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"Ever wonder if City Council is as contentious and chaotic as it is sometimes portrayed? Here you can get a progressive perspective on some of the issues from someone who spent four years in the trenches. Totally unbiased, though! Feel free to comment but keep it respectful, just like they do at council."

Tuesday, August 7, 2012

Lunch at the Harmony: Ill-conceived but not illegal

January 1, 2007 marked a number of significant changes in how cities operate. In response to public concerns about backroom dealing, for which local councils are famous, the provincial government amended the Municipal Act 2001 by allowing municipalities to create three new positions: the closed meeting investigator, the integrity commissioner and the lobbyist registrar. It was hoped that these independent positions would increase the transparency, openness and accountability of local government.

For those of us who were new to council, workshops were held to ensure that we understood the changes and their implications as part of our introductory training sessions. For those who were interested, additional conferences were put on by the Association of Municipalities of Ontario (AMO) They usually included registration fees but it was money well spent. After all, that’s what an expense account is for.

Of the three positions, only the first, the closed meeting investigator, was deemed to be compulsory. It was also of particular interest to London since during the preceding council term a complaint had been taken all the way to the Supreme Court of Canada about the propriety of a particular in camera meeting at which council had discussed a planning matter prior to passing a by-law in open session.

Of all levels of government, municipal governments are most subject to public scrutiny. All meetings of council and its committees are open to the public. There has to be appropriate public notification of these meetings and if an offsite location is chosen, it has to be accessible to the public. Although in camera meetings may be held to receive legal advice, to discuss the purchase or sale of real estate, and to consider “personal” matters and negotiations, the reasons for going in camera have to be stated clearly  up front and no other business may be discussed. Matters discussed in camera are confidential and may not be conveyed to anyone who was not party to the discussion.

When I was on council, matters of governance were dealt with by the Board of Control which in turn would make recommendations to council for a decision.

We had until the end of the year, December 31, 2007 to decide on what we wanted to do about the closed meeting investigator. We could hire someone on contract if we wanted. The Local Authority Services (LAS), a business concern of AMO, could provide the service to us. Alternatively, we could use the services of the provincial ombudsman. Failure to take action would mean we got the ombudsman by default.

In November of that year staff brought forward a report on the options. To me, it looked like a no-brainer. The ombudsman would be paid for by the province while the LAS required a $600 retainer and charged a fee of $1250 per day to investigate a complaint. Still, the report recommended using the latter service.

I couldn’t believe it. I argued for using the ombudsman who has an established office and trained staff and for free, no less! What’s not to love?

The other board members were united in their opposition to the ombudsman. They felt they needed someone who understood the perspective of the elected officials. They preferred using the services of LAS which would be largely composed of retired elected officials and city managers. It would be worth the extra money to retain them. And besides, a fee schedule could be set up for cost recovery. In short, anyone who filed a complaint could be required to fork over some money to do so. It didn’t sound like transparency and accountability to me, but I was outvoted 4 to 1.

Fortunately, the rest of council agreed with me. The motion to recommend using LAS was replaced by a motion to use the ombudsman. It carried 14 to 4, with the mayor (Decicco Best) and the other controllers (Gosnell, Hume and Polhill) dissenting.

As it turned out, we didn’t even need the services of the ombudsman that term. No one filed a complaint about council secrecy or illicit meetings despite the fact that one could do so without a fee.

It took the new council to generate that kind of suspicion; the ombudsman has been called in not once but twice.

The first time was in regard to the in camera meeting that was held to consider options for kicking Occupy London out of Victoria Park. Two separate complaints were lodged by the public expressing concern about lack of notification of the public of an item that resulted in an eviction by the police of the protestors in the park. While council was ultimately determined to be acting within its rights, the ombudsman recommended providing notification at its earliest opportunity, not just adding matters on at the last minute and thereby eluding public attention.

That was the first occasion. Council might be forgiven its ignorance in dealing with it the first time, demanding lawyers and criticizing the ombudsman. The new members probably had forgotten their early training, perhaps even forgotten that they had received a binder full of orientation stuff. They could have looked up the legislation and the powers of the ombudsman, but apparently they didn’t. Had they done so they would have learned that the ombudsman can only make a report of his findings and make recommendations for improvement if needed. There are no fines, suspensions, or jail time.

And so, not having done their homework, they got in trouble again.

This time the issue was what constitutes a meeting.

It happened in February, on the day that council was to finalize its 2012 budget. There had been bitter divisions on council over one item in particular, the $2M destined for the affordable housing reserve fund. Council had recently unanimously adopted a new affordable housing strategy and the reserve fund was crucial to implementing that strategy. Council, sitting as the Strategic Priorities and Policy Committee, had voted 8 to 7 to use $1M of that money to put toward meeting the zero tax target.

Among those in favour of raiding the affordable housing reserve was Ward 9 councillor, Dale Henderson. It looked like easy money so he was not prepared for the public outcry that ensued. He began to speculate in the locate media that he might have to re-think his position.

Councillor Henderson was invited to have lunch with several other councillors and the mayor a few hours before the council meeting. It was at the Harmony Grand Buffet, aptly named for this occasion to get Henderson to sing from the same hymnbook. Also present were Denise Brown, Steve Orser, Paul VanMeerbergen, and Bud Polhill.

That’s only six, two short of a quorum to make decisions that could bind the council. Still, they didn’t need eight votes; they only needed to be sure that Henderson didn’t waver. He needed a lunch and some talking to.

Seeing six people who are frequently in the news at lunch only hours before a crucial budget vote is not likely to go unnoticed by the restaurant staff and other guests in the establishment. Their conversations were overheard as well, in particular, derogatory comments about some other members of council. A few hours later, council met and the budget was passed, including the controversial $1M cut to the affordable housing reserve. Councillor Henderson was firmly on board.

Three separate complaints were filed with the ombudsman’s office in the wake of this meeting. Although there had not been a quorum for council, there had been a quorum for a couple of committees and, even without a quorum, the business of council had been discussed and moved forward.

The filing of the complaints quickly became a hot topic in the media. Some who had attended the lunch attributed the complaints to “sore losers” and hoped the ombudsman would take them to task. They themselves wanted to get lawyers to defend them at the taxpayers’ expense. Henderson launched into an extended, incoherent rant on radio, claiming that the complaints were evidence of a “police state”. It is doubtful that any of them had checked out the nature of the investigation or the powers of the ombudsman.

The reaction did not go unnoticed by the ombudsman, Andre Marin.

“The histrionics and criticism by some councillors of my investigative process also muddied the waters and was singularly unhelpful, and demonstrated an ignorance of the nature of the closed meeting investigations carried out by my office,” he noted in his report.

As it turned out, Marin found that it was not an illegal meeting under the legislation as there was no quorum. He did, however, suggest it was ill-conceived, coming so soon before an important vote.

“[T]he controversy generated in this case demonstrates the need for members of council to be mindful of the fact that, while in public office, their conduct is subject to public scrutiny.”

He continues: “I urge council members, individually and collectively, to adopt practices that serve to instill public confidence in the transparency, openness and accountability of their processes.”

I doubt that that will happen. Orser, the most vocal of those who attended, clearly feels vindicated by the report which, he suggests, should be put in a paper shredder. He’ll continue to “have did-din with whoever (sic) I want,” and suggests that the provincial processes need to be changed so that complainants are identified. He thinks someone from council should run on that platform in the next provincial election.

Go for it, Councillor.

The complete report from the Ombudsman's office can be found here.


Harold Johnson said...

Online letter to the editor of The London Free Press:

city hall

The next time you vote for London's city council and mayor, remember these names: Joe Fontana, Denise Brown, Stephen Orser, Dale Henderson, Bud Polhill, and Paul Van Meerbergen.

And remember both their lunch meeting and their attitude towards the ombudsman and his report. Such arrogance and contempt should not go unrewarded at the polls.

Let's give them plenty of time to have lunch together by not re-electing any of them.

Posted By: Jeff Rankin-Lowe, London
Posted On: August 6, 2012

Oliver Hobson said...

It's interesting that Councillor Polhill, when on Board of Control, appeared keen to implement cost recovery measures from citizens who had the audacity to seek clarification and redress from another authority.

Smacks more of revenge than sound policies on governance.

In response to Denise Brown's most recent call for 'lawyering up', a call echoed by other councillors, I put forward for consideration possible changes to the 'indemnification by law' which would disallow councillors from spending public money on lawyers fees for any investigation embarked on by independent, impartial authority.

Another suggestion put forward was the city be able to recover costs from failed legal adventures of councillors.

Unsurprisingly, such suggestions were 'duly considered' and councillors remain able to dip in and out of the public purse, behind the scenes, quicker than you can blink.

The 'skin in the game' so often spoken of by Joe Fontana is to remain yours...not his or those of his political 'friends' like Swan and Orser.

BTW, there's no reason to allow Stephen Orser the luxury of making things up by alluding that councillors (ones consistently better than himself) alerted the Ombudsman's office to questionable activities indulged in so soon after the Occupy investigation had concluded.

I am unabashedly one of two who made a call the first time and one of three the second.

Hopefully it's catching.

Personally I am delighted that this seemingly dedicated troupe of clowns who masquerade as city councillors (to the amusement and delight of audiences across Ontario), are finally getting the attention they so richly deserve.

What's next?

Who knows?

Councillor Joe Swan has already publicly mulled a 'rethink' of the role of the Ombudsman's office in city affairs which could only have the affect of cancelling reasonable access by citizens to independent scrutiny of elected officials between election periods.

Sauron would be pleased!

Anonymous said...

I think Barry Wells clearly stated why complaints are confidential - so that people are not intimidated into silence by those in positions of power and influence. When people in such positions abuse the position, that is when we are in a police state.

Oliver Hobson said...

Sure...councillors who choose to abuse, can abuse away.

In not quite the words of Dirty Harry..."Go ahead, punks. Make my day."

Am certainly not going to let people like Orser take advantage of a vacuum of information through besmirching reputations of councillors better than himself...people like Matt Brown, Paul Hubert, Joni Baechler, Nancy Branscombe...I could go on.

Anonymous said...

All this hoopla and still no mention of the quality of food and service. My guess is our councilors aren't allowed to say anything or they'll be hauled up on the red carpet to face charges of slander for damaging the image of a reputable business.

Veteran observer said...

The Harmony Six plus two that the Arva Drummer has assembled reminds me of the Know-Nothing Party of 19th century America.

Instead of raging against recent Irish immigrants, they apply the same ignorant zeal and loud stupidity against any intelligent opposition to unfettered development in London.

Their tactics are now familiar: unceasing loud yammering and nonsensical raving. Anything to drown out questioning voices and sensible planning of London's future. Above all, lots of noise.

Let's hope that opponents won't be discouraged and Londoners fooled.

After all, the Know-Nothings did eventually fade into historical curiosities.

Interested Party said...

Of the newly elected councillors Matt Brown is the shining star. We should be grateful for him, as well as veteran councillors who stand against this kind of nonsense. You know who they are because none of them were at the Harmony.

Let's count our blessings for people like Beachler and Branscombe who struggle to keep our city from falling completely into the abyss.

Most of all, next election, let's work hard to support good candidates. London can't take another council as messed up as this one.

ChrisD said...

The rules leave all elected officials open to digruntled individuals who feel excluded from lunch and dinner invitations. What are we still in high school?

Hogan said...

If the Harmony Six are the Know-Nothings, Steve Orser is obviously Sergent Shulz proudly proclaiming:
"I know nothing!"

Oliver Hobson said...

Chris D, the 'rules' don't leave elected officials open to 'disgruntled individuals' to make spurious complaints.

The Ombudsman's office functions as an emergency services line for politics.

If you see something suspicious or have any questions, call it.

They triage the calls, assess credibility, root out time wasters/whiners and proceed only if they feel there's sufficient reason to.

Am always grateful when people alert the appropriate authorities when people are spotted loitering in a suspicious manner around cars parked in car parks.

Sometimes the cops swing by to check it out, some times they don't.

Placing such a call is simply a neighbourly thing to do.

You're welcome!