Southgate found guilty of holding secret closed meetings

By Don Crosby The Confederate June, 27, 2012 

Two separate investigations have found Southgate Council guilty of holding secret meetings in violation of the Municipal Act.

The findings are contained in reports of two investigations into complaints of improperly closed meetings of council and the economic development committee. They were released to Southgate on May 31.

One report looks into meetings leading up to the sale of land to Lystek Inc. in 2011. A second investigator looked into 10 private meetings of Southgate’s economic development committee held between December 2010 and June 2011.

Amberley Gavel Ltd. of London prepared the reports in response to complaints made by Southgate residents in 2011. The complainants have chosen to remain anonymous.

Amberley Gavel is an independent closed meeting investigator that assists municipal governments in Ontario with closed meeting procedure investigations.

One investigator looked into allegations that claimed between January and June 2011 Southgate held 15 council meetings closed to the public at which business was improperly conducted in private, contrary to the Municipal Act, 2001.

The report concludes that Southgate’s procedural bylaw “is insufficient in that it does not provide for the public notice of council meetings.”

This report relates specifically to a private meeting, held on April 6, 2011, for the purpose of “educating” members of council about an unspecified subject.

Members of the public were excluded from that meeting but representatives of Lystek, a waste processing company, were invited to participate.

In June 2011, Southgate Council approved the sale of municipal property in Dundalk to Lystek for a facility to process sewage sludge and waste. The public didn’t learn of the decision until August.

The investigator in this case concluded that while the administration may have been behaving in what they believed to be an appropriate manner, it’s apparent there was a lack of understanding of relevant legislation by members of council and staff.

Under section 239 (3.1) of the Municipal Act a council or local board or committee may be closed to the public if the meeting is held for the purpose of educating or training the members and if at the meeting no member discusses or deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee.

In his report the investigator wrote that while the meeting of April 6 was held for the purpose of educating members of council it appears that (at) the meeting a member did materially advance the business or decision making of council.

The report goes on to say, “on numerous occasions the authorizing resolutions where members of the public were excluded from meetings were incorrect, inappropriate, or ignored. These meetings were improperly closed.”

Southgate Mayor Brian Milne said the practices that were identified in the reports are common practice among many other small municipalities in the province.

“We weren’t doing anything that was out of the norm in my mind. We acted in good faith at all times. And the investigators said that in the reports,” Mayor Milne said. “You go to a lot of other small municipalities in Ontario you’ll find exactly the same practices as what we were doing. Our staff interact with other municipalities; I interact with other councillors and municipalities.”

Among the recommendations made were a review and rewriting of the procedural bylaw to clarify the process of council, better define relationships and create stronger links to the community.

Council should commit to a training plan with respect to open and closed meetings.

The investigator noted that as a general rule council should not invite selected members of the public into closed meetings of council. Regardless of the reason cited it gives the appearance that a council is negotiating directly with a party outside of public view, a procedure not permitted by the Municipal Act.

A second report found that the economic development committee held 10 meetings for which no agenda was posted and no minutes were kept. It concluded that there is no public record of what was discussed or decided.

The investigator found that the committee violated the Municipal Act of 2001 by holding improper closed meetings between December 2009 and December 2011 – the same time period in which Southgate Council was approving two land sales to waste disposal companies.

Southgate’s then-Economic Development Officer Henry Micek kept notes from the meeting but has refused to make them public. Mr. Micek no longer works for Southgate.

Under a change in practice that began in 2008 the township began to operate with a committee system. Most of the committees are composed of three members of council, plus two staff members. The report is critical of the practice of including staff members.

“Inclusion of staff members on committees of council is an anomaly among municipalities of Ontario,” wrote the investigator of the second report. The role of staff is to provide analysis not advice directly to council and through committees but not to vote on whether or how that advice goes forward to council.

The report noted that members of the public rarely attended meetings of the economic development committee for the obvious reason that the meetings were not advertised.

That changed in 2011. As a result of criticism received from residents and as a recognition that the municipality needed to become more open and transparent all committee meetings are now posted on the township website.

Mr. Milne denied that the investigators reports were critical of the township. He said that any short comings identified in the reports have been addressed.

“I wouldn’t say there was criticism. At the end of the report they did identify some short comings but they also identified that through the clerk’s department we have made great efforts and great strides to remedy those deficiencies in their eyes and we will continue to do that,” Mayor Milne said. “ I’ve asked the staff to go through the reports closely and identify if there are any deficiencies still outstanding that we need to address and we will do that.”

The investigator agrees with the complainant that failure to give notice of these meetings has meant that the township “ has effectively held closed meetings.”

Amberley Gavel also noted that the minutes of the economic development committee were not properly taken as required by the Municipal Act during the period December 2009 to December 2011.

The report notes that since January 2012 the township has taken steps to bring itself into compliance with the Municipal Act relating to giving public notice of the meetings and taking of minutes.

There have also been changes in the practice of taking minutes. The new economic development officer, a full time employee, now takes formal minutes although they are still referred to as “notes”.

The report makes a number of recommendations:

– The township incorporate notice requirements for both council meetings and committee meetings in its procedural bylaw

– The clerk specifically appoint and train the economic development officer or an alternate to take minutes of the economic development committee meetings.

– The minutes of the economic development committee be regularly placed on the township website prior to the subsequent council meeting.

– The clerk obtain the notes from the economic development committee meetings held during the period  December 2009 through December 2011 and retain them as if they were minutes.

– Members of staff not be appointed to advisory or standing committees of council.

“What we suspected has now been confirmed by two independent investigators,” said James Cooke, spokesperson for Southgate Public Interest Research Group (SPIRG). Its members have been critical of the way council has been holding public meetings and a lack of transparency.

“ The council and its economic development committee held private meetings at which they discussed issues which should have been public. It is clear that discussions relating to deals with one or more waste companies were improperly held in private,” Mr. Cooke said. “We know that Southgate held meetings that were secret and illegal. What we don’t yet fully know is exactly what was kept from the public and the bigger mystery – why?”

Mayor Milne said the new procedural bylaw has been broadened to include recommendations contained in the two reports.

He also questioned the motives of the complainants that lead to the investigations

“We haven’t done anything different than what we’ve done for the past 10 years or longer. In my mind there are differing reasons why people would launch a close meeting investigation. Not all of them are altruistic I would suggest,” he said.

Copies of the report are available from the municipality in accordance with the Municipal Act.