Secret meeting investigation landscape a “platypus”

Municipalities in Ontario are allowed to appoint anybody they’d like to investigate secret meetings, leading to what Ombudsman Andre Marin calls a “patchwork” system where governments can ditch investigators they disagree with

Toronto Star
January 14, 2014
By Tim Alamenciak

In the City of Brampton, a complaint about a secret government meeting comes with a $250 price tag - a policy that might explain why the city has not received a single one since 2008, when the rules were enacted.

Brampton is just one part of a piecemeal system of secret-meeting law that often sees municipalities turning to costly private services to investigate complaints and footing the bill for those investigations directly. The law leaves the choice of investigator up to the municipality, allowing them to switch on a whim at a direct cost to the city’s budget rather than using the province’s ombudsman.

“What we’re seeing here is municipalities kicking and screaming to stay in the old world where meeting in the dark .... bar over drinks and doing city business is the way to go and they got away with it for a long time,” said Ontario ombudsman Andre Marin in an interview with the Toronto Star. Marin, saying the system’s disparate parts make it look “like a platypus,” points out that his office does not charge the municipality, while private investigators can charge thousands for a single complaint

Marin’s office is the default investigator for municipalities under the act; out of the 444 municipalities in the province, 191 are still under the Ombudsman’s purview. The remainder hire an investigator of their choice, the largest of which is Local Authority Services, a company run by the Association of Municipalities of Ontario, which oversees 134 governments, including Brampton.

Nancy Plumridge, president and secretary-treasurer of LAS, notes that the ombudsman’s investigations do not come without a cost - his office is taxpayer-funded.

“We set up this program because we wanted to give municipalities a choice in who conducts these investigations,” said Plumridge. “Frankly the ombudsman’s not free. We are accountable and transparent, we have our costs up front, and we say exactly what it costs ... I would love to match his costs with our costs.”

Marin says that his office, which releases an annual report on the state of municipal secret meetings, didn’t receive an increased budget when the act was amended. He says they don’t seek to be the main investigating office, but that the act needs to change to put a stop to what Marin calls “oversight shopping,” which allows governments to switch oversight bodies, as Greater Sudbury did.

“The policy right now doesn’t make sense,” he said. “It’s a very incestuous system because you’ve got a city who hires AMO where they pay dues into. AMO is run by city officials who then delegate it down to Local Authority Service who delegate it to Amberley Gavel ... you’re keeping it all in the family.”

Municipal governments routinely hold secret meetings as part of regular operations. Closed meetings may be held when the subject being discussed concerns personal matters about an identifiable individual, the security of property, a pending land deal, employee relations, litigation or information subject to solicitor-client privilege.

The act allows citizens to file complaints if they think a meeting has been held in secret without fulfilling any one of those exemptions. Nigel Bellchamber, one of the founders of Amberley Gavel, the firm that investigates on behalf of LAS, says its investigations have turned up wrongdoing at a rate comparable with the Ombudsman office.

“Our numbers aren’t significantly different than the ombudsman’s numbers - in fact we might be higher,” said Bellchamber. “I’m not sure that we’re seen as overly friendly.”

According to a report from LAS, Amberley Gavel found violations of the municipalities act in 46 per cent of its 13 completed investigations in 2013.

The ombudsman’s office received 293 complaints between Sept. 1, 2013 and Aug. 31, 2013. The office investigated 96 meetings and determined 19 were held in contravention of the act - about 20 per cent.

Marin’s office draws criticism primarily over how it defines a meeting. Andrew Sancton was the closed-meeting investigator for Brampton but resigned so that he could be free to criticize the ombudsman without conflict.

“He has developed his own definition of a meeting that goes beyond what’s in the Municipal Act. He says that a meeting is any time when council members get together to lay the groundwork for making a decision. This can be any kind of informal meeting without any kind of municipal staff - it can be a group of people in a restaurant, a group of people in a lobby,” said Sancton, who is a political science professor at the University of Western Ontario. “I think politics in any legislative forum requires informal consultation.”

Marin raised a firestorm in London after concluding that a lunch at Billy T’s eatery constituted a secret meeting. Six city councillors and the mayor had burgers in the back room, and Marin’s report specifies that the social gathering was problematic in part because there was quorum for four of the city’s six standing committees present in the room.

“The position of our office is often misstated. I’ve never said for example that my definition would exclude any kind of socializing,” said Marin. “What I’ve said is you can’t have a pro forma public meeting after a secret meeting where you’ve made all the decisions.”