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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: ~ h:~:::\. G::\ .~~ Debi A. Wilcox I City Clerk ~t:~ Andr w Allison City Solicitor Approved I Endorsed By: A. . . :-~.~'''-.'"".-- .'"~- . . -:?,"::-. ~~".- --<-'" --,/..._~--::,..,---~ ::.--' " . -- --,--- '~--"" <---Gillis A. Paterson Director of Corporate Services & Treasurer DW:lr Attachment Copy: Chief Administrative Officer Recommended for the consideration of Pickering City cil II ---.- CORP0227-07f01 revised