Ontario Ombudsman rules Billings acted improperly moving in camera to discuss, vote on councillor choice

KAGAWONG­––The Ontario Ombudsman office has ruled that Billings Township council contravened the municipal act when it went in camera and selected and voted on their choice for a new councillor at a meeting in July to fill a vacant council position at the time.

“Our review confirmed that council for the Township of Billings contravened the Municipal Act, 2001, when it discussed a matter in closed session on July 21 in circumstances that were not permitted under the exceptions to the open meeting requirements,” wrote Andre Marin, of the Ombudsman of Ontario. “Council also violated the act when it voted in closed session on the candidates for the vacant position.”

The Ombudsman’s Office has made four recommendations concerning changes in council’s policies. One, the township of Billings should ensure that no subject is discussed in a closed session unless it clearly comes within one of the statutory exceptions to the open meeting requirements; two, the township should ensure that no vote is taken at a closed meeting, except in accordance with the Municipal Act, 2001; three, the Township of Billings should amend its procedure by-law to reflect the discretionary nature of the majority of the exceptions to the open meeting requirements; four, all members of council or the Township of Billings should be vigilant in adhering to their individual and collective obligation to ensure council complies with sits responsibilities under the Municipal Act, 2001.”

At the Billings council meeting on Tuesday, Mayor Austin Hunt read out publicly the report that had been received from the Ombudsman’s office. “On July 23, 2014, my office received a complaint about a closed session held by council for the township of Billings at the council meeting on July 21, 2014,” read Mayor Hunt of the report by Mr. Morin. “According to the complainant, council proceeded in camera to discuss and vote on candidates to fill a vacant council position. The complaint alleged that the discussion did not fail within any of the exceptions to the open meeting requirements of the Municipal Act, 2001 (the Act) and that the in camera vote was taken in violation of the act.”

“Ombudsman jurisdiction-Under the municipal act, 2001, all meetings of council, local boards and committees of council must be open to the public, unless they fall within prescribed exceptions,” Mr. Marin wrote. He pointed out his office’s open meeting law enforcement team reviewed relevant portions of the township’s procedure by-law and the act, as well as the meeting materials for both the open and closed sessions of the July 21 meeting. They also spoke with the clerk treasurer and the mayor,” and his office, “received full co-operation on this matter.”

“The July 21 meeting was a regularly scheduled council meeting and during the open session council considered applications from five members of the public to fill the vacancy on council (which included Sharon Alkenbrack, who was voted on by council as the new council member, Barb Erskine, Delroy Prescott, Dave Montgomery and Nora Bath-Haring),” explained the Ombusdsman report. “During the discussion council resolved to go into close session to discuss matters pertaining to s.239(2)(b), of the act, i.e, regarding personal matters about an ‘identifiable individual.’ The closed session discussion relating to the council vacancy was not planned in advance. The mayor explained to us that council initially planned on filling the vacancy by a secret ballot vote during the open session. However, he believe councillors might want to express personal opinions about the candidates, and that this discussion should take place in camera. The mayor told us council carefully reviewed the open meeting provisions of the Act prior to passing the resolution to go into closed session.”

“The minutes of the closed session note that before the closed session, the clerk treasurer stated that she did not believe that the issue of selecting a councillor should be held in camera,” continued Mr. Marin. “She recommended it take place in the open. She also cautioned council against using a secret ballot vote of council members to fill the vacant seat.”

“The closed session minutes also indicate that the mayor handed out slips of paper and asked council members to write the name of their choice for the new councillor on them,” continued Mr. Marin. “When these ballots were counted, that vote was tied between two candidates” (which was Sharon Alkenbrack and another female candidate), ‘and as no council members offered to change their votes, it was decided to toss a coin to determine the winner.’ When we spoke with the mayor, he acknowledged to us that there was no discussion of personal matters relating to the candidates as he had anticipated. The clerk-treasurer confirmed to us that the closed session minutes were accurate.”

The open session then resumed and it was indicated that the closed session involved a discussion of the five candidates to fill the council vacancy. Council then passed a resolution to appoint Ms. Alkenbrack as the new councillor.”

Mr. Marin wrote, “the closed session did not involve discussion of personal matters pertaining to any individuals. Council’s primary purpose was the selection of the candidate to fill the vacant council seat. Consequently, the closed session was not permitted under the exceptions of the Municipal Act. Council’s closed session vote to select the member to fill the vacant seat was also not permitted under the act. Not only was the July 21 closed session illegal under the municipal act, the vote was in violation of the act. As the clerk-treasurer initially told council, a vote to fill a council seat must take place in open session. I want to stress that my office’s mandate is restricted to reviewing whether or not council complied with the open meeting provisions of the municipal act. It does not extend to commenting on the potential procedural issues surrounding the mayor’s decision to flip a coin during the closed session in order to select the new councillor.

“Before proceeding in camera under any of the other eight permissive exceptions, council should consider whether there is sufficient reason to exercise its discretion to exclude the public from the discussion,” wrote Mr. Marin. “Council should also amend its procedural bylaw to reflect the wording of the act.”

“This report gave us recommendations that we will adhere to,” stated Mayor. Hunt.

Paul Darlaston, who attended Monday’s meeting, said any votes that are not allowed under the Municipal Act are null and void.

“It doesn’t say that in the report we have here,” said Ms. Alkenbrack.

“That is what was given to us,” added Mayor Hunt.

“I will accept the majority of the blame because after checking the act both the night before and immediately before the vote was taken I read the directions under the Act, and obviously misinterpreted them about going into camera to protect individuals,” said Mayor Hunt.

Councillor Tom Imrie reported at the council meeting that he had received an email on September from Delroy Prescott which had been sent to a number of people. “He (Mr. Prescott) wrote, ‘last night a copy of an email sent from the Ombudsman’s office concerning their investigation of Billing Township council was forwarded to me. I have agreed to block out the name of the recipient as it must remain confidential by law’.”

“It’s my view that the clerk will have shared the report with mayor and council immediately and once they have had a day to digest it, it should be made public,” wrote Mr. Prescott. “I can understand that council will address the matter at a future meeting, but strongly feel that the report should be provided to the media, posted on the township website and be available at the front counter of the office right away. Accountability and transparency are issues in this municipal election, burying this report from the public until October 20 will only reinforce the concern that council has something to hide from the voters.”

Mr. Imrie explained, “because I put the motion forward first to go into camera (at the July 21 meeting), I spoke to Michelle Bird of the Ombudsmans office.” He explained, he had knowledge that one of the applicants for the vacant council seat had reported they were sick at the time and were incapable of performing the duties of council, and was at the time incapable of working. Because of this he didn’t feel this should be disclosed at an open meeting. However, this wasn’t discussed in the in camera meeting. My mistake was trying to protect the individual’s privacy and medical information. I apologize and I won’t be making that mistake again.”

Mr. Imrie reported that on October 3, a letter from Mr. Marin was received on the Ombudsman investigation into whether members of the waterfront improvement committee for Billings held closed meetings in violation of the Municipal Act, 2001. Mr. Marin wrote, “on July 23, 2014, my office received a complaint that the Waterfront Improvement Committee for the township of Billings regularly met and made decisions behind closed doors. According to the complainant, waterfront development is a matter of great public interest to the community, and accordingly the committee’s meetings should have been open to the public.”

The Ombudsman jurisdiction is the same as the above issue was that under the Municipal Act, 2001, (the Act) all meetings of council, local boards, and their committee must be open to the public, unless they fall within prescribed exceptions.

And the same investigative process took place by the Ombudsman’s office on this issue as it had for the July 21, 2014 meeting.

“The waterfront improvement committee was created in 2012 as a result of the township’s substantiability plan, which included improvements to the waterfront,” wrote Mr. Marin. “Township staff told us that, although it is referred to as a committee it is not considered a committee of council for the purpose of the open meeting requirements. There was no by-law to form the committee and it has no official terms of reference. The committee is made up of the mayor, one member of council and three members of the public all appointed by council. The committee meets on as needed basis, and the committee has no budget or decision making authority. Recommendations of the committee are brought back to council by the committee chair, who is a member of the council.”

“Section 11 of the procedural bylaw states that council may not meet in camera unless the subject matter of the discussion falls under one of the exceptions outlined in the Act. Section 26 of the procedure by-law states that the rules governing the procedures of council shall be observed in all committees,” continued Mr. Marin. He said, “although staff advices our office that the waterfront committee meeting was not considered a meeting of council, we were also told that it provides notice of meetings, keeps minutes, and allows the public to attend its meetings.”

In conclusion Mr. Marin wrote, “although the waterfront improvement committee is already following a practice of holding open meetings, there appears to be confusion as to the committee’s status as a committee of council for the purpose of the open meeting requirement. Staff and council should be aware that any group that meets the definition of committee under the township’s procedure bylaw (2009-01) will be subject to the open meeting requirements as a result of the provisions contained in section 11 and 26 of the bylaw. For the sake of clarity, we encourage council to develop terms of reference for this committee and to formalize in writing, the committee’s practice for providing notice of meetings to the public.”