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Contraventions found, other complaints dismissed in Ombudsman report

Updated: May 22

Amherstburg Town Hall

The latest Ombudsman Ontario report has given the Town of Amherstburg mixed results in its latest investigation into complaints surrounding open meeting rules.

The report issued by Ombudsman Paul Dubé stated in his report that town council contravened section 239(4)(a) of the Municipal Act regarding meetings Aug. 8, 2022, Feb. 13, 2023 and March 27, 2023 “by failing to provide sufficient information about some general topics of discussion in its resolutions to proceed into closed session.”

The town was found not to have contravened the Municipal Act after investigations into Sept. 8, 2022, Nov. 29-30, 2022, and Feb. 14, 2023 meetings.

On the issue of the Aug. 8, 2022 meeting, council resolved to move into closed session at 4:08 p.m. with Dubé stating the complaint alleged that parts of the resolution related to a “labour relations/employee negotiations matter” didn’t provide sufficient information about the matter to be discussed in closed session.

Section 239(4)(a) of the Municipal Act “requires a council, local board or committee to state by resolution in open session that a closed meeting will be held, and the general nature of the matter to be considered at the closed meeting,” Dubé stated in his report. He added that, based on a court case involving Kingston, “municipalities are required to add a ‘level of informative detail’ to the resolution to close a session to the public and I have previously recommended that councils provide more substantive detail in resolutions authorizing closed sessions.”

“In this case, council merely identified the open meeting exception it was relying on. Based on my review, I find council could have provided additional information without undermining its reason for going into closed session,” the report states. “For example, council could have identified that it was discussing a management staff salary review.”

Regarding the Feb. 13, 2023 meeting, the complaint alleged that the resolution council passed didn’t provide sufficient information about the topic “Information Regarding a Proposed Disposition of Land” that was discussed in-camera.

“In closed session, council discussed leasing space on a municipal infrastructure asset to a local broadcasting corporation. After returning to open session, council reported out from the closed session and passed a resolution to authorize entering into a licence of occupation agreement with the corporation,” the report stated. “The Clerk informed my Office that at the time of the meeting, the Town was in sensitive negotiations with other leaseholders regarding the same municipal infrastructure asset. We were told that the nature and location of the infrastructure asset and the Town’s geography prevented further information from being provided in the resolution without potentially affecting the Town’s ongoing negotiations. However, during a previous open meeting, council had received and discussed a staff report related to this matter.

The previous discussion, report, and resulting resolution identified the broadcasting corporation, the municipal infrastructure asset, and the potential for negotiating an agreement that would return to council.”

Dubé found council only identified it would be discussing information regarding a proposed disposition of land.

“My Office has previously noted that when council is relying on the ‘acquisition or disposition of land’ exception, there is no general requirement to provide the public with the address of the property to be discussed, and that doing so may undermine the reason for having the discussion in private. However, situations where additional information cannot be provided are a rarity,” he wrote.

Dubé added: “In this case, council had discussed this lease proposal and related report in a previous open session. This same information could have been provided in the resolution without undermining the reason for going into closed session. For example, council could have identified that it was going to discuss a matter related to the specific broadcasting corporation or to leasing space on the particular municipal infrastructure asset.”

There were four items on the in-camera agenda of March 27, 2023, with the complaint alleging the resolution did not provide sufficient information to be discussed in closed session. Matters included an update on a matter before an administrative tribunal, two instances regarding the proposed or pending disposition of land, and striking committee information.

In three of the four cases, Dubé ruled “this portion of the resolution failed to sufficiently describe the matter to be discussed in closed session, and contravened section 239(4)(a) of the Act.” Regarding the property disposition matters, the Ombudsman believed the town could have provided additional information without undermining its reason for going in closed session.”

On the issue of the tribunal, Dubé ruled the matter of a tribunal proceeding was public knowledge and council had previously discussed the planning matter in open session.

“I find that council could have provided additional information for its portion of its resolution without undermining its reason for going into closed session,” he said.

Pertaining to the striking committee matter, Dubé stated the town did provide sufficient information on the agenda item.

Dubé said his review found the town did not contravene the Municipal Act regarding a Sept. 8, 2022 gathering by the Accessibility Advisory Committee at a Transit Windsor facility as it “did not materially advance the committee’s business or decision-making, and was not a meeting subject to open meeting rules.”

The report stated five committee members and then-Mayor Aldo DiCarlo met at the Transit Windsor operations centre at 10:30 a.m. A transit official pulled a bus into the parking lot where committee members asked the official about how the bus worked and how it accommodated bicycles. Committee members were shown the ramp and were given a demonstration on that as well as how mobility device users are accommodated. He said the gathering was characterized to his office as an “informal question-and-answer period.”

Dubé added town council had already made the decision to implement transit service and the committee hadn’t been asked to advise council on any given proposal. He said that explanation was corroborated by previous council minutes and the Sept. 22, 2022 committee meeting recording and minutes “which indicate that there was no follow up discussion about providing advice to council about matters arising from the bus tour.”

Complaints over Nov. 22 and Nov. 29, 2022 meetings were investigated and found to have not violated the Municipal Act “as the public notice identified an in-person meeting location and the public was able to attend in person.”

The report stated that the current council had just been inaugurated and held special meetings to receive training on municipal operations. Dubé said the complaint alleged the meetings weren’t live streamed or open to the public. He said following his Office’s review of the town calendar, agendas and former procedural bylaw, he determined “these meetings were not improperly closed to the public.”

Dubé recommended the town’s website should say whether particular meetings will be livestreamed even when the public is permitted inside. He added his office was told meeting agendas were generated using software and templates originally created during the COVID-19 pandemic when meetings were only held electronically with the clerk’s office having identified that issue and reviewing software settings to resolve it.

“The Town also told my Office that it has implemented a back-up livestreaming option to ensure all council meetings are livestreamed going forward. The Town also indicated that it has implemented the best practice of recording all council meetings, as suggested by my Office in a May 2023 letter. I commend the Town for adopting these best practices and taking steps to enhance the accessibility and transparency of its meetings,” he added in the report.

The town did not contravene the Municipal Act Feb. 14, 2023, “as its training session did not come within the definition of a meeting, and was therefore not subject to open meeting rules,” Dubé’s report indicated.

The report said the 1 p.m. meeting that day featured an “external presenter” training council on municipal asset management. He found that town council “did not materially advance its business or decision-making and the training session did not satisfy the second requirement in the definition of a meeting.”

“Accordingly, council’s training session did not satisfy the second requirement in the definition of ‘meeting,’” the report stated.

Councillor Don McArthur believed “there was a lot of grey here” in the report and asked for CAO Valerie Critchley's feedback.

“It does somewhat target the actions of staff,” he said.

Critchley said there is a balance between putting enough in an agenda and motion to go in-camera versus protecting the interests of the town and what it is discussing.

“We look at it and do our best,” the CAO stated.

Critchley believed other municipalities have similar practices with Amherstburg putting in just as much if not more information. She said it is an “evolving” situation but the town tries to make itself better and will continue to do so.

Councillor Diane Pouget thanked the complainant and said she has noticed a change in how the town proceeds into closed session. She said when someone complains to the Ombudsman, it is usually done as a last resort.

“That keeps us on our toes,” she said of the complaint. “I just feel this helps us to make sure we can always improve.”

Deputy Mayor Chris Gibb said he still has full faith in council and administration, but noted “any feedback from the Ombudsman should be taken seriously.”

“We'll learn from our mistakes and move on,” he said.

Councillor Linden Crain said he agreed with McArthur that there was some grey area in the report. He believed the town will do what it can to be “completely transparent.”

Mayor Michael Prue noted there were violations, but also “kudos” to the town for “going over and above” the law in other instances.

“Running council meetings is a very difficult thing to do,” he said.

Many of the violations would not have occurred if a few words were added in each case.

“I think staff has learned those lessons and we have too,” said Prue. “We'll add those two or three words. I don't want people think we did anything wrong at all because we did not.” Violations found, other complaints dismissed in Ombudsman report

By Ron Giofu

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