Niagara Falls city council contravened provincial law when it went into a closed-door meeting in November of 2020 to discuss forming a new sub-committee as part of the search for a new chief administrative officer, Ontario Ombudsman Paul Dubé has ruled.
In a report dated March 15, Dubé said the closed session — also known in municipal government terms as in camera — did not fit with any exception that the Ontario Municipal Act allows to go behind closed doors.
Dubé also said council failed to properly describe the subject to be discussed in camera. Council also contravened the Act when it passed a resolution to go in camera because the passing of that resolution wasn’t seen by the public because city hall was closed to the public due to the pandemic, and that portion of a live meeting wasn’t broadcast, the Ombudsman said.
Dubé said his office received a complaint about the closed meeting to discuss the chief administrative officer hiring sub-committee, which he determined was held on Nov. 17, 2020 before a regular meeting of council.
Council was searching for a new CAO to replace outgoing CAO Ken Todd, who retired in June of last year. It later hired Jason Burgess for the role.
In camera meetings are typically held to discuss legal, personnel and property issues.
Dubé said in the case his office investigated, sub-committee members were announced during the open council meeting on Jan. 19, 2021, but Dubé noted the video recording of the meeting showed two council members indicated they weren’t aware of the requirement to express an interest in serving on the sub-committee prior to the open meeting.
Mayor Jim Diodati said in response that the sub-committee had already been discussed “a couple of times” in camera. Another council member confirmed having discussed the matter “some time in the fall,” Dubé’s report said.
The report said because city hall was closed due to the pandemic, the public couldn’t attend that meeting in person. The agenda noted it would broadcast on the city’s YouTube channel and Facebook page, and on the local cable TV station.
That agenda indicated a link to a proposed resolution saying council would hold a closed-door session before the regular, open council meeting to talk about proposed land acquisition or disposition, and labour relations involving a bargaining update.
Once in closed session, staff provided council with a presentation about the CAO recruitment process, said Dubé.
Dubé said people interviewed also said Diodati instructed councillors to express to him in writing their interest in being on the sub-committee. But Dubé said that wasn’t captured on the audio recording, and said his staff didn’t receive any evidence confirming the timing of the mayor’s statement.
CAO sub-committee members included Diodati and councillors Vince Kerrio, Victor Pietrangelo and Wayne Thomson.
Dubé, whose office interviewed all nine members of council, said the investigation faced no roadblocks. “We received full co-operation in this matter,” he said.
Dubé ruled that while “labour relations” can qualify for closed-door discussions under the legislation, that doesn’t apply if the matter to be discussed doesn’t focus on a specific person but instead is about a recruitment process generally as was the case of the CAO search sub-committee meeting.
“The closed meeting discussion did not fit within any of the other exceptions contained in the act and should have occurred in open session,” he wrote.
Council also failed to properly describe the subject to be discussed in closed session in its resolution to proceed in camera, and said the Act was also contravened when the resolution to go in camera was done with no members of the public present or able to observe via live broadcast, Dubé said.
In response to an earlier version of the report, the city said it needed to discuss its plans for CAO recruitment in camera because the information was sensitive and could have compromised the city’s competitive position with other municipalities in terms of finding a new CAO, said Dubé.
While there may have been a desire to maintain confidentiality in order to protect interests of the city, council isn’t allowed to bring a matter behind closed doors simply because it considered it confidential or potentially against the city’s interests to discuss it publicly, he said.
Dubé made several recommendations including that council members be “vigilant” in adhering to the Municipal Act, that only matters that qualify under the Act be discussed behind closed doors, and that any resolutions to proceed in camera are passed in open session and recorded in meeting minutes as well as being captured by live broadcast.
Dubé said that under the Municipal Act, city council is required to pass a resolution stating how it intends to address his report.