UPDATED: Di Biase lawyer slams Vaughan integrity boss's ethics probe

YorkRegion.com
April 13, 2015
By Adam Martin-Robbins

The lawyer representing Vaughan Deputy Mayor Michael Di Biase is challenging the findings of an investigation by the city’s integrity commissioner laid out in a damning report released last week.

An interim report, released Friday night by Integrity Commissioner Suzanne Craig, found that Di Biase breached Vaughan’s code of conduct by using intimidation and abusive language to pressure city staff, who opposed his interference in the city’s tendering process and his efforts to secure municipal projects for a local contracting company.

Morris Manning, Di Biase’s lawyer, wrote in a response to Craig Monday that, among other things, she failed to address legal issues raised by Di Biase, back in January, in his initial response to the complaint that triggered her investigation.

He also says that Craig did not provide Di Biase with copies of all the evidence she relied on for her findings so that he could adequately respond to the accusations against him.

“You have reached a conclusion with which Deputy Mayor and Regional Councillor Di Biase strongly disagrees. Additionally, you have done so by breaching the principles of fundamental fairness,” wrote Manning, considered one of Canada’s top criminal defence attorneys.

“Had my client been given a proper amount of information and documentation concerning the allegations, he would not only be able to answer those allegations but would be able to demonstrate why your conclusion was wrong in fact and law.”

Manning also states that, contrary to Craig’s report, Di Biase was not provided an opportunity to respond to all of the allegations made against him.

“You did not see fit to address those legal issues in your report. Instead, you dealt with allegations; information and documentation obtained through your expanded investigation and reached your erroneous conclusion based on evidence which you have decided to withhold from Councillor Di Biase,” Manning wrote.

“You condemned him without first giving him an ample opportunity to know the evidence against him. This is a breach of fundamental fairness; a denial of natural justice.”

Craig spent months in 2014 investigating a code of conduct complaint into the actions of Di Biase, a longtime councillor and former mayor.

Her report describes Di Biase as a seasoned politician, who openly defied the city’s code of conduct, repeatedly tried to obtain confidential tendering information in direct contravention of city procurement rules and used his authority to intimidate staff who pushed back.

“I find that the respondent applied inappropriate pressure to staff with a view to exercising influence or assisting Company A with the business of the municipality,” she wrote in the report.

“I find that when city staff responded to the respondent’s requests for information...by advising him that there is a process that must be followed, they were met with defiance, abusive language and intimidating actions,” Craig continued.

In her report, Craig identifies Maystar General Contractors as company A, which is how it is described thereafter.

Craig did not investigate Maystar and there is nothing in the report to indicate the company did anything wrong.

Maystar has yet to respond to a request for comment.

Craig’s investigation was triggered by a complaint filed by Richard Lorello, a city hall watcher who ran unsuccessfully against Di Biase in the past two municipal elections.

Lorello asked the integrity commissioner to investigate four items. Craig said one of the complaints fell outside her jurisdiction and the other involved an issue that happened too long ago.

She investigated the following:

• An allegation that Di Biase interfered in various tendering processes in contravention of Vaughan’s procurement rules.
• Allegations of inappropriate pressure exerted on staff by Di Biase in his efforts to secure business for the Maystar General Contractors.

In her report, Craig focuses on contracts for the Father Ermanno Bulfon Community Centre in Woodbridge, and the Civic Centre Resource Library (CCRL) where Maystar did not pre-qualify for construction contracts.

According to her findings, Maystar complained to the city that it should be pre-qualified because “it has always prequalified...and they make donations to Vaughan charities.”

Craig interviewed 32 city staff or board members for her report. Comments from 14 of the interviews are contained in the report. Other information from interviews was not made public to protect people’s identities, the report said.

According to the report, one city staff member told her: “I was approached by regional councillor Di Biase at (a meeting) and he asked me about the CCRL. When I told (Di Biase) there was a procurement process that had to be followed, he told me to stop wasting time and don’t be a trouble maker and cause problems.”

Another staff relayed his experience to Craig: “Tell your boss, when I call, respond to your ---ing phone.”

A member of library board, of which Di Biase was also a member, said: “With reference to an in-camera meeting dealing with an ongoing procurement matter that had still yet to go to council for decision, Di Biase when told by city staff that (company A) was disqualified from the procurement process, said “Just give the job to company A.”

Another board member said she was surprised (Di Biase) would say “just give the job to company A” in front of the citizen board members.

Many of the city staff took their concerns to the Commissioner of Strategic and Corporate Services and the city solicitor, both of whom abruptly resigned in February following a closed-door council meeting - while Craig’s investigation was ongoing.

According to Craig’s report, Di Biase was told numerous times by the city solicitor and senior staff about the “risk to the city” when a councillor gets involved in the procurement process, especially during the blackout phase - a time when the call for bids, RFP, tenders or quote is issued.

Di Biase asked staff to provide him with hard copies of pre-qualification results during the blackout period, the report says.

Moreover, Di Biase sent emails containing confidential information regarding city business to a private citizen, and used the information he received from the outside party almost verbatim to criticize two competitors bidding on the project and the procurement process in emails to his colleagues and city staff.

He also then put forth a motion essentially written by the outside party regarding a review of the pre-qualification process in council in June 2014, the report says.

In email exchanges attached to her report, other councillors also warn Di Biase he is breaking rules by asking questions during the procurement period.

Craig’s interim report does not offer any recommendations in terms of discipline for the deputy mayor, which council must ultimately decide upon.

Those recommendations will be detailed in a final draft to be submitted to councillors once Craig reviews Manning’s comments.

But it’s unclear if she will actually get a chance to finalize her report.

Manning notes that Craig’s appointment has ended - her contract expired April 5 - and for that reason, he says her interim report should not have been submitted and should not be put before city councillors tomorrow.

Manning concludes that given the process that was followed; the lack of evidence and information provided to Di Biase and “the reasonable apprehension of bias” toward Di Biase:

“The entire matter should be turned over to an independent and unbiased person who has not had dealings with my client and who will follow the rules of natural justice.”

Craig said in an interview Monday she followed the procedures laid out in the city’s code of conduct and the municipal act and she intends to appear at tomorrow’s council meeting to speak to the interim report, if required.

“I have followed the same process that I have followed with all previous investigations. And I have abided by the letter and spirit of the code of conduct, the protocol and the Municipal Act,” Craig said. “I can appreciate and accept Mr. Manning’s comments, but the code of conduct, the protocol, accountability and transparency at the municipal level is not a legal exercise.”

Furthermore, Craig said if council decides the interim report is inadmissible at this time because her contract with the city has expired, it can still proceed under the direction of someone she delegates her duties to or under the next integrity commissioner.

This is not the first time Di Biase has faced a complaint from Lorello.

In 2013, he filed a complaint against Di Biase for publicly releasing information about a confidential personnel matter.

Craig upheld the complaint, and issued a reprimand to the councillor, which included an apology and a briefing on the code of conduct by the city solicitor - which he attended.