Ombudsman says council contravened Municipal Act

By DOUGLAS GLYNN Midland Free Press  September 26, 2012 

An investigation into certain closed-door meetings has revealed that Midland Council routinely contravened the Municipal Act, breached its procedural bylaw and engaged in improper voting behind closed doors.

The investigation by Ontario’s ombudsman, Andre Marin, was prompted by complaints about certain closed-door meetings held between December 2011 and March 2012. Some of the complaints were filed in January by council members. (See related story on Page A2).

Marin’s findings are contained in a 15-page report that council was required to make public on Monday; it can be found on the ombudsman’s website: ombudsman.on.ca.

In the opinion section of the report, Marin writes that the investigation confirmed council:

• discussed issues in closed session on multiple occasions in circumstances that were not permitted under the exceptions to the (Municipal) Act;

• improperly used the “education or training” and “identifiable individual” exceptions (in the Act) to justify in-camera discussion of items that should have been considered in open (public) session; and,

• routinely engaged in improper voting behind closed doors.

“During our investigation, we also observed a number of problematic practices, including an instance of insufficient notice, and multiple instances of inadequate record keeping and failing to report back publicly in an informed way about closed meetings,” the report says.

“It is clear that council must display more rigour in complying with its legal obligations with respect to closed meetings,’ he writes. “It is also important for council members to take note that they are individually and collectively bound to ensure that the open meeting provisions are observed.”

Marin says his office has been told by many members of council that council is looking to improve its closed-meeting practices and would like the assistance of his office in doing so.

“Our office has contacted the clerk to arrange for members of our Open Meeting Law Enforcement Team (OMLET) to provide council with training on the municipal meeting requirements.”

In addition, Marin says he was asked to address the question of private briefings that are held between some members of council and town staff.

“This issue was addressed separately,” his report says, “and will be dealt with in a separate communication to council, as well as during an upcoming outreach training sessions with my staff.”

In a move to ensure that complaints are confidential, Marin has asked the town to change its municipal closed-meeting investigator policy.

The policy required those making complaints to complete a request form for the municipal closed-meeting investigator that was to be submitted to Marin’s office or the town clerk.

“During our investigation, we informed Midland that no special form is required,”?Marin said.

The ombudsman says anyone making a closed-meeting complaint “can contact his office directly by phone, mail, email, online, via mobile device or in person.”

It means there is no need to complete any form or deal with town hall.

The report makes seven recommendations:

1. The town should ensure that no subject is discussed in a closed “education or training” session that materially advances the business or decision-making of council. Nor, should it hold “education or training” sessions unless the subject of discussion is solely for the purpose of education and training and the town has properly cited this exception in its resolution to go in camera.

2. The town should ensure that discussions that take place in closed session under an exception to the Municipal Act’s closed-meeting requirements are limited to those matters that council is permitted to discuss in closed session under the exceptions in the Act. Council should not allow discussion of additional matters in closed session, which do not fall within the exceptions under the Act.

3. The town should ensure that no vote is taken at a closed meeting, except in accordance with the town’s procedure by-law and the (Municipal) Act. A vote should not be taken unless the procedural requirements for voting are followed including authorizing motions, and resolutions. Similarly, informal votes via a “show of hands” are not permitted to be taken in camera.

4. The town should follow a practice of record keeping, including recording all resolutions, votes, decisions and proceedings at a meeting, regardless of whether the meeting is closed or not, in accordance with s. 239 (7) of the (Municipal) Act.

5. The town should record audio and/or video of all in- camera meetings and store such recordings in a confidential and secure fashion for future reference.

6. Council should follow a practice of reporting back publicly after a closed meeting generally on all matters considered in camera.

7. All members of council should be vigilant in adhering to their individual and collective obligation to ensure that council complies with its responsibilities under the Act and its own procedural bylaw.