Ombudsman dismisses staff claim legal issues were discussed

Plympton-Wyoming broke rules for in camera meetings when it decided privately to appoint a new councillor in June instead of holding a by-election.

Ontario’s Ombudsman, Paul Dube, said there is no reason talking about the process to fill a council vacancy – a matter of public interest – should have been been a private discussion.

Dube investigated a complaint filed in August about the appointment of Mike Vasey after council declared a seat vacant when long time Councillor Ron Schenk died.

In a lengthy decision released today, Dube said the council should not have decided in camera (a private meeting of council) to appoint a new councillor instead of holding a by election. He did say their discussion about two people who had expressed interest in the seat was a discussion which could legally be held in camera.

Under the Municipal Act, all meetings of council, local boards, and committees of council must be open to the public, except for some very specific circumstances including receiving legal advice, property matters or dealing with personal matters.

The June 24th meeting of council listed a discussion about personal issue, which the Ombudsman found the council talked about how to fill the vacancy created by Schenk’s death. Dube said staff present a report outlining the town’s options to fill the seat and how the issue had been handled in the past. The 2018 election results were also included.

“Council subsequently discussed the two individuals who had expressed interest in the position. The closed meeting minutes indicated that council considered the individuals’ qualifications and the fact that both individuals had run in the previous municipal election. Those we spoke to recalled discussing the individuals’ personalities and if they would be well-suited for a council position,” writes Dube in the decision.

Dube says councillors considered a motion to appoint a new councillor, but a formal vote was not taken. The councillors interviewed by Dube, he says, agreed there was consensus on making an appointment.

But staff told Dube a slightly different story – a story he decided was not true.

“According to the staff member, the purpose of the June 24 meeting was to receive legal advice related to one of the individuals interested in filling the council vacancy. According to the staff member, council had decided to proceed with filling the council vacancy at a previous council meeting, but did not provide my Office with the date of that meeting,” wrote Dube.

“The staff member told my Office that staff had sought legal advice prior to the meeting. They said that this legal advice was discussed by council in camera on June 24, and that council also discussed potential litigation involving the individual. One councillor out of the six council members had a similar recollection of the meeting.

“The other five members of council we interviewed did not indicate that legal advice was received or discussed during the closed session,” says Dube.

“The clerk told my office that council did not discuss any potential litigation or legal advice during the closed session. In fact, according to the clerk, staff had not sought legal advice prior to the June 24 meeting and, therefore, there was no legal advice to discuss.”

The Ombudsman concluded there was no legal advice discussed.

Dube ruled that while discussing the actual candidates for council and their personalities was properly discussed in camera, the discussion and decision about appointing a councillor instead of holding a by-election should have been open to the public.

“A council vacancy is generally a topic of public interest. There is no reason why discussions involving the process by which the vacancy is filled should be held in closed session,” wrote Dube.

Council had a chance to review Dube’s report before it was made public. “Council members told us that they felt the entire discussion was appropriate for in camera consideration. Council members indicated that filling the vacant seat was a sensitive topic and that the meeting was held during a time of stress for municipal staff and council members.

“I understand that council felt the subject matter discussed during this meeting was sensitive. However, the closed meeting exceptions are not intended to shield council from the public’s scrutiny of sensitive or contentious topics. It bears repeating that the exceptions in the Municipal Act are to be interpreted and applied narrowly, to maximize the information discussed in public. As stated in my Office’s 2014 report about the City of Welland: Although there may have been a desire to maintain confidentiality in order to protect various interests of the city, I must emphasize again that council cannot bring a matter in camera simply because it is considered sensitive or confidential or potentially against the city’s interest to discuss it publicly. Matters can only be discussed in camera if they fit squarely within the exceptions to the open meeting requirements.”

Dube recommends council make sure it follows the rules of the Municipal Act and be aware of what topics actually can be discussed privately. He also urged council to make sure it clearly identifies the issue it is talking about in camera, the direction given to staff and formally vote on the record “so there is no confusion on what direction or procedural matter was voted on during the properly closed meeting of the council.”

There are no penalties attached to the Ombudsman’s finding, however council is expected to write a report on how it will deal with the issue in the future and place in on a public agenda.