Winnipeg Free Press - PRINT EDITION

Release legal opinion

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The city administration has refused to publicly release the legal opinion requested by council concerning the mishandling of fire hall construction contracts two years ago. It is claiming, or rather misusing, the concept of "solicitor-client privilege" in doing so. City council must override, by vote, this decision or provide taxpayers with a better explanation for the lack of openness.

The legal review follows an audit, released last year, that revealed numerous problems with how the city got four new fire halls built, using one developer who won the jobs, it was discovered, through preferential treatment -- the scope and design of the project was quietly changed, giving developer Shindico the edge over competitors.

There were other, glaring issues in the process muddied by a move that robbed the deal of council oversight, including a land-swap deal with Shindico that saw one fire hall built on a lot the city didn't own.

The Ernst and Young audit found wrongdoing, but no evidence anyone did anything illegal; Coun. Dan Vandal's subsequent motion for a legal review was approved by council specifically to examine whether the city was exposed to legal liability in the Shindico deals. The legal opinion has also said there is no evidence anyone involved in the projects broke a law.

City councillors were called to a private meeting Monday with the administration where they were given a summary, rather than the full report, from the outside law firm.

According to media reports, the summary said there is a problem, generally, with city procurement policies and procedures that leave it open to liability on an ongoing basis.

Without details, taxpayers are asked to presume the administration, armed with specifics now, can and will make changes to those policies. But there should be some discussion publicly on what problems were found and how they affected the bid process on public works or for provision of goods and services. The policies and how they are followed are foundational to ensuring the taxpayer gets the best result for the right price.

The city has a sorry record of audits and opinions exposing flawed procurement processes. It is a bit much, especially in the wake of the fire hall construction fiasco that has seen two senior administrators resign, to expect taxpayers to trust that all is, or will be, well again at city hall.

The city administration says it invokes solicitor-client privilege routinely on all legal opinions; to do otherwise, it said, would indicate instances in which liability was at issue and expose the city to risk.

This rationale is weak, however. Practically, keeping the opinion on the fire hall deal private only fuels Winnipeggers' cynicism of the affair. Further, as a principle, it ignores the fact the "client" is council and through it the taxpayers.

This city administration must responsibly protect the corporate body's interests. That calls for the judicious use of redaction, or the non-release of inherently sensitive material (such as consideration for personal privacy), not for the adoption of a blanket policy keeping all legal opinion out of the public's grasp.

A wider audit that reviewed years of past procurement practices is expected to hit council floor in the next weeks. It may give fuller context to what has sparked the attention of the outside lawyers on the policies and procedures. The two reports should be read in tandem and city hall may want to solicit input from Winnipeg's development community in response.

Council now should vote to release the legal opinion before discussion on amending procurement policies. Then taxpayers, developers, construction companies and suppliers can make informed decisions on what needs to be done and whether the response of the administration and city council meets that test.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition May 29, 2014 A12

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