HomeMy WebLinkAboutCRPS-05-168 - In-camera Legislative Changes - Bill 123 / Municipal Act
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Corporate Services
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Report To:
Date of Meeting:
Submitted By:
Prepared By:
Ward(s) Involved:
Date of Report:
Report No.:
Subject:
Councillor B. Vrbanovic, Chair, and Members of the Finance
and Corporate Services Committee
November 21 , 2005
G. Sosnoski, General Manager of Corporate Services & City
Clerk
G. Sosnoski
N/A
November 8, 2005
CRPS-05-168
IN-CAMERA LEGISLATIVE CHANGES - BILL 123/
MUNICIPAL ACT
RECOMMENDATION:
That the Minister of Municipal Affairs and Housing be asked to consider, as part of the current
Municipal Act review, the following changes with regard to open and closed meetings:
)0. A clearer and expanded definition of 'meeting', to include non-traditional venues such as
electronic and telephone meetings;
)0. Addition of a category which would allow Councils to meet in-camera relative to:
discussions and / or negotiations of a strategic nature involving a municipally-owned
business enterprise, or the development of a commercial or strategic partnership
involving other government bodies, institutions or private sector companies, where public
discussion in the early stages of formulating a decision would be detrimental to the
interests of the public or the third party; and further,
That staff provide any necessary explanatory notes required to clarify the request.
Note: Council may also wish to direct staff with regard to implementing any additional
procedures as listed in the report which do not require legislative amendments.
BACKGROUND:
At its October 24, 2005 meeting, Council voted to adopt a motion from the Association of
Municipalities of Ontario (AMO) in opposition to the application of Bill 123 (An Act to Require
That Meetings of Provincial and Municipal Boards, Commissions and Other Public Bodies Be
Open to the Public) to municipal Councils. Though Council was generally supportive of the
principles relative to transparency and accountability which are espoused in Bill 123, concerns
were expressed by the majority of members regarding how they were addressed in the current
draft. These concerns were similar to those expressed by AMO and the Association of
Municipal Clerks & Treasurers of Ontario (AMCTO). As a result, Council adopted the AMO
resolution.
At that time, staff were asked to report back and advise on how Ontario's approach to caucus
meetings compares to other jurisdictions, and to bring forward what, if any, elements of Bill 123
which should be considered as possible amendments to the Municipal Act. They were
subsequently asked to include any transparency / accountability measures which would not
require further legislative amendments.
Primary source research as conducted regarding how other Provincial and Territorial in-camera
meeting legislation compares to that of Ontario. Aside from references to American jurisdictions
gleaned from secondary sources, no research was undertaken regarding legislation of the
United States. This was due to the amount of time available and the difference between
Canadian and American government models.
The information below was jointly gathered and discussed by the undersigned, the Director of
Legal Services & City Solicitor, and the Director of Legislated Services & Deputy City Clerk.
REPORT:
The following is a summary of the primary elements and principles in Bill 123 which staff felt
should either be incorporated as amendments to the Municipal Act, or of which Council should
be generally aware and may wish to question further. In addition, a number of areas have been
suggested where the City may wish to enhance its current practices with regard to in-camera
meetings, and which would not require further legislative amendments.
In a number of instances Bill 123 duplicates or conflicts with current provisions of the Municipal
Act. A chart illustrating these areas and produced by the Association of Municipal Clerks and
Treasurers of Ontario is attached as Appendix 'A'.
(a) Definition of a 'Meetina'
A meeting should be more clearly and comprehensively defined and include non-
traditional meeting arrangements reflective of new technologies or approaches to public
deliberations. The current Municipal Act (Section 238) defines a meeting as '... any
regular, special, Committee or other meeting of a Councilor local board...'. Section 3(1)
of Bill 123 indicates that a meeting of a designated body would occur if the entire
membership of the body is entitled to attend, or a specified number of members is
entitled to attend. It further indicates that a gathering would be considered a meeting if
the intention is to deliberate on or do anything within the jurisdiction of the body. Like
the current Municipal Act a quorum of Council members would be required before the
gathering is technically considered a meeting. In addition Bill 123 specifies that a
meeting would include electronic or telephone meetings to which the above conditions
also apply.
In addition to the current, broad Municipal Act definition of a meeting, and for practical
purposes, Kitchener uses the general rule of thumb that if all members of Council are
entitled to attend and vote, and the decision-making process is significantly advanced,
then the gathering is a meeting.
It is recommended that the current Municipal Act definition be expanded to reference
non-traditional meeting venues such as electronic and telephone meetings. Also
consideration should be given to consolidating and clarifying the current definition.
(b) Meetina Notices
Bill 123 advocates posting notices and agendas of every public meeting. This is a
duplication of Sections 238, 240 and 251 of the Municipal Act. Currently all
municipalities are required to adopt a procedural by-law which governs the calling of
meetings. Section 251 directs the giving of reasonable notice in a formal manner that
Council feels is adequate.
Bill 123 provides a little more detail as to where the notices would be posted (eg.
websites) but does not reference anything that Kitchener and many other municipalities
don't already do. For this reason staff feel the current provisions of the Municipal Act are
sufficient.
Bill 123 also imposes notice and accessibility requirements involving non-traditional
meetings (electronic / phone), but leaves it to the municipality to determine how this is
done. Again Section 251 of the Municipal Act broadly addresses this and Bill 123 adds
nothing of further value other than the requirement to ensure public accessibility to these
types of non-traditional meetings. In the event Kitchener were to hold such a meeting,
staff feel the general guiding principles in the current Municipal Act are sufficient.
(c) Minutes
Bill 123 advocates an expanded style of minutes for open meetings which would reflect
not only the decisions of Council, but the substance of deliberations. This is an
approach already used by Kitchener and has been in place for some time. The style of
minutes taken should be left to the discretion of a Council based on community
standards and in staff's view should no be regulated by statute beyond what is currently
in the Municipal Act. For this reason it is felt that the minimum standard currently in the
Municipal Act is sufficient.
In regard to minutes of in-camera meetings, Bill 123 suggests that minutes should be
kept in two forms, confidential with an appropriate level of detail, and edited for public
release to remove confidential or sensitive portions. Aside from the increase in staff time
required to do this, keeping two different sets of minutes for the same meeting is
problematic. Practically speaking the material which could be released regarding in-
camera deliberations is likely to be too sketchy to be of any real value in conveying
either the deliberations or the direction given. Staff therefore cannot recommend this
approach.
(d) Parameters of In-camera Discussion
Bill 123 advocates specific and limited criteria for closed meetings, many of which are
already in the Municipal Act, albeit in different forms. However there are a number of
differences between Bill 123 and the Municipal Act. Both pieces of legislation take a
'button down' approach, wherein a meeting is considered to be open to the public unless
one or more of the exception parameters apply. The current parameters in the Municipal
Act and those of Bill 123 are shown in the attached Appendix 'B'
In some instances Bill 123 is more permissive and on the surface gives more discretion
to Council to determine when a meeting should be held behind closed doors.
Specifically Section 5(2)(a) states that the public may be excluded from a meeting or any
part of a meeting if:
'(a) Financial, personal or other matters may be disclosed of such a nature that
the desirability of avoiding public disclosure of them in the interests of any person
affected or in the public interest outweighs the desirability of adhering to the
principle that meetings be open to the public;'
On the other hand Bill123 is more restrictive in regard to categories already in the
Municipal Act. For example it references 'litigation' as does the Municipal Act, but does
not include 'potential litigation'. It also seems to recognize the giving and receiving of
legal advice only in regard to litigation, and not for other reasons. It has no specific
category for land acquisition / disposition as does the Municipal Act, but seems to permit
this broadly speaking under the above Section 5(2)(a).
The parameters of Bill 123 are a mixture of restrictive and permissive and on balance
are problematic and in some respects impractical. It is felt that Council would be better
served through amendments to the current parameters in the Municipal Act than through
adopting anyone of the categories in Bill 123. In fact, staff feel that Section 5(2)(a) of
Bill 123 is entirely too permissive.
In looking at how the parameters are defined in other jurisdictions in Canada, a number
of patterns emerge. This is in large part due to the fact that historically, Ontario
legislation has been used as a model elsewhere in the country. The only jurisdiction that
has a newer Municipal Act than Ontario is British Columbia. Also, many of the
parameters in other jurisdictions flow from the Freedom of Information & Protection of
Privacy legislation. A chart is attached (Appendix 'C') briefly summarizing the closed
meeting parameters of the jurisdictions in Canada. This is not the result of a
comprehensive review of the legislation of each Province and Territory but is a
compilation based on reviewing only the closed meeting provisions of the Municipal Act
equivalent in each jurisdiction. An extract from the British Columbia legislation regarding
closed meetings is also attached as Appendix 'D'.
In the view of staff parameters for holding closed meetings should be limited and
specific. They should not be overly restrictive, but on the other hand should not be
overly permissive. This makes it difficult to write parameters which strike the appropriate
balance and though all jurisdictions in Canada but Quebec defined parameters under
which closed meetings can be held, they are to some degree cast differently. In
reviewing the current parameters in Ontario's Municipal Act staff feel (and have felt for
some time now) that there should be an additional parameter to reflect the changing
strategies, economic and partnership environment in which municipalities operate. With
increasing emphasis on shared services, public / private partnerships and deregulated
utility markets there is a need from time to time to consider sensitive matters such as
these in their early formative stages behind closed doors. Discussions in open session
in the early stages of formulating a decision or partnership may be detrimental to the
interest of the public or a third party. This on the understanding that no final decisions
are made in caucus and that at some point there will usually be a full public discussion of
these matters once the initial sensitive stages of confidential exploration has passed.
Council may also wish to consider the suggestion of the AMCTO to the Province of the
addition of a section to cover 'conducting of a long range or strategic planning exercise,
holding a briefing session on a technical and / or complex matter or engaging in training
or professional development activities.' The Cities Act of Saskatchewan provides that
'every Council may meet in meetings closed to the public for the purpose of long-range
or strategic planning, but no business may be transacted at that meeting'. However staff
feel this may be a little too broad and non specific as a category.
(e) Oversiaht / Comolaint / Aooeal and Penaltv Provisions
Staff cannot recommend the adoption of any of the provisions in the current draft of Bill
123 as they are fraught with numerous difficulties, philosophical and practical. In
particular, staff have concerns with the powers afforded to the Information and Privacy
Commission (either the Commissioner, Director or an employee of the IPC) as these to
some degree run counter to the decision-making process of a democratically elected
Council. The current provisions in Bill 123 allows the Information and Privacy
Commission (IPC) to strike down any decision made by a municipal Council where it is
determined to have contravened any of the provisions of the Bill. This can be done more
than a year after a decision has been made, and presumably implemented. This could
create numerous practical problems where the decision involved development, land
transfer or other matters which will have preceded subsequent to a Council decision. In
addition this draconian approach would only allow municipal Councils to appeal the IPC
decision through the courts. Ironically, this is the same route of appeal that supporters
of Bill 123 have indicated is too time consuming, onerous and costly. All Bill 123 does is
put municipal councils in the same position that members of the public are currently in
under the Municipal Act. Although it can be argued that municipal corporations have
more resources and finances to launch court appeals, the process would be very
protracted, time consuming and problematic. How this is treated in different jurisdictions
in North America differs widely. Under the Ontario Municipal Act a citizen has the right,
through the courts, to challenge the legality of City by-laws, orders and resolutions as
they apply to the meeting provisions of the Act. Some American jurisdictions such as
Oregon, Maryland and Connecticut have provisions for oversight by independent bodies;
namely, the Government Standards and Practices Commission, the Open Meetings Law
Compliance Board and the Freedom of Information Commission respectively. In some
cases such as the Compliance Board of Maryland, the opinions are only advisory in
nature and the Board cannot compel action by a public body. In the case of Oregon the
Government Standards and Practices Commission has the power to review, investigate
and can impose civil penalties, but only in certain circumstances. In many other US
states such as Wisconsin alleged violations of open meetings laws are heard only in the
courts. In Louisiana the Attorney General and District Attorney may initiate proceedings
on their own initiative and citizens may file complaints with those offices.
Though an argument can be made in favour of an independent individual or body to
review alleged violations, staff do not feel that the approach outlined in Bill 123 is
advisable and cannot recommend supporting this option. The authority to strike down
decisions of democratically elected Councils is particularly problematic. It may make
sense however to allow for investigation by the Information and Privacy Commissioner in
certain circumstances with a report and recommendations to a municipal Council and
the Minister of Municipal Affairs and Housing. In the case of Toronto they have hired an
Integrity Commissioner who would deal with this sort of complaint as well as code of
conduct and conflict of interest issues.
Having reviewed this at a cursory level, staff feel it is impractical at this point to put
forward a recommendation with respect to imbedding third party review in the Municipal
Act, due to the complexity of the issue. Should Council wish to pursue this further it is
suggested that the Province be asked to investigate options in this regard.
(f) Ootional Chanaes Not Reauirina Leaislative Amendments
As the Municipal Act is deliberately cast to allow local Councils a wide range of
discretion in conducting their business, latitude already exists in a number of areas
which may assist in making the issue of closed meetings more transparent. Examples of
these are as follows:
)0. Reoortina In-Camera Statistics - In-camera statistics could be voluntarily
disclosed or posted on an annual basis. Staff track this in any event and
routinely monitor for significant or problematic changes in trends. The cautionary
note is that this can be misleading, as circumstances can legitimately arise (such
as large scale land assemblies) where items must be extensively discussed in
caucus based on the magnitude of the undertaking, and this can require a
significant amount of caucus discussion. This can appear as an anomaly in the
statistics for any given year and can leave the public with the impression that
Council is abusing its' caucus privilege.
)0. Exoansion of Descriotion of Authorizina Resolution - some jurisdictions offer a
more detailed description of the nature of the in-camera item in the resolution
which the Municipal Act requires Council to adopt prior to going into caucus. At
present Kitchener only lists what the legislation specifically requires, that is the
legislative parameter; however, there is nothing to prohibit providing a little more
detail without jeopardizing the in-camera nature of discussion. However, Council
is cautioned that in some instances this may not be possible or may be
particularly problematic where even a generic reference combined with other
publicly available information could inadvertently result in more information being
in the public forum than was intended.
)0. Council Diliaence - the current protocol offers opportunities for members of
Council to question and challenge items on the in-camera agenda. Specifically,
Councillors can question this at the open, special Council session where in-
camera discussion is authorized. This can be done without discussing the details
of the item. In addition, the current protocol allows for any member of Council at
the beginning of an in-camera session to question the need for discussing any
item on the agenda in caucus. This objection can also be noted in the public
meeting minutes without reference to details regarding the item. Members of
Council have always been encouraged to exercise objective judgment in this
regard and there are numerous and recent examples where this has been done
and Council on balance has decided that an item is either suitable for in-camera,
or that the extent of in-camera discussion should be curtailed.
)0. Staff Diliaence - staff continue to monitor the use of in-camera agendas,
challenge the submission of items and deny access where appropriate. Judging
by the statistics since 2001, a measure of success has been achieved in limiting
the amount of in-camera discussion. At present, there is a fair degree of
structure built around requests to add in-camera items to the agenda. A form
has to be completed including background information which sets the stage for
the in-camera item and reduces the amount of time spent in caucus explaining
the background and circumstances surrounding an item.
)0. Public Reoorts and Discussion - steps could be taken to ensure that in most
instances items considered in-camera are brought forward for public discussion /
debate and any final decisions. It should be noted that under the current
Municipal Act provisions, and Council's Procedural By-law, no final decisions are
made in-camera and only direction is given to staff. No votes are taken in-
camera except those of a procedural nature or to more formally direct staff.
(g) Kitchener's Use of In-Camera Meetinas
Below are statistics regarding in-camera meetings involving Kitchener Council from 2001
to the present.
Year # of Meetings Held # of Hours Avg. Meeting Time (in minutes)
2001 42 100 143
2002 40 66 99
2003 36 42 70
2004 35 32 55
2005* 28 21 45
* 2005 statistics to October 31 incl.
In-Camera Meeting Times
120:00
96:00
~ 72:00
~ 48 :00
24:00
0:00
III Total Ti me I
2001 2002 2003 2004 2005
As the above information indicates, though the number of meetings held will not likely decrease
significantly, the overall time spent in closed meetings has decreased substantially since 2001,
as has the average length of meetings. This is in part due to a change in the number and type
of issues requiring in-camera discussion as well as measures put in place to ensure that
minimal discussion takes place behind closed doors, and only in the area acknowledged in the
Municipal Act and Council's Procedural By-law. The number of meetings held are unlikely to
decrease significantly from year to year as these are normally held prior to regular Council
meetings and in conjunction with Committee days to make the most efficient use of Council's
time.
Attached as information (Appendices 'E' and 'F') is the protocol and submission sheet
developed to manage in-camera items in combination with the Municipal Act and the Procedural
By-law.
CONCLUSION:
Staff are of the opinion that by and large the current Municipal Act provides sufficient direction
and regulation with respect to minutes, meeting notices and in-camera meetings. If properly
implemented and managed no further refinement should be required beyond the minor changes
suggested in the staff recommendation.
Council may wish to consider further transparency and accountability measures which do not
require legislative amendments, and which are alluded to in the report.
The only area not specifically addressed in detail in the report is with regard to the whole area of
oversight, appeal and complaint investigation. Bill 123 is in staff's opinion far to restrictive and
punitive in this regard, and many of the measures would be problematic or impractical to
implement. In addition, there is a very broad range of approaches taken in other jurisdictions
with no clear overriding indications of what does and does not work effectively. As the report
indicates, if Council wishes to pursue this further, staff have suggested that this should be done
by the Province given the complexity and legislative implications.
G. Sosnoski
General Manager of Corporate Services
& City Clerk
APPENDIX 'B'
COMPARISON - CLOSED MEETING EXCEPTIONS
BILL 123/ MUNICIPAL ACT
Bill 123, 2004
Meetings to be open
5. (1) a designated public body shall ensure that its meetings are open to the public.
Exceptions
(2) Despite subsection (1), a designated public body may exclude the public from any part of a
meeti ng if,
(a) financial, personal or other matters may be disclosed of such a nature that the desirability of
avoiding public disclosure of them in the interest of any person affected or in the public interest
outweighs the desirability of adhering to the principle that meetings be open to the public;
(b) a person involved in a civil or criminal proceeding may be prejudiced;
(c) the safety of a person may be jeopardized;
(d) personnel matters involving an identifiable individual, including an employee of the designated
public body, will be discussed;
(e) negotiations or anticipated negotiations between the designated public body and a person,
bargaining agent or party to a proceeding or an anticipated proceeding relating to labour relations or a
person's employment by the designated public body will be discussed;
(f) litigation affecting the designated public body will be discussed or instructions will be given to or
opinions received from solicitors for the designated public body;
(g) matters prescribed by the Lieutenant Governor in Council under clause 24 (b) will be discussed; or
(h) the designated public body will deliberate whether to exclude the public from a meeting, and the
deliberation will consider whether one or more of clauses (a) through (g) are applicable to the meeting
or part of the meeting.
Municipal Act, 2001
Meetings open to public
239 (1) Except as provided in this section, all meetings shall be open to the public, 2001, c.25,
s.239(1 ).
Exceptions
(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered
is,
(a) the security of the property of the municipality or local board;
(b) personal matters about an identifiable individual, including municipal or local board
employees;
(c) a proposed or pending acquisition or disposition of land by the municipality or local board;
APPENDIX 'B'
(d) labour relations or employee negotiations;
(e) litigation or potential litigation, including matters before administrative tribunals, affecting
the municipality or local board;
(f) advice that is subject to solicitor-client privilege, including communications necessary for
that purpose;
(g) a matter in respect of which a council, board, committee or other body may hold a closed
meeting under another Act. 2001, c.25, s.239(2).
Other criteria
(3) A meeting shall be closed to the public if the subject matter relates to the consideration of a
request under the Municipal Freedom of Information and Protection of Privacy Act if the council,
board, commission or other body is the head of an institution for the purposes of that Act. 2001, c.25,
s.239(3).
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KITCHENER
Corporate Services
~
APPENDIX 'E'
City of Kitchener
City Hall, 200 King St. West
P.O. Box 1118
Kitchener, ON N2G 4G7
Date:
To:
From:
cc:
Subject:
April 5, 2004
Corporate Management Team
Directors
R. Gosse
Mayor and Members of Council
Caucus Protocol
Protocol
The purpose of the protocol outlined below is to govern how and when items are brought before
Council to ensure conformity with the legislative restrictions; that Council has enough
information in advance of the meeting to properly consider the matter. Also that they have been
apprised of any background or contextual information necessary to the discussion so that they
are only required to deal with that portion of the matter which is truly caucus in nature.
The following protocol is arranged in chronological order to reflect the process staff would follow
in submitting an item for in-camera discussion:
Complete an 'Item for Caucus Form' which will assist in outlining the nature of the
discussion requested, the person making the request, the legislative category for in-camera
discussion, other attendees and how the background information will be provided.
Email the form to R. Gosse (cc G. Sosnoski). Voicemail requests alone will no longer be
accepted.
Only the City solicitors can claim solicitor-client privilege. All items falling under this
category can only be placed on the agenda by a solicitor who must be satisfied that the
claiming of privilege or the giving of legal advice is required in that instance. The item is
also to be introduced by the solicitor at the meeting.
A background report is to be provided for each in-camera item, with a few possible
exceptions (e.g. when an item has been referred from a previous meeting and additional
background information is not required) and will be attached to the agenda. On the 'Item for
Caucus' form, there is space provided for the background information if a report/memo is not
appropriate. The background report would put the in-camera item in context and provide
sufficient detail to deal with the in-camera portion of the item alone.
Late starters will no longer be admitted and added to the special Council recommendation
endorsing the caucus meeting unless the item is considered an emergency or otherwise
urgent in nature. An emergency or urgent matter would be one which, if not dealt with
immediately, may have a detrimental effect. The person requesting the late item must attend
the Special Council meeting to make the request to add an item to the caucus agenda and
explain why it is an emergency or urgent matter.
Where the intention is merely to inform Council of a sensitive or problematic issue, and
where specific discussion or direction is not required, this information should be conveyed
by private and confidential memo. It would then be left to the discretion of Council as to
APPENDIX 'E'
whether they wished to discuss the matter further in-camera. This would not prevent staff
from bringing it forward for caucus direction at a later date if circumstances change.
APPENDIX IF'
ITEMS FOR CAUCUS AGENDA
FROM: - I DATE OF MEETING: _
EXT: - I TIME REQUIRED: _
SUBJECT: -
CATEGORY: D Security of City property D Litigation or potential litigation
D Personal matter D Solicitor / client privilege
D Land acquisition / disposition (only a solicitor may invoke privilege)
D Labour relations D Other matters under another Act
OTHER ATTENDEES: 1. -
2. -
3. -
4. -
D This is a follow-up to a previous meeting held on: _
D Confidential memo / report will be provided, and will be delivered to the Clerk's Office bv Thurs 4:00 o.m. OR
D Following is general background information:
D Approved by General Manager
QJfamslJtems fer Caucus.dot