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.