Public spotlight exposes troubling local secrecy, Ombudsman says
Public spotlight exposes troubling local secrecy, Ombudsman says: Province should strengthen “Sunshine Law”
Annual report on investigations of closed meetings
(TORONTO – December 11, 2013) Strong public interest in local government transparency has exposed troubling gaps and weaknesses in the system for holding municipalities accountable, Ontario Ombudsman André Marin says in his latest report, released today.
2012-2013 OMLET Report HTML
Facts and highlights
Complaints to the Ombudsman about closed meetings in municipalities across the province more than doubled over the past year – a sign of both “healthy democracy” and “disturbing secrecy,” Mr. Marin says in the report. The cases ran the gamut from “backdoor, backroom discussions” and political “histrionics” to “historic advancements in transparency technology,” he notes.
The Ombudsman’s report reviews highlights of 246 cases received by his office’s Open Meeting Law Enforcement Team (OMLET) from September 1, 2012 to August 31, 2013. It also reflects on the state of the “Sunshine Law” in Ontario – the public complaints system whose “deep flaws” have become increasingly evident since its inception in 2008, according to Mr. Marin.
Under the Municipal Act, 2001, all meetings of councils, local boards and their committees must be open to the public unless they meet certain narrow requirements. However, there is no consequence for violating the law, and municipalities can hire their own investigator if they choose not to use the free services of the Ombudsman’s office or dislike the Ombudsman’s findings – a practice Mr. Marin derides as “oversight shopping.”
He calls on the province to strengthen the Municipal Act by imposing penalties, invalidating the results of illegal meetings, and bringing all municipalities under a single, independent investigator. “If open meetings are the law, then interpretation and enforcement of the law should not vary according to where you live and the predilections and peeves of your local politicians – or whoever they appoint to conduct their investigations,” he says. “There should be one investigator, not a patchwork.”
While some municipalities – notably Sudbury – replaced the Ombudsman as their investigator in the past year, others chose to go the opposite route, leaving the number of municipalities within the Ombudsman’s jurisdiction the same as last year: 191 of Ontario’s 444 municipalities.
In the period covered by this report, the Ombudsman and OMLET found 19 of the 96 meetings they reviewed were illegal – or about one in five. “This is hardly good news for Ontarians concerned about transparency,” Mr. Marin says. In addition, the team found 31 procedural violations of the Act and made 63 recommendations for municipalities to improve their meeting practices.
The top source of public complaints and controversy in the past year was the issue of municipal politicians meeting secretly on the pretext of social gatherings. Mr. Marin notes many officials have expressed confusion about whether they can converse outside of council chambers.
“The intent of the law is not to prevent councillors from talking to one another. It is to prevent them from subverting the rules and conducting clandestine business,” he says. “I have always said councillors are free to socialize and gather informally without fear. What they must not do is undermine the law by using informal gatherings – or email, or phone calls or any other ruse – to hide business from the public.”
The report cites the case of a meeting of the mayor and six city councillors in London, Ont. in the back room of a local restaurant on a Saturday morning prior to a key budget vote. Although the politicians said the gathering was mere happenstance, the Ombudsman’s investigation of cell phone records and other evidence indicated it was planned and city business was discussed.
Mr. Marin also reiterates his recommendation, made in last year’s report and several cases since, that councils record all meetings digitally, including closed ones. He praises the councils of Oshawa, Tiny, Madawaska Valley, Midland and Lambton Shores for adopting the practice, which improves accountability and makes investigations more efficient.
The Ombudsman’s report is being sent to all 444 municipalities in the interest of furthering consistency and educating municipal officials and the public. He points out that another problem with the province’s patchwork Sunshine Law system is that, apart from his office’s reports and website, there is no central, public place for Ontarians to find information about open meetings.
“There are almost as many interpretations of the law and processes as there are investigators, and there is no central public repository for all decisions; no database that can enlighten curious citizens on where their hometown sits on the transparency scale,” he says.
Along with the report, the Ombudsman is sending pocket-sized cards to all municipal councillors and clerks throughout Ontario that include “best practices for closing meetings.” The cards – reproduced on the inside cover of the report – are part of a series of materials the Ombudsman’s office has produced since 2008 to educate the public and municipal officials about open meetings. The Ombudsman and OMLET staff have also conducted training and information sessions for several councils across the province.
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