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City council gets a lesson on going behind closed doors

Coun. Ainsworth says meeting was 'politically motivated'; mayor said it was about maintaining confidence of the community
2018-01-19 City Hall.jpg

Nigel Bellchamber, the municipality’s closed session investigator and integrity commissioner, provided city council with a refresher course on when it’s appropriate to discuss items behind closed doors Monday night.

He said the legislation “starts with the basic premise that all meetings of council shall be open … unless closed in accordance with very special circumstances.” He then provided an overview of those circumstances, taking council through a detailed 18-minute presentation about the rules, using anecdotes and real-life situations as examples.

Bellchamber was invited to city hall in the wake of a controversial Feb. 5 meeting. That night, for almost two hours, city councillors met behind closed doors to discuss an update from the recreation project team related to construction at the 255 West St. site. The meeting was closed due to a legal issue.

However, Coun. Mason Ainsworth did not feel the meeting should be held outside of the public’s view.  “(It’s) about accountability of council and staff and of the municipality as a whole,” Ainsworth said that night. “If we’re talking about the rec centre, the timeline, money … those discussions can happen in the public realm and I don’t think they should be hidden away for political reasons, which is it’s an election year and some people don’t want to be embarrassed.”

The day after that meeting, Mayor Steve Clarke discussed the issue with city CAO Gayle Jackson. At that time, it was decided to ask Bellchamber to come to Orillia to talk about the issue.

“It is a best practice for a municipality to hear from the closed meeting investigator from time to time,” Jackson said Monday night. “With respect to the invitation, essentially there were some comments and questions from members of council with respect to closed session proceedings and so I felt it was important, in discussion with the mayor, that we have Mr. Bellchamber here to be able to provide a bit of an education session for members of council.”

Ainsworth had a different take, saying the “meeting is politically motivated.”

Clarke, however, disagreed. “I would like to assure (people) that the only motivation for having this meeting was to continue to maintain the confidence this council has built within the public’s mindset this term of council and to further instill that.”

While Bellchamber didn’t wade into the fray, he said he’s often called on to address a municipal government. “This isn’t the first time I’ve been invited to a council meeting to talk about closed meeting provisions,” he said. “It’s not unusual.”

Bellchamber said that his company acts as closed meeting investigator for 132 municipalities. “We’ve been doing this since 2008 … and we’ve completed more than 100 different reports on allegations of inappropriate closed meetings over the years.”

He said there is no such thing as an “average” investigation, but he said his firm charges $275 an hour and he noted an investigation usually takes a minimum of three hours and rarely surpasses 20 hours.

He entertained many questions from city councillors – from what constitutes ‘potential’ litigation to concerns about social gatherings in which a majority of councillors are present to questions about how to stop closed meetings if they veer off track.

“Congratulations on not always being comfortable,” Bellchamber said after a question from Coun. Sarah Valiquette-Thompson. “You should always have your ‘Spidey’ sense going when you are invited into closed session … you should always be questioning it. That’s the best way to serve the public.”

While he conceded there are many legitimate reasons to have a closed-session meeting, he said it’s important to be vigilant when making the decision to take something out of the public realm. “A councillor, at the beginning of every closed meeting” should ask themselves if the closed session is warranted. “It’s good practice for people to question the practice. It keeps everyone on their toes.”

Coun. Pat Hehn said she appreciated the presentation and was glad it occurred in open council.

“I have noted many comments on social media that accuse council of having closed session meetings whenever we felt like it,” she said. “Hopefully, Mr. Bellchambers’ explanation will help satisfy those who had concerns about the number of closed session meetings our council has had.

“What people need to understand is we are quite literally a board of directors elected once every four years to run a corporation with a budget of approximately $56 million each year,” said Hehn. “With a budget that large, there will be times when it’s necessary for us to go into private sessions and that’s just the nature of the beast.”

Bellchamber said there are other ways to potentially counter that impression. He said it might be helpful, for example, to let voters know how much time is spent in open council compared to behind closed doors. “I think that’s a useful indicator,” he said.

He also noted the City of Toronto has recently started to publish its closed session reports. He said, where possible, they publish those reports six months after they are tabled; he suggested Orillia could do something similar if it wanted to.

As part of his presentation, Bellchamber said all meetings of council, local boards and committees shall be open to the public except in circumstances set forth in section 239 of the Municipal Act, 2001, as amended. Council can meet in closed session if the meeting’s subject matter is related to:

  • Security of property of corporation;
  • Personal matter about an identifiable individual;
  • Acquisition or disposition of land;
  • Labour relations or employee negotiations;
  • Litigation or potential litigation;
  • Advice that is subject to solicitor-client privilege;
  • Under another Act (Emergency Management Act, SPPA)
  • Information explicitly supplied in confidence to the municipality or local board by Canada, a province or territory or a Crown agency of any of them;
  • A trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence to the municipality or local board, which, if disclosed, could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
  • A trade secret or scientific, technical, commercial or financial information that belongs to the municipality or local board and has monetary value or potential monetary value;
  • A position, plan, procedure, criteria or instruction to be applied to any negotiations carried on or to be carried on by or on behalf of the municipality or local board.

A meeting of a council may also be closed to the public if the following conditions are both satisfied: The meeting is held for the purpose of educating or training the members and, at the meeting, no member discusses or otherwise deals with any matter in a way that ‘materially advances’ the business or decision-making of the council.

In response to a query from Ainsworth, he said council cannot hold a closed session due to concerns about “political embarrassment.”