Ombudsman, Emo council clash over closed meeting

Peggy Revell

The provincial ombudsman and Emo council are butting heads following a recently-released report detailing an investigation into a closed meeting held last spring.
Entitled “Municipal Government By Stealth,” the report came after the ombudsman’s office received a complaint back on April 21, 2008 alleging that “following the adjournment of the regular meeting of council on [April 8, 2008], council held an unauthorized in-camera meeting with members of the Rainy River District Regional Abattoir Inc. to discuss matters related to the abattoir project planned for the township.”
Following his investigation, the ombudsman’s office was unable to establish that such a secret meeting had occurred, but its report stated that “the council operates within a culture of concealment and secrecy, which has led to multiple breaches of the law.”
“Taken in its best light, the conduct of Emo council surrounding the April 8, 2008 closed meeting reflects basic ignorance of the purpose behind the open meeting requirements and how they are intended to work in practice,” the report stated.
“. . . at its worst, it appears to be an ill-conceived and deliberate attempt to flout the law and manipulate it to serve its own ends.”
Emo Mayor Ed Carlson called the ombudsman “out to lunch” and the report “ridiculous.”
“André Marin went far beyond his mandate,” Mayor Carlson said of the report, which was dated Jan. 30, 2009 but a copy of which was sent to the Times just last week.
“His job is to look into complaints about things that have gone wrong in a closed meeting session,” the mayor noted. “The complaint was that two members of the abattoir committee came into our closed meeting to discuss [the] purchase of land, all of which has been proven to be false.
“That’s where his investigation should have stopped,” Mayor Carlson argued, adding Marin was “just itching to try and find some place where he could actually do something, or nail something to the wall.
“So from that, he went on to actually try and find fault with the way in which we went in-camera, discussed the purchase of the land, and then came out of camera [and] passed a bylaw to actually purchase the land from the abattoir committee if it didn’t work out for them.”
Mayor Carlson noted acquiring more industrial sites if they become available always has been a part of Emo’s long-term plan. He said the land discussed at the meeting actually had been considered for purchase before, but ended up being sold before the township was able to make a move on it.
“So we were quite excited to have that opportunity,” he said of the chance to buy the land should the RRDRAI fail to build the abattoir.
The report highlighted what the ombudsman saw to be the following violations of the Municipal Act, 2001:
•discussing the RRDRAI land purchase during the April 8 closed meeting and preparation of council minutes without proper authorizing public resolutions;
•failure to record the discussion of the RRDRAI land purchase and preparation of council minutes, within the original minutes of the April 8, 2008 closed session; and
•resolving to go into closed session on April 22 to discuss correction of the minutes, “relying on an exception that did not apply.”
“It is clear that Emo council requires greater discipline to ensure that it complies with the open meeting law,” Marin’s report stated. “Its current meeting practice and procedures lack the rigour necessary to ensure the integrity and transparency of its proceedings.”
“Unfortunately, Mr. Marin doesn’t understand municipal law as well as he’d like to think he does,” charged Mayor Carlson. “We’ve been in consultation with our lawyer, and he’s pointed out to us that, indeed, we have done nothing wrong.
“Even if we had had the abattoir committee in, in the closed session, there’s nothing wrong with that. That’s quite within the municipal act to do so,” he stressed.
“There’s absolutely zero reason for the ombudsman to go beyond the initial complaint at all because there was nothing ever done illegal or against the act that our council did, and his entire findings are all false.”
Marin’s report also blasted Emo council’s move on July 8, 2008 to institute a $500 fee for those who make a complaint to the ombudsman.
“Council’s resolution concerning the ‘complaint fee’ was made in flagrant disregard of the law, and in my view is completely unenforceable,” the report stated, adding there is no authority granted within the Municipal Act, 2001 to authorize a municipal council to levy a fee upon someone who brings a complaint to the ombudsman.
The report pointed to the impracticality of such a fee given citizens lodge complaints directly with the ombudsman’s office. And in accordance with the Ombudsman Act, the identity of those lodging a complaint about a closed meeting remains confidential and undisclosed to the municipality.
“It is hard to escape the conclusion that Emo has attempted to impose a complaint fee in an effort to create a significant deterrent to its citizens from taking issue with its practices surrounding closed meetings,” Marin wrote. “Given the timing of the resolution creating a complaint fee, in the midst of my investigation, it inevitably suggests that the fee was promulgated in retaliation for the complaint to my office.”
Commenting on this fee falls outside the ombudsman’s mandate, Mayor Carlson argued.
“That’s absolutely none of his business,” he remarked, adding that it’s nothing but the ombudsman grasping at straws to paint the Emo council in a negative light.
“[The fee] has nothing to do with the closed meeting,” the mayor stressed. “That was all done at open council, and for him to even comment on it, it is wrong.
“He’s going outside his mandate, which he’s gone constantly throughout his entire report.”
To remedy what the ombudsman saw as problems with Emo council, the report outlined six recommendations, including:
•With a few noted exceptions, cease the discussion of subjects “that have not been identified in an authorizing resolution in closed session, and its ‘check-box’ approach to such resolution;
•Council’s procedure bylaw should be amended so that an agenda of all council meetings is posted in advance (items can only be added to the agenda in “urgent” situations, and if additional procedural requirements are met);
•General descriptions of subjects that will be discussed in closed sessions should be included on council’s agenda, as well as an indication that, if occurring, open session will resume following the closed session;
•Council meeting minutes, open and closed, should be complete and accurate, with all items addressed during the meeting;
•Council meeting minutes should be recorded in chronological order, and those attending closed meetings are “specifically and separately listed from attendees at open sessions;” and
•Council members “should be vigilant in adhering to their individual obligation to ensure that council complies with its responsibilities under the Municipal Act, 2001 and its own bylaw.
Marin’s report also recommended that Emo council revokes its $500 fee for complaining to the ombudsman’s office.
“We’re not accepting any of his recommendations because there’s no basis,” said Mayor Carlson. “The reason we’re not is that what we’re doing now is correct, and there’s no reason for us to adopt these recommendations because we haven’t done anything wrong.
“There is no merit in us adopting any of his recommendations.
“This is the law according to André Marin, and no, we’re not interested in doing that,” the mayor stressed. “We haven’t done anything wrong. The way our council meetings are conducted are totally within the act, totally legal.
“We do make things very clear in our meetings.”
Mayor Carlson also cited several reasons as to how the ombudsman office “burnt bridges” with Emo council while dealing with this complaint.
“Had he taken this position and looked at it in the way it should be, as in we’re not professional politicians, and from time to time we may make mistakes—not that we did this time, it would be a great opportunity for him to work with us,” the mayor said. “But that’s not what he’s interested in.
“They’re just a nasty office to work with and deal with,” he charged. “They’re very demanding, very rude.”
As well, the investigation was conducted all out of Toronto by telephone.
“No one even came here to see us, speak with us,” Mayor Carlson said, adding that by conducting the investigation at arm’s-length, the ombudsman made decisions without knowing all the facts or how the township operates.
The ombudsmen’s himself is isolated, the mayor remarked, calling Marin an “island.”
“You can’t touch him,” he said. “I don’t know how, in a democracy, we ever allow a bureaucrat to have that much power.
“It’s absolutely ridiculous . . . I just don’t get how we would put a bureaucrat with more power than our elected officials in place to look over something like this, it’s just outrageous.”
As well, Mayor Carlson said the wording of the report is misleading.
“[Marin] never says we do anything wrong, he’ll always use the little terms like ‘may appear’ or this or that,” he noted. “So he’s not saying we’ve done it, but if you’re reading it and you don’t have an understanding, you will think that we’ve done something wrong.
“And that’s not the fact. We didn’t do anything wrong.
“Part of the reason we took so much offence to it is because it really questions our integrity, our openness,” Mayor Carlson remarked. “Emo council has worked hard on becoming a very open, transparent council. We give time at the end of our meetings, which I don’t know of anyone who does that, to ask questions, the gallery can ask us questions.
“We go out of our way to make things available to people. We’ve done our very best to have an open and honest council.”
In fact, Mayor Carlson believes the ombudsman and his office actually owes Emo council an apology, although he notes one won’t be forthcoming.
Following the release of the report, Emo council has continued to fight against what it sees as an unfair judgment.
“We’ve made our case as well to the premier, to the minister of municipal affairs, to the [minister of community safety and correctional services],” explained Mayor Carlson. “So we’re still working on it from a multitude of levels to try and address it, and get somebody to step in and actually get him [Marin] under control because he’s not doing the job that was intended.”
If one thing can come out of this, the mayor said, it’s that he hopes they can prevent a similar situation like this happening to any other council.
“This actual whole report was nothing to do so much about closed meetings as it was to try to stick it to the council over the abattoir issue,” he charged. “That’s the bottom line, and that’s what people need to see it as.
“It’s not something that we’ve done wrong.”