Town “repeatedly broke the law” in handling in-camera meetings (Amherstburg Echo)

Town “repeatedly broke the law” in handling in-camera meetings: Ombudsman
Town council expected to talk about the report Monday night
By Ron Giofu/The Amherstburg Echo
January 7, 2012

AMHERSTBURG — Ombudsman Ontario is once again coming down hard on Amherstburg due to how closed meetings have been handled.

On its website, the Ombudsman has posted its report entitled "Behind Closed Doors" and states the report "confirms that the council for the Town of Amherstburg repeatedly broke the law by closing its meetings to the public and discussing issues behind closed doors."

The Ombudsman investigated two complaints filed last March, the first being March 11, 2011 over allegations that council had "improperly voted in closed session at a meeting in January (2011) to eliminate the parks and recreation committee." The second complaint, filed March 25, 2011, saw the complainant raise concerns over seven closed sessions held in January 2011.

"Our investigation confirmed that the council for the Town of Amherstburg repeatedly contravened the Municipal Act, 2001 and its own procedural bylaw," wrote Ombudsman Andre Marin in the "Behind Closed Doors" report. "Council discussed issues in closed session on multiple occasions in circumstances that were not permitted under the exceptions to the Municipal Act. Council improperly used the 'education or training' and 'a matter under another Act' exceptions to justify in-camera discussion of items that should have been considered in open session or under another exception to the open meeting requirements. Finally, the council engaged in improper voting behind closed doors."

Marin's written report also stated that "we also observed a number of problematic practices" during their investigation. Those include incomplete and inaccurate meeting agendas, failing to report back publicly "in an informed way" about closed meetings, and adding additional meeting items without prior notice.

Marin also stated his opinion that council provided "insufficient information" in its closed meeting resolutions about subjects being considered behind closed doors.

"We have received some assurances from council members that the town has stopped the practice of voting in closed sessions in circumstances that are not permitted by the Municipal Act. However, it is clear that council must display significantly more rigour in complying with its legal obligations with respect to closed meetings. Our investigators were told that at times, tension between individual council members and between council members and staff have contributed to confusion and, ultimately, violations of the open meeting requirements," wrote Marin.

Marin made seven written recommendations to council including not going in-camera unless it clearly comes within one of the statutory exemptions to open meeting requirements and to maximize the amount of information that is released to the public.

Agendas for in-camera sessions should detail as much as possible what information is being discussed and to not hold votes in closed sessions unless it complies with the Municipal Act and procedural bylaws were among other recommendations Marin made.

CAO Pamela Malott issued a written response to Marin in November defending the town's actions in various in-camera meetings held in January 2011. She noted there were property, legal and personal issues as part of some meetings, and that the meetings did not advance town business.

Malott said while the town appreciates the objective for advance notice of items, "the Ombudsman does not have jurisdiction to deal with the issue of the discussion of items without advance notice. The Ombudsman has jurisdiction to deal with whether the provisions for close meetings have been properly complied with."

In regards to "clerical issues" found in some preliminary findings, Malott noted while clerical errors are unacceptable, a new staff member with limited training was compiling agendas.

"In closing, with all due respect to the opinion of the Ombudsman, the Municipal Act section 239 sets out the exemptions to the open meeting rule of council. The exemptions have been the subject of judicial consideration," noted Malott.

Malott added that the definition of "educational or training sessions" is broad according to the preliminary report from the Ombudsman but the report then concludes that the exemptions should be narrowly construed and relies on the Ombudsman definition of exemption. The evidence examined does not match the conclusions presented in the findings in all instances."

The town noted that throughout 2011, changes were implemented in the process and procedure for in-camera sessions and reporting out from in-camera sessions conform to recommendations set out in the preliminary report.

Marin posted a link on Twitter which, when opened, reveals a report to a "confidential agenda" that was on the town's website which included his report and the subsequent report back from Malott. There is also a memo intended for council and administration only from town solicitor Ed Posliff which noted that no business was furthered during educational or training sessions and that the Ombudsman did not find that the discussion materially advanced the business or decision-making of council.

Posliff also believed there were "troubling" aspects to the Ombudsman investigation "with respect to transparency and bias" including identifying some people by title while granting anonymity to others, conducting interviews in a way that precludes a town response, commenting on issues outside the jurisdiction of the Ombudsman, using headings that pre-judge the opinion, failing to provide summaries of interviews as part of the comment process, restricting access of legal counsel in the process, relying on the preliminary report and dismissing the town's concerns, ignoring statutory language in favor of the Ombudsman's own agenda and ignoring subsequent justifications for such things as in-camera educational meetings and stating "without any authority" that subsequent justifications are not permissible.

Posliff noted that there were "only a few votes" that contravened the Municipal Act and that "council is now aware of it."

"What do Mattawa, South Bruce, Oshawa, Nipissing, Emo, Fort Erie etc. all have in common?" asked Marin in another tweet. "Municipalities that had public discussions of our open meetings reports. Look forward to Monday night's Amherstburg's public discussion."

Marin stated in another tweet that he hopes the town "does the right thing" and accepts the recommendations in his report.