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HomeMy WebLinkAboutLGS-021-24Staff Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee June 3, 2024 Report Number: LGS-021-24 John Paul Newman, Deputy Clerk Rob Maciver, Deputy CAO/Solicitor, Legislative Services Trevor Pinn, Deputy CAO/Treasurer, Finance and Technology Resolution Number: GG-098-24 Date of Meeting: Authored by: Submitted By: Reviewed By: File Number: Report Subject: Appointment of a Closed Meeting Investigator Recommendations: 1.That Report LGS-021-24, and any related delegations or communication items, be received; 2.That the Ontario Ombudsman be appointed as Clarington’s Closed Meeting Investigator, as of January 1, 2025; 3.That the Closed Meeting Investigator services with the Local Authority Services Ltd. (LAS), be terminated as of December 31, 2024, and By-law 2007-231, appointing LAS as Clarington’s Closed Meeting Investigator, be repealed; and 4.That all interested parties listed in Report LGS-021-24, and any delegations be advised of Council’s decision. By-law Number:2024-026 Municipality of Clarington Page 2 Report LGS-021-24 Report Overview This report recommends appointing the Ontario Ombudsman as Clarington’s Closed Meeting Investigator. In November 2022, Council appointed the Ontario Ombudsman as Clarington’s Ombudsman, to investigate complaints against the Municipality. The Ontario Ombudsman also has the authority under the Ombudsman Act to perform the duties of a Closed Meeting Investigator. Staff are recommending that Clarington stop using the services of LAS and appoint the Ontario Ombudsman as Clarington’s Closed Meeting Investigator to provide consistency, among other things, with these two accountability regimes. 1. Background Authority to Appoint Closed Meeting Investigator 1.1 On January 1, 2008, subsection 239.1 of the Municipal Act came into effect which permits any person to request an investigation be undertaken to determine whether a municipality or local board (excluding a police service board or library board), or a committee of either, has complied with the closed meeting rules contained within the Municipal Act, or a procedure by-law under section 238(2) of the Municipal Act. 1.2 Subsection 239.2 of the Municipal Act authorizes a municipality to appoint an investigator to conduct a review of any requests which may be made by the public and to report on the investigation. Current Appointment 1.3 In 2007, Council considered Report CLD-036-07, and subsequently, passed By-law 2007-231, appointing the LAS as Clarington’s Closed Meeting Investigator effective January 1, 2008 coinciding with the enactment of the new legislation, in accordance with the above noted sections of the Municipal Act. 1.4 The current agreement with LAS included a renewal section that stated that the Agreement would automatically renew from year to year unless, and until, terminated by either party upon 90 days prior written notice. 1.5 LAS outsources the closed meeting investigator service to Aird and Berlis LLP. If a complaint was filed against Clarington, Aird and Berlis would appoint one of five “Review Officers” and the fee ranges from $495 to $875 per hour as of 2024. 1.6 The 2024 retainer fee for LAS is $250 plus tax per year. Municipality of Clarington Page 3 Report LGS-021-24 1.7 Both fees above have increased from the 2023 fees which were $200 plus tax for the retainer and from $395 to $825 per hour for an investigation by a “Review Officer” from Aird and Berlis LLP. It is expected these fees will continue to rise each year. 2. Description Ontario Ombudsman 2.1 Subsection 239.1(b) of the Municipal Act states that, if a municipality has not appointed a closed meeting investigator under subsection 239.2(1), the Ombudsman appointed under the Ombudsman Act is the investigator by default. If Council chooses to repeal the appointment of LAS and terminate the agreement, and no other investigator is appointed, the Ontario Ombudsman becomes the Closed Meeting Investigator for Clarington. 2.2 According to the Ontario Ombudsman 2022-2023 Annual Report, the Ombudsman is the Closed Meeting Investigator for 266 municipalities, as of March 31, 2023. There were 95 complaints about closed meetings, and the Ombudsman reviewed 79 meetings of 47 different municipalities and local boards and issued 17 reports and 22 letters on their findings. All of these reports and letters can be found on the Ombudsman website and in a searchable online database. 2.3 If appointed, the Ontario Ombudsman has the expertise and experience to handle an y closed meeting investigation requests, will provide consistency in decisions with other Ontario Municipalities, and will be the single source for complaints against the municipality, whether they be under the Ombudsman provisions or the closed meeting provisions of the Municipal Act. 2.4 There is no fee to the municipality to use the services of the Ontario Ombudsman. Therefore, the fees associated with using LAS would be a saving to the Municipality if the Ontario Ombudsman is appointed. Durham Region Review 2.5 The following is a table of who performs the duties of Closed Meeting Investigator in Durham Region: Ontario Ombudsman LAS Ajax Region of Durham Oshawa Brock Pickering Uxbridge Scugog Whitby Municipality of Clarington Page 4 Report LGS-021-24 Complaint Procedure 2.6 The current process for receiving complaints is for the complainant to submit their complaint to the Clerk, who then creates a package of information for the external Closed Meeting Investigator. 2.7 Although anyone can still reach out to the Clerk to get clarification on closed meetings, the new process would be for the complainant to submit their complaint directly to the Ontario Ombudsman, who has a form on their website. 2.8 Except in very limited circumstances the complaint to the Ontario Ombudsman shall be made in writing. 2.9 The Ontario Ombudsman may investigate whether a municipality has complied with section 239 of the Municipal Act or the municipality’s procedure by-law, relating to a meeting or part of a meeting that was closed to the public. 2.10 There are also limited situations where the Ontario Ombudsman will not investigate or may refuse to investigate further if the investigation has already begun. If this occurs, the Ontario Ombudsman is required to notify the complainant in writing of that decision. 2.11 The delegation of the Head under the Ombudsman Act will be determined with the Delegation of Authority review. 3. Financial Considerations 3.1 There are no fees for a municipality to use the services of the Ontario Ombudsman. Therefore, the municipality will save $250 plus tax per year and the current hourly rate of $495-$875 if an investigation is conducted. 4. Strategic Plan 4.1 L.2: Finances and operations are efficiently and responsibly managed. 5. Concurrence 5.1 Not applicable. 6. Conclusion 6.1 It is respectfully recommended that the Ontario Ombudsman be appointed as Clarington’s Closed Meeting Investigator, and that the agreement with LAS be terminated. Municipality of Clarington Page 5 Report LGS-021-24 Staff Contact: John Paul Newman, Deputy Clerk, jnewman@clarington.net. Attachments: Attachment 1 – By-law to repeal By-law 2007-231, appointing the Local Authority Services Ltd. (LAS) as Clarington’s Closed Meeting Investigator Interested Parties: The following interested parties will be notified of Council's decision:  Ontario Ombudsman  Local Authority Services Limited (LAS) If this information is required in an alternate format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. The Corporation of the Municipality of Clarington By-law 2024-XXX Being a by-law to repeal By-law 2007-231, to appoint Local Authority Services Ltd. as the investigator pursuant to sections 8, 9, 10 and 239.1 of the Municipal Act, 2001, as amended. Passed in Open Council this 24th day of June, 2024. _____________________________________ Adrian Foster, Mayor _____________________________________ June Gallagher, Municipal Clerk Written approval of this by-law was given by Mayoral Decision MDE-2024-XXX dated XXXX XX, 2024.