BackMany municipalities have grown to embrace the spirit of the “Sunshine Law” – the open meeting requirements of the Municipal Act, 2001 – Mr. Marin notes in his third annual report devoted to the work of his office’s Open Meeting Law Enforcement Team (OMLET), which has investigated complaints about illegal closed meetings since 2008. Better yet, the prospect of full Ombudsman oversight of municipalities under the recently-passed Bill 8 (the Public Sector and MPP Accountability and Transparency Act, 2014), sparked “significant citizen engagement” and “productive discussions with candidates” prior to October’s municipal elections, he says.
“While some in the municipal establishment expressed skepticism, [Bill 8] was also enthusiastically embraced by a new wave of municipal officials who recognize the public’s desire for oversight and transparency at the local level,” Mr. Marin writes in the report, noting that voters replaced many municipal politicians “who had violated the open meeting rules or resisted co-operating with our investigations in the past.”
The report covers 149 cases received by OMLET between September 1, 2013 and August 31, 2014. During that period, the Ombudsman and OMLET reviewed 49 meetings by 40 municipalities and two local boards, and found 11 of them illegal – or 22%. This is a smaller number but higher proportion than the same period last year, when 19 (or just under 20%) of 96 meetings by 59 bodies were determined to be illegal.
“As citizens and municipal officials become more educated about the open meeting law,” Mr. Marin writes, “more municipalities seem to be getting the rules right and attracting fewer complaints. At the same time, complainants seem to have a better sense of when their council is violating the law, and their complaints are more likely to be justified.”
OMLET also found 13 procedural violations of the Act and made 31 recommendations for municipalities to improve their meeting practices. More municipalities are also following the Ombudsman’s recommendation that they digitally record all meetings, open and closed.
However, the report highlights several persistent problems in both the Sunshine Law enforcement regime and in the behaviour of a few recalcitrant municipalities.
Under the Sunshine Law, anyone can complain about a closed meeting, and the Ombudsman is the default investigator for these complaints (free of charge to municipalities and complainants). But there is no consequence for violating the law, and municipalities can hire their own investigators. In the period covered by this report, the Ombudsman was the investigator in 196 of Ontario’s 444 municipalities (up from 191 last year). Some 134 hired investigators through Local Authority Services (LAS), a subsidiary of the Association of Municipalities of Ontario.
“From what we’ve observed, the quality of local investigations and reports is spotty at best. Some investigators’ reports contain only cursory reference to the fact, and little or no analysis of the evidence and law,” Mr. Marin says, citing LAS reports on cases in Sudbury and Bruce County that were “riddled with errors” or took a “slap-on-the wrist approach.”
“This profusion of investigators, some with close ties to local government, detracts from [the Sunshine Law’s] underlying principles of openness, transparency and accountability, and results in inconsistent enforcement of the open meeting rules.”
The Ombudsman’s report also notes that while many municipalities demonstrated improved understanding of the closed meeting rules, “a few disregarded them entirely – closing meetings without any justification.” As in past years, the more egregious examples involved meetings where elected officials met illegally away from council chambers, often with outside parties. Elected officials are “of course free to socialize together,” the report states, but should “always be alert to the potential for breaching the Municipal Act whenever they gather to discuss city business, whether or not they are in council chambers.”
The report identifies the “most misunderstood and misapplied” part of the Sunshine Law as the exception allowing meetings to be closed for the discussion of “personal matters about an identifiable individual.” For example, councils wrongly used it to hold illegal votes on filling a vacant council seat or funding a hospital MRI machine, discuss matters that were already public and not “personal,” or talk about contractors in a professional (not personal) capacity.
The Ombudsman’s office has worked since 2008 to educate municipal officials and the public across the province about the Sunshine Law to ensure it is consistently enforced and interpreted. The report is being sent all to 444 municipalities across the province (whether or not they use the Ombudsman as their closed meeting investigator), along with a new edition of the office’s Sunshine Law Handbook – a pocket-sized guide to the open meeting rules. Every mayor, councillor and clerk will receive a copy, and both the Handbook and the OMLET report are also available to the public via the Ombudsman’s office and website.
Source: Office of the Ontario Ombudsman, Canada
