will help them fully understand both the Municipal Elections Act and the powers provided under the Public Inquiries Act.’
The City Clerk’s office is not the author of the MEA, and is not in a position to help the auditors ‘fully understand’ the MEA. In doing so, the City may have passed on any misinterpretations, or unintentional bias they may have in interpreting the MEA to the Auditors.
The Author and center of expertise on the MEA is the Ministry of Municipal Affairs. If the City Clerk’s office made the decision to contract auditors who didn’t ‘fully understand’ the MEA, they clearly should have referred the Auditors to the Ministry of Municipal Affairs for guidance on the Municipal Elections Act to maintain the independence and impartiality of the audits.
Following the December 14 meeting, the person who chaired the ECAC contacted the City Clerk’s office to raise serious concerns with the quality of the Audits. He asked some very pointed questions: ‘Why are the grounds for the apparent contraventions limited to those in the auditor's report? What of the one(s) the committee raised? The auditor's work here was lacking... Is the committee legally limited to raise only areas raised by the auditor? ‘
He went so far as to suggest that ‘the auditor should also be advised that not only did he fail to perform a thorough audit of the Taylor file, he overstepped it by characterizing the apparent contraventions as "clerical errors".’.
For the sake of openness, transparency, and procedural fairness, I asked to see a copy of the Draft Audit report that the City Clerk’s office received.
The City Clerk’s office refused, despite the MEA’s clear direction that ‘documents and materials filed with or prepared by the clerk or any other election official under this Act are public records and, until their destruction, may be inspected by any person at the clerk’s office’.
The City Clerk’s office will now have to consider a prosecutors advice (a prosecutor of their choosing), to determine if charges should be laid against a candidates who now sits on City Council.
To maintain procedural fairness, and avoidance of bias, their participation at this point is being called into question, as the City Clerk’s office may have already crossed the line from administrator to participant in the process.
The City Clerk’s participation in the audit process appears to run contrary to administrative law principles of independence. They provided guidance on the Act to the Auditors, and were given the opportunity to participate in the audit process by providing input into the draft audits (a process outside the provisions prescribed in the Act).
Consequently, there is a perception that the role of the ECAC committee in the discharge of their duty pursuant to the MEA may have been compromised. They were in the untenable position of making their decisions based on an audit that was prepared with what has been described as limited in scope, and lacking.
To maintain the integrity of our Municipal Electoral system, it’s incumbent upon you to ensure both the City Clerk and Auditors have fulfilled their legislated duties as prescribed under the Municipal Elections Act.
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I think it was simply a calculated risk that didn't go well, combined with political hubris. It's been over a decade since any candidate has had charges brought against them under the Municipal Elections Act. Considering the penalty of being removed from office if found guilty of the violations, I am astounded that some candidates continue to treat their financial reporting requirements as bureaucratic fodder.