WHO IS TO BLAME?

 

Ombudsman report says the Town ‘repeatedly broke the law” with in-camera meetings

 By Joel Charron

 Closed meetings have landed Amherstburg town council in hot water.

Ombudsman Ontario has released its report entitled “Behind Closed Doors” and “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 report can be found on the Ombudsman’s website.

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 also states that “a number of problematic practices” were observed during the investigation, which include failing to report back publicly in an informed way, incomplete and inaccurate meeting agendas and additional meeting items without prior notice.

He also wrote that it is 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 rigor 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,” Marin wrote.

The Ombudsman made seven written recommendations to council which include 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.

Other recommendations are 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

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 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.

Posiff also stated that there were “only a few votes” that contravened the Municipal Act and that “council is now aware of it.”

CAO Pamela Malott released a written response in November, defending the town’s actions in various in-camera meetings in January 2011. She stated there were legal, property and personal issues and that the meeting 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 closed meetings have been properly complied with.”

Malott also stated that the clerical issues found in the preliminary finding are unacceptable and said a new staff member with limited training was assembling the agendas.

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