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Ontario Ombudsman critical of independent meeting investigators

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Jan 27th, 2015
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By Sara Carson Barrie Advance

Your municipal council members may be holding illegal closed session meetings and if you formally complain, the investigation that follows may not be accurate.

Tuesday, Ontario Ombudsman André Marin released his third-annual report on closed session meetings. He criticized complaint investigations completed by investigators who were “hand-picked” by municipalities, stating these reports are riddled with inconsistencies and display a poor analysis of the law and of the facts.

“What we’ve seen at the local level is so poor that the public interest is not being served,” Marin said.

Midland and Penetanguishene are the only municipalities in Simcoe County using the Ombudsman’s free investigation services.

Barrie, Orillia, the County of Simcoe itself and the remaining towns and townships have hired their own investigator and must pay for those services.

The County of Simcoe and 14 of its member municipalities use London-based John Maddox of JGM Consulting.

Orillia appointed John Craig Consulting of Oro Station. Barrie and The Blue Mountains use Local Authority Services (LAS), which is a subsidiary of the Association of Municipalities of Ontario.

The City of Barrie is working with RealTerm Energy, a project partner of LAS, to switch the city’s streetlights to LED. The cost is $5 million.

Marin was especially critical of LAS, suggesting they call their investigators “review officers” because investigator sounds “a little scary to municipalities.”

“Their view of the Municipal Act is jaded. They always err on the side of secrecy,” Marin said. “The sunshine law is called the sunshine law for a very good reason. It’s there to bring sunshine.”

This law — which was created in 2008 to ensure open meetings at the municipal level — allows municipalities to choose any investigator they like.

From Sept. 1, 2013 to Aug. 31, 2014, the Ombudsman served as the closed meeting investigator for 196 of Ontario’s 444 municipalities, up from 191 the previous year.

Of the 49 closed meetings The Ombudsman’s office investigated in 2014, 11 were held illegally.

Midland council was mentioned in the Ombudsman’s report for incorrectly using the “personal matters about an identifiable individual” exception in 2013. Council held a closed session meeting to discuss reimbursing Deputy Mayor Stephan Kramp nearly $3,500 in legal fees in relation to an Ontario Civilian Police Commission investigation.

The exception did not apply because the discussion was of a professional nature, not personal.

Midland’s newly elected council is working to be as open and transparent as possible, Deputy Mayor Mike Ross said.

Learning from the past, council members are frequently questioning if a discussion should take place in public, or behind closed doors.

“I know the questions are asked a lot more frequently now than they ever were,” Ross said.

Council members do not receive enough training on close-session procedures, Ross said, suggesting the Ombudsman himself could create an online video to educate new council members.

The Ombudsman’s office is distributing its Sunshine Law Handbook to all of Ontario’s municipal council members.

While some elected officials are breaking the closed session rules out of ignorance, others are doing it intentionally because there are no consequences to breaking the rules, Marin said.

He would like to see consequences put in place.

“You can imagine if you knew as a matter of fact that every time you got stopped for speeding you’d just get a warning it would not deter you from speeding,” Marin said.

While the Ombudsman’s reports are listed on the website (www.ombudsman.on.ca), there is no central location for private investigator reports.

If a private investigator report is completed in your municipality, Marin recommends you read the report yourself.

He noted the report should be thorough, explicit and should have a sound interpretation of the law.

“If you’re not convinced that the report is sound, then speak to your local representative. Citizens in many cities and towns in Ontario have been very vocal in raising problems with these reports and the quality of the reports,” Marin said.

In some cases, this has resulted in municipalities switching from private investigators to his office, he said.

“Hold their feet to the fire and be vocal if you have any issues with those investigations,” Marin said.

Within the next year, Marin will be setting up an Ombudsman accreditation program for investigators. If a municipality opts out of the Ombudsman’s service, they will be offered training for their investigator.

“I think the current system is laughable. Instead of just criticizing, we want to go the extra distance in offering that service. I’m hopeful they will participate,” he said.

Read the Ombudsman’s third annual report at http://www.ombudsman.on.ca/Resources/Reports/2013-2014-OMLET-Annual-Report.aspx.

How to launch a closed session complaint

• Contact your municipality and request a closed meeting investigation form. Some municipalities have the form on their websites.

• Fill out the form.

• Address the envelope to your municipality’s closed meeting investigator or to your municipality.

•  Write ‘private and confidential’ on the envelope.

For information on who investigates your municipality’s complaints visit:http://www.ombudsman.on.ca/Investigations/Municipal-Meetings/Who-We-Oversee-Municipal.aspx
Holding a meeting in-closed session is always optional: Ombudsman

Contrary to what you may have heard, Ombudsman André Marin said there’s not one situation in Ontario where the law forces a municipal council to hold a meeting in private.

“The law authorizes, gives you permission, in certain very limited circumstances,” he said.

These exceptions are:

• the security of the property of the municipality or local board.

• personal matters about an identifiable individual, including municipal or local board employees.

• a proposed or pending acquisition or disposition of land by the municipality or local board.

• labour relations or employee negotiations.

• litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board.

• advice that is subject to solicitor-client privilege, including communications necessary for that purpose.

• a matter in respect of which a council, board, committee or other body may hold a closed meeting under another act.

• if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that act.

Marin said municipalities should voice-record their closed meetings.

“It’s a pretty no-brainer. Record them so that when we come in and investigate, we’ll just play the recording. If it falls within one of the few narrow exceptions, you’ll be off the hook,” he said.

There are now just 16 Ontario municipalities following this practice.

Ontario ombudsman sees jump in complaints over municipal matters

Ombudsman André Marin says the increase has been sparked by the bill giving the watchdog expanded oversight over municipalities, universities and school boards

By: Richard J. Brennan Toronto Star  Jan 27 2015

A small town council that flipped a coin to decide who’d be the next councillor. Budget meetings held in trios so they could be held in secret. Council members gathered in a bar to avoid scrutiny.

These are of the kinds of secret meetings that have come to the attention of ombudsman André Marin, who found in the past year that nearly a quarter of local meetings he investigated were illegally conducted in secret.

And those examples may be only the beginning as the provincial ombudsman expands his oversight powers to all 444 municipalities in Ontario. Currently, he’s limited to investigating municipalities where he is invited to look into allegations of wrongdoing.

“Many of them will defy the legislation,” Marin told reporters Tuesday at Queen Park, where he also noted that he will be seeking a third term.

The ombudsman’s special open meeting law enforcement squad during the last fiscal year reviewed 49 meetings by 40 municipalities and found that 11 of them, or 22 per cent, were illegal.

The so-called Sunshine Law, which allows the public to complain when they are shut out of local council meetings, has been around since 2008.

But his new powers over municipalities, school boards and universities came just last month with the passage of the Accountability and Transparency Act (Bill 8). While it has yet to become law, his office has already seen an increase in public complaints about local municipalities.

“We are already seeing a spike in complaints about municipal issues since Bill 8 passed,” Marin said.

Last fiscal year ending March 31, 2014 the ombudsman’s office had a record 1,595 complaints about municipalities — not including about closed municipal meetings.

For the first 10 months of this fiscal year there have been 1,652 complaints about municipalities as of Monday. Just over 200 of those came in after Bill 8 was passed.

Marin told reporters some municipalities will go to unbelievable lengths to hide what they are doing — even on matters of life and death.

“We have seen over the last year some egregious examples . . . the County of Bruce for eight years met to discuss the disposal of nuclear waste in cottage country . . . I can’t think of a case where there would be greater urgency to move to meet publicly,” he said.

“There was an inquiry as well into the Elliot Lake collapse of the Algo (Centre) Mall, where the commissioner found that for 12 years council was meeting secretly and he couldn’t determine whether the risk of the mall was discussed during those meetings because they were kept secretly.”

Marin said to make matters worse municipalities will hire their own investigators to probe complaints about secret meetings instead of relying on his office.

In the case of Huron County, he said the investigator released a “wishy-washy report concluding that, ‘Yeah it was illegal but I am recommending that they sensitize themselves to their legal obligations.’”

In another case, Marin said he was “aghast” to find out last week that Waterloo council has found a “novel way” to meet secretly by only having three councillors in on budget deliberations at one time, thereby avoiding a quorum.

“I’ve rarely seen something so contemptuous of the rule of law,” he said.

“I can tell you my jaw dropped . . . it was really an incredible disclosure by the City of Waterloo that they thought they could get away with it,” he said, noting that Waterloo opted out of oversight by his office.

Marin said he was just as stunned to learn that the City of Brampton charged its residents $250 to file a complaint about closed meetings. He said it comes as no surprise that there wasn’t a single complaint filed in seven years.

Marin said even with his new powers, the fact remains that there is no penalty for holding secret meetings — just “public shaming” by his office.

“Part of the problem is that there is no consequence,” he said.

 In Arizona, Georgia, Iowa, Illinois, Michigan, Wisconsin, Illinois and Michigan there are fines and also possible jail time for holding secret meetings. Repeat offenders in Michigan can face up to a year and fines of up to $2,000

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