Ombudsman Report

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From/ Andr MarlnExpedlteur: Ombudsmn of Ontario

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OmbudsmanoNrAnt0

FaxTo/: MAYOR JOE FONTANAFax: 519^8Bl-5S08 Date; March 19,2012Phone: Fages; f1Re: OMBUDSMAN REPORTComments/Remarques:Ombudsman Report - Investigation into whether the City of London'sCommittee of the Whole improperly discussed "Occupy London" in cameraon November7,2011.

BellTrinity Square483 Bay Street, f Oth Floor, South Tower, Toronto ON MsG zOg483, rue Bay, 10 e tage, Tour sud, Toronto (Ontario) M5G zGgTelephone: 416-586-3300 . Toll Free; 1-800-263-1830Fax: 416-586-3485www.ombudsmn.on,cTho lnfonn6tlon contalnod ln thl tnrmllon lc conlldentlal nd lntended only Sor tho uae of the lndlvldurl or entlty to nhom lt lgddtdtrd mty not e othctyrltc dlrlrlbutrlr copled or tlrlolrd. roh lnlormqtlon l uJt to 9rlYlloa unclor tha omudamtn Acland all rlghto rEltlnt t fht pdvllego n clolmed. lf yolJ hrvo rocolved thb tnngmlsxlon ln enor, plEEEs nofy lh oonrlr lmmeotately bytoloholro nd mtum thc or{glnrl tl?nrmlcclon to ths ebove trddrBt.


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Yia@Marclr 19,201.2Mayor Joe FontanaCity of LondonCity t"lall214 - 300 Duffbrn AvenneLondonn OntarioN6B t22Dear Mayor Fontana:q-9a_uC snmn, Rp."q4

I have comp)eted my irrvestigation into whether the Cormnrittee of fhe Whole fbr the City ofI-ondon mproirerly discussscl Occupy London in camera on November 7, 201L My final reporf iserclosed.TI;e City of Lon.clon should make rtry repo available to the public. I will als


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SmanOmbudsman Report

Investigation into whether theCty of London's Committee of the Wholeimproperly discussed ooOccupy London,, n c(tmeron November Ir20llAndr MarinOmbudsman of OntarioMarch 2012

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Complaint1 On November .0, 201 l, my Officc rcceived a complant that the ity of l"ondon'sCommittee of f*re Whole irnproperly disoussed and voted on issues relating toOccupy London in a closccl session on November 7,ZQl J . Ovcr thc cowse of thenext few weeks. wc received four additional complaints about tlris discussion.2 The commi.ttee's stated reasons for considering this iem in ca,rnera were th.at itconcerned a matter subject to solicitot-client pn.vilege and consideration ofpotential litigation affecting the City of London.

Ombudsman Jurisdiction3 Under the Municipal cl, 2001, municipalities ate requi.r:ed to psss bylaws settingout ttre ru,les of procedure for meetings. The law requircs public notice ofmeetings, and that all meetings bc open to the public, unless they fall withinprescribed cxceptions.4 .s of January I , 2008, cltanges to the Municpal. Acl give citizens the right torequest an investigation into wh,etlrer a municipality has properly closed a meetingto the public. Municipal,ities mny appoint their own investigator or use theservices of the Ontario Ombudsman. Tlre Act designates the Ombudsman as thedefault investigator fot municipalities that have not appointed their own.5 The City of London appointed ths Ontario Ombudsman as its investigator effecti.veJanuary l,2008.6 In investgating closed meeting complaints, my Office considers whether the openmeeting requirements of the Mun.i.cipal Acl. andthe relevant municipal procedurebyJaw have been observed.Investigative Process7 After conducting an initial revi,ew. on Novcmber 28,2071,, my office noti{ied thcity that we would be investigating the Committee of the \Mh.ole's in cameraconsideration of Occupy London on Novemb er 7 , 20ll .

City of Lond.on - "Occupysman r*n,#;:,#;stigation

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information provided to my office be kept confidential unless, in the opnion of theOmbudsman, it oughl to be disclosed irr onder to establish grounds for iheOrbudsman's conclusons or reommendations,3 lr{y offie does not have fheauthority, however, to require any mtrnicipality to waive solicitor-client privilegeit any given case.I nterviews

13 ^. two-person teaffi conducted in-person interviews with the City Clerk, thc formercity Manager, and 14 oftlre l5 members of council, irrcluding the Mayor.Preliminary Report

In. accordance with our normal pfocess. the City ancl members olcouncil weregiven an opportwrity to review a repor{ containing preliminary investigativefindings and analysis. to ensure the accuracy of factu,al details and to make anytelevant representations be:bre the report was finalized, Municipal officals hadthe option of rcceiving a copy of the preliminary report for revew uporr sigrring aconfidentiali.ty undertaking or of attending at our Office to review the report.Two individual councillors were provided with the preliminary reporf orr atemporary basis, after signing confidentiality underiakings, They did not have anycommnts on the preliminary report.

Investigative indingsOccupy London

16 The "Occupy" movement is an international protest generally fbcused oneconomic and. social disparity, According to ncws reports, "occupy London"protesters occupied. Victoria Park in dowrttown London, around October 22,201.1.By late Octobcr, it was repomed that approximately 50 "occupiers" had oreotedtents, oottrary to the city's by-laws, and wer ignoring the Mayor's request thatthey be removed.a

I- Ombudsnur lcf, R.S,O, 1990, c. O.6. s, 12,4 "Occu,pv pTotesters' tcnts femoved by police in ,London, Ont." CBC lfw,s (g November 201 I ), online;CBC News ; Chip Martin & Norman Dc Bono "Protesters splil wherc to go,' The Lon.don Free press(27 Ooloc. 201 l), oolir flcc prcss ..4City of London - "OccupySmAn London" imtesrigati.onMarch 2012

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A. special public meeting ofthc Committee of tle Whole was hcld on October 28.2011. At that meeting, representatives of the occupy London rflvern.ent weregiven the opportunity to speak.On Novembe 7. 2071, the Cormittee of the l/hole considered Ocoupy Londonduring an n camera session. The next day, the city reportedly gave the occupiersuntil 6 p.m, to remove ther tenfs, and just after miclnight Novem.ber 9, 201 l,police and city oflicials dismantled the Victoria Park encampment.s London wasthe first Canadian jurisdiction to evict Occupy protesters.

The November 7,2011 Closed MeetingMeetng Agenda19 In. acordance with the cty's Proccdure By-Law, material m.ust be received by9 a.m. on the Thursday be:fore a tneeting to be included on the regular agenda.Although the by-law does not expressly refer to giving notice to ttre public ofmunicipal meetings, the city Jbl,lows a practice of releasing meeting agendas tocouncil members and the public around 4:30 p.m. on the Fr:iday beforc the woekthe nreeti.ngs are to be helcl. Agendas are circulated to members of the public andmedia who have requested copies, as well as made available at City Hall andposted on the city's web site.

2o The agenda for the November 7,2011 council meeting, which was releassd onNovember 4,2011. did not rcfer to thc fact that occupy London would bediscusse.in camera. No one we iniewiewed could explain why the item was notidentificd on the regular agenda. However, the Procedure By-Law in place at thetirne provided that aclditional ntaterial might be added to the agenda. if it wasreceivecl by 9 a.m. oil the day of a meeting. The Cify Clerk confirmed thematerials for the n camera discussion of Occupy London were received inaccordance with this provision.

,5 "chronology" The London Frpe Pre.(9 Novembor z0l I), online: The London Froo press.

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Notfce of the Occupy London tern2r The City Clerk confirmed that copies of "added communications,oo which includedreference t the n camraOccupy London item, were nrade available tocorrncillors as well as the public at tlre ouLtet of thc November 7,2011 meeting.22 Tlbe stated purpose for considering this item ir cdmere, set out in the "adcledcommuniatiolls" document, was that it was: "A l:natter pertaining to advice that issubjcct to solicitor-client privrlege, including communications necessary for thepulpose and consideration ofpotenlial litigation affecting the municipality withrespect to the activities of Oocupy London,"23 The City Clerk and f.our of the councillors we intervewed recalled that theaddition of Occupy London to the in camera agenda was announced at tlre

beginning of the courcil rreeting-Resol utio n Authorzi ng Closed Sesson

24 The Mtnicipal Acf requires that before cauucil moves in camerd, there must be aresolution autborizing the closecf session. includirrg referenoe to the general natureof the matter to be considered,The City Clerk as well as four members o:llcouncil dvised that the OccupyLondon matter was referuecl to as part of the resolution to move into closed sessionon Novembet 7,2Q1.i. One councillor stated that reference was rfide to a "legalmattern" while the remainjng witne.sses were unable to recallthe specific lnotion.The mccting rninutes posted to the city's website indicate that Occupy London wasidentified in the resolution authorizing the Novem:er 7. 2011 closed. ssssion alongwith five other matters for ir crnera. consi.dcration. The Occupy Londor item isdcscribed as:

A matter pertaining to advice that is subjeot to solicitor-client privilege.including communications necessary for the purpose and consideration ofpotential litigation affecting lhe nrunicipali,ty with respect to the activiiiesofOccupy London.27 AII of those we inten iewed confrmed that the reason the Committee of the Wholewent irr cmera. to discuss Occupy London was to receve solicitor-clieut advice.The City Clerk also indicated that consideration of potential litigation was to beincluded in this discussion.

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advised that when the committce rctumed to open $e$sion! it repeated theinf:ormation contained in the motion to go fn ,*uraowhich included reference toOccupy London, She explaincd that the meeting minutes would bc amended toreflect this.35 The witncsses indicated that whether council reports back i"n public about whatwas consiclered n closed session depends on ilre natr.e of th maftcr and, the pointto which it has progressed.

Analysis

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36 The Occupy movement captured the public's interest and the eviction of theprotester.t frorn Victoria Pak gamered consderable mcdia ttention. It is notsurprising that the comlittee's considcration of Occupy Lorrdon behind closeddoors sparked speoulation and led to complainfs to my offioe.The issues I must cletermine as a closed meeting investigator are whether theCommittee of the lffhole properly considered the Occupy London issue in closedsession under one of fhe excepti.ons to the open meoting requirements, and whetherthe voting tl:at took place .n cdmera was authorizedby the Muniaipal ct.

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Exceptions to the Open Meeting ReguirementThe Muncipal ct allows councils and their oommittees to consider mttef$relating to litigatiort or potential litigation af'fecting them in closed scssion(s. 239(2)(e)), They may also consider advice that is subject to solicitor-clentprivilege in camera ($. 239(2Xf)),All of the witnesses we interviewed confirmecl that the Cort.mitte of the Wholediscussed the Occupy London matter n camerabecause it involved obtaining legaladvice. The C Clerk also confirmed that potential litigation relating to OccupyLondon was considered.

4o While the Occupy London issue was a late arrival to the agenda for the in canzeraporfion of thc November 7,2011 meeting" it appears to have been added inaccordance with the City's Procedure By-Larv. The "added.communications" ifemdescribed the general nature of the mttef and confirmed that it involveclconsideration o:fladvice subject to soliciior'client privilege and potential litigationaffecting the municipality. These were also thc grounds set out in the resolutiouauthorizirtg corrsideration of the Occupy London natter in closed session,8o City of London - "OccupyLondon" investigatonMarch 2012Ombudsman


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Considertion of Occupy London In Camerat Based on the inforrnaton gathered during our investigation,, it appears that theCom.mittee of the Wliole only considered l.egal advice and potential litigationrelafing to Qccupy London when it met behind closed doors to consideithis irem.I atn satisfied that the committee was entitled to exersise its discretion to discussthis matter in am.era under the exceptions relating to advice that is subject tosolicitor-client privilege (s.239(2)(f), and potential litigation affeoting themunicipaity G. 239(2Xe)).

Voting In Camera Relating to Occupy London42 The Muncipal A.cf provides that voting is not permitted behind closed doors unlessit is for a procedutal rnatter or for giving directions or instructions to officers,employees or agenfs ofthe municipality (s. 239(6). Afi;er reviewing the redactedversion of the closed nreeting minutes. rd the evidence about in canterq votingprovidecl by witnesses, it appears to me that the voting that took plaoe onNovember 7,201I came within the exception.s permitted by the Act.

ConclusionIn mY opinion, basecl on the evjdenoe obtained in tny investigafion, the City ofLondon did not con,travene the Manicipal Act,or its Procedure By-law. when itoonsid,ered the Occupy London mattef in canter and voted to give directions andinstrrrctions, and on a procedutal matter, behind closed doors.However, I would like to make a couple of observations about the city's closedmeeting procedures illustrated by this case,As a best practice, I enoourage mruricipalities to provide notice of open and closedmeeting agenda items at the earliest opportunity, Late additions should orrly beconsidered if they are urgent. J was couceined about the last-minute addi.tion ofthe occupy London marter to the n. camerameeting a.genda for Novernbcr Z,2011, although it met the city's procedural requrements. During thcinvestigation. howevcr, I was pleased to learn that the city has taken steps to givebetter public notice of agenda items.

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Since December 2011, the Procedure By-Law has beeu. amended to require that inorcler ftrr materials to be added to a meeting agenda after the regular aglnda hasbeen published. they must be provided to the city clerk one full business dayearlier than under the previous By-Law. In addition, the city is now usingelectronic agendas that are updated online when nraterials arc filed with the CityClerk.While the City of London in practicc provicles advanoe public notice of itsmeetings and agendas, technically, there is no explicit reference to the requirementfor public notice in. its Procedwe By-[,aw. I believe that the city should consideraclcling express reference to the notice requrement at the earliest opportunity.

Report48 My report should be shared wi,th Council and madc available to the public.

Andr MarirlOntaio Ombudsman

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Documents

Ombudsman Report