Investigator faults Springwater for in-camera meeting
By Kate Harries AWARE News Network July 12 2013
Springwater Council improperly met behind closed doors without providing public notice, an investigator has found.
In a June 26 decision, John Maddox contradicts the township’s contention that the Jan. 21 2013 gathering was not a meeting as defined by the Municipal Act and concludes that “council failed to provide notice in accordance with their current procedure by-law.” Maddox is a London consultant Springwater has appointed as its closed meeting investigator.
Details of the meeting at which councillors Jack Hanna and Sandy McConkey were berated for writing columns in the Springwater News were made public in an AWARE News Network report March 28.
At the time, Mayor Linda Collins defended the lack of notice by stating that no “meeting” as defined by the Municipal Act took place, because there was no intent to exercise council’s decision-making authority. She compared the gathering to one at which councillors plan a golf tournament – a comparison rejected by Maddox.
Full disclosure: Writer Kate Harries, a Springwater resident, filed the complaint after investigating the Jan. 21 meeting. The identity of a complainant normally remains confidential under the closed meeting investigation process.
Maddox says that Springwater staff contended this was not a meeting of Council but rather an informal gathering during which “municipal” business was not advanced.
But Maddox says it is clear that the Jan. 21 gathering had many characteristics of a meeting, as defined by the Municipal Act – namely, a quorum; an invitation referring to a meeting; and a question of advancing council business.
His report states:
“There is consensus that much of the meeting was devoted to ‘communications’ process and procedures – I would suggest this discussion was in part to address communication policy – clearly a Council responsibility. Regardless of whether any decisions were taken one may argue that you “set” the stage for future changes. In my opinion this could be argued to have been ‘advancing business’.
“I suspect that in the early planning stages for this gathering the intention may well have been to look at ‘mid-term’ progress and the staff advice appears to reflect that.”
However, as the meeting progressed, it became more and more “like a council meeting,” Maddox found, focusing on communications issues. “I believe this subject matter is clearly of the ” policy” making variety — which is very much a Council responsibility… “The fact that no formal decisions were made at this meeting does not marginalize the potential for future discussion and changes to these current procedures.”
It is my opinion as this Council discussion progressed it became more and more like a regular Council meeting during which certain policy matters may have been considered— that being the case there was also no ” notice” provided for this meeting which for some would be defined as a closed” session. I appreciate there will be differing views in this regard however, I am reasonably comfortable in describing this particular gathering as a ” meeting” like situation — regardless of the initial intent. I do believe one might successfully argue that” Council” business was likely discussed even though no formal decisions were reached the ” table” was probably set for Council to entertain changes to their current procedures – in my opinion, that policy discussion could prompt future changes to the current communications policy – on that basis I do believe ” Council” discussion on this matter could well be defined as a “meeting”— that being the case, Council failed to provide notice in accordance with their current procedure by-law.
Maddox does not deal with other aspects of the complaint filed by this writer – including the fact that the “communications” discussion about Hanna and McConkey’s newspaper columns should have been in open session of council, and that no minutes were taken.
In addition, Maddox’s decision is curiously worded, couched as his “belief” or his “opinion,” and the conclusion is fudged by saying that “one might successfully argue” that the Jan. 21 meeting “could be defined” by “some” as a closed session.
Since Maddox is the official being paid by Springwater to be the closed meeting investigator on behalf of the public, one wonders in what forum he thinks this argument might be made, and who, if not he, is going to do the defining.
Contrast the decision with the clear findings made in an October 2012 report by the Ontario Ombudsman on complaints regarding closed meetings held by the Town of Midland and others.
…We investigated three complaints about multiple closed meetings in Midland between December 2011 and March 2012 and found council had improperly used the “education or training” and “personal matters about an identifiable individual” exceptions to discuss items that should have been considered in public. We also found that the council routinely voted illegally behind closed doors.
Our investigation also revealed the town was following several problematic practices, including giving insufficient notice of closed sessions, not keeping adequate records of closed meetings, and failing to report back publicly about closed meetings. The Ombudsman issued eight recommendations to help the town improve its practices, including that it should make audio or video recordings of closed meetings.
Midland is one of three Simcoe County municipalities to have appointed the Ombudsman as their closed meeting investigator. Springwater is one of 14 (including Simcoe County) to have chosen Maddox, even though Maddox is paid through the local tax dollar, whereas the Ombudsman’s services are funded by the province.
The Ombudsman’s decisions are posted on its official website, and made public through a news release – all part of a process that reflects the Ombudsman’s role in acting for the public in investigating council activities behind closed doors.
Maddox’s decision goes to council and appears on the municipal website under correspondence in the July 15 council agenda (Item 10.1). The sense that Maddox acts for council rather than the public is reinforced by the many caveats in the report and the covering letter. Maddox’s invoice – referred to in the covering letter – is not posted.