At its June 13, 2022 meeting, Council received a report from administration seeking its approval to issue a tender for the appointment of an Integrity Commissioner and a Closed Meeting Investigator for the next term of Council (2022-2026).
The Integrity Commissioner and Closed Meeting Investigator both serve important public accountability functions in Ontario municipalities:
The Integrity Commissioner has responsibility for investigating alleged breaches of the municipal Code of Conduct and the Municipal Conflict of Interest Act, both of which apply to members of Council and municipal boards and committees.
The Closed Meeting Investigator receives complaints where it is alleged that Council held a meeting that was not open to the public. Council can only meet behind closed doors for a limited number of reasons, which are defined in section 239 of the Municipal Act, 2001.
Municipal taxpayers pay for the services of the Integrity Commissioner and the Closed Meeting Investigator that they appoint. Shockingly, there is no requirement in law that either person hold any particular qualifications. For the current term of Council, Paul Heayn has held both roles for the Town of Fort Frances. I have previously written about my concerns about his work as Closed Meeting Investigator.
While municipalities are required to appoint an Integrity Commissioner, they are not required to appoint a Closed Meeting Investigator. The Municipal Act, 2001 provides that where a municipality does not appoint a Closed Meeting Investigator, the Ontario Ombudsman shall serve as the Closed Meeting Investigator.
The Ontario Ombudsman is, in effect, the default Closed Meeting Investigator. The Ombudsman serves in this role for numerous municipalities – including several in our region. They are a professionally-staffed, fully independent office of lawyers and trained investigators that follow consistent policy. Their decisions and reports are published online in a centralized database, contributing to transparency and consistency in the interpretation and application of the law governing Council proceedings.
Importantly for taxpayers, the Ombudsman’s closed meeting services are FREE to municipalities. I pointed this out during the June 13, 2022 meeting, but this was rebutted by staff. Their report included the following statements:
The Ombudsman search can really branch out beyond the scope of the closed meeting complaint. Though on its face it may appear that there are no cost for the Ombudsman to investigate, these types of investigation can require additional resources to address all issues should they arise whereas a third party is independent, impartial and provides credible investigations and reports directly relating to closed session only and understanding that both the Ombudsman and a Third Party are focused on municipal transparency and accountability.
The powers of the Ombudsman with respect to closed meeting complaints as set out in the Ombudsman Act – include the power to issue summonses, inspect premises and compel municipal officials and staff to provide information and documents far greater powers then a appointed Closed Meeting Investigator[.]
In other words, the administration does not want the Ombudsman to investigate closed meeting complaints because the Ombudsman might uncover more problems with the municipal administration that the public ought to know about. In comparison, a Closed Meeting Investigator’s powers are more limited, and any issues identified are pointed at Council – not that staff who advise Council. The suggestion that the Ombudsman is not independent or impartial is completely baseless.
As I pointed out during the June 13 meeting, whether or not the Ombudsman is our Closed Meeting Investigator, their office maintains the jurisdiction to investigate general complaints about the municipality other than closed meeting complaints. In effect, a citizen could launch a closed meeting investigation with our Closed Meeting Investigator and make other, related complaints about the same issues to the Ombudsman. This is because the Ombudsman’s wider role is to investigate complaints in provincial and other public sector bodies in Ontario – including municipalities. These powers are not extinguished just because the municipality appoints a Closed Meeting Investigator.
As such, not using the Ombudsman’s free service to investigate closed meetings does not reduce the burden on municipal staff. It only increases costs and decreases oversight and accountability over the municipality by siloing watchdogs.
It is Council’s role to hold the administration accountable to the public. In my view, turning down opportunities to do so, and not instituting appropriate officers or policy to achieve those objectives is an abdication of that duty.
Unfortunately, all six other members of Council sided with administration, effectively committing to spend more tax dollars for less public accountability in our municipal government. The results of the vote will be published in the June 13, 2022 minutes.