NORTH BAY - Former Deputy mayor Sheldon Forgette says he and his family are "relieved" by a decision from the Election Compliance Audit Committee that dismissed a complaint that he broke Municipal Elections Act spending rules during the 2018 municipal election.
Forgette was accused of using his corporate email list to gather support but not reporting it as a campaign donation, and also of breaking privacy laws.
Computer Doctors Inc. is a corporation owned and operated by Forgette.
The complaint was laid on behalf of an unnamed 13-year-old student, and alleged that Forgette's email must have come from an email list of that corporation.
The agent for the complainant "objected to this use of the email address under privacy laws and asserted that this also constituted an illegal campaign donation by a corporation, as being a service which had to be valued and declared under campaign financing laws."
When Forgette filed his financial statement on March 28, 2019. It did not identify any expense for the use of email.
During the hearing in his own defence Forgette said that he did not recall the particular e-mail response from the student but that he did recognize the format of the campaign solicitation for support that was under the candidate's name. He advised that he maintains a personal email list of names which he has built up over time.
He told the committee that he spends time in the schools, giving talks to students about politics and entrepreneurship and that he likely would have obtained the email address in that manner.
"While the opportunity had been given for the complainant or others to attend and to offer comments, there was no one present to contradict the explanation offered by the candidate," says the report.
The Committee also claimed no jurisdiction to consider the application of privacy laws
In dismissing the complaint, the committee stated, "Given the explanation offered by the candidate for the possession of the student's email address, there do not appear to be reasonable grounds for considering the use of the email address to be a contribution by a corporation. Therefore the issue is whether personal emails sent by a candidate would constitute such a 'good or service' which must be valued. The Committee takes notice of their own experience that emails can be sent without incurring any additional expense. Indeed social media can also be utilized without incurring any additional expense."
In essence, North Bay’s Compliance Audit Committee does not consider the sending of emails during an election campaign an election expense for advertising.
"The Committee does not regard the issuance of personal emails by a candidate to constitute an advertisement," concludes the report. "The Committee regards personal email as being in the nature of 'campaigning' rather than 'advertising'. Campaigning is an activity that is fundamental to election campaigns.
"In the absence of specific language to create an offence to prohibit candidates from issuing personal emails, there is no offence for the impugned behaviour in the opinion of the Committee."
In retrospect, Forgette says losing the mayoral election was the best outcome.
“Not winning in the fall was a blessing in disguise. As a father with a young family I spent most of my time trying to make sure North Bay had low tax increases and huge surpluses. It’s regretful that I missed out on home life during my time.
"It takes a lot out of you," Forgette told BayToday. "I'm enjoying being in private business and I don't have any wants or desires to run for anything for a long time.
"The best I can describe it is life-consuming. It consumes your life going out to community events, you're never home with your family. Ypu're out doing meeting for the city or investment attraction, trying to do as much as you can for the city. At the end of the day, I missed out on home life.
"Now that I have a taste of what home life actually feels like I don't want to go back.
“I don’t plan on being in another election for a very long time."
See the full Complaint to the City of North Bay’s Compliance Audit Committee below.In The Matter of a Complaint to the City of North Bay’s Compliance Audit Committee Concerning the Use of Email in the 2018 Mayoralty Campaign of Sheldon Forgette
The Allegations:
In response to an email complaint received by the North Bay City Clerk, Karen McIsaac, on or about Oct. 1, 2018, concerning the use of email by Sheldon Forgette's campaign for the upcoming North Bay election on Oct. 22, 2018, the North Bay City Clerk asked the North Bay Election Compliance Audit Committee to meet on Oct. 23, 2018, to consider the complaint. Notice was given by the City Clerk to the candidate, Sheldon Forgette, and to the complainant, of the hearing, as well as being posted on the City of North Bay website, all as required by the Procedure for the Election Compliance Audit Committee adopted by the City Council.
The Committee met at 10 a.m. on Oct. 23, 2018. The candidate did not appear.
After a 30-minute adjournment to ensure no one else was coming for the hearing, the Committee reconvened and heard from Eliza Vandermeer, an agent for the complainant. The complainant wished to remain anonymous.
The complainant had submitted a copy of an email written by a 13-year-old student, who was responding to a solicitation for support from the candidate. The agent for the complainant explained that the email address for the 13-year-old student must have come from an email list of a corporation, Computer Doctors Inc., a corporation owned and operated by the candidate. The agent objected to this use of the email address under privacy laws and asserted that this also constituted an illegal campaign donation by a corporation, as being a service which had to be valued and declared under campaign financing laws.
The Chair took this as an opening statement to identify the issues, in the absence of the complainant and the student. Because campaign Financial Statement returns did not have to be filed until the end of March, 2019, the Committee decided to adjourn the matter. It was premature to consider until after the Financial Statement for the candidate had been filed.
The Financial Statement was filed on March 28, 2019. It did not identify any expense for the use of email.
The Chair set a date of April 10, 2019 for the continuation of the hearing. The City Clerk gave notice to the complainant and the candidate and posted notice of the hearing on the City's website.
This time, the complainant and the agent did not appear, but the candidate did. The complainant and agent had advised the City Clerk of their intention not to appear. There were no other persons in attendance.
The Evidence:
The Chair gave a brief overview of the process, as noted below. While there had been some media coverage at the time the complaint was submitted, the candidate indicated that he had not received the specific allegations of the complaint prior to this meeting. He was given a redacted version and invited to take some time to review it in private and to decide whether to request an adjournment, or to proceed with the matter at that time.
After the adjournment he indicated that he wished to proceed.
The candidate advised that he did not recall the particular e-mail response from the student but that he did recognize the format of the campaign solicitation for support that was under the candidate's name. He advised that he maintains a personal email list of names which he has built up over time. He advised that he spends time in the schools, giving talks to students about politics and entrepreneurship and that he likely would have obtained
While the opportunity had been given for the complainant or others to attend and to offer comments, there was no one present to contradict the explanation offered by the candidate.
The Committee:
The Committee has a duty to determine whether there are reasonable grounds for considering whether an offence may have been committed under the Municipal Elections Act and if so, to recommend an audit of that candidate's campaign finances. The Committee is expected to do so in a transparent way and to emphasize public participation. The Committee's duty of fairness is understood to be that it must make the appropriate information available and that no one is to be denied the opportunity to speak. The Committee is to comply with the procedures adopted by the City of North Bay Council. If the Committee recommends an audit, that is not a finding of the commission of an offence, but only that an investigation into whether an offence may have been committed under the Municipal Elections Act should be continued.
The Committee has no jurisdiction to consider the application of privacy laws as requested by the complainant.
The Committee reviewed the duties of the candidate under the Municipal Elections Act (MEA ) and notes that 88.22(1) requires (e) that "contributions of goods or services are valued", and (g) that records are to be kept of the value of every contribution.
Given the explanation offered by the candidate for the possession of the student's email address, there do not appear to be reasonable grounds for considering the use of the email address to be a contribution by a corporation. Therefore the issue is whether personal emails sent by a candidate would constitute such a "good or service" which must be valued. The Committee takes notice of their own experience that emails can be sent without incurring any additional expense. Indeed social media can also be utilized without incurring any additional expense.
The exception would be if a person paid for advertisements on a media, such as can be done with entities such as facebook, so as to target general or very specific audiences. Any such social media expense would have to be included in the Financial Statement filed by a candidate. There is no such indication in this Candidate's Financial Statement, as prepared by a CPA. In this regard, the Committee considered section 88.3 of the MEA concerning "election campaign advertisements" and its definition, that it "means an advertisement in any broadcast, print, electronic or other medium that has the purpose of promoting or supporting the election of a candidate". The key word of "advertisement" appears to contemplate a broad sense of a general, non-specific promotion through the media or social media.
The Committee does not regard the issuance of personal emails by a candidate to constitute an advertisement.
The MEA also refers, at section 88.1 to protecting the ability of candidates to "campaign" between 9 a.m. and 9 p.m in apartment buildings, condominiums, non-profit housing cooperative and gated communities. The Committee regards personal email as being in the nature of "campaigning" rather than "advertising". Campaigning is an activity that is fundamental to election campaigns. Since there was no cost to the candidate to issue his own emails it would not constitute a campaign "good or service" which should be valued, in the opinion of the Committee.
In the absence of specific language to create an offence to prohibit candidates from issuing personal emails, there is no offence for the impugned behaviour in the opinion of the Committee.
The complainant is to be commended for raising the interesting issue of the use of email, based on the assumptions of the circumstances. However in the opinion of the Committee, the complaint should be dismissed and no further audit should be required.
Dated at North Bay, this 12th day of April, 2019. The North Bay Election Compliance Audit Committee Michal Burke, chair; David Robinson, member; Paul Walker, member.
– BayToday.ca