It is hard to understand how - and even whether - representative democracy is served when Council casts votes in secret meetings that are not recorded.
By Cameron Kroetsch
Published December 15, 2017
I'm writing in response to notice from the City of Hamilton that they will be holding a closed meeting on Monday, December 18 about an Ontario Municipal Board ruling on ward boundaries.
This is not, at all, the first time that so-called "in camera" meetings have been an issue in Hamilton, but it seems timely to write on it given some of the reaction this has generated on social media in the past week.
This is a tricky problem and a difficult one to address. I don't have all of the answers.
We have to rely on the tidbits of information that leak out of these meetings in order to piece together an understanding because they're held behind closed doors and because notes aren't kept or recorded.
It's hard for those of us who are concerned about our civic democracy to figure out how the City makes decisions in closed meetings and which councillors have voted for or against those decisions.
With many of these decisions carrying city-wide implications affecting thousands of residents, it's no wonder that people are upset and confused.
Anyway, before I get too carried away, an important disclaimer: I am not a lawyer (IANAL), don't have any special training interpreting the Municipal Act, and am not employed to perform professional municipal work.
But I've been using rules of order and legislation in leadership roles for many years and have come across these "in camera" situations both inside and outside of this context before.
What's happening in Hamilton isn't particularly new, novel, or astonishing and resembles more of what I think of as the unfortunate status quo that exists in many of Ontario's organizations.
My observations are that the City is holding "in camera" meetings for things that may not be appropriate and that the City does not seem to understand its role in interpreting its rules of order or the Municipal Act (more on the former another time).
But worse, I see all of this as part of a probably unintentional model of municipal government that continues to keep residents from access and participation in public life.
I'm happy to be proven wrong about this and hope that my misgivings and observations are just that. I don't want to be right about what I see as the potential for huge legal loopholes with respect to the way that the City of Hamilton makes its decisions.
And, I know that there are councillors and staff that are trying to change the culture and I appreciate the struggles they face on a regular basis and the work they do to engage the City's residents.
The use of the term "in camera" is itself a problem, from my perspective. It's confusing and unspecific. It simply denotes that there will be a closed meeting of a particular committee, board, or council but not what that meeting will be about. It reads, to most people, as "secret" (not a good thing).
In fact, the term "in camera" is not found anywhere in the Municipal Act and appears to be, at best, just shorthand for "confidential". On the City's official agendas they use the phrase "Private and Confidential" with a disclaimer below that refers, rather vaguely, to subsections of the Municipal Act.
The requirement under the law is only that a body (Council in this situation) declare that a meeting is closed on the grounds outlined in Section 239 (2) or 239 (3) of the Municipal Act but not that it be called "in camera" or "Private and Confidential":
(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;
(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).
(3) A meeting or part of a meeting shall be closed to the public if the subject matter being considered is,
(a) 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; or
(b) an ongoing investigation respecting the municipality, a local board or a municipally-controlled corporation by the Ombudsman appointed under the Ombudsman Act, an Ombudsman referred to in subsection 223.13 (1) of this Act, or the investigator referred to in subsection 239.2 (1). 2014, c. 13, Sched. 9, s. 22.
I mention all of this to point out how confusing this terminology is as a way to understand the situation when we're attempting to get at the specifics.
Some of the specifics, as outlined in the law, that can be "considered" in a closed meeting are:
Property that the City wants to buy or sell
Personal matters about identifiable individuals (employees or councillors)
Labour relations or employee negotiations
Litigation or potential litigation including advice from lawyers
And that all makes sense to me. I think it's important for the City to discuss, fully, its options before making a decision about any of these matters but that when it finally comes to a decision that it's properly moved, seconded, and discussed, and voted on in public.
That being said, we should all pause when we think about what the word "considered" means in this context. The Municipal Act is not devoid of other words to describe the City's legal obligations to make decisions so it's curious that here the limit is to something that a Council is considering and not about things that the Council decides (i.e. the difference between a decision and a direction).
In any event, it appears that to "consider" something in this context is not the same as to "direct" or to "decide".
The Municipal Act is not completely clear on what the difference is between a direction and a decision but suffice it to say that a direction is something given to someone in the City's "employ" while a decision involves something that would "materially advance" the City's interests (virtually everything else).
I get it, that's vague and not very helpful. So, I turned to some of the case law on this subject to provide an example that I hope illustrates this point.
A quick search led me to a case from 2006 (Farber v. Kingston (City),  O.J. No. 919) which included some interesting notes. Most interestingly, there was an interpretation of what constitutes an "unauthorized vote" (23, 28) that provides at least one example of how the Municipal Act has been interpreted in a similar situation in another Ontario city.
The following statement was included (23) about how "voting" works and on how it is that an "unauthorized vote" can take place (emphasis is my own):
Those subsections, particularly s. 239(6)(b), precisely define the only votes that may be taken in closed session. This vote was neither. It was not a vote for a procedural matter nor for giving directions to staff. However, s. 244 contemplates that such votes may happen and provides for the consequence. It says that such an unauthorized vote is of no effect.
Allow me to elaborate. Whether a Council votes to direct staff to do something, for example, or votes to make a decision about something (not a direction), they're both votes.
An unauthorized vote, in this context, is defined in section 244 of the Municipal Act as a vote "... taken by ballot or by any other method of secret voting, and every vote so taken is of no effect".
So, as I understand it, this closed meeting vote was considered a "secret vote" because it was about a decision rather than a direction (or procedural matter).
This is just one of the legal loopholes that concerns me about what's happening with our City Council in closed meetings.
I particularly appreciate the following comments, which make this problem a little clearer (28):
Rather ... the real decision to pass the by-law was made at the public meeting of May 17 after a lengthy debate.
So, the City of Kingston came out of the matter without a finding against them, even though their votes "in camera" were "of no effect", because they held an open meeting later where the matter was debated and voted on publicly.
In effect, the only authorized decision was the one that was made in public.
For the City of Hamilton, this should be a dire and troubling warning, because not only does the city possibly vote on things in a closed meeting that may not meet the definitions under the Municipal Act, but they do not record anything that takes place in closed meetings (or so they have said).
In these situations, without recording votes at all, I don't see how any of the decisions or directions that have been voted on by the City in a closed meeting would be understood to have happened or to have any particular "legal effect". But, I repeat, I'm not a lawyer.
At a minimum, this calls into doubt the decisions and directions voted upon during this term of Council for those that were present at these closed meetings (not that we would even know who attended them since no records are kept).
Imagine, if you could, trying to take the City of Hamilton to court over this. I just did and it's pretty frightening.
It's particularly embarrassing (for the City) to imagine the sort of "hearsay" depositions and testimony that would be required to establish even the basic facts like who was in attendance, what date the meeting was held, and for what purpose the meeting was held.
There are some very easy things that the City could do, right away, to solve some of these problems and to avoid both a legal backlash and the continued calls from residents for greater transparency:
Get rid of the use of so-called "Private and Confidential" notices on agendas: If you need to meet about matters involving staff then meet as the "Labour Relations Committee" (or something similar) and have all of those meetings be closed meetings. If you need to meet to talk about legal matters, then meet as the "Litigation Committee", and so on. It's easy to do this, the meetings can be short and irregularly scheduled, and it's the quickest and simplest way for the public to know the general matter under the Municipal Act for which the City feels there needs to be a closed meeting. Having these blanket closed meetings just creates a culture of mistrust (especially when they're in relation to vague and nebulous things like a General Issues Committee).
Vote about decisions in public: Do what the City of Kingston did: vote about decisions in public. Discuss this stuff in private right up until the point that a motion needs to be made, but when it needs to be made, make that decision in public (if it's not a direction). If the City has reached a decision, after careful discussion and deliberation, then it should feel comfortable making that decision publicly.
Councillors, ask for recorded votes: If you, as a councillor, ask for a recorded vote then this will mean that a lot of other information will have to be recorded and kept about the meeting in order to properly record that vote. This includes the names of those in attendance, dates, times, motion text, etc. The rules of order will drive a lot of what must be recorded and the City will be required to define how these records will be stored. It will be an awkward time, certainly, but will force some decisions to be made to prevent a future legal challenge (i.e. if the City refuses to honour a request for a vote to be recorded which would potentially be a violation of the Municipal Act).
Residents aren't the only ones who are raising concerns about this.
The office of the Ontario Ombudsman, even in this term of Council, has cautioned the City about what it considers problems with "closed door meetings".
After contacting them and doing a search on their website I found at least three instances in this term of Council where the Ombudsman either cautioned or ruled against the City in matters dealing with closed meetings.
It's clear to the Ombudsman, as well, that the City has trouble with this.
To, again, be fair, the City of Hamilton and the Ombudsman will go through an appeal process to determine who was right in one of these instances (but leave to appeal was granted this month - stay tuned).
So, how do we stop this from continuing?
Does someone have to delegate to this committee meeting on Monday, December 18? Maybe - and at least one resident is doing this. But I'm not sure how effective this will be. Craig Burley delegated to the Governance Review Sub-Committee on this very subject on November 21 (starting at about 31:45). It doesn't appear that his advice was taken.
Does someone have to do what Robert Dobrucki did with respect to ward boundaries and take the City of Hamilton to court? I sure hope not.
I just don't think either of these measures is the best way forward here. What Mr. Dobrucki did was a huge personal sacrifice. It's not something that everyone can do and it's not without a number of unknown risks and an incredible investment of time.
Instead, I think that the City should solve its own problems, should get some specific legal advice about this, and then make that advice public so that residents can feel confident that a more thoughtful course of action will be taken in the future.
Essentially, the City should rewrite big parts of its Procedural Bylaw (14-300) through an accessible public consultation process.
Council could also take some of the free non-legal advice that I've provided above.
Sure, it's a culmination of my own biased experience, but it's also comes from the many conversations I've had with fellow residents who have expressed their ongoing frustration, mistrust, and disappointment.
Thankfully, it just takes one councillor (ok, maybe a few) to get the ball rolling, to stand up as a leader on this issue, and to take the first step.
If you're reading this, councillors, I encourage you to make your actions toward this type of democratic reform known publicly so that residents can support you and so that we can work together for a more open and democratic Hamilton.
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