While Ontario ombudsman Andre Marin’s report on closed-session meeting investigations may not have dealt with any of York Region’s municipalities, concerns have been raised locally.
In Markham, some residents have raised questions about the in-camera meetings held regarding the proposed NHL-size arena in the municipality.
The city has been too liberal in its use of closed-session meetings on the issue, Markham resident Karen Rea said.
She’s planning to file an investigation request into the meetings, despite city staff telling her the complaint will cost the municipality $160 per hour spent on it.
“There have been too many closed-door meetings on this,” Ms Rea said, adding there are no property acquisition or personnel issues to discuss that would require such meetings.
“There’s nothing there that should be secret.”
Believing something smelled rotten in Georgina after Mayor Rob Grossi launched a publicly funded defamation lawsuit against former leisure services director John McLean, resident Kristina Toomey launched a two-pronged investigation into the closed meetings, procedure and code of conduct issues surrounding the case.
Four months later, investigators with Amberley Gavel Ltd. reported the town erred, by making “a substantive decision in closed session”, one that was “couched in a direction to staff” and therefore breached the Municipal Act during the Nov. 21 committee of the whole meeting.
The Amberley Gavel report amounted to “a slap on the wrist” and little else, Ms Toomey said, adding she was disappointed there weren’t any penalties that could have been applied as a result of the findings. The fact council essentially decided when and how it made the report public, ultimately deciding to do so during a Monday morning meeting, was also disheartening, she continued.
The lack of penalties for municipalities that violate Ontario’s so-called sunshine laws, which are intend to ensure municipalities do business in an open and transparent manner, is one of the issues to which Mr. Marin drew attention in his report.
Rather than penalties, which exist in a number of American jurisdictions, ranging in severity from fines to jail time, Ontario municipalities in breach of the act are dealt with through education.
The problem is, while a number of the 128 closed-session complaints investigated by his office last year were the result of ignorance on the part of staff or elected officials, others were an attempt to knowingly circumvent rules.
In any event, Mr. Marin intends to send educational cards on closed-door meetings to all 444 Ontario municipalities, not just the 191 where he serves as investigator.
“The last line on the card is: ‘When in doubt, open the meeting’,” he said during Tuesday’s media conference. “Unfortunately, for too many councils, it’s not that simple, because, even in the fifth year of the sunshine law, too many municipalities are playing by their own rules, closing meetings illegally, voting behind closed doors — you name it.”
Mr. Marin also suggested all municipalities should keep audio or video records of their closed session meetings in the event of a future investigation. Some are keeping extensive records of what goes on in camera, he said, but, in others, investigators have only the recollections of council members and staff by which to go.
Another issue highlighted by Mr. Marin was the patchwork approach applied to the problem, as each municipality is free to appoint any person or corporation as its closed-session meeting investigator under the legislation.
There should be a single body overseeing the such investigations, he said, be it the ombudsman’s office or another body.
“I can’t think of any other example in Ontario where a municipality can opt out of a mechanism of law enforcement,” he said. “Here, municipalities can opt out and create their own investigation regime to deal with complaints. It’s bizarre.”
Beyond that, some municipalities also charge residents to investigate their complaints, which results in a chilling effect, Mr. Marin said, so some violations go unreported as a result. The ombudsman’s office has no fee for municipalities and complainants, he added.
Through Local Authority Services (LAS), which is itself a subsidiary of the Association of Municipalities of Ontario, Amberley Gavel is the closed-session investigator for all nine of the region’s municipalities and York Region. Amberley Gavel is on retainer for 128 Ontario municipalities through LAS, explained LAS president Nancy Plumridge, adding the firm also provides a slew of educational resources in addition to its role as an investigator.
“First of all, on the fee, I don’t think anything in life is free, so the ombudsman likely has costs, but they’re buried,” she said. “All of the costs with Amberley Gavel are open and transparent.”
That’s really what everyone should be striving for, said Nigel Bellchamber, one of Amberley Gavels’ two founding principals. The fact of the matter is, the ombudsman is hardly free, he said, explaining the difference is Mr. Marin’s office is funded through provincial tax money, rather than municipal coffers.
Ultimately, both Ms Plumridge and Mr. Bellchamber agree on the importance of education and everyone involved in municipal government is trying to do the right thing. They also agree the legislation is achieving what it was meant to do.
“There’s also the threat of political embarrassment by being found in breach of the Municipal Act and politicians are always protective of their reputations,” Mr. Bellchamber said. “If they get a report back saying they breached the act, it’s news.”
On the topic of fees, LAS generally discourages municipalities from charging complainants for launching an investigation, but some do. Newmarket, for example, charges people requesting a closed-session meeting investigation $100.
On the other hand, Ms Toomey didn’t have to pay a fee to instigate an investigation into Georgina’s closed door meeting, but she said the process involved a lot of paperwork and was time consuming. However, she was pleased once her complaint made it to the investigators, she said.
“I was happy with the process once Amberley Gavel got a hold of it,” Ms Toomey said. “Georgina was found to be at fault, as per the LAS report, but it is interesting how there is no punishment for any municipality that breaks the law set out by the Municipal Act, not even a fine imposed on the members of council.
“All they get is a little hand slap and carry on with their day-to-day duties.”
In Markham, Ms Rea just wants to feel confident the investigation will be objective.
“I’m hopeful it will be an arms-length investigation and they won’t say ‘We do business with the town, so we’ll give them the answer they want’,” she said.
— with files from Heidi Riedner
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