Councillor sparked ombudsman probe

By DOUGLAS GLYNN Midland Free Press September 27, 2012

Normally, the identity of the person whose complaint sparks an ombudsman’s closed-door meeting investigation is confidential.

In the ombudsman’s investigation just completed in Midland, however, the initial complaint arose, in part, because of a Jan. 11 in-camera meeting that preceded January’s planning and development committee meeting.

Coun. Pat File and Deputy Mayor Stephan Kramp, the committee’s vice-chair and chair, respectively, did not attend the closed-door meeting because they later said public notice had not been posted on the town’s website in accordance with the town’s procedural bylaw.

When File suggested during the regular committee meeting later that day that the earlier in-camera session was “illegal,” she was told the failure to post it had been an “oversight.” A staff member suggested scheduling an in-camera meeting prior to the next regular council meeting to once again deal with what had been discussed.

However, Coun. Bob Jeffery objected, saying “unless there is a formal complaint, no. It was an oversight. Don’t suggest what happened was illegal,” he told File. “Fill out a form and go to the ombudsman.”

She did exactly that, supported by Kramp and Coun. Mike Ross. The complaint that was filed also sought an investigation of a Jan. 12 closed-door meeting that had been billed as an “education and training session.” She told The Free Press at the time the complaint involved “other matters,” but declined to elaborate.

“There are still some concerns around in-camera meetings that would benefit from clarification for both staff and council and hopefully the ombudsman will help with this,” she said.

In fact, the ombudsman is making arrangements for members of his Open Meeting Law Enforcement Team to provide council with training on municipal meeting requirements.

Until November of 2011, Midland had retained a private firm to conduct closed-meeting investigations; the same firm used by the County of Simcoe. However, that month, council voted 6-3 to use the (free) services of ombudsman Andre Marin, rather than a private company.

At the time, Coun. Bob Jeffery said, in reference to the ombudsman, that he did not favour “opening the door to the chicken coop to the fox.”

The appointment of a closed-door investigator is required because the Municipal Act subjects municipal councils, boards or other decision-making bodies to an investigation and sets strict guidelines about what may be discussed at closed-door meetings.

The legislation — designed to foster an environment of openness and transparency and, where municipal politicians try to make decisions in secret — is supposed to allow the public to hold them to account.

The report released this week by Marin says his office (initially) received three complaints regarding the closed-meeting practices of Midland council. Complaints concerning subsequent closed meetings also became the subject of investigation, but it is not known who filed the complaints concerning these other meetings.

His report says the (initial) complaints referred to a Jan.11 closed meeting of the planning and development committee, a Jan.12 closed special meeting of council, and various in-camera budget meetings.

“On April 2,” it adds, “our office received another complaint relating to voting practices at in-camera meetings of council on Feb. 21 and March 26,” the report adds.

“As a result of our investigation, we have determined that council contravened the open meeting requirements of the (Municipal) Act in a number of respects.”

Here’s what the Act says, in part, concerning closed meetings.

Section 239 of the Act permits a meeting or part of a meeting to be closed to the public if the subject matter being considered involves:

(a) the security of the property of the municipality or local board;

(b) personal matters about an identifiable individual, including municipal or local board employees;

(c) a proposed or pending acquisition or disposition of land by the municipality or local board;

(d) labour relations or employee negotiations;

(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;

(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;

(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2).

In addition, a meeting of a council or local board or of a committee of either of them may be closed to the public if it is held for the purpose of educating or training the members.

The Act is specific, however, that at any such meeting no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, local board or committee.

Marin’s report cites a number of instances where closed meetings held by Midland council did not fall within the exceptions permitted by the Act.

“Our investigation reviewed two budget meetings of Dec.1 and Dec. 13, 2011, at which council considered items using the ‘personal matters about an identifiable individual’ exception.

“Our investigation found that although some matters discussed during these meetings fell within this exception, other matters were discussed which clearly did not, and should not have been discussed in closed session.

“In addition, certain of those (council or staff) interviewed recalled discussing on Dec. 1 the deployment budget of the fire department and the remuneration and benefits of council.

“Neither of these subjects are properly the subject of a closed meeting under the ‘personal matters about an identifiable individual’ exception,” the report notes.

Turning to the complaints concerning the in-camera meetings of Jan. 11 and Jan. 12, the report mentions that “the town’s procedure bylaw requires that agendas for closed meetings of council and committees of council be posted on the town’s website in advance of the meeting.”

The complaints further said that council failed to report back in open session about what had occurred in the in-camera meeting.

“The complaints also stated that council regularly failed to report back publicly about closed sessions,” the report said.

“The acting deputy clerk advised us that, due to an ‘oversight,’ this did not occur for the Jan. 11 closed meeting,” the report states.

“The Jan. 11 meeting was subsequently declared a nullity. Another closed meeting took place at a later date to address the issues originally discussed on Jan.11.

“With respect to the Jan. 12 closed meeting, the complaints questioned whether the meeting was properly held in camera.

“The public agenda for the meeting stated that council would be holding an in-camera ‘education and training’ session. No further information was provided.

“The minutes record that this meeting was attended by council, the acting clerk/chief administrative officer, the acting deputy clerk, and eight other staff members,” the report states.

“The minutes state that ‘during the closed session each department head briefly outlined their department’s projects and work plan for 2012.’ The minutes also state that ‘Council and staff engaged in discussion with respect to items related to meeting process and other items requiring clarification/reorientation.’

“The minutes further record that four items were identified as items ‘requiring action,’ which would be forwarded to the next General Committee meeting. Certain members of council also advised us that discussions took place regarding particular named town residents and media organizations.

“The mayor told our investigators that the impetus for this meeting was that he ‘wanted a timeout to talk about how we deal with each other.’ He stated the agenda was ‘largely open’ and the idea was to talk about what was and wasn’t working with council.

“Two members of council expressed concern at the meeting that it should not have been held in camera. They recall the acting clerk/CAO and mayor responding that the meeting was properly closed under the ‘education and training’ and ‘personal matters about an identifiable individual’ exceptions to the open meeting requirements.

“During interviews with our office, two other members of council expressed concern about holding the Jan.12 meeting in camera. The mayor…expressed that he did not believe the Municipal Act was clear as to when the ‘education and training’ exception to the open meeting requirements applied.

“While the wording of the “education or training” exception is capable of broad interpretation,” Marin writes, “consistent with the public interest and remedial nature of the open meeting requirements, any exceptions must be narrowly construed.

“Our investigation found that the Jan. 12 special meeting was improperly closed under this exception. In my view, none of the items discussed at this meeting were appropriate for consideration under the ‘education or training exception,’ as the information discussed or exchanged was directly on the subject of council business and was clearly intended to advance the business of council and/or form the basis of future decision-making.

“While some discussions might have involved personal matters about identifiable individuals, this exception was not cited in the resolution to proceed in camera. Accordingly, these discussions were not properly authorized.”

Marin points out that voting can only take place in camera if the meeting is properly closed to the public, and if the vote is for procedural matters, or for giving directions or instructions to officers, employees or agents of the municipality.

“The town’s procedure bylaw mirrors this section of the Act. The prohibition on voting other than as prescribed extends to informal votes, such as “straw polls” or a “show of hands.”

“In two of the meetings that were the subject of our investigation, council voted improperly in closed session, in contravention of the Act.

“For example, it was inappropriate for substantive voting regarding council remuneration and benefits to take place during a closed session.

“Subsequent to the commencement of our investigation, we received an additional complaint about voting at in-camera meetings held on Feb. 21 and March 26. Our office has not conducted interviews respecting these meetings, but has reviewed the relevant municipal documents.”

But the report notes that voting took place at the Feb. 21 meeting concerning an appointment to the board of directors of Midland Power Utility Corp. and the committee of adjustment by way of a show of hands. “The prohibition on voting in closed session extends to a show of hands,” Marin writes.

“During our investigation, we noted that the town’s closed-meeting minutes do not seem to accurately record what occurred during its in-camera sessions. Notably, the closed-session minutes do not provide any information about the directions to staff given by council during the in-camera sessions.”