HomeMy WebLinkAboutCS 49-07
REPORT TO
EXECUTIVE COMMITTEE
Report Number: CS 49-07
Date: November 12, 2007
l09
From:
Gillis A. Paterson
Director, Corporate Services & Treasurer
Subject:
Municipal Statute Law Amendment Act, 2006 (Bill 130)
- Closed Meeting Investigator
Recommendation:
1. That Report CS 49-07, of the Directo~, Corporate Services & Treasurer be
received;
2. That Council authorize staff to advise the Ministry of Municipal Affairs & Housing
that they will not be appointing a meetings investigator in accordance with
Section 239.2 (1) of the Municipal Act, 2001 at this time, and will rely on the
Provincial Ombudsman;
3. That staff monitor the Closed Meetings Investigator service delivery experiences
of other municipalities over the next year and report back to Council by no later
than December 1, 2008; and
4. That the appropriate officials of the City of Pickering be authorized to take the
necessary actions to give effect thereto.
Executive Summary: Bill 130, the Municipal Statute Law Amendment Act, 2006
came into force, with some minor exceptions on January 1,2007. The Act reflects new
legislation for municipalities respecting accountability and transparency, including the
appointment of an investigator with respect to complaints regarding closed meetings. If
a municipality has not appointed a meetings investigator prior to January 1, 2008,
complaints will be investigated by the Provincial Ombudsman.
Financial Implications: There are no financial implications.
Sustainability Implications: Municipal governments are now required to accountable
and transparent, and therefore hold and conduct municipal business in public, which
lends to a sustainable community.
Report CS 49-07
November 12, 2007
Subject: Closed Meetings Investigator
Page 2
11 0
Background: The Minister of Municipal Affairs and Housing has stated that for a
municipal government to be transparent and accountable, it must hold and conduct
municipal business in public wherever possible, with meetings being c1osE~d to the
public only under narrowly prescribed ins.tances outlined in the Municipal Act, 2001.
The Act also requires public notice for all meetings regardless of whether it is open or
closed; and there must be a record for all meetings held. These requirements are also
applicable to the new education and training provisions contained in the legislation.
Municipal Councils are required to give public notice of all upcoming meetings. Under
Section 238 (2.1) of the revised Act, muniGipalities must amend their procedural by-law
to provide for the public notice of meeting:), which in the past was handled through the
public notification policy, which centralized all forms, manners and times for notices
required under various provisions of the Act. As a result of Bill 130, any provisions for
public notice relating to Councilor committee meetings are to be set out in the
procedural by-law, regardless of whether or not they also appear in another policy or
by-law, such as a general notice by-law.
Staff prepared a discussion paper on governance structure and the procedural by-law
at the February 2007 Strategy Sessions of Council, which outlined the requirements
that were forthcoming as part of Bill '130. Based on the discussion, a new governance
structure was implemented and Procedural By-law No. 6746/07 was passed, which
outlined the public notice provisions for all meetings regardless of whether thE~ meeting
was open or closed. Based on the chalnges, a committee is now defined as 'any
advisory or other committee, subcommitteE~ or similar entity of which at least 50% of the
members are also members of 1 or more councils or local boards'. Staff implemented
these provisions for the Advisory Committees, including orientation trainin~g for the
volunteer members of the Committees. Therefore, the City is in compliance with the
meeting notification provisions.
It should be further noted that minutes are to be kept of all Council and Committee
meetings, both open and closed. This mandatory provision came into effect on January
1, 2007 and the Clerks Division has effectively administered this provision across the
City, including ensuring that all minutes are recorded without note or comment. The
obligation for ensuring meetings are properly recorded rests with the City Clerk, and this
obligation has been reflected within the procedural by-law.
In addition to the existing authority to close meetings, a meeting may now be closed to
the public for the purposes of educating or training the members, provided that the
business or decision making of a Council is not materially advanced during these
meetings. Such closed education and training meetings must be advertised and a
record of the meeting must be recorded by the Clerk.
CORP0227-07/01 revised
Report CS 49-07
November 12, 2007
Subject: Closed Meetings Investigator
Page.3
I . 1 1 1
The amended Act also requires that all municipalities have a non-court process
whereby the public can request an investigation to determine compliance with the
meeting rules, specifically whether rules in the procedural by-law and the Act have been
followed.
Council can appoint a meetings investigator to respond to public requests and they can
appoint on their own, or jointly with other municipalities. In the absence of such an
appointment by December 31, 2007, the Ontario Ombudsman assumes this role by
default. Staff are recommending that the Ontario Ombudsman assume this role by
default based on the following comments.
When considering this requirement of the Act, the principles that are to be considered
in appointing a meeting investigator are:
. The investigator's independence and impartiality
. Confidentiality with respect to the investigator's activities, and
. Credibility of the Investigator and the investigation process.
Provincial Ombudsman:
The Provincial Ombudsman has jurisdiction to investigate a complaint that a
municipality failed to open a meeting to the public, however anonymous complaints will
not be investigated. Most complaints are resolved quickly by the Office's 'Early
Resolution' staff, noting that once the Ombudsman receives the complaint, they
assume the jurisdiction over it. The Ombudsman's Office will conduct an initial review
regarding open meetings, as per the investigative powers of the Ombudsman Act. If
the Ombudsman concludes, after an investigation, that there was a contravention of the
procedural by-law relating to a closed meeting, or that the closed meeting provisions
were contravened, he may report his opinion and reasons to the City and make
recommendations to address his concerns. It should be noted that the Ombudsman
has no ability to impose sanctions and/or penalties, and further, the Ombudsman's
2006/2007 Annual report states that they will monitor results of investigations
conducted by municipalities to ensure new rules applied in a fair and consistent manner
across the Province.
In reviewing the option of the Provincial Ombudsman as the meetings investigator, staff
noted that the Office of Ombudsman is already established and has sophisticated
complaints investigation processes in place and further, municipalities are at arms
length from all investigations. There is no cost for the investigations by the Provincial
Ombudsman in keeping with the tradition of ombudsman around the world to ensure
this service is accessible to everyone. The Clerks Division has been diligent in ensuring
the provisions of the procedural by-law are followed, therefore the City is already being
open and transparent, so conversely due to the fact minimal complaints are anticipated,
this is the most cost effective and efficient option at this time.
CORP0227-07/01 revised
Report CS 49-07
November '12, 2007
Subject: Closed Meetings Investigator
~2
Page 4
Council Appointed Investiqator
Municipalities can avoid investigation by the Provincial Ombudsman by appointing their
own closed meeting investigator. This may be the route to go once staff have
experienced and reviewed the new legislation impacts during 2008, however, staff
believe it is premature to go this route at the present time.
If the City wishes to appoint its own investigator, it would have to enter into a formal
agreement with an individual to investigate any closed meeting complaints, which would
be processed initially through the City Clerk's office. Naturally, retainer 'fees and
investigative costs would be negotiated as part of the service agreement. Due to
budget constraints, there are no funds for this services included in the 2008 draft
budget.
AMO - LAS Investiqator Proqram
AMO's Local Authority Services Ltd. (LAS) issued a survey to municipalities in mid May
to determine if there was any interest in pursuing the appointment of an investigator
through the Local Authority Services Ltd. (LAS). AMO announced at the beQlinning of
July that it had a favourable response to such an appointment and they would be
pursuing it further.
LAS has contracted with a third party company called 'Amberley Gavel Ltd.', which is a
business owned by Nigel Bellchamber and Fred Dean and their responsibility is to
deliver investigative services. At present, the agreement is for two years and the
municipality would be required to pay a retainer fee to join the program and a daily
investigative rate for investigations undertaken. The retainer fee that has been
negotiated for participating municipalities i8 $600.00 and the cost of an investigation is
$1,250. per day, excluding out of pocket expenses such as travel, meals, translation
and administrative costs. As part of the program, Members would be proviided with
ongoing education information related to the 'Closed Meeting' provisions of the Act and
access to all completed reports through a password protected website. The,re would
also be access to a pool of trained Review Officers. Although a number of
municipalities are pursuing this avenue, this is an option that is not recommended by
staff to be pursued at this time due to the cost involved and the uncertainty of how
many complaints the City would in fact receive. Council should also be aware that they
would have no involvement in the selection of the investigator and no funds at the
present time have been provided in the draft 2008 budget.
In summary, staff support the Provincial (Ontario) Ombudsman to be the City's Closed
Meeting Investigator, and will closely monitor this situation during 2008.
CORP0227-07/01 revised
Report CS 49-07
November 12, 2007
Subject: Closed Meetings Investigator
Page 5
f' 11 3
Prepared By:
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Debi A. Wilcox I
City Clerk
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Andr w Allison
City Solicitor
Approved I Endorsed By:
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<---Gillis A. Paterson
Director of Corporate Services & Treasurer
DW:lr
Attachment
Copy: Chief Administrative Officer
Recommended for the consideration of
Pickering City cil
II
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CORP0227-07f01 revised