Vancouver’s integrity commissioner has ruled that Coun. Sarah Kirby-Yung did not breach the city’s code of conduct when she successfully moved an amendment in June 2022 on a matter involving Chinatown that included an organization whose society is led by her husband.
Lisa Southern’s ruling was in response to a complaint from a city employee who alleged Kirby-Yung demonstrated “bias and favouritism” towards the Dr. Sun Yat-Sen Classical Chinese Garden because the chairperson of the facility’s society is her husband, Terry Yung.
“The complainant expressed concern that Cllr. Kirby-Yung’s actions during the council meeting [of June 8, 2022] resulted in a conflict of interest because she provided what they perceived to be advantages to the Garden that were not given to other stakeholders,” wrote Southern in her Feb. 17 ruling that was recently posted to the city’s website.
During the meeting, Kirby-Yung did not disclose that her husband was the chairperson of the board for the Garden, nor did she recuse herself from any discussions or subsequent votes on matters affecting the Garden.
At issue was a council discussion regarding next steps to implement the Chinatown Cultural Heritage Assets Management Plan (CHAMP) Strategic Framework. Kirby-Yung’s amendment sought to include the Garden as one of six Chinatown organizations to further consult in implementing the plan.
The city’s future bid to have Chinatown declared a UNESCO World Heritage Site was also part of the discussion.
The complainant, whose name was not disclosed in the ruling, alleged that Kirby-Yung’s questions to citizens who spoke at the meeting were “leading” and gave the Garden “the opportunity to further espouse their position” with respect to the CHAMP consultation process.
The complainant further alleged that “such favouritism could risk undermining the lengthy and inclusive consultation processes that had already occurred with a broad and inclusive group of stakeholders.”
Southern said she initially sought an informal resolution between Kirby-Yung and the complainant, “but ultimately I determined an informal resolution was not possible” and instead an investigation was launched.
It began in July but was suspended during last fall’s election campaign before resuming six days after Kirby-Yung was re-elected. The councillor provided a written response to the complaint in July in which she denied she had breached the code of conduct.
She later made further written submissions in January and February via her lawyer.
'Mischaracterize the matter'
Some of her points were:
• Her amendment “simply provides the opportunity for a diverse and comprehensive group of stakeholders, not any one person or organization, to have further dialogue and engagement; it does not propose any pecuniary or specific benefits to any organization.”
• There is no basis in fact for the supposition that her participation in the council discussion resulted in “rights or opportunities for the Garden that differ from other stakeholders.” These mischaracterize the matter, she said.
• All communication between the Garden and Kirby-Yung on the subject of the CHAMP took place on a group call which included the executive director of the Garden, and other community stakeholders.
• She said she did not discuss the matter or related matters with her husband.
• Kirby-Yung was aware the Garden was a governance board, and there was no reasonable basis upon which she ought to have taken precautions (such as declare a conflict) as the Garden was squarely represented by its executive director without any direct involvement of the board.
• Kirby-Yung’s husband did not direct, request nor participate in any direction to representatives of the Garden, nor was there any reasonable expectation in the circumstances that he might have.
'Personal interest not substantial enough'
After reviewing the evidence, Southern concluded Kirby-Yung had a personal interest in the council discussion and vote on the CHAMP beyond the interest she had in common with other citizens of Vancouver.
But she said Kirby-Yung’s amendment only resulted in more consultation without any specific benefit to the Garden, and that it did not result in personal benefits or gains by either the councillor or her husband.
“While the Garden was included in that list [of organizations to be consulted], it was only one of several organizations,” Southern said.
“Further, the right conferred was for more consultation, and consultation does not necessarily confer any additional benefits on the Garden. In these circumstances, I conclude that Cllr. Kirby-Yung’s personal interest was not substantial enough to give rise to a conflict of interest.”
At the same time, Southern said a close familial connection to a matter before council is “no doubt cause for concern” and it is “a common-sense notion that family members of council members should not be given special advantages in matters before council.”
Southern concluded: “It is unsurprising that there was a perception of bias or unfairness raised, and I understand why the complainant brought the complaint. However, the legal question of whether Cllr. Kirby-Yung’s actions breached the code of conduct is a more complicated question than simply an assessment of perception.”
100 police officers, 100 mental health nurses
In a separate report by Southern posted to the city’s website, she ruled on another conflict-of-interest complaint from a citizen against two members of council, who were not named in the ruling.
The citizen complained the two members were in a conflict related to a council motion last fall to hire 100 police officers and 100 mental health nurses because they had “personal connnections to the VPD.”
The only members of council that would fit that description are Brian Montague, who retired from the Vancouver Police Department last year and Kirby-Yung, whose husband is an inspector with the VPD.
Southern’s ruling: “While both members had personal connections with the VPD, there was no evidence to suggest that either member had a personal interest which would be advanced by the approval of the motion, including that there was no evidence of any direct or indirect benefit flowing to either member on account of the motion.”
“Rather, the integrity commissioner found that any interest the members had in the motion was held in common with the citizens of the city given that, as residents of the city, they would be similarly impacted by the decision to increase resources in the areas of policing and mental health supports.”