What goes on behind closed doors? Are municipalities too secretive?

Local councils held 148 closed sessions in 2012. Are they being too secretive?

When he released his 2012 annual report in the fall, Ontario Ombudsman André Marin concluded municipal councils “should hold fewer closed meetings, record them electronically and be more mindful of public concerns when they gather outside of council chambers.”

Ontario has had a law requiring councils to hold open public meetings since Confederation. However, only since 2008 have all municipalities been required to have an investigator for complaints about closed meetings.

By default, it is the Ombudsman’s office, but they can also appoint an investigator of their choice. In addition to investigating complaints about Ontario’s 500-plus provincial governmental organizations, the Ombudsman’s office is the investigator for 191 of Ontario’s 444 municipalities.

Wellington County and its seven lower-tier municipalities have appointed Mount Forest native Norman Gamble, a retired municipal administrator, as their closed meeting investigator.

Now in his fifth year on the job, Gamble hasn’t exactly been overworked conducting investigations. Since his appointment, Gamble has conducted only about a half-dozen investigations, none of which resulted in councils being cited for holding a closed meeting that should have been open.

In a couple of cases, said Gamble in an interview with the Wellington Advertiser, councils were admonished for selecting the wrong reason to close a meeting, from the eight allowable under Section 239 of the Municipal Act.

In 2012, Gamble conducted only one investigation. He was asked to determine if the Wellington County Library Board followed proper procedure in closing meetings on June 13 and 28 dealing with the proposed closure of the Aboyne library.

In that case, Gamble concluded the meetings were held properly pursuant to the Municipal Act and the County of Wellington Procedural Bylaw.

While the investigation process is complaint-driven, Gamble says not every complaint he receives results in an investigation, as the public often misunderstands his role.

Gamble says he is sometimes asked to look into “matters that do not fall under my role as a meeting investigator.

“People will say, ‘council did this, and I want you to look into it.’ I’m not an ethics commissioner,” he explained.

Gamble says his role is to determine “was it a closed meeting of council and was it held properly?” Gamble says he also tries to encourage complainants to try to settle the issue through local officials first.

“For whatever reason, there seems to be a reluctance by members of the public to discuss matters directly with local officials. There must be some fear of reprisal [so] they don’t want to do it this way,” Gamble surmised.

The Ombudsman’s office, as watchdog for 191 municipalities, has been substantially busier than Gamble, looking into a total of 128 public complaints about closed meetings in the period covered in the annual report, April 11, 2011 to Aug. 31, 2012.

Of the 128 investigations, the Ombudsman’s Open Meeting Law Enforcement Team (OMLET) found 45 violations of the “Sunshine Law” – including meetings that should not have been closed to the public, numerous violations of the Municipal Act, procedural contraventions and poor meeting practices. These ranged from cases where councils illegally voted behind closed doors (in one case, to raise their own salaries) or where they kept almost no record of what took place in secret.

“In several other cases, I found municipal officials strayed too close to the edge of the law, violating the spirit of it, if not the letter,” Marin stated in his report.

“In cases like these – such as when councillors held suspicious but not illegal gatherings over lunch or breakfast – I offered constructive warnings about avoiding such optics in future. In 34 cases, I suggested the municipality make improvements by adopting best practices.”

Gamble too, says he urges councils to adhere to the spirit, not just the letter, of the open meeting law, which he concedes provides a very broad range of potential reasons to close a meeting. The public, Gamble said, believes the act to be more restrictive than it actually is.

Municipal officials may consider the following subjects behind closed doors:

–  the security of the property of the municipality or local board;

–  personal matters about an identifiable individual, including municipal or local board employees;

– proposed or pending acquisition or disposition of land by the municipality or local board;

– labour relations or employee negotiations;

– litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;

– advice that is subject to solicitor-client privilege, including communications necessary for that purpose;

– any matter for which a council, board, committee or other body may hold a closed meeting under another Act; and

– education and training of the members of the council, local board or committee.

A request under the Municipal Freedom of Information and Protection of Privacy Act must be dealt with in closed session.

“Everyone thinks of it as personnel, legal, property – but it’s not personnel, it’s personal, so it could be about any person,” Gamble points out.

Similarly, a “potential” legal matter could cover a broad range of topics in today’s litigious society.

“If they can’t find one of the clauses that fits, a council could simply call up their lawyer and say ‘we need you to meet with us’ and do it under the ‘receiving advice from a solicitor clause,’” said Gamble.

“The newest one, and I don’t know that it’s being abused – is that council can go in-camera for educational purposes,” he added, noting that section also has the potential to cover a lot of topics.

“When I meet with councils I always ask them to think about what is the intent of the Municipal Act? The intent is always that meetings should be held in open council and only by exception should you ever meet in closed session.

“Sure you can just pick a clause and kind of hide behind the act, but are you really living up to the intent of the act?”

So how often do local councils actually meet behind closed doors? In most cases, quite frequently.

Wellington County council itself held 10 closed sessions in 2012, while it’s various boards and committees held 25.

Closed council meeting totals for 2012 among the lower tier municipalities, are:

– Centre Wellington met 34 times and went into closed session on 27 occasions;

– Town of Erin, 52 regular meetings, 27 in-camera sessions;

-Guelph-Eramosa Township, 11 closed sessions in 24 meetings;

– Mapleton Township met in-camera 21 times during 23 meetings;

– Town of Minto went into closed session 23 times during 25 regular meetings;

– Puslinch Township, 13 closed sessions over 47 meetings; and

– Wellington North council, 22 regular meetings, 16 closed sessions.

Percentage-wise, Minto and Mapleton had the highest rate of closed meetings, going in camera for at least part of a meeting around 92 per cent of the time.

Mapleton CAO Patty Sinammon points out simply counting closed sessions held by councils may not provide an “apples to apples” comparison between municipalities.

“For example, some municipalities have a committee structure (including bodies such as an Administration Finance and Property committee) that might move into closed session,” Sinnamon stated. “The number of closed sessions for Mapleton council will certainly be higher since we don’t have those committees.”

Minto CAO Bill White said the town dealt with numerous acquisitions and dispositions of land requiring closed meetings in 2012.

“We also had one lawsuit that we’re about to settle,” he noted.

“The other thing to look at is, how long are these meetings? Ours are never more than half an hour. We hear about some of these meetings going two or two and a half hours, and we don’t do that,” White stated. “We only go into closed when we have something to deal with.”

White said Minto is also moving toward providing more information on reasons for going in camera. At the Dec. 18 council meeting, a resolution to go in camera on a property matter included a description of the property under discussion, the Harriston Senior School.

“We will be doing that more in the future. I think people need to know a bit more about what council is doing,” said White.

One area councils struggle with is the apparent contradiction between the requirement for openness, and the need to adhere to the privacy provisions in the Municipal Freedom of Information and Protection of Privacy Act.

Some municipalities, for example, do not regularly present a full list of accounts to be paid by the municipality for approval by council in public session.

While most Wellington municipalities still go through the process of approving accounts in public, Minto and Guelph-Eramosa are exceptions.

Minto’s recent practice, endorsed by the town’s auditor, has been to provide council members with the full list of accounts. However, only a general summary of accounts by department is presented for approval at a regular meeting.

White says this is the municipality’s attempt to strike a balance “between transparency and the need to protect individual privacy.”

Gamble said, in his opinion, the practice would be acceptable if the municipality’s purchasing bylaw authorized staff to make payment of amounts already approved in the municipality’s budget. Generally, he said, the practice is used by larger municipalities.

“You won’t see all the accounts for the City of Toronto (presented for approval),” he stated.

While the raw numbers seem to indicate councils hold a high number of in-camera meetings, Gamble does not feel the practice is on the increase, – just that it’s better documented.

“Way back when I first became a municipal administrator, I used see a number of closed meetings and I think, unfortunately, there were a lot of meetings that should have been held in public at that time,” said Gamble.

“It used to be you’d have a closed meeting formed by the clerk calling everyone up and saying, ‘Let’s have a closed meeting.’

“Then, amalgamation took place and all of a sudden local councils and local staff had to become more professional in the way they did business. You don’t start with a closed meeting. You have to start with a public meeting and then during the meeting move into closed session,” says Gamble, adding that this requirement means there is at least a public record indicating a closed meeting was held, and why.

While investigations conducted in Wellington County haven’t revealed any meetings closed inappropriately, the Ombudsman’s report contains numerous tales of unwarranted secrecy by councils around the province. The “personal matters” exemption is particularly prone to abuse, the report notes.

“One striking example, was in February 2012, when the council for the Township of Leeds and the Thousand Islands wrongly attempted to shield discussion of a 60% pay hike for themselves under this exception,” the report states. “The meeting clearly involved council members in their professional capacity, not ‘personal matters.’”

The Ombudsman’s report also cites cases of councils abusing the education or training provision.

For example, the Ombudsman found the Town of Amherstburg used “education or training” to justify closing meetings to discuss such items as strategic planning, the official plan and zoning by-law, and backflow prevention, “even though the discussion went beyond the intent of the exception and included consideration of specific business.”

The provision allowing in-camera sessions about litigation or potential litigation is also “overzealously applied,” the Ombudsman found, “often in circumstances where litigation is actually nowhere on the horizon.”

The council for the Municipality of Lambton Shores closed a meeting in November 2011, where litigation was discussed as a possible consequence of a breach of an agreement – but OMLET staff found, “there were no actual legal proceedings, either ongoing or imminent.”

Once councillors go into closed session for a specific reason, what stops them from discussing other matters as well? In some cases, nothing.

“The Town of Midland council held closed budget meetings in December 2011 that potentially affected readily identifiable individuals and thus came within this exception. But council went on to discuss other things at the closed meeting, which was improper,” the Ombudsman reported.

Whatever the violation, Marin said there is no way, other than publicizing their actions, to penalize a council or members of council for breaching the openness provisions under current legislation.

“One of the most misunderstood aspects of our Sunshine Law is the consequence of breaking it – or lack thereof. In this respect, Ontario lags behind jurisdictions in the U.S., whose Sunshine Laws are long established, and much tougher,” said Marin, noting that in some states, the courts can levy substantial penalties when meetings are closed illegally.

“Ontario has no such penalty. As a closed meeting investigator, I am restricted to reporting the results of my investigations to the municipality, local board or committee at issue, and making recommendations to redress concerns I identify,” Marin continued, pointing out the same is true for other investigators that municipalities appoint.

Gamble agreed there is little punishment for violations.

“Just public embarrassment – that’s about it,” he said.