Township of Morley - November 23, 2023

Investigation into a complaint about a gathering of members of council for the Township of Morley on December 14, 2022

Paul Dubé
Ombudsman of Ontario

November 2023

Complaint

1    My Office received a complaint about a gathering of council members and one municipal staff member for the Township of Morley (the “Township”) in a Township garage on December 14, 2022. The complaint alleged that the gathering was a meeting that did not comply with the open meeting rules in the Municipal Act, 2001 (the “Act”).[1]

2    My investigation determined that the Township of Morley contravened the open meeting rules on December 14, 2022, by failing to treat the gathering as a meeting subject to the open meeting rules.

 

Ombudsman jurisdiction

3    Under the Act, all meetings of council, local boards, and committees of either must be open to the public, unless they fall within prescribed exceptions.

4    As of January 1, 2008, the Act gives anyone the right to request an investigation into whether a municipality or local board has complied with the Act in closing a meeting to the public. The Act designates the Ombudsman as the default investigator for municipalities that have not appointed their own.

5    The Ombudsman is the closed meeting investigator for the Township of Morley.

6    When investigating closed meeting complaints, we consider whether the open meeting requirements in the Act and the applicable governing procedures have been observed.

7    Our Office has investigated hundreds of closed meetings since 2008. To assist municipal councils, staff, and the public, we have developed an online digest of open meeting cases. This searchable repository was created to provide easy access to the Ombudsman’s decisions on, and interpretations of, the open meeting rules. Council members and staff can consult the digest to inform their discussions and decisions on whether certain matters can or should be discussed in closed session, as well as issues related to open meeting procedures. Summaries of the Ombudsman’s previous decisions can be found in the digest: www.ombudsman.on.ca/digest.

 

Investigative process

8    On April 26, 2023, my Office advised the Township of Morley of our intent to investigate this complaint.

9    My Office reviewed the Township’s procedure by-law and relevant portions of the Act. We also reviewed minutes from the meetings preceding and following the gathering, as well as the Township’s committee appointment by-law.

10    My Office spoke with the Clerk-Treasurer, the Deputy Clerk-Treasurer, the Reeve, and two councillors.

11    We received full co-operation in this matter.

 

Background

12    The Township of Morley is a single-tier municipality with a population of fewer than 500 people. Township council is composed of a Reeve and four councillors. The Township’s typical staff complement consists of one part-time and two full-time employees.

13    Following the 2022 municipal elections, the Township adopted a new committee appointment by-law. The by-law appointed the Reeve to every committee, and also appointed two councillors to the Roads and Public Utilities Standing Committee (“Roads Committee”). Accordingly, there were three members of the Roads Committee, all of whom had recently been elected at the time of the alleged meeting in December 2022.

14    At a regular council meeting on December 12, 2022, the then-Public Works Superintendent provided an update to council on various matters and left the meeting shortly thereafter. During the discussion following the Superintendent’s departure, council members noted that they had additional questions for the Superintendent about general snowplowing operations, including about the Superintendent’s workload, in advance of a predicted heavy snowfall. Council agreed that the three members of the Roads Committee should meet with the Public Works Superintendent in the coming days to discuss additional snowplow operators and levels of service for the upcoming snowfall event.

15    My Office was told that the three council members agreed on December 12 to informally speak to the Public Works Superintendent before he went to plow snow on December 14, 2022. We were told that the councillors did not consider the conversation with the Superintendent to be a meeting of council or of the Roads Committee.  

 

December 14, 2022 gathering

16    Around 7:00 a.m. on December 14, 2022, the Reeve met the Public Works Superintendent at the Township office and noted that two other council members would be joining them for a conversation. Neither the Clerk-Treasurer nor the Deputy Clerk-Treasurer were present.

17    At approximately 7:05 a.m., the three council members and the Public Works Superintendent spoke in the garage attached to the Township office. They discussed whether the Public Works Superintendent had additional snowplow operators on call to assist with the specific ongoing snowfall, and asked about an ongoing process to recruit back-up snowplow operators in general.

18    My Office was told the conversation also covered other subjects related to snowplowing and public works, including the Public Works Superintendent’s hours of work, as well as the certification and safety training related to the Township’s snowplowing equipment.

19    We heard varying estimates for how long the discussion lasted, with most estimating less than half an hour, as there was a shared understanding that the Public Works Superintendent needed to go out to plow the roads.

20    Following this conversation, the Public Works Superintendent left to plow, and the three council members moved into the Township office. The Reeve proceeded to call an individual who was included on a list of potential  snowplow operators (the “additional operator”). The additional operator indicated his availability and willingness to immediately meet with the Public Works Superintendent at a second municipal garage to assist with plowing the roads.

21    After trying to contact the Public Works Superintendent by radio and phone, the two councillors went to find the Superintendent to discuss this update in person. The Reeve remained at the Township office before going home. Eventually, the two councillors, the Public Works Superintendent, and the additional operator gathered at a second municipal garage. Shortly thereafter, the additional operator and Public Works Superintendent each went out to plow in different areas of the Township, while the two councillors departed at some point between 9:00 a.m. and 10:00 a.m.

22    The Clerk-Treasurer told my Office that following these events, she has reminded council members of the appropriate procedures related to hiring decisions. The Township has also reviewed the roles, practices, and structures of committees of council.

 

Analysis

23    Section 238(1) of the Municipal Act, 2001 sets out a two-part test to determine whether a gathering meets the definition of a “meeting” under the Act. A regular, special or other meeting of a council, local board, or a committee is a “meeting” where: (i) a quorum of members is present, and (ii) members discuss or deal with a matter in a way that materially advances their business or decision-making.

24    Three of the five council members were present on the morning of December 14, 2022. These three council members also comprised the entire membership of the Roads Committee.[2] Accordingly, there was a quorum of both bodies.

25    For the second requirement, it is necessary to determine whether the gathering on December 14, 2022, materially advanced the Township’s business or decision-making.

26    In a 2022 report to the Municipality of Casselman, I stated:

“[M]aterially advances” involves considering the extent to which the discussions at issue moved forward the business of the municipality, based on factual indicators.

Discussions, debates or decisions that are intended to lead to specific outcomes or to persuade decision-makers one way or another are likely to “materially advance” the business or decision-making of a council, committee or local board. Mere receipt or exchange of information is unlikely to “materially advance” business or decision-making, as long as there is no attempt to discuss or debate that information as it relates to a specific matter that is or will be before a council, committee or local board.[3]

27    I have also previously found that a council is likely to materially advance council business or decision-making when it votes, reaches an agreement, provides direction or input to staff, or discusses or debates a proposal, course of action, or strategy.[4] By contrast, the following activities do not or are unlikely to materially advance council business or decision-making:

• Discussing procedural options;[5]

• Receiving updates on recent activities or communication of information;[6] and

• Receiving information that may assist council in better understanding the business of the municipality and/or acquiring skills.[7]

28    In a 2022 letter to the Municipality of St.-Charles,[8] I reviewed a complaint about an informal gathering of two councillors, who comprised the Environmental Services Committee. The two councillors met with residents to discuss concerns about garbage collection and requested that a staff member join the discussion to provide information, which the staff member did. No decisions were made and the discussion was merely informational in nature. The committee did not meet afterward and the matter was not brought to council. I therefore concluded that business was not materially advanced, and that gathering was not a “meeting.”

29    In this case, at the December 12, 2022 council meeting prior to the December 14, 2022 gathering, council specifically agreed that the Roads Committee should meet with the Public Works Superintendent to discuss matters of interest to council, including concerns related to forecasted snowfall. To achieve this goal, the council members on the Roads Committee met with the Superintendent in the municipal garage on December 14, 2022, to discuss snowplowing operations. Following this discussion, they also contacted and arranged for an additional snowplow operator to plow snow on the same day. These actions materially advanced the Township’s business and decision-making.

30    Accordingly, the gathering on December 14, 2022, was a Township meeting that needed to comply with the open meeting rules. The Township did not meet these requirements because it did not provide notice, take minutes, or otherwise observe meeting procedures.

 

Opinion

31    I recognize that the Township of Morley is a small municipality with limited resources, and council was doing its best to respond in real time to a significant snowfall. However, the gathering on December 14, 2022, of three members of council for the Township of Morley contravened the open meeting rules in the Municipal Act, 2001. I am pleased to see that the Township has already begun taking steps to address these concerns, and commend council for its ongoing commitment to accountability and transparency.

 

Recommendations

32    I make the following recommendations to assist the Township of Morley in fulfilling its obligations under the Act and enhancing the transparency of its meetings:

Report

33    Council for the Township of Morley was given the opportunity to review a preliminary version of this report and provide comments to my Office. In its response, the Township expressed appreciation for my recommendations. I would like to thank the Township for its co-operation during my investigation.

34    This report will be published on my Office’s website, and should also be made public by the Township. In accordance with subsection 239.2(12) of the Municipal Act, 2001, council is required to pass a resolution stating how it intends to address this report.


__________________________
Paul Dubé
Ombudsman of Ontario


[1] SO 2001, c 25.
[2] The Roads Committee meets the definition of a committee of council under section 238(1) of the Act, which requires that at least 50% of the body’s members be members of council. All three members of the Roads Committee at that time were members of council.
[3] Ombudsman of Ontario, Investigation into a complaint about a gathering held by members of council for the Municipality of Casselman on May 27, 2021, (August 2022), online.
[4] Ombudsman of Ontario, Investigation into a complaint about March 7, 2018 information sessions involving a quorum of councillors for the Village of Casselman, (August 2018), online [Casselman 2018].
[5] Ombudsman of Ontario, Investigation into complaints about closed meetings held by the Town of Saugeen Shores on July 22, November 11, November 25, 2019, and February 24, 2020, (August 2020), online.
[6] Casselman 2018, supra note 4.
[7] Ombudsman of Ontario, Investigation into whether Council for the Village of Casselman held an illegal closed meeting on January 8, 2015, (April 2015), online.
[8] Letter from the Ontario Ombudsman to the Municipality of St.-Charles (8 February 2022), online.