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.
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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”.