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Report To: General Government Committee
Date of Meeting: January 25, 2016
Report Number: CLD-008-16 Resolution: GG-b(ok _`(o
File Number: L04.OM By-law Number:
Report Subject: Municipal Ombudsman
Recommendations:
1. That Report CLD-008-16 be received;
2. That Council approve the appointment of a Municipal Ombudsman to conduct
investigations with respect to the administrative acts of the Municipality of Clarington;
3. That the Region of Durham be advised that Clarington supports the concept of a Regional
Ombudsman acting as Clarington's Municipal Ombudsman on a "fee for service" basis;
4. That staff continue to work with the Region of Durham, as deemed appropriate, in the RFP
process to ensure that Clarington's needs are include in the Regional RFP;
5. That staff report back at the conclusion of the RFP process; and
6. That all interested parties listed in Report CLD-008-16 and any delegations be advised of
Council's decision.
Municipality of Clarington
Report CLD-008-16 Page 2
Report Overview
This report provides background information regarding the Public Sector and MPP
Accountability Act, 2014 ("Bill 8") which came into effect on January 1, 2016 and includes
amendments to the Ombudsman Act. Staff are recommending that Council appoint a
Municipal Ombudsman and provide notice to the Region of Durham that Clarington would like
to participate and partner with the Region of Durham in the appointment process.
1 . Background
1.1. Public Sector and MPP Accountability Act, 2014 (Bill 8)
The Public Sector and MPP Accountability Act, 2014, the "Act", received Royal Assent
on December 11, 2014. It includes 11 schedules which enact 1 new Act and amend
more than 10 other pieces of legislation. Different sections of the Bill come into force on
different dates. This report shall deal specifically with Schedule 9 of the Act which
amends the Ombudsman Act and related legislation, such as the Municipal Act, 2001.
Schedule 9 came into force on January 1, 2016.
When the Municipal Act, 2001 was amended in 2006 (Bill 130) it introduced enhanced
accountability powers for municipalities, including the authority to establish codes of
conduct and to appoint accountability officers such as an Integrity Commissioner,
Auditor General and Ombudsman. According to provincial sources, the City of Toronto
was the only municipality to appoint a Municipal Ombudsman. Without making such an
appointment, the public had no access to ombudsman services to address complaints
about municipalities. The Schedule 9 amendment ensures that every person in every
municipality across Ontario has access to an ombudsman. Where no municipal
ombudsman has been appointed, by default the Provincial Ombudsman shall serve as
the ombudsman for the municipality. This authority applies to the Municipality and its
local boards. Despite these recent amendments to the Ombudsman Act, the
opportunity for the Municipality to appoint its own ombudsman under the Municipal Act,
2001 remains.
1.2. The Role and Authority of the Ombudsman in accordance with the Act
The function of the Provincial Ombudsman is to privately investigate any decision or
recommendation made or any act done or omitted in the course of the administration of
a public sector body and affecting any person or body of persons in his/her or its
personal capacity.
All complaints must be submitted in writing and the Ombudsman must advise the
municipality of his or her intention to make an investigation.
The Ombudsman may refuse to investigate a matter where it appears to the
Ombudsman that, under the law or existing administrative practice, there is an adequate
remedy for the complaint or taking into consideration all of the circumstances in the
case, further investigation is unnecessary (eg. a complaint is trivial, frivolous, vexatious,
Municipality of Clarington
Report CLD-006-16 Page 3
not made in good faith, or the person complaining does not have a sufficient personal
interest in the subject of the complaint).
At the conclusion of an investigation, the Ombudsman may publish the findings and
make recommendations. Additionally, the Ombudsman may request the municipality or
local board to notify him or her of the steps it proposes to take to give effect to his or her
recommendations. The Ombudsman does not have the authority to impose penalties.
These powers do not apply to the Ombudsman if:
a) the Municipality has appointed its own Municipal Ombudsman, unless the
municipally appointed Municipal Ombudsman has refused to investigate the matter
or has conducted and concluded an investigation on the matter; or
b) the time for bringing the matter for investigation to the Municipal Ombudsman has
expired.
In November, 2007 Council appointed a closed meeting investigator, and as such, any
complaints received by the Ombudsman pertaining to a closed meeting would continue
to be investigated by Clarington's appointed Closed Meeting Investigator.
2. Consideration for appointment of a Municipal Ombudsman
2.1. In 2007 Council considered Report CLD-042-07 which detailed the various options for
ensuring accountability and transparency; including the appointment of accountability
officers including an Integrity Commissioner, Ombudsman and Auditor General. At that
time, Council did not proceed to make any such appointments. In 2013, Council
considered Addendum Report COA-005-13 pertaining to the appointment of an Integrity
Commissioner and again, did not proceed to make such an appointment.
In light of the recent amendments to the Ombudsman Act, Council should consider
exercising its authority to appoint a Municipal Ombudsman.
It is worth noting that the Municipality of Clarington currently has a variety of
mechanisms in place to address complaints received by staff. These processes would
continue whether or not a Municipal Ombudsman were to be appointed. If appointed,
the Municipal Ombudsman would more or less be a last resort and would become
involved only in situations where a complainant has exhausted all other processes or
mechanisms.
The mandate of the Provincial Ombudsman is quite broad and the services are provided
to municipalities with no direct cost to the complainant or the municipality (except for the
costs of staff time in responding to the Ombudsman during the investigation).
The appointment of a Municipal Ombudsman would create an independent and
impartial review before the Provincial Ombudsman could undertake an investigation.
The function would be essentially the same as the Provincial Ombudsman with a
process which is tailored to best serve the Municipality of Clarington. The Municipality
would be required to pay for such a service and thus may not be viewed by some as
being impartial. However, the advantages of appointing a Municipal Ombudsman
Municipality of Clarington
Report CLD-008-16 Page 4
include: increasing transparency and accessibility for residents; the opportunity to focus
on local issues and address them within the local context of the Municipality of
Clarington and its residents; the opportunity to educate the public on administrative
operations and assist the municipality in implementation of administrative practice
improvements; and assist in analysis and identification of systemic difficulties.
In recent publications, the Ombudsman's Office has "encouraged municipalities to
resolve local issues at the local level and to create their own complaint resolution
mechanisms, which may include appointing accountability officers such as integrity
commissioners, ombudsman and auditors general."... "Our role is not to replace those
offices, but to be there to ensure they work as they should, and to step in where they fail
or cannot go." Based on information received from the Ministry of Municipal Affairs and
Housing, wherever possible the Ombudsman's Office would investigate complaints, but
may be more focussed on more systemic changes.
As stated earlier in this report, should Council choose not to appoint a Municipal
Ombudsman, the Provincial Ombudsman would become Clarington's Ombudsman by
default.
2.2. On December 16, 2015, Regional Council considered Report 2015-A-41 (see
Attachment 1) and passed the following resolution:
A) That the Region of Durham approve the appointment of a Municipal Ombudsman to
conduct investigations with respect to the administrative acts of the Region;
B) That the Region of Durham be authorized to issue a Request for Proposals (RFP)
seeking proposals for a Municipal Ombudsman, including the consideration that the
appointment be made jointly with the Region's local municipalities, should they be
amenable, and their respective Councils endorse such an approach, the RFP being
subject to financing at the discretion of the Commissioner of Finance and subject to
completion of Recommendation C);
C) That upon obtaining Regional Council approval for Recommendations A) and B) that
Regional staff be directed to send copies of Report#2015-A-41 and the Regional
council direction to all local municipalities within the Region of Durham and request
that the local municipalities report back to Regional staff within 30 days from receipt
of this report as to whether they would like to participate and partner with the Region
of Durham in the proposed RFP as described in Recommendation B); and
D) That Regional staff report back by the end of June of 2016 regarding the status of
the appointment of a municipal Ombudsman or subsequent to the completion of
Recommendations A) through C) above.
2.3. Since the passing of the above resolution, staff have been in contact with the Region's
Commissioner of Corporate Services to seek clarification on their anticipated RFP and
appointment process. The Commissioner confirmed that the anticipated process will
parallel that which was followed by the Region for the appointment of their Closed
Meeting Investigator. Specifically, they anticipate that the appointment will be a
contracted, as needed service; similar to Clarington's service contract with LAS for
Municipality of Clarington
Report CLD-008-16 Page 5
closed meeting investigations. The Commissioner advised that they also anticipate to
follow a process model similar to that followed by the Region of York. It is staff's
understanding, that the Region of Durham will proceed to develop their RFP, are willing
to accept input from Durham municipalities into the RFP specification, and once
Regional Council awards the contract for service, will advise the Durham municipalities.
At that time, Clarington could then take the appropriate steps to confirm the
Ombudsman service for Clarington through the Region's Ombudsman appointment.
2.4. The Municipality of Clarington maintains a variety of mechanisms to seek feedback from
members of the public. While it is the opinion of staff that these mechanisms are
successful in ensuring that Clarington is providing exceptional services, based on
research findings, and in particular those noted by the Region of Durham in Report
2015-A-41, staff recommend that Council approve the appointment of a Municipal
Ombudsman to conduct investigations with respect to the administrative acts of the
Municipality of Clarington. In an effort to minimize costs and to provide for consistency
within the Region of Durham, staff further recommend that Council support the concept
of appointing the Regionally appointed Municipal Ombudsman as Clarington's Municipal
Ombudsman, and to ensure that Clarington's needs be included in the Region's RFP
specifications, that staff work with the Region as deemed appropriate.
3. Financial / Budget Funding
At this time, the fees associated with the appointment of a Municipal Ombudsman is
unknown for two reasons. First, the Regional RFP process has not yet been completed,
and second, the number of anticipated complaints which would be investigated by a
Municipal Ombudsman is unknown. That said, staff would expect the fees to be similar
to those paid for a closed meeting investigation (ie. a reasonable annual retainer with a
"fee for service"). The draft 2016 budget for closed meeting investigations is $3000.
4. Concurrence
This report has been reviewed by Andrew Allison, Municipal Solicitor and Marie Marano,
Director of Corporate Services who concur with the recommendations.
5. Conclusion
Based on the foregoing, it is respectfully recommended that Council approve the
appointment of a Municipal Ombudsman to conduct investigations with respect to the
administrative acts of the Municipality of Clarington, and that the Region of Durham be
advised that the Municipality of Clarington agrees to participate in the development of
the RFP for the appointment of the Municipal Ombudsman for the Region of Durham.
At the conclusion of the Region's RFP process, staff will report back to Council.
Municipality of Clarington
Report CLD-006-16 Page 6
6. Strategic Plan Application
The recommendations contained in this report conform to the Strategic Plan.
f
Submitted by: ! ` Reviewed by:
Anne Greentree Franklin Wu,
Municipal Clerk Chief Administrative Officer
Staff Contact: Anne Greentree, Municipal Clerk, 905-623-3379 ext. 2102 or
agreentree@clarington.net
Attachments:
Attachment 1 — Region of Durham Report 2015-A-41
The following is a list of the interested parties to be notified of Council's decision:
D. Wilcox, Regional Clerk/Director of Legislative Services, Regional Municipality of Durham
D. Shields, City Clerk, City of Pickering
M. deRond, Director, Legislative & Information Services, Town of Ajax
C. Harris, Clerk, Town of Whitby
S. Kranc, City Clerk, City of Oshawa
N. Wellsbury, Municipal Clerk, Township of Scugog
D. Leroux, Director of Legislative Services/Clerk, Township of Uxbridge
T. Gettinby, Chief Administrative Officer & Municipal Clerk, Township of Brock
A. Allison, Municipal Solicitor
M. Marano, Director of Corporate Services
Clarington Museum and Archives Board
Clarington Older Adult Centre Board
Clarington Public Library Board
Historic Downtown Bowmanville Business Improvement Area
Newcastle Central Business Improvement Area
Newcastle Memorial Arena Board
Newcastle Village Community Hall
Orono Arena Community Centre Board
Orono Central Business Improvement Area
Solina Community Hall Board
Tyrone Community Hall Board
CAG
December 18, 2015 F DIISTRI F1
De Rond, Clerk ORIUIPf�,:_TO:
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Tow f Ajax ❑ COUNCIL -] COUNCIL ❑ FILE
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65 Harwod Avenue South
COPY TO;
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LiLAjax ON L1 S I'9 El MAYOR ❑ ; . _E-s \,.Cl CAO �J
\ G IAZIL
❑ COMMUNITY ❑ C, h?AiE ❑ EMERGENCY
RE: Municipal Ombudsman: Bill 8 — Public ectoi5and`MPP SERVICES
T'�ICJ` v OPERATIONS
The Regional Accountability and Transparency Act, ` �1 :;.4.�`�
Municipality Our File: LOO-1696) 1❑ PLAMNING\Mqni1Q)TQR C1 TREASURY
of Durham SERVICES
Corporate Services Please be advised the Finance &Administration Co
Department- Council considered the above matter and at a meeti gNh%[OLLqR, ! cember
Legislative Services 16, 2015, Council adopted the following recommen a Ions o
605 ROSSLAND RD. E. Committee:
PO BOX 623
WHITBY ON L1 N 6A3 A That the Region of Durham approve the ointment of a
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Municipal Ombudsman to conduct investigations with respect to
905-668-7711 g
1-800-372-1102 the administrative acts of the Region;
Fax:905-668-9963
B) That the Region.of Durham be authorized to issue a Request
www.durham.ca for Proposals (RFP) seeking proposals for a Municipal
Matthew L.Gaskell Ombudsman, including the consideration that the appointment
Commissioner of be made jointly with the Region's local municipalities, should
Corporate Services they be amenable, and their respective Councils endorse such
an approach, the RFP being subject to financing at the
discretion of the Commissioner of Finance and subject to
completion of Recommendation C);
C) That upon obtaining Regional Council approval for
Recommendations A) and B) that Regional staff be directed to
send copies of Report#2015-A-41 and the Regional Council
direction to all local municipalities within the Region of Durham
and request that the local municipalities report back to Regional
staff within 30 days from receipt of this report as to whether they
would like to participate and partner with the Region of Durham
in the proposed RFP as describe in Recommendation B); and
D) That Regional staff report back by the end of June of 2016
regarding the status of the appointment of a municipal
Ombudsman or subsequent to the completion of
Recommendations A) through C) above.
As directed, attached is a copy of Report#2015-A-41 of the Commissioner of
Finance.
"Soceijence
roq cv 1n�iiifies If this information is required in an accessible format, please contact
` p3 the Accessibility Co-ordinator at 1-800-372-1102 ext. 2009.
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