What’s the Problem with Bias?
Elected officials, by the nature of their position, are required to take strong and vocal stances on a myriad of issues. There is however a tipping point where permissibly held positions and impassioned rhetoric can turn into impermissible bias. An elected official, for instance, may well be allowed to express a distaste for certain kinds of development and density, but can that belief land them in hot water if they make public statements to the effect that “it will be a frosty Friday in hell” before they would cast their vote in favour of a particular development?
Local governments are political bodies, headed by elected councils and boards. They are voted in by their constituents on the basis of their policy platforms. Once voted in, however, policy espousal is not an elected official’s sole role. What voters and politicians might not consider, at least when casting their votes, is that local government elected officials also act as administrative decision-makers, dealing with everything from Official Community Plan Amendments to appeals from business licence approvals. Most elected officials are keenly aware that they must avoid “conflicts of interest” in their role as administrative decision-makers, especially those conflicts that are financial in nature. If they do not do so, they risk disqualification from office.
These conflicts of interest are regulated by the Community Charter, which provides that a council member must not vote, or influence the voting, on any matter in which they have a direct or indirect pecuniary interest. Pecuniary conflicts of interest have been the subject of much litigation, and are at the forefront of the minds of elected officials.
But what about situations that are something less than a pecuniary conflict of interest? What if, even in the absence of the possibility for any financial benefit, the elected official’s mind is “closed” on a particular matter? What if an elected official votes on a remedial action requirement in respect of his ex-wife’s property?
The Community Charter governs some of these matters, calling them “another interest in a matter that constitutes a conflict of interest”. But the common law doctrine of procedural fairness also applies to certain decisions of elected officials, requiring them to be free from certain kinds of bias. This paper will focus on the analytically separate but often overlapping concepts of non-pecuniary conflict of interest; the “closed mind”; and reasonable apprehension of bias. It will explore the statutory scheme governing these concepts, and extract some prominent and recurring principles from the cases.