What should have been a public document now isn’t, according to meeting investigator Norm Gamble.
On Sept. 3 Gamble made a verbal presentation to Erin council and to the public following an hour long in-camera council session to discuss a number of items, including Gamble’s report.
Gamble noted each municipality is obligated to appoint a meeting investigator to deal with inquiries as to whether closed council meetings were held appropriately.
“In this case, I was asked by a resident to look into a certain report which was dealt with by council in the early part of April/May,” Gamble explained.
He stressed the request was to determine whether the report itself was appropriate for a closed meeting or whether it should have been addressed during a public meeting.
“My investigation found that if I had reviewed it prior to May 7, my opinion would be that it was in fact a public document,” Gamble said.
“I didn’t see that there was a reason for it to be held in a closed meeting.”
That said, “by the time I was asked to review the matter, it was determined that the report dealt with by council at that point had formed part of a human resources record – a personnel record of a former employee.”
Gamble explained “For that reason, the report would remain confidential.” He then added it was his opinion that if the matter could be resolved and the report was no longer a human resources record, it could be released publicly.
Gamble said council is obligated to publicly post his report on the matter. A version of that report is online on the town website at www.erin.ca.
For clarification, councillor John Brennan asked, “If the author of this report was to grant us authorization, would it release us from the obligation [to keep the report confidential]?”
Gamble said “if that happened, council could consider any other reason why it would not release the report.”
He added council had sought legal advice on the matter, so there could be other reasons why the report could not be released.
“But at face value, if the author is willing to have it released, I don’t see why it wouldn’t be released,” Gamble concluded.
Mayor Lou Maieron said, “Fundamentally, prior to May 7 the reason for going to closed session under identifiable employees really did not apply. There were no identifiable individuals in the report.”
Gamble said, “When I looked at the report, aside from it being part of someone’s personnel file, I failed to find any reason why it would be confidential.”
The timing of the document appears to correspond to the May 9 announcement that Frank Miele was no longer CAO for the town, but neither Gamble nor council confirmed the two matters were related.
Gamble’s report
The following information has been taken directly from Gamble’s report to Erin council last week.
On July 15, 2013, a request for a closed meeting investigation was received by the closed meeting investigator. The request was received by mail and was on the appropriate forms.
The requestor indicated on the form that his/her identity be maintained in confidence.
A phone call was made to the requestor to discuss the reason for the investigation as well as the process to be used. Subsequently, a phone call was made to the CAO/Town Manager.
The CAO indicated full support for the investigation and provided numerous documents requested. The mayor was also informed of the investigation request and offered his support and co-operation in the process.
It was decided that face-to-face interviews would take place with the CAO, mayor and each of the four members of council. These interviews took place in the town offices in a confidential fashion on Aug. 13.
Confidential discussions also took place with others who may have information which would assist the investigation. Following the interviews a draft report was discussed with the CAO and the mayor.
The requestor was also updated as to the investigation progress.
Issues
As with other investigation requests it is important from the outset to set the parameters for the review.
The Town of Erin is currently challenged by many related and non-related issues. The investigation struggled with many of these other issues potentially impacting the process.
When the smoke cleared the investigation focused only on the initial request. This request was to determine if a report which was submitted to council in approximately April and May, should or should not have been in a closed session of council.
The actual process used by council in closed meetings has not been challenged and the investigation found no concerns in the process council used and continues to use. The issue therefore, was to determine if a staff report should have been in a closed session or not.
Findings
The investigation determined the following:
– there was a staff report submitted to council in April and May 2013;
– this report was known by two individuals;
– the report was stamped as confidential;
– the report was submitted in a properly convened closed session of Erin town council;
– the report was purported to be a legitimate closed meeting item as it could identify identifiable individuals;
– council has to this date retained the document as confidential partly due to the author’s original request;
– the investigation found that with one exception, the opinion of council and staff is that the report forms a part of a human resource record and should be released only by the author;
– the investigation found the report, aside from the human resource issues, to be stretching the definition which allowed it to be a closed meeting item; and
– nevertheless, the status of the document has taken on a life of its own since the author is no longer with the town.
Related findings
During the investigation a few minor related matters were found:
– the town website correctly indentifies the investigator in the “council” section but also refers to a previous investigator in other parts of the website;
– this portion of the website also directs a request to be submitted to the town. This should be directly to the investigator; and
– the website does not appear to provide easy access to the “complaints form” which the public needs to use in requesting an investigation.
Recommendations
It is recommended the website issues found in the investigation be addressed as soon as possible.
As it is the council’s majority opinion that the report forms a part of a human resource record, the report should be maintained as confidential until the author has agreed to its release or it is determined that the status has changed.
Council and staff need to diligently challenge reports to ensure only those clearly defined as closed items are considered in closed sessions.
That the town of Erin release this meeting investigator’s report publicly pursuant to the Municipal Act 239.2 (11) as soon as possible.
