Right of Recall---Part 2

Political commentators in the United States are having a field day. The late night TV comedians are having it pretty easy too and getting lots of laughs. No one could ever come up with this stuff. Only real life can write a script like this.

First the Governor of New York was involved with prostitutes and the Assembly Republican leader threatened to hold a vote of impeachment if he did not resign.

In Detroit, the Text Messaging scandal and allegations of all kinds of improprieties have engulfed the Mayor. In that City, I saw a news report that said that there were "six recall petitions aimed at removing Detroit Mayor Kwame Kilpatrick from office." In addition, the Governor has certain powers that she can use in Michigan to remove a Mayor:

• "Detroit City Councilman Kwame Kenyatta has said he may ask Gov. Jennifer Granholm to invoke a rarely used law that would allow her to remove the mayor if presented with convincing evidence of official misconduct, willful neglect of duty and other offenses...
  
  She has had several such requests during her tenure in Lansing, none of which have led to a removal."

Obviously, you know where I'm going with this. What would happen in Windsor if there were some unfortunate event involving the Mayor or a Councillor? What would be the legal remedy be or the process to remove someone from office? Impeachment, right of recall, demand for an election?

In Windsor, nothing would happen. In fact in the rest of Canada except for the Provincial Parliament in British Columbia, nothing would happen. Our system of Government does not allow for the types of action-- recall or impeachment--that can take place in some parts of the United States.

Not everyone believes that a right of recall should be available. British Columbia has a statute called the Recall and Initiative Act which allows for the right of recall for Provincial members only, not for politicians in municipalities. In B.C. as an example, the British Columbia Civil Liberties Association brought a lawsuit arguing that the statute was unconstitutional for reasons including:

• weaken the fabric and practice of responsbile and representative government;
• entrench a theory of government which sees Members as merely the delegate or "mouthpiece" of their constituency rather than their representatives in the Legislative Assembly;
• interferes with the tenure of the Members even through they have committed no crime or otherwise engaged in corruption or other serious misconduct;
• undermines the established sytems of party discipline and determination of confidence in the government;
• undermines the effectiveness of Cabinet and renders the Ministers of the Crown particularly vulnerable to special interests and pressure groups (including those that are not constituents) who are critical of governmental policy and legislative decisions;
• interferes with the enactment of laws and other public policies that are in the public interest
• policy solutions that require a compromise between different communities may be disadvantaged;
• the interests of the organized, wealthy and dominant in the society may be favoured to the disadvantage of minorities, the poor and the less well organized;
• Members may become overly concerned with keeping their seats and thereby refrain from action in the public interest in order to avoid conflict or controversy.
• undermine government stability, particularly when the government is elected with only a small majority;
• are demogogic and anti-democratic;
• will result in recall campaigns that might be divisive, disruptive, polarizing and abusive.

That is quite an impressive list as to why this type of legislation should not be brought into force. Fighting to preserve Democracy and all that.

When you look at this list however, it appears to me that it overprotects the interest of the politician more than the interest of the community which becomes underprotected. It protects the Government, not the people. It favours preserving the status quo, no matter what. I find it interesting as well that it is said that this type of statute would appeal to the rich and powerful. I would have thought the opposite. It should be of interest to those who would challenge the rich and powerful and help even the playing field.

It should not be assumed that it is an easy matter to obtain the right of recall. In Detroit as an example, according to the Free Press, the rules include:

• Recall signature gatherers, who must be Detroit residents, must collect signatures of registered Detroit voters. In the mayor's case, gatherers must collect 57,328 valid signatures. That is 25% of the number of Detroiters who voted in the last governor's election.
  • Signatures must be collected within a 90-day window.
  • The mayor would have 30 days to challenge the validity of signatures.

That takes a lot of time, work, effort and expense. The time limit in which the signatures must be collected is relatively short. And people would have to be very angry to sign such a recall notice in the first place to get that percentage of the population involved.

In British Columbia, the requirement is "the petition must be signed by more than 40% of the total number of individuals who are entitled to sign the recall petition" ie registered voter for the electoral district. In my mind, that percentage makes it virtually impossible to get someone recalled. It must mean that the voters in the electoral district would have to be furious before a politician would ever be recalled. I would have thought that this provides a balance to those who think that such legislation is anti-democratic.

These days, imagine if someone said that no one could be elected unless there was actually a 40% turnout of of eligible voters at an election. It would have been close in the Ontario election where only "52.6 per cent of eligible voters cast a ballot." That was described as an all-time low. In our last municipal election, the turnout was actually less than 40%. We would have had to have a second election and I wonder what would have happened then. I would wager that the Chicken Suit would have seen a dramatic increase in the number of votes if a second election were held in order to get the 40% number.

A friend of mine is a Councillor in British Columbia where his Council has asked the Mayor to resign from office. He introduced a Proposal for Municipal Recall Legislation. In his BLOG, to demonstrate how hard it is to remove someone, he wrote:

• "British Columbia is on the forefront of recall legislation. The BC Recall and Initiative Act gives the ability to a member of the public to petition an MLA based on the MLA’s representation of the constituency. Since 1997 there have been 20 recall petitions. These 20 attempts at recall have all failed to garner enough signatures except for the 1998 recall petition of Paul Reitsma of Parksville-Qualicum. Mr. Reitsma resigned as MLA after it was determined the recall petition was successful in receiving enough signatures.
  
  At the federal level of government there is no such legislation. Over the past 17 years there have been four recall bills brought forward. Each attempt was brought forward as a private members bill, two by Deborah Grey (C-392 of the 3rd session of the 34th Parliament and C-210 of the 1st session of the 35th Parliament) and two by Ted White (C-371 of the 1st session of the 36th Parliament and C-269 of the 2nd session of the 36th Parliament).
  
  Bill C-269 outlined a similar process to the BC Recall and Initiative Act, the main difference is Bill C-269 required only 25% of the electorate signatures in comparison to the BC Recall and Initiative Act which requires 40%."

Contrary then to those who might fear such legislation, and who would argue that it might be considered antidemocratic, in my view the difficulty in obtaining a successful petition means that only the grossest of actions by a politician would result in that person being faced with a recall.

In my view as well, removal should not apply only if a criminal offense for example has been committed. Terms such as gross negligence or willful misconduct are not helpful either since there is no way of determining other than by a court action what the difference is between simple negligence and gross negligence as an example. There may be a number of reasons why a politician should be removed from office. In British Columbia, their statute states that all that is required is:

• "a statement, not exceeding 200 words, setting out why, in the opinion of the applicant, the recall of the Member is warranted."

The way to protect the interests of both the politician and the community and to balance both of their rights is to allow a right of recall but to make it difficult to get a right of recall in the first place.

My own personal view is that we need the right of recall across the entire province at least with respect to the municipal level. At this level, we do not have the protection that we have with an effective Opposition in the House or with a strong media. Four years can be an eternity and the finances of a City can be destroyed during this time-period.

The demands on a Mayor and Council these days are tremendous. In fact, and this has nothing to do with the question of recall, I believe that it is ludicrous in a city like Windsor to have part-time Councillors when the budget of the City is around a half billion dollars. It is asking too much of people to expect them to perform a full time job at part-time rates.

In addition, it should be clear that we need experienced people in the job who can bring the required skills to the task and not just well-meaning individuals with name recognition. When you're looking at multimillion dollar projects like the $65 million plus for the arena, $830 million for watermain replacement, US $75 million for a Tunnel, $30 million dollars plus for Tunnel improvement project, hundreds of millions for upgraded roads and sewers etc., you need people in office who are knowledgeable, experienced, able to ask and have answered the relevant questions and who are not afraid to deal with big sums of money.

We can no longer afford amateur hour at City Hall. We can no longer afford failure. We can no longer afford the lack of open and transparent government when huge transactions are being developed in secret that will have a financial impact on residents.

We need a City Hall where we do not need to have bring in outside, third party independent auditors to undertake an audit on our Windsor Utilities Commission, where we have confidence that audits on departments don't cause us concern that dead men may pump gas or where an audit release is being delayed for long periods of time.

We do not need childishness amongst members of our City Council such that our Mayor is required to bring over the Governor's hubby because Council is dysfunctional.

We need a response at City Hall that does not blame and take refuge from our troubles by pointing the finger at the "perfect storm" of economic woes to justify failure to help us in our economic transition as the automotive sector decreases in importance to this City. We need a City Hall that finally stops THINKING BIG by presenting visions that they know will never see the light of day but starts acting in a businesslike manner to help create jobs. We need a City Hall that stops telling us that jobs are priority and slams a Mayor who spends taxpayer money to fly overseas to obtain from a company that seems to be a startup perhaps 50 jobs in three years when 15,000 jobs could be available today. We need a City Hall that stops fighting with the Senior Level of Government and starts working with them like other jurisdictions do so that a Councillor does not have to keep on whining why no one listens to Windsor. We need a City Hall that lets the world know that Windsor is open for business rather than chasing away business people with investments that they wish to make in the community.

I can think of no other City Hall that would turn its collective back on about $2 billion worth of infrastructure work that would keep people employed for years and would help in the diversification of our economy. Rather than working with others, for years this City Hall has stalled and delayed. Instead of co-operation, this City Hall fights and threatens lawsuits against our "enemies." All that we have in this City is the highest unemployment rate in Canada, people moving out, mortgages being foreclosed and house prices dropping.

For me, what needs to be done is to create a right of recall for this City. If Council members don't start smartening up, then they need to be replaced. NOW! Before this City falls apart.

At the least, such a piece of legislation will let our municipally elected officials know that citizens do have power and can react if they don't accomplish the objectives for which they have been elected. While I expect the right of recall rarely to be successful, it is a nice tool for citizens to have to ensure that their elected officials understand to whom they are responsible and for whom they should be working.

The likelihood of the Provincial Government passing such a piece of legislation for the entire Province is extremely remote and the amount of effort required much too much. The opposition from the established municipal politicians and their Association would be too much for the Province to endure at this time. However, there is no reason why the City of Windsor Act could not be amended to specifically include recall legislation.

I wonder if a majority of Council have the nerve to propose such a piece of legislation be introduced at Queen's Park for our City. I'll bet several of them would not be opposed to it if draft legislation was placed in front of them. After all, those on Council who do their work to the best of their ability in the best interests of the citizens of Windsor have nothing to be afraid about.

Now that the idea is out, let me know what your reaction is.

SUGGESTED LANGUAGE FOR A RECALL STATUTE

Application for recall petition
1 (1) An elector in a Ward may apply under subsection (2) for the issuance of a petition for the recall of the Mayor or a Councillor (hereinafter called “Member”) in that Ward.
(2) The application for the issuance of a recall petition must be made to City Clerk
and contain the following:
(a) the name of the Member;
(b) the name and residential address of the applicant;
(c) a statement, not exceeding 200 words, setting out why, in the opinion of the applicant, the recall of the Member is warranted;
(d) a solemn declaration of the applicant that he or she is not disqualified under this Act from making the application;
(e) any other information that may be prescribed.
(3) The application for the issuance of a recall petition must be accompanied by a processing fee of $50.
(4) No application for the issuance of a recall petition may be made during the 12 months following general voting day for the last election of the Member.

Issue of recall petition
2 (1) If satisfied that the requirements of section 19 have been met, the City Clerk must
(a) notify the proponent, the Member in relation to whom the petition is to be issued and Council that the application has been approved in principle, and
(b) issue the petition in the form set out in the regulations within 7 days after notice is given in accordance with paragraph (a).
(2) A recall petition must be signed within 60 days from the date on which it is issued by the City Clerk.
(3) Once an application has received approval in principle, it may be inspected at the office of the City Clerk during its regular office hours.

Who may sign a recall petition
3 (1) In order to sign a recall petition, an individual
(a) must be a resident in the Ward for which the Member was elected on general voting day for the last election of the Member and be eligible to be an elector, or in the City if the Member is the Mayor and
(2) An individual may sign any one recall petition only once.
(3) An individual who signs a recall petition must also indicate his or her residential address on the petition.

Who may canvass for signatures
4 (1) A resident may canvass for signatures on a recall petition
(2) A person must not, directly or indirectly, accept any inducement for canvassing for signatures on a recall petition.
(3) A person must not, directly or indirectly, pay, give, lend or procure any inducement for a person who canvasses for signatures on a recall petition.

Requirements for recall petition
5 (1) A recall petition must comply with the following requirements:
(a) the petition must be submitted to the City Clerk within 60 days after the date on which the petition was issued under section 2;
(b) the petition must be signed by more than 25% of the total number of individuals who are entitled to sign the recall petition under section 3.
(2) To be counted for the purpose of subsection (1) (b), a signature on the petition must be accompanied by the residential address of the individual who signed.

Time limit for determination
6 When a recall petition is submitted to the City Clerk, he or she must determine within 30 days and in accordance with the regulations, if any, whether the petition meets the requirements of section 5.

Result of successful recall petition
7 (1) If the City Clerk determines that the recall petition meets the requirements of section 5, the Member ceases to hold office and the seat of the Member becomes vacant.
(2) The City Clerk must report to the Member and to Council as soon as possible after making a determination under subsection (1).

Election
8 When a Member's office becomes vacant as the result of a recall petition, an election must be held to fill the vacancy in accordance with the applicable provisions of the Municipal Elections Act.