The Ombudsman determined that the Town of Mattawa’s Ad Hoc Heritage Committee held a series of improperly closed meetings.
Investigation into whether the Town of Mattawa Council and its Ad Hoc Heritage Committee
held improperly closed meetings
Ombudsman of Ontario
1 On February 4, 2010, our Office received a complaint that the Town of Mattawa’s Ad Hoc Heritage Committee had improperly held closed meetings on November 4, November 12, and November 20, 2009. This Committee was formed to consider issues relating to possible designation of an old hospital as a heritage site.
2 The same day, we received complaints that Council had improperly held a closed meeting at the local museum, on November 23, 2009, to discuss a motion regarding the old hospital, which was introduced later that evening at a regularly scheduled public meeting.
3 On February 5, 2010, we received a complaint alleging that Council members had held an improper closed meeting immediately after the January 25, 2010 Council meeting, and on February 9, 2010, our Office received a complaint that Council had improperly gone in camera at its February 8, 2010 Council meeting.
4 Under the Municipal Act, 2001, municipalities are required to pass by-laws setting out the rules of procedure for meetings. The law requires public notice of meetings, and that all meetings be open to the public, unless they fall within prescribed exceptions.
5 As of January 1, 2008, changes to the Municipal Act, 2001 gave citizens the right to request an investigation into whether a municipality has properly closed a meeting to the public. Municipalities may appoint their own investigator or use the services of the Ontario Ombudsman. The Act designates the Ombudsman as the default investigator for municipalities that have not appointed their own.
6 The Town of Mattawa has not appointed its own investigator and accordingly, the Ombudsman is the town’s closed meeting investigator under s.239.1 of the Municipal Act, 2001.
7 In investigating closed meeting complaints, our Office considers whether the meeting was closed in accordance with the provisions of the Act, and the relevant municipal procedure by-law.
Council Meeting Procedures
8 The Town’s procedure by-law (84-15) was created over two decades ago. It states that regular council meetings are generally to be held on the second and fourth Monday of every month in Council Chambers at 7:00 p.m., and that notice is to be given to Council members of “special meetings” at least 24 hours in advance. However, the by-law does not provide for public notice to be given of all meetings as is now required by s. 238(2.1) of the Municipal Act, 2001.
9 The procedure by-law also does not specifically address the procedure to be followed for closed meetings.
10 The need to update Council’s meeting procedures may account, in part, for some of the practices that prompted the complaints we received.
11 After conducting a preliminary review of the complaints we received, on March 17, 2010, our Office notified Council that we would be conducting a formal investigation of allegations that Council as well as the Ad Hoc Heritage Committee had improperly held closed meetings.
12 During the course of our investigation, relevant municipal documents were obtained and reviewed, including minutes, agendas, emails and other municipal records. We also considered the town’s procedure by-law and applicable legislation.
13 During our investigation, a team of two investigators completed telephone interviews with six of the seven members of Council as well as the Town Clerk. We spoke to a seventh Councillor during our preliminary review. While we were unable to arrange a formal interview with her despite efforts to contact her by phone and in writing, we were able to obtain sufficient information to conclude our investigation.
Meetings of the Ad Hoc Heritage Committee of the Council of the Town of Mattawa on November 4, 12, 18, and 20, 2009
14 In the fall of 2009, a controversy arose around the future of the old general hospital in Mattawa. The local French school board (le Conseil scolaire catholique Franco-Nord) was in the midst of purchasing the property from the Sisters of Charity (Soeurs de la Charité d’Ottawa) with plans to demolish the building and construct a new school. However, a local citizens group began to publicly promote designation of the building as a heritage site. A Facebook group and on-line petitions were directed at “saving the old hospital.” The issue also began to attract local media attention.
15 On October 13, 2009, Mattawa Council responded to the brewing debate by passing a resolution to proceed with a Notice of Intention to possibly designate the “Old Hospital Building” as a property of cultural heritage value under the Ontario Heritage Act, and directing staff to issue a Notice under that Act.
16 As pressure to protect the old hospital continued to build, on October 26, 2009, Council resolved to authorize a five-member group, made up of three Council members and two members of the public, to address heritage culture issues concerning "the old Hospital site" and to work with officials from the French school board to "resolve concerns about the heritage aspects of the Hospital site".
The group formed by Council does not appear to have had a formal title. It was variously referred to as the Advisory Committee, Ad Hoc Committee, Ad Hoc Heritage Committee, Old Hospital Heritage Designation Committee and Ad Hoc Heritage Advisory Committee.
The group had no formal terms of reference and it is unclear whether it was intended to be a “special purpose committee” governed by the Town’s procedure by-law. In the case of special purpose committees, the by-law provides, for instance, that a quorum for conducting business is a majority of the members, excluding the mayor, and that these committees are to report to Council. (s.11.00 General Rules for Special Purpose Committees)
18 The Town Clerk explained that there was no formality to the group and that it was there to assist in getting the community to accept the school board’s plans for the building and the school board to give recognition to the building’s heritage aspects. The Mayor and two Councillors, who were on the Committee, confirmed that its role was advisory and that it was expected to make recommendations to Council about the fate of the old hospital. The Committee members we interviewed explained that they had never considered whether the open meeting requirements might apply to the Committee’s proceedings.
19 The first meeting of the Ad Hoc Heritage Committee took place on November 4, 2009 at 7:00 p.m. in the Town Hall in Mattawa. At this meeting, the Committee met with officials from the school board as well as representatives of an engineering/architectural firm the board had retained as a consultant. An agenda was prepared for the meeting by the consultant and circulated to Committee members, but no public notice of the meeting was provided and no formal record of it was kept. The agenda indicated that the Committee would be discussing its mandate and the consultant’s ideas relating to integrating the old hospital with the new proposed structure for the school.
20 The Committee met again on November 12, 2009 at 7:00 p.m. in the Town Hall and discussed the old hospital for about 40 minutes. Immediately following this meeting, the Committee together with the Clerk met with officials from the school board to consider a report prepared by the board’s consultant. The report concluded that significant structural renovations were required to bring the building up to the current Ontario Building Code requirements, that all windows and doors would need to be replaced, that a new building envelope system, mechanical, electrical and life safety systems, stairwells, and a new elevator would be required. It was estimated that these renovations would significantly exceed the cost of the budget for the construction of the new school. The municipality was unable to provide us with any agendas for these meetings and once again, public notice was not provided nor an official meeting record kept.
21 On November 17, 2009, the Mayor notified Committee members that a meeting had tentatively been scheduled for the next day at 6:00 p.m. at the Town Hall. He noted at that time that he “would like to have a decision-recommendation concerning the project for Council prior to our next scheduled Council meeting on Monday November 23rd”. No public notice was given of this meeting. In the end, the meeting did not take place as planned as three Committee members were unable to attend. Instead, the Mayor and one of the Councillors on the Committee met with school board officials and the board’s consultant at the board’s office in Thunder Bay at 4:30 p.m. on November 18, 2009. There was no official record of what transpired at this meeting.
22 The agenda for a Special Meeting of Council called for November 19, 2009, included the “Old Hospital Heritage Designation Committee Report” as an item for discussion. However, this matter ended up being deferred. That evening, one of the two members of the public serving on the Committee formally resigned, expressing dissatisfaction with how the Committee had carried out its mandate.
23 On November 20, 2009, the Mayor met with the remaining member of the public serving on the Committee to provide him with information regarding the November 18, 2009 meeting that had been held with the school board and its consultant. The Town Clerk was also present for this discussion.
24 There were no further meetings of the Committee and during our investigation the Town of Mattawa was in the process of recruiting a permanent Municipal Heritage Committee.
25 The Mayor has advised that after considering the matter, particularly the safety concerns raised by the school board’s consultant, the Committee had arrived at a recommendation that the old hospital should not be designated as a heritage site. He indicated that the Committee was unanimous in this view with the exception of one Councillor, who had come late to the meeting where it was discussed, and the member who had resigned. On November 23, 2009, the Mayor asked the Clerk to prepare a resolution for consideration of Council regarding the Committee’s recommendation.
26 We were unable to confirm when the Committee actually discussed the recommendation, and there is no formal record of any vote or resolution on this matter. One Councillor, who had been on the Committee, could not recall how this recommendation was arrived at, although he was supportive of it, and another, indicated that he first became aware of the recommendation when the Mayor raised it with Council members at the end of a tour of the local museum on November 23, 2009.
27 Under the Municipal Act, 2001, committees of municipal councils are required to comply with the open meeting provisions of the Act. For the purpose of these provisions, committee is defined as “any advisory or other committee, subcommittee or similar entity of which at least 50 per cent of the members are also members of one or more councils or local boards.” (s. 238(1))
28 Given its constitution and purpose, the Ad Hoc Heritage Committee met the definition of committee in the Municipal Act, 2001 and was required to follow the prescribed meeting practices.
29 Unfortunately, the Committee conducted itself in complete disregard and with apparent ignorance of the open meeting requirements It failed to provide any public notice of its meetings and they were not open, as required by the Municipal Act, 2001 (s. 239). The Committee also neglected to keep a record of its meetings as mandated by the Act (s. 239(7)).
30 The Committee’s failure to follow a transparent process was compounded by the informal way in which it conducted itself. The Committee does not appear to have been concerned with considerations of quorum; the number of members required at a meeting to legally exercise authority; and there does not appear to have been any structure to its proceedings and deliberations. There was no formal vote on the Committee’s ultimate “recommendation” that the old hospital not be designated as a heritage site, and it is unclear when or how this recommendation arose, or whether it even derived from a meeting with sufficient members to legally approve it. When it came to reporting back to Council on its work, the same informality applied. The Mayor simply met with Council on an impromptu basis without notice, a situation that gave rise to another complaint to my Office.
31 The subject of the old hospital’s future was of significant community interest. The Committee’s failure to follow a transparent and structured process, in accordance with the law, prevented the public from understanding the steps taken by the Committee in carrying out its mandate as well as the basis for its recommendation to Council. It also served to cast doubt on the legitimacy and credibility of its proceedings.
Meeting of Council at the Museum on November 23, 2009
32 The local museum in Mattawa had recently undergone significant renovations, and at the invitation of the museum president, who also happened to be a member of the Ad Hoc Heritage Committee, all members of Council as well as the Clerk, attended at the museum at 6 p.m., on November 23, 2009, for a tour.
33 After the tour, the Clerk returned to the Town Hall to prepare for the regularly scheduled 7:00 p.m. Council meeting. However, the rest of Council remained behind while the Mayor briefed everyone on the findings of the Ad Hoc Heritage Committee and gave them a “head’s up” that a motion would be brought at that evening’s Council meeting to rescind the intent to designate the old hospital as a heritage site. Some Councillors advised us that the Mayor had asked members of the public in attendance to leave, before commencing the briefing, while one Councillor indicated that two members of the museum board remained for the discussion. The meeting was apparently brief, estimates ranging from one to 15 minutes.
34 The Clerk had already prepared an agenda for the November 23, 2009 Council meeting, which he had circulated to Council members and posted at the Post Office, the Library and the Town Hall, on the preceding Friday. The agenda did not refer to the old hospital as an item for discussion. The Town’s procedure by-law does not indicate how matters are included on the agenda or how it is to be distributed. However, a by-law amendment, dated April 26, 1993, refers to tabling new items through the “2/3” process in the case of emergency situations. It is not uncommon for municipal procedure by-laws to allow for introduction of last minute items in the case of urgency, provided certain protocols are followed. Although Mattawa’s procedure by-law is somewhat cryptic in that it does not explain what is meant by a “2/3” process, it appears to provide for addition of emergency matters to a meeting agenda with the approval of a two-thirds majority of Council.
35 During the portion of the meeting reserved for consideration of “2/3” matters, the following motion was included on that evening’s agenda:
AND WHEREAS Council formed an Advisory Committee to review the options available for the old building which resulted in the Committee recommendation to withdraw the designation.
36 However, there is no record of a vote being taken by Council to add the item and no indication that Council deemed this to be an emergency matter. There was no discussion by Council about whether the proposed item was an emergency, although the Mayor suggested that there was some urgency as the school board was under a time line to get demolition permits for the old hospital.
37 According to those we interviewed, there were many members of the public in attendance at the November 23, 2009 Council meeting and there was considerable debate and discussion regarding the old hospital motion, which passed on a 6:1 vote.
38 Not all gatherings of council members qualify as “meetings” that must be held in accordance with the open meeting provisions of the Municipal Act, 2001. The Act defines a “meeting” as “any regular, special or other meeting of a council, or a local board or of a committee of either of them.” (s.238(1))
39 After considering the principles behind the open meeting law, as well as the relevant case law, I have developed the following working definition of a “meeting” to assist in determining whether a gathering is subject to the open meeting provisions. To come within the Municipal Act requirements:
Members of council (or a committee) must come together for the purpose of exercising the power or authority of the council (or committee), or for the purpose of doing the groundwork necessary to exercise that power or authority.
40 Informal gatherings for social purposes are not generally considered to be meetings. However, where the purpose of the gathering is to discuss the business of council and/or to make decisions, a gathering is more likely to be deemed a “meeting” that is subject to the open meeting requirements.
41 After the museum tour on November 23, 2009, the Mayor met with Council to provide information on the findings of the Ad Hoc Heritage Committee and give notice of the motion to be introduced to Council that evening based on the Committee’s recommendation. While the gathering was brief and no decisions were reached at the time, Council did obtain information that served as the groundwork for the exercise of its authority later that evening when it considered the recommendation. This meeting was conducted without notice and in the absence of the public. Under the circumstances, I believe that this gathering constituted a closed meeting of council, which was held in contravention of the Municipal Act.
42 Council’s contravention of the Municipal Act requirements was amplified when the Committee’s recommendation was added to the agenda for the public Council meeting later that evening, without any advance notice to the public and contrary to the procedural by-law’s requirements for adding emergency matters to council’s agenda.
43 The Council’s actions in holding an improper meeting to discuss the Committee’s recommendation as well as the irregular procedure followed in adding the item to the meeting agenda, served to further compromise public confidence in its proceedings. Subsequent to the November 23, 2009 meetings, we continued to receive complaints about Council’s meeting practices.
January 25, and February 8, 2010 Council Meetings
44 While notice was provided of the Council meeting of January 25, 2010, there was no notice that a closed session would be held following the public portion of the meeting. During the open portion of the meeting, a resolution was passed in open session to go in camera to “address a matter pertaining to personal matters about an identifiable individual, including municipal or local board employees.”
45 The Clerk did not keep minutes of the closed session. However, those in attendance confirmed that it involved a discussion of whether or not to extend an individual’s contract with the Town and that this was done in closed session because it involved a discussion of the individual’s salary.
46 After this Council session concluded, some members stayed behind and spoke to each other. It is not clear what was discussed at the time, as those in attendance could not recall specific details. While one Councillor believed that there might have been an informal update relating to the District Economic Development Committee, the evidence on this point was not consistent, and the other members of Council explained that the discussion was social in nature, about subjects such as hockey and the weather.
47 We also received a complaint about a closed session held during the regularly scheduled Council meeting on February 8, 2010. Notice was given of this meeting, but again not of the closed session to be held, in that case to consider a matter relating to a specific employee. This issue did not appear on the publicly posted agenda, but a resolution was passed in open session to proceed in camera to discuss “a matter pertaining to personal matters about an identifiable individual, including municipal or local board employees.” There are no minutes relating to this session.
48 As noted above, the Town’s procedure by-law is deficient in that it fails to provide for public notice of meetings, in contravention of the Municipal Act, 2001 (s. 238(2.1)). While the Town did provide notice of the January 25 and February 8, 2010 meetings and post an agenda publicly, it did not identify that a closed session would be held or indicate what would be discussed in camera.
49 The Municipal Act does not specify the content of the notice to be given to the public. However, as a best practice, municipalities are encouraged to list all items on the agenda including a general description of the subjects to be discussed in closed session. Items that have not been the subject of advance notice should only be considered in rare circumstances where urgency doesn’t permit the normal notice requirements to be observed.
Resolutions Authorizing Closed Session
50 The Municipal Act requires that before holding a closed session, a resolution must be passed in open session stating the fact that a closed meeting will be held as well as the general nature of the subject matter to be considered. (s. 239(4)).
While on both January 25, 2010 and February 8, 2010, Council passed a resolution before entering into closed session, as required by the Municipal Act, 2001
, the issue under consideration was described simply by repeating the wording of the exclusion from the Municipal Act
that Council was relying on to close its doors. Generally, such resolutions should provide meaningful information about the issue to be discussed, subject to confidentiality concerns. As noted by the Ontario Court of Appeal in Farber v. Kingston City,
“the resolution to go into closed session should provide a general description of the issue to be discussed in a way that maximizes the information available to the public while not undermining the reason for excluding the public.” It is my view that the Municipal Act
requires at least a brief description of the issue under discussion in the resolution. A recitation of the language of the Act would not normally satisfy this requirement.
Issues Considered in Closed Session
52 In the case of the January 25, 2010 meeting, Council justified entering into a closed session on the basis that it would be considering an individual’s salary and with respect to the February 8, 2010 meeting, Council went in camera to discuss a specific employee. One of the exceptions to the general requirement that meetings are to be open to the public, permits Council to close a meeting if the subject matter being considered involves “personal matters about an identifiable individual, including municipal or local board employees” (s. 239(2)(b)).
53 In my view, an individual’s salary, as opposed to a salary range for a position, may qualify as a personal matter about an identifiable individual. This view is consistent with decisions of the Office of the Information and Privacy Commissioner of Ontario, which have considered whether information about an individual’s salary was personal information protected from disclosure under the Municipal Freedom of Information and Protection of Privacy Act and the Freedom of Information and Protection of Privacy Act. (See for instance: Order M-5, Order 61, Order 183, and Order P-273.). With respect to the matter considered in closed session on February 8, 2010, Council was considering an individual employee’s personal circumstances within the intent of the prescribed exception.
54 Accordingly, Council was entitled to consider these issues in closed session, once it had observed the appropriate procedural requirements.
Closed Meeting Record
55 In accordance with s. 239(7) of the Municipal Act, 2001, a municipality is required to record, without note or comment, all resolutions, decisions and other proceedings at its meetings.
56 Article 3.03 of the town’s procedure by-law states that the Clerk shall record the minutes without note or comment as specified under the Municipal Act. No formal record was kept of the January 25, 2010 and February 8, 2010 closed sessions. We were advised by the Clerk that the reason for this is that only resolutions are captured in meeting minutes as, “the Clerk is to take minutes without note or comment”. I believe that this practice is based on an overly narrow and inaccurate interpretation of the Municipal Act requirement.
57 While the Act prohibits notes or comments from being included in the official record, this does not mean that the subjects discussed in a meeting should not be referred to. Generally, the Clerk has the responsibility to record the various substantive and procedural items that were discussed at a closed meeting. As I noted in my report concerning our investigation into a special meeting of the City of Oshawa’s Development Services Committee, entitled The ABCs of Education and Training:
The admonition not to include notes or comments does not mean that no information regarding the subjects discussed at a meeting should be recorded. The requirement to keep a meeting record should be interpreted in a manner that is consistent with the intent of the open meeting provisions, which are directed at enhancing the openness, transparency and accountability of municipal government. While extraneous notes and comments not germane to the actual proceedings of a committee should be excluded, the minutes should reflect what actually transpired, including the general nature of the subjects discussed.
58 Ideally, a meeting record of a closed meeting should include reference to:
· where the meeting took place;
· when the meeting started and adjourned;
· who chaired the meeting;
· who was in attendance, with specific reference to the Clerk or other designated official responsible for recording the meeting;
· whether any participants left or arrived while the meeting was in progress and if so, at what time this occurred;
· a detailed description of the substantive and procedural matters discussed, including reference to any specific documents considered;
· any motions, including who introduced the motion and seconders; and
· all votes taken, and all directions given.
Proceedings Following a Closed Session
59 In many cases, following a closed session, Council resumes open discussion before concluding a meeting, and typically, this is when Council will vote on matters considered during the closed session. The public should be made aware that they are entitled to return once the closed session has concluded and open session resumes. Based on the information we obtained during our investigation, it is unclear whether the Council consistently follows a practice of informing the public of their right to return to Council Chambers after the in camera portion of a meeting has ended.
60 Similarly, as a best practice, Council is encouraged to report back in public after all closed sessions on what generally occurred in camera. This would involve more than the current Mayor’s Report at the start of each Council meeting, which we were advised, normally, only highlights important decisions that are made.
Socializing After Council Meeting
61 As for the discussion following the January 25, 2010 meeting, there is insufficient evidence to suggest that it was anything more than members of Council lingering and engaging socially. A certain degree of casual communication before and following Council meetings is to be expected. However, there is always a risk that such information exchanges, particularly occurring in close proximity to official meetings, will attract adverse speculation. Council members should be cautious to ensure that casual social conversation does not drift into improper areas and that the public is not excluded when such discussions take place.
62 Our investigation found that the Town of Mattawa’s Ad Hoc Heritage Committee engaged in multiple contraventions of the open meeting provisions of the Municipal Act, 2001 including holding a series of improperly closed meetings. While Council had created the Committee to assuage the public discord around the fate of the old hospital, the manner in which the Committee carried out its mandate served only to further undermine public confidence in the process. In future, Council should carefully consider whether the entities it creates are required to comply with the open meeting provisions and ensure that those covered by the Act are made aware of their responsibilities. To facilitate this, Committees should have clear terms of reference and be subject to procedural rules, which encourage compliance with the open meeting provisions and incorporate the principles of openness, accountability and transparency.
63 Mattawa Council also held an improper closed meeting at the museum on November 23, 2009, further eroding the public’s trust. While I have found that Council was entitled to consider issues relating to personal matters in closed session at its Council meetings on January 25, 2010 and February 8, 2010, and that an improper closed meeting did not take place after the January 25, 2010 meeting, there are many areas where the Council would benefit from improving its meeting practices. To begin, Council’s procedure by-law needs to be updated and amended to comply with the Municipal Act, 2001 requirements as well as to incorporate best practices.
64 Accordingly, I am making the following recommendations.
The Council for the Town of Mattawa should review its procedure by-law and amend it to reflect the Municipal Act, 2001 requirements as well as meeting best practices. It should include:
· a requirement that public notice be given of all meetings, including closed sessions within regularly scheduled Council meetings;
· provisions for agendas to include all items to be discussed during the open and closed portions of meetings;
· a procedure governing how notice is to be given and agendas distributed to the public as well as Council members;
· a prohibition against discussing items at meetings without notice, unless the matter is urgent and the normal notice rules are suspended through a formal recorded vote; and
· provisions relating to the conduct of closed meetings, including reference to the circumstances as set out in the Municipal Act, 2001 when such meetings may be held in camera as well as record keeping requirements.
The Council for the Town Mattawa should ensure that no subject is discussed in closed session unless:
(a) It has been properly added to the agenda in accordance with the town’s procedure by-law;
(b) It clearly comes within one of the statutory exceptions to the open meeting requirements;
(c) There is a resolution made in advance, in open session, authorizing that the subject be discussed in closed session; and
(d) The subject has been generally described with as much specificity as possible so as to maximize the information available to the public, without undermining the reason why the matter is being dealt with in camera.
The Council for the Town of Mattawa should carefully consider whether entities it creates are required to comply with the open meeting provisions of the Municipal Act and ensure that those covered by these requirements are made aware of their responsibilities. The Council should also ensure that such bodies are provided with clear terms of reference and subject to procedural rules, covering such matters as quorum, voting, record-keeping, and the process for reporting back to Council.
The Council for the Town of Mattawa should follow a practice of informing members of the public that once the closed portion of a regular council meeting has ended, they are entitled to return for the concluding open session.
The Council for the Town of Mattawa should follow a practice of reporting back publicly after a closed meeting generally on the matters considered in camera.
The Council for the Town of Mattawa should follow a practice of keeping a proper record of closed sessions consistent with the requirements of the Municipal Act, 2001.
All members of council for the Town of Mattawa should be vigilant in adhering to their individual obligation to ensure that council complies with its responsibilities under the Municipal Act, 2001 and its own procedure by-law.
65 On November 9, 2010, investigators from my Office spoke with the Town Clerk and provided a summary of my preliminary findings and recommendations with the understanding that council would be informed and have an opportunity to respond prior to the report being finalized.
66 On December 10, 2010, the Clerk confirmed that he had relayed my preliminary findings to council at a November 22, 2010 council meeting that was open to the public, and stated that to the best of his knowledge, no one had any comments or questions about these findings.
67 I have not received any other responses or comments from council regarding my preliminary findings and recommendations, and accordingly I have finalized my report. I encourage the municipality to implement my recommendations.
68 The Council of the Town of Mattawa is required to make this report available to the public under s. 14(2.6) of the Ombudsman Act.
Ombudsman of Ontario
For ease of reference, I refer to the group as the Ad Hoc Heritage Committee in this report.
  O.J. No. 919, at page 151.