Document 2
REPORT
To Council of the City of
Douglas R. Wallace
Closed Meeting Investigator
October 31, 2010
Meetings open to public
239. (1) Except
as provided in this section, all meetings shall be open to the public. 2001, c. 25, s. 239 (1).
Exceptions
(2) A
meeting or part of a meeting may be closed to the public if the subject matter
being considered is,
(a) the security of the
property of the municipality or local board;
(b) personal matters about an
identifiable individual, including municipal or local board employees;
(c) a proposed or pending
acquisition or disposition of land by the municipality or local board;
(d) labour relations or
employee negotiations;
(e) litigation or potential
litigation, including matters before administrative tribunals, affecting the
municipality or local board;
(f) advice that is subject to
solicitor-client privilege, including communications necessary for that purpose;
(g) a matter in respect of
which a council, board, committee or other body may hold a closed meeting under
another Act. 2001, c. 25, s. 239 (2).
The legislation also sets out a number of
statutory requirements that must be complied with in holding any meeting that
is closed to the public.
Resolution
(4) Before
holding a meeting or part of a meeting that is to be closed to the public, a
municipality or local board or committee of either of them shall state by
resolution,
(a) the fact of the holding
of the closed meeting and the general nature of the matter to be considered at
the closed meeting; or
(b) in the case of a meeting
under subsection (3.1), the fact of the holding of the closed meeting, the
general nature of its subject-matter and that it is to be closed under that
subsection. 2001, c. 25, s. 239 (4); 2006,
c. 32, Sched. A, s. 103 (2).
Open meeting
(5) Subject
to subsection (6), a meeting shall not be closed to the public during the
taking of a vote. 2001, c. 25, s. 239 (5).
Exception
(6) Despite
section 244, a meeting may be closed to the public during a vote if,
(a) subsection (2) or (3)
permits or requires the meeting to be closed to the public; and
(b) the vote is for a procedural matter or for giving
directions or instructions to officers, employees or agents of the
municipality, local board or committee of either of them or persons retained by
or under a contract with the municipality or local board. 2001,
c. 25, s. 239 (6).
Record of meeting
(7) A
municipality or local board or a committee of either of them shall record
without note or comment all resolutions, decisions and other proceedings at a
meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A,
s. 103 (3).
Finally, the legislation also provides for
the appointment of an independent investigator to investigate any complaint
that a municipality has not complied with the legislated requirements.
Investigation
239.1 A
person may request that an investigation of whether a municipality or local
board has complied with section 239 or a procedure by-law under subsection 238
(2) in respect of a meeting or part of a meeting that was closed to the public
be undertaken,
(a) by an investigator
referred to in subsection 239.2 (1); or
(b) by the Ombudsman
appointed under the Ombudsman Act,
if the municipality has not appointed an investigator referred to in subsection
239.2 (1). 2006, c. 32, Sched. A, s. 104.
The legislation was, in the words of the
Supreme Court of Canada in the recent case of London (City) v. RSJ Holdings Inc. “intended to increase public
confidence in the integrity of local government by ensuring the open and
transparent exercise of municipal power.” It is no exaggeration to say that without “the
open and transparent exercise of municipal power” accountability and democracy
cannot flourish at the local level.
Council authorized my appointment in November 2007
which became effective in January 2008.
As your Meetings Investigator, I investigated 14 requests from nine different members of the public.[1] The requests raised serious concerns that members of Council were dealing with subjects behind closed doors that did not fall within the permitted exceptions to the open government rule. The requests also showed that it was not clear to many people from what was said before Council went into a closed session, what matters were to be discussed in that closed session or why that matter should be discussed in private.
My investigation consisted of a review of all relevant documentation concerning each meeting that was the subject of a request, and interviews with the requestors, staff and elected officials to gain a clear understanding of just what had happened to give rise to the complaint, and what could be done to avoid future complaints. Upon completion of each investigation a report was forwarded to Council setting out the nature of the complaint, my findings and in most cases, my recommendations as to how the City’s processes and procedures could be improved to increase transparency and accountability.
The six reports presented to Council contained 13 recommendations. Most of the recommendations were supported by the City Clerk and Solicitor. Together they led to many changes in the procedure for dealing with matters in camera. These changes include the following:
Additional changes, including a procedure for reducing the number of matters dealt with in closed session, will be included in the 2010-2014 Governance Review.
A review of the procedure
followed in other municipalities, satisfies me that the City of
Douglas R. Wallace
Meetings Investigator
October 31, 2010
APPENDIX “A”
NATURE OF COMPLAINT |
REQUESTOR |
MTG. |
REPORT TO COUNCIL |
Report to open session failed to describe action
taken in camera |
Person 1 |
Dec. 19, 2008 |
Feb.25, 2009 |
Propriety of
considering a public opinion survey in
camera |
Person 1 |
Jan. 6, 2009 |
Feb.25, 2009 |
Failure of motion to state the specific issue to be considered at the closed meeting |
Person 2 |
Jan. 6, 2009 |
Feb.25, 2009 |
Subject matter considered in camera (transit strike) |
Person 3 |
Jan. 14, 2009 |
Feb.25, 2009 |
Propriety of Council going in camera to consider a motion to censure a councillor |
Person 4 |
Jan. 14, 2009 |
Feb.25, 2009 |
Lengthy wait
while Council considered a matter affecting all members of the public in camera |
Person 5 |
Jan. 14, 2009 |
Feb.25, 2009 |
Propriety of in camera meeting to discuss measures to mitigate effect of a transit strike |
Person 6 |
Jan. 14, 2009 |
Feb.25, 2009 |
Subject matter considered (exercise of City Manager`s judgment in hiring consultant) |
Person 4 |
Jan. 28, 2009 |
April 22, 2009 |
Consideration of work-rest rules |
Person 1 |
Mar. 11, 2009 |
May 27, 2009 |
Consideration of a report on Corporate Realignment |
Person 1 |
Mar. 25, 2009 |
May 27, 2009 |
Propriety of Council considering a report regarding the acquisition of land in camera when details in the report had been made known publically |
Person 7 |
June 24, 2009 |
Nov.13, 2009 |
Propriety of
the Corporate Services and Economic Development Committee approving a
gratuitous payment to a senior municipal employee in camera |
Person 8 Person 9 |
August 31, 2009 |
April 30, 2010 |
Vagueness of reasons given for going in camera to consider financial write-offs by Transit Committee |
Person 1 |
April 21, 2010 |
July 2, 2010 |
The following requests were dismissed after a preliminary review revealed that they fell outside the Meetings Investigator’s jurisdiction: