Monday, January 2, 2012

Where is the Openeness and Transparency from our Mayors and Deputy Mayors

This is a letter sent from AWARE Simcoe to the Warden


To Warden Cal Patterson and members of Simcoe County Council

Dear members of County Council,

Issues of open government were at the core of the foundation of AWARE Simcoe in 2010 and were central to the 2010 municipal election in which an unprecedented number of new councillors were elected.

Every new councillor – and many incumbents - campaigned on promises to ensure openness and transparency and we believe that the profound change that occurred in October 2010 reflected the electorate’s strong desire for increased accountability and greater public involvement in municipal decision-making.

That is why we were dismayed when County Council decided on November 27 2011 to hire John Maddox of JGM Consulting as its closed meeting investigator, rather than use the Ontario Ombudsman.

Since 2008, when the Sunshine Law came into effect, it has been mandatory to have an independent investigator to review the decision of a council or committee to meet in secret, when requested by a member of the public. If none is appointed, the Ombudsman becomes the default investigator, if needed.

In our view, the choice was between an independent officer of the Legislature, at no direct cost to the local taxpayer, and a consultant at $100 an hour plus retainer. County Council chose the latter, in sharp contrast to at least three councils in Simcoe County that chose the cost-effective and arm’s-length option: Bradford West Gwillimbury, Midland and Tiny have all appointed the Ombudsman to be their closed meeting investigator.

In this they join some 200 other municipalities. Another 136 have picked Local Authority Services Limited, a subsidiary company of the Association of Municipalities of Ontario, which also bid for Simcoe County’s business. Only 50 municipalities have retained John Maddox.

But cost is not the main reason for our dismay. We believe that in an important test of their commitment to transparency, 24 councillors chose to ante up taxpayer dollars in order to maintain control of the process and minimize the possibility of embarrassment or “fuss” by having to disclose matters they don’t want to discuss in public.

The position in favour of the consultant was articulated starkly four years ago by Midland Councillor Bob Jeffery (at that time Midland voted to retain John Maddox). The Ombudsman was like having the fox in the henhouse, he said. “Our guy is here to do our bidding.”

As citizens, we like to have the fox looking out for our interests, and we don’t care to fork out for the guy who will do council’s bidding. We thank the ten councillors who voted for maximum transparency and information-sharing as had been promised at election time.

We feel County Clerk Brenda Clark was unwittingly reflecting the culture of secrecy that has prevailed for so long in this area when she said that the feeling among clerks in Simcoe County was that the Ombudsman “may have reported more than was really necessary.”

We do not fault the Clerk for this. Staff may advise but it is up to council to show leadership and direct staff on issues relating to the mandate they – particularly the newly elected cohort – have received from the electorate.

We were surprised that no member of council questioned what the Clerk meant by “too much information.” As an officer of the Legislature, we would expect the Ombudsman to release as much information as is allowed by the Municipal Act, no more. And no less. That is all a member of the public who questions a council decision to go in camera can ask for.

A couple of days after the meeting we learnt by happenstance that the Simcoe County Clerks and Treasurers Association had written a letter to the Warden and county councillors. Dated November 18, it strongly argued against having the Ombudsman as the closed meeting investigator.

This letter, signed by SCCTA president Carey deGorter, deputy clerk with the City of Barrie, was not part of the materials in the Nov. 27 council agenda, neither was it tabled as an on-desk item, neither was it mentioned in debate.

The assertions made in the letter are startling.

We are surprised that County Council did not afford the Ombudsman an opportunity to respond before making its decision on such a serious matter– the public’s right to know.

AWARE Simcoe contacted the Ombudsman and received further information on some of the points being made by Ms deGorter.

For instance, the claim that the Ombudsman’s definition and scope of a “meeting” that could attract an investigation is broader that is commonly accepted is made in the context of South Bruce Peninsula in which councillors gathered at Tim Hortons. It should be noted that the courts, not the Ombudsman, have established that gatherings of a quorum of council that advance the business of council constitute meetings under the Municipal Act of which notice should be given.

Ms deGorter does not mention that in the South Bruce Peninsula case, the Ombudsman found no contravention of the Municipal Act or illegal gatherings. However, he did caution councillors to be "careful" about such gatherings in the interest of openness and transparency, because the gatherings at Tim Horton's had sparked considerable negative speculation and innuendo within the community.

Another example cited by Ms deGorter concerns a meeting of the City of Oshawa’s development services committee that was closed for "education and training,” which is allowed under the Municipal Act. But the meeting was attended by officials of a recycling company that was the subject of complaints about odour and there was discussion of zoning changes. This was ruled illegal.

Ms deGorter complains of “provocative” language used by the Ombudsman in relation to procedure involving a draft report on which the City of Oshawa and the investigator disagreed. This is a matter of perspective. From our perspective, when the process involves establishing the public’s right to know is at stake, it may on occasion be necessary to call a spade a spade.

But the clerks and treasurers have a different perspective by virtue of their position. When a council goes in camera, it is generally on the advice of the clerk or CAO. When a member of the public asks for a review of that decision, we feel it is preferable for the investigator to be at arm’s length from those being investigated. But the argument being made by the clerks and treasurers’ association is that it is preferable for council to retain control over the process, “to prepare the terms of engagement” as Ms deGorter puts it.

We seriously question whether it is appropriate for the Simcoe County clerks and treasurers association to be lobbying on the issue of who will provide oversight with regard to decisions in which they play such a pivotal role.

We also question what occurred at the Nov. 27 meeting. In effect, the advice of the clerks and treasurers that the Ombudsman not be the closed meetings investigator was given behind closed doors and we would not have found out about it had we not been vigilant in our role as citizen watchdogs.

This all adds up to a questionable process in which information was withheld from the public until after a decision was made on an issue of major public interest for taxpayers and residents.

That’s why we hope that you will see the advantages of revisiting this decision.

We urge you to re-examine the claims made in the Simcoe County Clerks and Treasurers letter, to educate yourselves as to the services provided by the Ombudsman, and to vote with the interests of the public in mind, not the convenience of councillors and staff.