WHAT WAS SAID
Sep 24, 2012 - 3:40
PM
Georgina's closed
meeting breaches Municipal Act
But procedure,
outcome of lawsuit meetings legal
TOWN OF
GEORGINA.
Investigators
determined the town breached the Municipal Act at a Nov. 21 committee of the
whole meeting with “a substantive decision in closed session”; one that was
“couched in a direction to staff”, according to a report being presented to
council Monday night.
In addition, it states that councils, when in committee of the whole, should be wary of providing direction that is more properly within the purview of council to provide in open or in closed session.
In addition, it states that councils, when in committee of the whole, should be wary of providing direction that is more properly within the purview of council to provide in open or in closed session.
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Despite the fact the
town breached the Municipal Act at one of its closed meetings regarding a
dropped defamation lawsuit, the overall procedure it followed was legal,
according to results of a now concluded four-month
investigation.
Investigators determined the town breached the Municipal Act at a Nov. 21 committee of the whole meeting with “a substantive decision in closed session”; one that was “couched in a direction to staff”, according to a report being presented to council tonight.
“That was a breach of the Municipal Act, in our opinion,” according to investigators.
The report contains the results of an investigation into closed sessions of town council and committee of the whole meetings launched by Keswick resident Kristina Toomey, who felt proper procedure was not followed over a defamation lawsuit against a former leisure services director with the town.
Ms Toomey, town CAO Winanne Grant and the town clerk were consulted during the course of the investigation conducted by Amberley Gavel Ltd., which began in May and included a review of agendas and minutes of meetings of council, procedural bylaw and applicable legislation.
During the closed meeting in November, staff provided a letter containing legal advice from the town’s solicitor, including but not limited to, a conclusion that litigation would be commenced, for review by the committee.
Staff were directed to “follow legal advice” to initiate legal proceedings, which effectively were decisions that “exceeded a mere direction” even though the committee did not take a formal vote of the matter.
While there is no clear direction or definition under the act regarding “directions” to staff, investigators concluded the intention of the act is not that a substantive decision be “couched” in a direction to staff.
The report goes on to say council, a committee or a local board are merely permitted to vote on a procedural matter or to give directions to staff, but not allowed to make substantive decisions “behind closed doors”.
In addition, it states that councils, when in committee of the whole, should be wary of providing direction that is more properly within the purview of council to provide in open or in closed session. The primary function of a discretionary committee of council is to provide advice to council, not to act on its behalf.
While no sanctions were outlined by Amberley Gavel, it recommended council and committees should be very diligent in ensuring the way a matter is handled in closed session and does not breach the Municipal Act.
“More specifically, a council cannot make substantive decisions (even if they don’t vote on them) and then characterize the decision as a mere direction to staff or others when, indeed, it is not merely directional in nature,” the report states. “Committees have even less authority to direct staff in either open or closed session.”
In addition, the town could have followed proper municipal procedure more accurately when citing the reasons for closed sessions on meeting agendas, but those “procedural inaccuracies” would not render any decisions made at those meetings illegal, the report concludes.
“We do not think there was any intention of the town or of council to shield the overall matter from openness and transparency by assigning the broader, more ambiguous Municipal Act exception dealing with “personal matters”, even if it was not the more relevant or accurate exception,” the report states.
For example, by the time discussions were continuing regarding the matter at a Dec. 12 meeting, a more accurate exception under the Municipal Act should have been applied rather than a “personal matter involving an identifiable individual” on meeting agendas.
While the matter started off as a ‘personal matter about an identifiable individual’, there were times when more information should have been provided to the public rather than just carrying over the “personal matter” from each agenda to the next until the final meeting in February 2012, the report states.
Since a statement of claim had already been issued in the matter by the Dec. 12 meeting of council, the issue was now in the public domain and, therefore, could have been listed on the agenda as “Litigation; Section 239(2)(e); John McLean” to conform to the Municipal Act, according to the report.
Although they were continuing to discuss a “personal matter” involving an identifiable individual, they were discussing the progress of litigation, according to investigators.
There was also “no apparent reason why this item had to be discussed in closed session” at a Jan. 23 council meeting since a statement of claim had already been issued in the matter and the litigation process was in the public domain.
Furthermore, instead of citing client/solicitor privilege as a reason for the closed special council meeting Feb. 2, it would have been more accurate to continue using the litigation privilege exception under section 239(2)(e) of the act.
This would lead to openness and transparency of the “general nature of the matter to be considered” during the closed session, while “preserving confidentiality over the substance of council’s deliberations”.
But investigators concluded “the personal matter” was properly before the closed meetings of council and committee of the whole in accordance with the Municipal Act.
In addition, the breach of the Municipal Act was “either a procedural irregularity or did not affect the legality of council’s ultimate decisions”.
Investigators determined the town breached the Municipal Act at a Nov. 21 committee of the whole meeting with “a substantive decision in closed session”; one that was “couched in a direction to staff”, according to a report being presented to council tonight.
“That was a breach of the Municipal Act, in our opinion,” according to investigators.
The report contains the results of an investigation into closed sessions of town council and committee of the whole meetings launched by Keswick resident Kristina Toomey, who felt proper procedure was not followed over a defamation lawsuit against a former leisure services director with the town.
Ms Toomey, town CAO Winanne Grant and the town clerk were consulted during the course of the investigation conducted by Amberley Gavel Ltd., which began in May and included a review of agendas and minutes of meetings of council, procedural bylaw and applicable legislation.
During the closed meeting in November, staff provided a letter containing legal advice from the town’s solicitor, including but not limited to, a conclusion that litigation would be commenced, for review by the committee.
Staff were directed to “follow legal advice” to initiate legal proceedings, which effectively were decisions that “exceeded a mere direction” even though the committee did not take a formal vote of the matter.
While there is no clear direction or definition under the act regarding “directions” to staff, investigators concluded the intention of the act is not that a substantive decision be “couched” in a direction to staff.
The report goes on to say council, a committee or a local board are merely permitted to vote on a procedural matter or to give directions to staff, but not allowed to make substantive decisions “behind closed doors”.
In addition, it states that councils, when in committee of the whole, should be wary of providing direction that is more properly within the purview of council to provide in open or in closed session. The primary function of a discretionary committee of council is to provide advice to council, not to act on its behalf.
While no sanctions were outlined by Amberley Gavel, it recommended council and committees should be very diligent in ensuring the way a matter is handled in closed session and does not breach the Municipal Act.
“More specifically, a council cannot make substantive decisions (even if they don’t vote on them) and then characterize the decision as a mere direction to staff or others when, indeed, it is not merely directional in nature,” the report states. “Committees have even less authority to direct staff in either open or closed session.”
In addition, the town could have followed proper municipal procedure more accurately when citing the reasons for closed sessions on meeting agendas, but those “procedural inaccuracies” would not render any decisions made at those meetings illegal, the report concludes.
“We do not think there was any intention of the town or of council to shield the overall matter from openness and transparency by assigning the broader, more ambiguous Municipal Act exception dealing with “personal matters”, even if it was not the more relevant or accurate exception,” the report states.
For example, by the time discussions were continuing regarding the matter at a Dec. 12 meeting, a more accurate exception under the Municipal Act should have been applied rather than a “personal matter involving an identifiable individual” on meeting agendas.
While the matter started off as a ‘personal matter about an identifiable individual’, there were times when more information should have been provided to the public rather than just carrying over the “personal matter” from each agenda to the next until the final meeting in February 2012, the report states.
Since a statement of claim had already been issued in the matter by the Dec. 12 meeting of council, the issue was now in the public domain and, therefore, could have been listed on the agenda as “Litigation; Section 239(2)(e); John McLean” to conform to the Municipal Act, according to the report.
Although they were continuing to discuss a “personal matter” involving an identifiable individual, they were discussing the progress of litigation, according to investigators.
There was also “no apparent reason why this item had to be discussed in closed session” at a Jan. 23 council meeting since a statement of claim had already been issued in the matter and the litigation process was in the public domain.
Furthermore, instead of citing client/solicitor privilege as a reason for the closed special council meeting Feb. 2, it would have been more accurate to continue using the litigation privilege exception under section 239(2)(e) of the act.
This would lead to openness and transparency of the “general nature of the matter to be considered” during the closed session, while “preserving confidentiality over the substance of council’s deliberations”.
But investigators concluded “the personal matter” was properly before the closed meetings of council and committee of the whole in accordance with the Municipal Act.
In addition, the breach of the Municipal Act was “either a procedural irregularity or did not affect the legality of council’s ultimate decisions”.
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