Report to the Council of the City of Ottawa Regarding the Investigation of a Closed Meeting of Ottawa City Council held on June 24, 2009The request The requestA request was received to investigate that part of the closed meeting, which dealt with the acquisition of a site for the proposed new central library. The Request noted the following concerns: City Council considered item 3, Corporate Services and Economic Development Agenda 44 regarding the new Central Library site. Twenty-six million dollars has been set aside for the purchase of the site. The site has been made public. During the course of the discussion a Council member asked why the item was not in camera. Staff responded that it was not necessary, as any negotiations with the owners would be based on market value; that the market would dictate the cost of the land. There are no other possible reasons to justify an in camera session. The location of the land is public, the amount set aside for its purchase is public and as staff indicate, the properties will be sold at fair market value. The issueA review of the Minutes of both the Open and Closed Sessions of Council reveals that the procedural requirements set out in the Municipal Act and the Procedure By-law were fully complied with. A Motion to Resolve In Camera was duly moved, seconded and carried; the motion adequately described the particular issue to be considered; the time of going in camera and resuming in open session was noted; and finally, a report of what took place in camera was made to Council on the resumption of the open session. The only issue is whether the subject matter of the report falls within the list of matters that may be considered in closed session and, if so, whether it was appropriate for Council to exercise its authority to consider this matter in closed session in this case. The rulesThe list of matters that may be considered in camera is by now well known to members of Council. It is found in Section 239 of the Municipal Act, 2001 and section 13 of the Procedure By-law. Section 13 of the Procedure By-law is as follows: Council may, by resolution, close a meeting or part of a meeting to members of the public if the subject matter to be considered is,
Compliance with the rulesCouncil, in moving to resolve in camera, indicated that it was relying on the exemptions set out in clauses (a), (c) and (f) above. The Motion was as follows: Be It Resolved That Council resolve In Camera pursuant to Procedure By-law 2006-462, Subsections 13.1 (1) (a) the security of the Property of the City; (c) a proposed or pending acquisition or disposition of land for the purpose of the City; and (f) the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose, with respect to Corporate Services and Economic Development Committee Report 44, Item 3—New Central Library Site and specifically, confidential issues surrounding the City's negotiating position for the proposed acquisition. It is abundantly clear from a reading of the Report being considered that the matter falls squarely within the exemption respecting a “pending acquisition” of land for the purposes of the City, the second exemption relied on by Council. Indeed, it would be difficult to imagine a clearer example of such an exemption. Further, the In Camera Minutes of the Meeting which have been reviewed, as well as interviews with both Councillors and staff indicate that the City Clerk and Solicitor was present at the meeting and that “Staff responded to a number of questions from Members of Council, which centered primarily on strategic and legal issues related to the pending negotiations for the land, expropriation and claims for injurious affection”. Council's consideration of this matter in camera would accordingly appear to fall equally well under the exemption relating to “the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose”. Was it appropriate for Council to rely on these exemptions?Notwithstanding the apparent clear right of Council to rely on the exemptions noted above to conduct its deliberations in closed session, the Requestor notes correctly that the exemptions allow the matters listed to be considered in camera; they do not require that the matters be considered. There is a discretion with respect to most of the exemptions and in this case, Council wrongly exercised its discretion. The basis for this allegation is the stated opinion that all the facts that would normally have justified an in camera discussion were already known. What harm the Requestor wonders, could come from further discussion in the public? The Meetings Investigator does not doubt that the divulging of a report's contents in public could in some cases obviate the need, or indeed the appropriateness of conducting an in camera consideration of the matter. He does not, however, feel that this is the case here.
This is so for two reasons. First, a close reading of the Report and interviews with staff reveal that the argument is based on a faulty, or incomplete, understanding of the facts. Contrary to the Requestor's understanding, there were many facts essential for meaningful negotiations that were not contained in the public report. The most important of these was a description of what had already been offered or would be offered to individual property owners within the area being designated. Other matters included the timing of various stages of negotiations, when resort might be had to expropriation, and the value of potential claims for injurious affection. The second reason the Meetings Investigator should be hesitant in second-guessing Council's decision to exercise its discretion in favour of resolving in camera is that Council's decision is based, as of necessity on an anticipation of the type of discussion which is likely to occur. Until Council resolves in camera no one, including staff or the Chair of the meeting, knows for sure what questions may be asked, or advice given. Whether questions were or were not asked during the in camera session that went beyond the information contained in the public report it was clearly reasonable to anticipate that such questions might be asked. ConclusionsI am satisfied that Council had the clear authority under the Rules to consider this Report in camera and appropriately exercised its discretion to do so. Public reportI received the full co-operation and support in the conduct of this investigation from members of Council and staff and thank them for providing me with full access to all requested documents and their time. This report is forwarded to Council of the City of Ottawa and is required to be made available to the public. Douglas R. Wallace November 13, 2009 |
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