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Legal opinion finds alleged conflict of interest ‘not clear and obvious’

Three councillors suggest opinion was an 'incomplete review'

A legal opinion obtained by the District of Mission regarding recent conflict of interest allegations surrounding Coun. Dave Hensman concluded that the case of a conflict was not clear and obvious, and that there was a strong chance that any application to resolve the matter in B.C. Supreme Court would fail.

Hensman and Mayor Ted Adlem have referenced the legal opinion – a summary of which was released Monday – when explaining why they voted against sending the issue to Supreme Court on Jan. 20.

Tilbury has alleged that Hensman may have been in a conflict of interest on two occasions in December. First, when he voted on the district’s purchase of 7337 Welton Street while holding a lease on another nearby downtown property. And second, when he participated in a discussion about changing the permitted uses in the downtown core to include churches, while serving as pastor for a local faith group.

In a summation of the legal opinion, the district’s chief administrative officer Ken Bjorgaard wrote in a letter to council that “there are no facts that show the district’s purchase of the downtown property has changed the values in the downtown core or affected the profitability of Councillor Hensman’s business.”

On the second matter, the legal opinion was that Hensman “might be perceived to be in a conflict of interest because he is a pastor,” Bjorgaard wrote.

However, the opinion concluded that Hensman’s explanation of the matter – that he merely pointed out an inconsistency in the definitions of “cultural assembly use” in a staff report about permitted downtown uses –  “would likely be accepted by a court as falling within the defence of ‘inadvertence and an error in judgment made in good faith’ set out in section 101(3) of the Community Charter.”

At the Feb. 3 council meeting, Couns. Jeff Jewell, Jenny Stevens, and Nelson Tilbury challenged the legal opinion because they did not know what evidence was provided to the lawyer. Jewell said it was an “incomplete review of the case,” while Stevens said she could not give the opinion “real weight.”

“The lawyers received no supporting information because no investigation took place. The lawyers correctly stated the legal opinion was based on the information received. If the lawyer receives no information, then the legal opinion would be flawed,” said Tilbury, who initially alleged that Hensman was in a conflict on Jan. 6.

Tilbury said that the legal opinion was designed to “make the events insignificant” when they are not.

Stevens maintained that the allegation of a conflict of interest has not been resolved.

Couns. Larry Nundal – who voted alongside Hensman and Adlem in rejecting a motion to send the allegation to Supreme Court – defended Hensman.

“First of all, the councillor has a lease with a first right of refusal (to purchase). And to me, if property values are going to go up, it would appear that he’s going to have to pay more for the property. I don’t see where that’s in anybody’s interest…”

Nundal noted that were the public so concerned about the matter, it takes only 10 citizens to form a group that can present the case to the Supreme Court.

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