Technicalities and good ideas

It is tempting to focus one’s attention too much on one part of the Ontario Ombudsman’s report on a closed-door OPP contact committee meeting.

Yes, the report states in black-and-white the committee contravened the Municipal Act when it moved from getting information about the OPP costing process to actually directing staff to do something – in this case approach a third party firm for an audit of the eventual costing.

Mayor David Henderson on Wednesday angrily denounced the Ombudsman’s findings, feeling slighted because, in his view, he had reasonably explained that the decision to seek a third party audit was actually made, in public, three years ago.

In fairness, the finding of fault may lie in a technicality.

The relevant paragraph of the Ombudsman’s report reads as so:

“However, when a meeting is closed under the ‘education and training’ exception, no votes can be taken that advance business or decision-making. When the committee voted to direct staff to approach the audit firm, it went beyond the educational purpose of the OPP’s presentation about its general costing process.”

Two things here: First, the ad hoc committee – at the OPP’s behest, one must remember – closed the meeting under the ‘education and training’ provision of the Municipal Act; and second, the committee, in the Ombudsman’s eyes, “voted,” clearly a no-no if you’ve invoked the ‘education and training’ clause.

Whether or not it was an actual vote may be a matter for dispute, were there any reason to appeal a non-binding report.

Did the committee “vote” to tell staff to pursue a third party audit, or did members simply nod in agreement when someone reminded staff of a decision reached in 2013?

If the committee did not vote, then it merely gave staff direction. Is there some point at which giving direction bleeds into a mere reminder, or “education,” about a decision that may have slipped someone’s mind?

So, technically, the committee is at fault, but the fault is orders of magnitude smaller than, say, secretly agreeing to support an OPP takeover.

The more interesting parts of the report, arguably, are the further recommendations to update the city’s procedural bylaw and to enhance reporting from in camera meetings.

One of the report’s five recommendations calls on the city to “comprehensively review and amend its procedure bylaw to accurately reflect the Municipal Act’s current closed meeting provisions.”

“The City of Brockville’s procedure bylaw has not been updated since 1994,” the report states elsewhere.

The mayor points out that, in the Ombudsman’s report, city clerk Sandra MacDonald clearly states that, when the current procedural bylaw is out of step with the act, the act takes precedence.

“The Clerk told our Office she is aware of these shortcomings and that the city has been slowly working on drafting a new procedure bylaw,” reads the report. “She indicated that, in practice, the city follows the requirements in the Act when there is a conflict between the bylaw and the Act.”

I would suggest the updating of the procedural bylaw warrants some speeding up.

All the current situation does is prompt two contradictory questions: If the bylaw is 22 years out of date, why not update it? Or... If the bylaw is so out of date that the act takes precedence, why not scrap the bylaw entirely and make the act your only rulebook?

The Ombudsman also recommends the committee “adopt the best practice of reporting back in open session following an in camera meeting.”

Henderson seemed to have little time for this suggestion, saying Wednesday the whole question of when and how to report back is a huge grey area.

At the moment, the only real reporting on in camera meetings is generic. Council votes to go in camera, or accepts the report from the in camera meeting, with brief words stating that, for instance, it had to do with the pending acquisition or disposition of a property, or potential litigation, or matters involving an identifiable individual.

It’s worth noting here that the Ombudsman found another breach of the act: “In addition, the City of Brockville contravened the requirements of section239(4)(a) of the Act by failing to state the general nature of the matters to be considered in the resolution to proceed in camera. The city’s procedure bylaw also does not comply with section 239(2.1) of the Act, which requires that a municipality’s procedure by-law provide for public notice of all meetings.”

In other words, the city did not do even as little as it usually does.

This can be tied to the fact it was the OPP that asked for the meeting to go in camera. The educational nature of the session was conveyed to media at the time, if not in the agenda.

But a more comprehensive system of reporting back from closed-door meetings, and of stating their purpose beforehand, would be a great remedy.

Is it even possible to report more fully on in camera sessions without thwarting any legitimate purpose for going in camera?

The answer might lie in the “best practice” suggestion. A look at how other municipalities do this, with recommendations to council, would be a far better response than dismissing the suggestion out of hand – no matter how slighted one feels.