Conflict of Interest - April 1, 2019

To:  Mayor and Councillors, Oak Bay Council and Mr. B. Anderson, Planning Department; Chief Administrative Officer; Director of Corporate Services

Re:  Advisory Planning Commission membership and Conflict of Interest Z0N00034/DP000022

On 14 August 2018 the attached letter was sent to Mayor and Council.  The topic was perceived conflict of interest when Virginia Holden, a member of the Advisory Planning Commission, gave a ‘workshop’ on affordable housing to the Commission at its July 3 2018 meeting. She gave this workshop in her role as Director of Housing Policy in the Housing Policy Branch of the B.C. Ministry of Municipal Affairs and Housing.
Incidentally, the minutes of this meeting were not posted on Oak Bay’s Municipal website until  Friday  29 March 2019 after we alerted Municipal Hall that the minutes had never been posted, although they were adopted at a meeting on February 5 2019.

In response to our letter of 14 August 2018, we received replies from then-councillors Murdoch and Green who acknowledged that this was something to be watched, which we have done.  (Copies of their replies have been included at the end of this email.) 

For the past year and more, we have been submitting Freedom of Information requests to BC Housing concerning the proposed Oak Bay United Church development. The following disclosure is from our Freedom of Information request 292-30-13218.

It appears that Ms. Holden and BC Housing are collaborating on the OBUC development project. Based on the correspondence included in the FOI, it appears she has had private meetings and discussions with BC Housing on this topic. 

On 4 November 2018 she wrote to Malcolm McNaughton and Armin Amrolia of BC Housing – “Thanks for taking the time to meet with me on Friday. It was great to see you both and appreciate your willingness and flexibility for me to work with your team. Overall, I am interested to start something with BC Housing in the new year in some shape or form.  In terms of Oak Bay United, (redacted) I just want to understand what the possibilities are….I walked through the neighbourhood around the OB church yesterday to get a better sense of the neighbours` concerns more clearly.”

On 8 November 2018, she wrote “I met with the Chair of the Oak Bay planning commission as well as the other members on Tuesday (redacted) I would just need to step out of deliberations any time that the project is discussed or reviewed. This is common practice whenever there is a perceived conflict of interest to the project under discussion. Given this decision, I would be interested working with BC Housing”.
(We should point out that all of the grammatical errors are hers – we have merely copied her correspondence.)
Our FOI ran from October 5 to November 8, 2018, so unfortunately we do not have any further information to convey, although we are waiting momentarily for the next one. However, we firmly believe there is enough in what we have received to date to be very concerned.

We understand that Ms. Holden was taking a leave of absence from the Ministry of Municipal Affairs and Housing so she could look after her children – she stated this at the July 3 2018 meeting of the APC. We don`t know what has transpired since in terms of her employment, but t certainly appears that she has been seeking a contract with BC Housing since then.

We entirely appreciate that it is common practice when confronted with a perceived or real conflict of interest to recuse oneself from any discussions or deliberations that concern an issue at hand – and, to her credit, Ms. Holden does seem to recognize this. However, when someone declares a conflict they are obliged NOT to discuss anything about a proposed project with those who are involved in providing advice or making a recommendation on a proposal. We have no way of knowing what information or views she has shared with other members of the APC about the OBUC project, although we know she met with them to discuss her situation. This is unusual – it should not have required a meeting, she should have immediately recognized she had a conflict – and that SHOULD HAVE BEEN THE END OF ANY DISCUSSION with any members of the APC.  Of course, unless she understands this (and why should we think she does understand this) her continued presence as a member of the APC provides her with ample opportunities for side-bar chats with other members. To say the least, this whole situation is very worrisome.

It is entirely inadequate that she only proposes to recuse herself from public discussions on the OBUC project when she has already spoken to the members privately and appears to be acting as a paid agent of BC Housing and the developer. This is something that needs to be investigated as quickly as possible.
During the recent municipal election, you, as our mayor and council, promised more transparency. We feel you should be aware of this significant information and urge you to take immediate appropriate action so that this submission is judged fairly and independently by the commission and by council. 

Concerned Citizens Network Oak Bay https://ccn-oakbay.com

On behalf of Concerned Citizens Network of Oak Bay:   Wayne Todd, Maggie Bolitho, Barbara Judson, Catherine Griffiths, Diana Butler, Wayne Randall, Alan Bolitho, Garen Kassabian, Curtis Hobson, Matt Stooke.  Citizens of Oak Bay. 

Note: a copy of the original text in the FOI report is available upon request.

pexels-photo-1527255.jpeg

Letter sent to Mayor and Council on August 14 2018 from a concerned citizen, Concerned Citizens Network Oak Bay

At the July 3 2018 meeting of the District of Oak Bay Advisory Planning Commission, committee member Virginia Holden, who is also Director of Housing Policy in the Housing Policy Branch of the B.C. Ministry of Municipal Affairs and Housing, gave a presentation to committee members on housing affordability. Some local citizens who attended this meeting as observers and took notes felt that this was clearly a sales-pitch for the contentious OBUC affordable housing project. She stressed the need to identify and help non-profit sites that need redevelopment. She described now as a time when "the stars have aligned" and wanted other members of committee to know what a perfect time it was for non-profits, among others, to take advantage of all the affordable housing funding available from BC Housing, the Community Housing Fund, the Federal Government, CRD, and how Density-bonusing is being promoted with municipalities, including exemptions from property taxes for 10 years for those developers. She spoke about municipalities being encouraged to streamline and hasten the process of rezoning applications for these developers. She plans to give part II of the presentation to committee members at the next meeting in September.  It sounds as if  BC Housing is giving advice to developers on how to speed their developments through local councils without having to go through due-process.
As part of the Advisory Planning Commission’s mandate is “To advise Council on matters respecting land use, community planning, or proposed bylaws and certain permits under Part 26 of the Local Government Act. And Official Community Plan amendment applications, rezoning applications and land use contract amendments to ensure proposed developments comply with the policies and objectives of the Official Community Plan”  might I suggest that there is a conflict of interest in Ms. Holden’s dual roles as Director of Housing Policy in the Policy Branch of BC Housing and a member of the Advisory Planning Commission who will be advising Council on the Oak Bay United Church/BC Housing’s massive mixed income building project.   The OBUC has already appeared before council asking that their project be streamlined and expedited (which failed).   I hope that Ms. Holden’s planned part II in September will be reconsidered.  It is clearly inappropriate.
Responses received to the above letter
From Kevin Murdoch

Thank you for bringing this to my attention. Conflict of interest is important to keep an eye on. By my assessment, there is probably no "actionable" issue here, but rather something for a mayor to talk to members about directly.  In general, conflict of interest is self-declared. In areas where there is no clear, direct financial benefit to someone by their actions, it is a judgement call by the individual. For elected officials it's a bit more of an issue, as we are held accountable every few years by the electorate, so perceived conflict of interest has as much weight as technical / direct.  
The other factor here is that the Advisory Planning Commission (APC) is an advisory body only - they don't make any decisions. As such, their exposure to conflict of interest is quite low.
Of course, the members are allowed to have opinions (even strong opinions). Most problems with APCs come generally where they are seen to be advocating for a particular development, particularly before it comes before them formally with staff input. That, again, should be fairly blatant to action. In the end, Council will very rarely remove a member, but issues around performance come up when Council (annually) determines whether to renew their membership on the committees or commissions.

Kind Regards,
Kevin 

From: Cairine Green [mailto:oakbay@cairinegreen.ca]
Sent: Thursday, August 16, 2018 4:05 PM
To: Barbara Judson
Subject: Re: Perceived conflict of interest Advisory Planning Commision

Barbara, many thanks for your email message.  
Having been a Councillor in two communities, North Saanich and Oak Bay, and as a current volunteer Commission member in Oak Bay (Heritage Commission), my experience has taught me that every volunteer Commission member must always be careful about real or perceived conflicts of interest when serving the municipality and the public.  As you know, Commission members are not only volunteers but also agents of the Municipality, given that Mayor and Council ratify volunteer appointments.  
Commissions have a more formal mandate, unlike committees, task forces or working groups. Commissions are standing committees, are created through a bylaw and, therefore, have a unique relationship with Mayor and Council because of their role and responsibility in making decisions on specific referrals from Council that are later brought back to Council as recommendations for Council’s final decision.
I have found through many years of volunteering and as an elected official, that conflict of interest can be a concept not always well understood.  In the case of municipal government, elected Council members are reminded of conflict of interest from time to time but the final decision about whether or not the member may be in conflict rests with the individual Councillor.  That being said, it’s always good practice to obtain independent legal advice if there is any doubt.  The best advice I had was that if one thinks or feels they might have a conflict, then they probably do and should always err on the side of caution.
You may be interested in a precedent-setting case from North Saanich in 2005, on Conflict of Interest, Godfrey vs. Bird, where a North Saanich Councillor, Bill Bird, was disqualified from holding office.  A group of 10 concerned citizens took Mr. Bird to Court and won. There is a real lesson here for anyone elected to local government, given that the majority of decisions made are about land use.
The best advice that I can give you in this case is to share your concerns with Mayor and Council and with senior staff.  Thanks for getting in touch with me.

***

All of the above is a great concern, exacerbated by the erratic schedule of this Commission as reported here:
https://www.bclocalnews.com/news/oak-bays-advisory-planning-commission-cancelled-again/

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Just the facts please

Tonight’s email to BC Housing and the District of Oak Bay:

Recently the CCN received documents from BC Housing as the result of an FOI request. These included Oak Bay United Church – Development Team’s recent submission to Housing BC: Community Housing Fund requesting grant funds (RFP 1070-1819/016 Submission), and other correspondence.

These documents stated unequivocally that the OBUC project have support from a Member of the Legislative Assembly.

From FOI 30-11318:

The project is […] supported by our MLA, (page 11)

MLA Andrew Weaver has indicated support (page 25)

MLA Andrew Weaver supports the proposal (page 89)

When a member of the CCN asked Dr. Weaver about these assertions, he responded:

I am surprised that documentation would be submitted saying I was for any specific project in my riding. I am supportive of the general notion of building more affordable housing. It is inappropriate for me to single out a particular project to support or not support”

The need for affordable housing is not in question. The CCN is challenging the height, size and density of this design in our single-family neighbourhood. The lack of adequate parking and significantly increased traffic would have a major negative impact on our narrow neighbourhood streets.

Did the OBUC-DT hope to distract from these issues by falsely claiming an endorsement from a higher power? 

When significant misrepresentations have been made in parts of submissions, doesn’t it cast doubt over the integrity of the rest of the OBUC-DT’s statements?

M. Bolitho
Oak Bay

Book cover from www.writersresist.com - click on the image for more details about this book.

Book cover from www.writersresist.com - click on the image for more details about this book.

A simple message to the Oak Bay United Church and its Development Team

Our principles are simple:

  • We don’t have secrets.

  • We have nothing to hide. 

  • We have this website.

  • We put signs outside our houses.

  • We send letters to the editor for everyone to see.  

We think the idea of appropriate affordable housing on the parking lot is laudable. 

All we are asking from BC Housing, the OBUC and its development team is simple:

DON’T PRETEND.  DON’T BUILD WALLS.  PLEASE PUT INFORMATION OUT THERE - WITHOUT BEING ASKED. 

Photo from Pexel.

Photo from Pexel.

FOI Results Could Be A Disapppointment - T-C February 8, 2019

To The Editor, The Times Colonist

Re: “Reform storm gathers steam,” column, Feb. 6.

Les Leyne’s column on extending freedom of information to the legislature made me smile. Anyone who has ever taken out an FOI request for a government body to provide what should be publicly available information is advised not to hold their breath while it is being prepared. When it does finally arrive (after a very long wait) 99 per cent could be redacted.

In a case where citizens in our neighbourhood tried to get some straightforward information from B.C. Housing, there was one little gem that wasn’t redacted in the FOI results we received. It involved a consultant telling B.C. Housing how to circumvent the FOI rules.

Simple: The client should not address anything to B.C. Housing. Instead, address it to a third party and mark it “confidential — contains proprietary information,” so it’s third-party confidential and thus secret.
Don’t think because you’d like to see what’s going on in our provincial government you can find out through FOI. You can’t, and when your large package of almost blank pages arrive, you will feel as Speaker Darryl Plecas described: You’ll want to vomit.

B.G. Judson
Oak Bay

Read the original letter to the Times Colonist online here.

Page 300 from BC Housing FOI 30-0518

Page 300 from BC Housing FOI 30-0518

Most pages in response to our FOI requests look like this:

P 302 from BC Housing FOI 30-0518

P 302 from BC Housing FOI 30-0518

A review of BC Housing FOI response 30-11318

To:  Malcolm McNaughton, Armin Amrolia,  BC Housing

CC::  Mayor and Councillors, Oak Bay Municipality. Dr. Andrew Weaver, MLA Oak Bay

 February 7 2019

A review of the FOI response from BC Housing (30-11318) leads to the following observations on its contents.  

 On 17 September 2018, just over one month after the development team for Oak Bay United Church (DT-OBUC) delivered its rezoning/development package to Oak Bay’s Planning Department, they submitted a request for further funding to BC Housing under RFP1070-1819/016.

The covering letter for this submission says “On August 2018 we applied for rezoning and development permit for 96 residential units. Of these 39 units are market rental and sale units, income from which subsidizes 57 affordable housing units. This will replace and expand an existing 9-unit affordable housing operation.” (emphasis added)

This is a surprising statement given that (a) the rezoning and development permit applications to Oak Bay Municipality did not contain this information and (b) there are several factors that make their RFP submission ineligible for BC Housing funding.

As there is a significant investment of taxpayers’ money in this project, this RFP submission raises the following concerns:

  •  The “existing 9 unit affordable housing operation” is a building that is currently rented to and operated by the Threshold Housing Society as transitional housing for youth-at-risk. OBUC Minutes dated August 20, 2017 state that Threshold Housing Society has 4 years remaining on a five year lease with the church. Threshold provided $60,000 for repairs before moving in and their loan is being repaid in the form of $1,000 rent reduction per month with a current balance as of August 1 2017 of $47,000.

  • The OBUC Minutes state “the building is in good repair with the exception of the roof”. Coast Capital and other sponsors agreed to sponsor Threshold for the next five years.

  • It is a misrepresentation of the facts for the DT-OBUC to claim this as “existing affordable housing”.

  • The Minutes of the AGM of OBUC (June 10, 2018) state “It has been determined that Threshold House cannot be maintained on site while also positioning the Affordable Neighbourhood Housing on the property”

The development submission to Oak Bay Municipality shows the building will be demolished.

 In OBUC Minutes (August 20, 2017) under “Background to the motion to borrow $500,000 from BC Housing for the Planning Phase of Affordable Rental Housing”, they list the following reasons for the need to borrow this money (under the guise of Affordable Housing)

“If the development is to be considered feasible for the OBUC – it has to

  • Require no funding from OBUC

  • Provide a benefit to the community

  • Provide approximately 5,000 square feet of replacement space for church offices and programs

  • Provide funding to retire the mortgage and make repairs to the sanctuary

  • Upgrade the kitchen

  • Provide on-going income of at least $100,000 a year.”

One might think that the Church’s governing body could help provide the required funds but, according to the Oak Bay United Church Minutes of August 20, 2017, the United Church of BC Conference Property Resource Team was consulted to see if they would fund a development feasibility study as they had for other congregations and they declined.

The Minutes show:

“Based on the known information at the time, PRT declined as redevelopment was considered unlikely based on zoning and density”. The Minutes then state “Not to be deterred, the congregation of OBUC allocated approximately $20,000 to hire consultant Chris Corps of Pivotal IRM and Waymark Architects to do our own development feasibility study. Subsequent work by the consultants has refined the business case to the point where BC Housing is prepared to provide an initial loan for project development funding UP TO $500,000 for the project development phase”.

DT-OBUC were permitted by the congregation to borrow a further $300,000 from BC Housing for development funding (OBUC Minutes September 18, 2018) for a total of $800,000.

On September 17, 2018 DT-OBUC submitted an RFP for more funding from BC Housing knowing that their submission failed to meet eligibility requirements. Their letter of application says that they were encouraged by BC Housing to submit this non-conforming proposal anyway.

When the proposal to build an affordable housing project on the OBUC’s small piece of excess land was first raised in the community, it was universally considered to be a good idea. Some months later, neighbours attended meetings and an open house organized by the DT-OBUC that revealed no meaningful community input was being sought. The plans were already drawn, even though the DT-OBUC had told the community (on 16 August 2017) they were working with a ‘blank sheet of paper’. Oak Bay United Church had clearly already decided what they had to build in order to generate the cash flow from such a project. The community’s suggestions of a compromise on size and density were ignored.

In December 2017 neighbours were asked to rubber-stamp one set of drawings or another, out of several alternatives none of which reflected any of the local concerns about the size and impact of this massive project on a single-family zoned block.

The DT-OBUC, having engaged a public relations company funded by BC Housing, has attempted to discredit anyone who doesn’t agree with them as a vocal minority and/or ‘an organized opposition group’

Organized? Yes. Minority? No. A quick walk around the neighbourhood shows increasing opposition to this project. The protest signs that once graced only a yard or two now appear in abundance. Again, you are invited to review the web-site www.ccn-oakbay.com

What should citizens do when their collective voice as stakeholders in the community is overlooked? Should we sit back and watch BC Housing throw money at a project that ostensibly is to provide affordable housing but where the real agenda is something more prosaic – to build a ‘community space’ to be paid for by tenants and to provide a revenue stream for an institution whose congregation is declining and its revenue base shrinking. The DT-OBUC continue to quote manipulated data from their self-created and self-serving public relations polls to push an aggressive, overreaching and inappropriate proposal.

Isn’t it time for someone at BC Housing to engage with the local community and to examine this proposal more closely?

Is anybody listening?

Is anybody listening?

B. G. Judson