The Harder They Fall?

by Neal Rockwell

A moment of reckoning has arrived for Barrhaven councillor Jan Harder, one of the most powerful municipal politicians in Ottawa.

Last Friday City of Ottawa Integrity Commissioner Robert Marleau released a damning report finding that Harder, the chair of the city’s Planning Committee, has “tainted the City’s planning and development process” over her business relationship with development consultant Jack Stirling and his daughter Alison Clarke. Marleau recommended that as penalty Harder be removed entirely from the Planning Committee — probably the most powerful municipal committee in Ottawa — as well as from the city’s Planning Advisory Committee and from the Board of Directors of the Ottawa Community Lands Development Corporation (OCLDC). The OCLDC oversees the selling of municipal lands to private parties. 

City council will vote on Wednesday as to whether or not to implement the Integrity Commissioner’s recommendations.

The Integrity Commissioner’s investigation was the direct result of a story I broke in the Leveller in March 2019, while reporting on the demoviction that took place at Herongate in 2018. That story detailed how Stirling’s daughter was simultaneously employed as an aide to Harder and for her father’s consulting firm. The Integrity Commissioner quotes this story several times in his report. The report also goes into much greater depth and reveals new, deeply troubling details.

The basic facts of the report, which have been well summarized by other media, are that:

• Alison Clarke (at the time still Stirling) worked as Harder’s assistant from 14 August 2017 to 20 July 2018, while employed directly by Harder’s office. 
• After that she went to work for her father’s consultancy, The Stirling Group (TSG). This business only counted two employees: Alison and Jack. Beginning 1 November 2018, TSG was contracted by Harder’s office. (This was a sole-source contract, which means no one else was able to compete for or win this contract.)
• Clarke continued to act in the same capacity as Harder’s assistant — just as a contractor — providing briefing notes for Planning Committee meetings. She also still had access to Harder’s email. Jack Stirling was also providing planning consulting services to the councillor. It was almost as if TSG was an extension of Harder’s office. 
• There was a “gap period” between two TSG contracts, where TSG provided $12,000 worth of services free of charge. This has never entered into the municipal gifts registry.
• At the same time Stirling was representing and lobbying for clients who were navigating the planning process. Periodically these files would come before the Planning Committee, which Harder chairs.

I have taken time to read and analyze the whole report. There are many unusual and unseemly details concerning the Sterling-Harder relationship in the report, which Marleau found important to document. In this article I will not attempt an exhaustive review of the report, but instead want to highlight some of these details, especially since I believe some of them have not received the attention they deserve in the larger news outlets. Like Marleau, I believe all these puzzle pieces, when put together, create a damning picture of blurred lines between a development consultant and a municipal politician. Harder seems simply incapable of reflecting critically upon her actions or the idea that she could possibly have acted inappropriately.

A Hodgepodge of Contradictions

Harder, Stirling, Clarke, and an anonymous complainant gave testimony to an Integrity Commission investigator. Out of these four individuals, Harder was the only one, as advised by her legal counsel, to not give her testimony under oath. The testimony she did give is contradicted on various occasions by Stirling and Clarke — as well as by facts unearthed by the investigator and even a letter by her lawyer Michael Polowin, which has been appended to the end of the report.

On page 4 of the report, Stirling states that Harder and he have been friends for over 20 years and that she “probably met [his daughter] Ms. Clarke at a very young age.” However Harder stated prior to working for her she “only knew Ms. Clarke through information provided by Mr. Stirling, in normal conversation about mutual families.”

On another occasion Harder states “I always ensured that Alison Stirling not only had no input on applications with which her father Jack was associated, but that she simply didn’t see them.”

The investigator found, however, that on several occasions TSG had applications for zoning by-law amendments that came before council. In one instance, dated 26 September 2019, it was documented that Clarke prepared briefing notes for this application. In another, Clarke was in fact the applicant herself, at the same time as she was contracted to Harder as an assistant.

On page 66 of the report, the investigator asked if Harder had ever asked Clarke to disclose TSG’s involvement in that September 26 briefing note. Harder replied, “That was always our understanding from the beginning.” She goes on to note that Clarke would know to disclose TSG’s involvement. 

However Clarke testified that she never discussed this issue with the councillor. The only reason she did mention TSG’s involvement in the briefing note was because she “felt like [she] should.” 

Marleau observes “there is a clear contradiction between the testimony of Ms. Clarke and that of [Councillor Harder].” He further notes that “it would have been more judicious for Ms. Clarke to have declined to draft briefing notes on The Stirling Group client applications.”

Harder claims that she was always transparent with her relationship with Clarke and Stirling, but does not provide any evidence. There are many instances in the report that contradict that. Marleau finds that no appropriate conflict of interest screening was ever performed. 

Beyond this, the city requires people contracting with Councillors to sign non-disclosure agreements (NDA) so that they do not reveal sensitive information. Neither Clarke nor Stirling signed the required NDAs while contracting with Harder’s offices, despite the Program Manager of Council Support Services emailing the NDA to the councillor’s executive assistant. Marleau noted that the Stirling Group’s access to information through their contract work “had the potential to give them a business advantage.” Harder’s response to the investigator was that she was uncertain of whether contractors were required to sign NDAs.

Similarly, the investigator asked Harder if she ever disclosed to Planning Committee members, when there was a TSG file coming up for discussion, that she had a contract with TSG. Her reply was, “The answer is no, because why would I?”

There are other lingering contradictions — some slightly surreal — for those who peruse the report closely.  In an appendix to the report, Harder’s lawyer writes that apart from the contracts outlined in the report Councillor Harder and Stirling have never had a business relationship. Specifically he states “the Councillor and Mr. Stirling (apart from the Contracts) never had a business relationship.”

The logic of ‘there was no business relationship, except the times when there was one’ may leave readers scratching their heads. In fact Polowin’s letter — with its attacks on the credibility of the “Levellor” and imaginative logic — may warrant an entire article of its own, someday…

In any case, Harder certainly seems to think she has a working relationship with Stirling.  In paragraph 217 Harder states that she has known and “worked with” Stirling for 23 years. Presumably this includes the charity golf tournament whose operations she turned over to Stirling and his business partner, former Chair of the Planning Committee and Alta Vista Councillor, Peter Hume. The Jan Harder charity golf tournament, now known as the Just Happy tournament was run out of Harder’s office until she became Chair of the Planning Committee. As reported in the CBC, this underpublicized event involved a handful of councillors playing golf with developers as a method of raising sponsorship money, with senior city bureaucrats and development consultants also in attendance. 

Does this not represent a business relationship? If Stirling offered his services free of charge, does this signify a gift? If so, was it properly registered with the Lobbyist Registry? I reached out to Harder for comment but was informed by her legal counsel that she would not be answering any of my questions. 

Of Pink Paper & Confidential Files

The City of Ottawa prints confidential documents on pink paper. These documents cannot be copied or scanned. The pink colour also alerts recipients that they exist in hard copy only and are not to be emailed or circulated electronically. 

On 5 June 2018, Clarke received one such confidential report from the Ottawa Community Lands Development Corporation, which means it would pertain to the sale of unused municipal land to private interests. Harder was out of the office, but instructed Clarke to photograph the document with her phone and send it to her. Harder admits to receiving it and states that she would have told Clarke to either send it to her personal email (not her official city email) or to text the images to her. Harder could not recall whether she had received the documents by email or text. Clarke also emailed these documents to her own City of Ottawa email address. 

Harder also specified that Clarke would have been following office procedure in these actions. It seems unusual that this would have been office procedure since it contradicts official municipal policy.

Harder further told the investigator that Clarke did not have special access to documents or systems. The investigator asked what Clarke had access to in terms of files. Harder responded “Well, I don’t really keep files.” 

I do not pretend to entirely understand what this means, but it seems notable. What sort of politician does not keep files? I spoke with a former city councillor and he informed me that Councillors are required to keep all manner of files and records, so this statement strikes me as odd. Marleau seems to agree, stating in his report “I do not accept this explanation. The investigation has established that Ms. Clarke had access to information, contacts and processes that others would not.” 

A Mix of Familiar and Formal Emails

During the periods when TSG was under contract with Harder – where Clarke continued to act in the capacity of the councillor’s assistant, preparing briefing notes and the like, and where Stirling advised Harder on various planning matters — TSG also reached out to Harder on its own business matters, helping private clients through the planning process. In one instance Clarke sent an email requesting a meeting to discuss a Zoning By-Law amendment for a 140 unit, 20 storey building that is close to a future Light Rail station. 

In another instance Stirling sent the following email to Harder, almost as if the two were strangers:

Councillor Harder,  

I hope you’re having a great Fall. 

I am hoping to book some time with you in the coming days to discuss a development that will be on the November 14th Planning Committee Agenda. 

I am working alongside [a private company and a planning/ design firm, redacted from the report] on a project located at [address and description]. [The private company] has submitted a Zoning By-law Amendment to rezone the property from [locations specified]. A mix of light industrial, office and retail uses surround the area.

We’d like to come in a [sic] discuss this development with you and provide further details. Please let me know a few dates or times that might work for you. I’d be pleased to work with your Assistant to find a mutually beneficial time if that is easier.

Both of these emails are strangely formal given Clarke and Stirling’s relationship with the councillor. Stirling also seems to be referring to his daughter and business partner like he doesn’t know her (“your assistant”?). This strangeness is underlined by Harder’s response: “Oh Jack, you do not need to meet with me. I know all about it and why are you calling me Councilor Harder.”

Free Services “Anytime I Want”

From 1 November 2019 to 20 February 2020, TSG worked without a contract for Harder, essentially donating $12,000 worth of services (they bill at $3000 per month) to Councillor Harder, free of charge. The report notes that this was never entered into the gift registry, where councillors are supposed to register gifts above $100. Harder asserts that this was not a gift and thus did not need to be registered. 

When the investigator asked Harder about benefiting from unpaid work from TSG, Harder replied, “I get free service from Jack, and a few others, anytime I want.” This is a startling revelation. She is suggesting that this is a common practice for her, not limited exclusively to TSG. 

The investigator notes that, following this interview, and probably realizing that this comment did not scan very well, she stated — possibly through her her legal counsel — that what she had meant to say was,“She would at times call on Jack and a few other experts, whom she had a friendship with, to obtain their opinion and knowledge free of charge.” 

During the periods when TSG was under contract to Harder’s office, they appear to have engaged in lobbying efforts on behalf of private clients, as evidenced by these emails and the desire to arrange meetings. I checked the Lobbyist Registry and found no evidence that any of these contacts were registered there, as they are required to be. Stirling is a registered lobbyist with an active application in the City of Ottawa’s Lobbyist Registry.

Marleau indicates that this failure to report the $12,000 in services may be a breach of Section 12 of the Code of Conduct, the portion that deals with gifts from lobbyists. He declares that this is outside the scope of his investigation, but that the “matter will be referred to the Lobbyist Registrar for consideration.” (For those following along at home,  Marleau is the Lobbyist Registrar).

Stirling refused to answer further questions from the investigator regarding the undeclared benefit and said that he was seeking legal counsel. 

A Friendly Committee Appointment

Jack Stirling was a member of the city’s Planning Advisory Committee (PAC) from 28 March  2018 until he resigned on 27 January 27 2021. Harder also sits on this committee.

The selection committee who appointed Stirling was composed of Harder, Councillors Nussbaum and Moffat and Mayor Jim Watson (or a designate). 

There are several details from this selection process that stand out. 

One is that, according to the PAC Terms of Reference, the Professional Planner member (Stirling’s position) must be “a practicing member of the Ontario Professional Planners Institute,” which Stirling is not. 

The selection panel thus had to seek a waiver for Stirling to occupy this position. The panel also rejected a candidate who did possess the necessary qualifications on the way to selecting Stirling. Harder responded that this was done because Stirling “is one of the best planners in the city.”

Harder is also certain that she did not have any discussions with Stirling about the PAC at this time. Apart from this, her memory is very vague. She does not recall any of the conversations within the selection panel. She does not recall why there was a recommendation to waive the stipulation that the planning member of the committee belong to the Ontario Professional Planners Institute. She does not recall if the other members of the selection panel agreed on waiving this requirement.

When queried about how he became aware of this position in order to apply, Stirling said he responded to an advertisement he saw in the newspaper. He also stated that he did not apply to be the professional planner member, but instead for the position of rural member. He is uncertain just how, exactly, he was selected for the former appointment. 

Marleau observes that “the first item on the PAC agendas is “Declarations of interest,” and that “PAC minutes show that neither [Harder] nor Jack Stirling declared an apparent conflict of interest.”

Marleau further states that “a reasonable outside onlooker might well form the view that TSG was privy to insider information and that its principal benefited from privileged access by virtue of his membership on the PAC. But that would also be the case for other appointed members of the PAC. The difference is that TSG was at the same time under contract with the Chair of the Planning Committee.”

Adding It All Up

Harder states that she was always transparent about her relationship with Clarke and Stirling. The details I have listed here, as contained in the Integrity Commissioner’s report, suggest otherwise. 

Marleau made his summary, stating that Harder “recruited the daughter of a friend with a longstanding personal and professional relationship. Then, when that employment ended, she rehired her and her father by way of two sole-sourced service contracts with no confidentiality clauses or non-disclosure agreements or non-disclosure agreements.

“When the first contract ended, TSG continued to provide services to the Respondent [Harder] without charge for several months (the “Gap period”) before the second contract was signed. During the contract periods and the “Gap period” the Respondent received services from TSG relating to their own clients’ files, some of which rose for decision to Committee and Council. The Respondent did not disclose any of this when faced with approving the said files. For the entire period the Respondent was the chair of the Planning Committee and both she and Mr. Stirling sat concurrently as members of the Planning Advisory Committee.”

Tomorrow city council will vote on whether to implement Marleau’s recommendations regarding Councillor Harder’s misconduct. It remains to be seen whether councillors and voters will hold Harder accountable for having “tainted the City’s planning and development process,” according to the city’s own Integrity Commissioner.

An update on the council meeting from your friendly-neighbourhood Leveller editor: With some notable exceptions, councillors spent most of the meeting cross-examining the Integrity Commissioner and lauding Jan Harder for all she done for the city. Councillors voted not to implement the Integrity Commissioner’s recommendations, but Harder resigned from the Planning Committee shortly after, in the face of continued withering public condemnation.