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Home My WebLink AboutFCS-15-088 - Bill 8 - Municipal Ombudsman Role Staff Report rTC.�r R finance and Corporate Services Department www.kitchener.ca REPORT TO: Finance & Corporate Services Committee DATE OF MEETING: June 15, 2015 SUBMITTED BY: C. Tarling, Director of Legislated Services/City Clerk, 519-741- 2200, ext. 7809 PREPARED BY: C. Tarling, Director of Legislated Services/City Clerk, 519-741- 2200, ext. 7809 WARD(S) INVOLVED: All DATE OF REPORT: May 25, 2015 REPORT NO.: FCS-15-088 SUBJECT: Bill 8 (Public Sector and MPP Accountability and Transparency Act, 2014) / Municipal Ombudsman Role RECOMMENDATION: For information. BACKGROUND: In 2014, the Public Sector and MPP Accountability and Transparency Act (Bill 8) was re- introduced following the election. Proclaimed to be in effect on January 1, 2016, Bill 8 has reinforced the appointment of various accountability officers and now enables the Ontario Ombudsman Office (Provincial Ombudsman) to have oversight on municipalities. The Association of Municipalities of Ontario is of the opinion that this additional oversight is not warranted, which is consistent with previous positions of Council. REPORT: There are 11 Schedules included in Bill 8 that amend various acts governing the public sector. Schedules 6 and 9 are applicable to all municipalities as these two schedules amend the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the Ombudsman Act both of which have a direct effect on the overall business of municipalities. MFIPPA Two specific additions have been made to MFIPPA increasing the responsibility of the head of an institution and setting out consequences for individuals for the maintenance and management of corporate records. • Addition #1 — The head of the institution must ensure corporate records are properly maintained according to statute, bylaws and policies. The Mayor, as the head of the City, has delegated the day-to-day responsibility for managing MFIPPA to the City Clerk but will have the specific statutory obligation to ensure there are measures in place for the maintenance of corporate records and there is compliance with these measures across the organization. ***This information is available in accessible formats upon request. *** Please call 519-741-2345 or TTY 1-866-969-9994 for assistance. IF1 - 1 • Addition #2 — Individuals can be found personally liable for records-related offences. Prior to Bill 8, only an organization could be held liable for offences under the MFIPPA. The amendments in Bill 8 expand this liability to include any individual who handles records regulated by MFIPPA. Individuals who are responsible for managing records can be found personally liable for offences related to the willful concealment, alteration or destruction of corporate records. Bill 8 also allows for the prosecution of such offences to be initiated up to two (2) years after the offence has been discovered and carries a maximum fine of $5,000.00 for an offence by an individual. The City has a Records Retention Bylaw (By-law 2011-121), a Records Retention Schedule, and a number of procedures and guidelines governing records and information management. City staff is accountable for managing records and information in accordance with MFIPPA, the City's Retention By-law and Schedule, and procedures/guidelines. The City's records and information management framework is augmented by various training opportunities to build awareness and educate staff on the management of the City's records and information assets. Next Steps In response to the MFIPPA amendments within Bill 8, the City's records and information management framework will be reviewed to ensure ongoing compliance with MFIPPA and its own records and information management requirements. Any necessary updates will be incorporated into staff training, policies, guidelines and procedures. Ombudsman Act Under Bill 8, The Ombudsman Act has been amended to expand the Provincial Ombudsman's jurisdiction to include municipalities, municipal boards and their agencies. The function of the Ombudsman is to "investigate any decision or recommendation made by or an act done or omitted in the course of the administration of a public sector body." Bill 8 does not change the provisions of Section 239 of the Municipal Act regarding closed meetings but the Provincial Ombudsman remains the default if a municipality does not have its own closed meeting investigator and maintains the ability to investigate matters if a complaint is brought directly to the Provincial Ombudsman office or on his own motion. The amendments also clarify how the Provincial Ombudsman may exercise its powers where a municipality has its own Municipal Ombudsman. The Provincial Ombudsman is not empowered to investigate decisions, recommendations, acts or omissions: (1) where there is a right of appeal or objection, or right to apply for a hearing or review by a tribunal or court until this right has been exercised; and, (2) of any legal adviser or person acting as legal counsel to the public sector body. This means that municipal services governed by other legislation with established appeal and tribunal processes would require the complainant to exercise and exhaust all rights established in the complaints process before the Provincial Ombudsman may be engaged. Bill 8 does allow the Provincial Ombudsman to investigate administrative decisions, recommendations, actions or the lack thereof in municipalities and gives the position far- reaching investigative and review powers including a review of any current staff code of ethics to ensure it is being applied and any related processes are in place. Bill 8 also directly impacts a municipality's ability to control its own complaint process. Highlights of the changes are: 1. The Provincial Ombudsman will, by default, be the Municipal Ombudsman if the municipality has not appointed its own Municipal Ombudsman. IF1 - 2 2. The Provincial Ombudsman may investigate even if there is a Municipal Ombudsman if: a. a complaint was made to the Municipal Ombudsman and he/she refused to investigate or has conducted and concluded an investigation; or, b. the time for bringing a complaint to the Municipal Ombudsman has expired. 3. Section 14(5) of the amendments allows any person to make an application to the Divisional Court if there is a question as to whether or not the Provincial Ombudsman has the jurisdiction to investigate a matter. If the Provincial Ombudsman decides to conduct an investigation into a matter under a Municipal Ombudsman's jurisdiction, s/he must inform the head of the institution before starting the investigation, and provide the institution an opportunity to make representations to the Provincial Ombudsman if the report or recommendations may adversely affect the institution. Section 223.13 of the Municipal Act gives municipalities the authority to appoint a Municipal Ombudsman who reports to council. To date, Kitchener Council has not seen fit to appoint a Municipal Ombudsman. The following factors support this approach: • City Council is a democratically-elected body which affords a high degree of access between citizens and their elected representatives including the ability to make public delegations directly to Council; • The City has had a negligible history of requests for investigations in other accountability areas, including closed meeting investigations and code of conduct investigations; and, • Introducing the role would create additional cost and administrative overhead. Appointing a Municipal Ombudsman to pre-empt the Provincial Ombudsman's authority is not a compelling rationale in light of the above. Further, citizens might not view a Municipal Ombudsman as an independent and impartial body if it is being paid for by the municipalities it could be investigating. This argument has been advanced against municipalities which have chosen to appoint their own closed meeting investigators in lieu of using the Provincial Ombudsman as the default. Next Steps Staff will continue to monitor developments under the Bill 8, including the potential improvements to municipal complaints management systems being championed by the Association of Municipalities of Ontario. The introduction of a Customer Relationship Management System at the City of Kitchener will also provide opportunities to investigate more robust complaint management and reporting functionality. ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN: Ensures accountability and transparency in all public processes. FINANCIAL IMPLICATIONS: None at this time. COMMUNITY ENGAGEMENT: INFORM — This report has been posted to the City's website with the agenda in advance of the council / committee meeting. ACKNOWLEDGED BY: D. Chapman, Deputy CAO, Finance & Corporate Services IF1 - 3