Our Closed Meetings

Section 239 of the Municipal Act requires that, with a few specific exceptions, all meetings of council must be held in open session and advertised in advance.

The exceptions are:

a) the security of the property of the municipality;

(b) personal matters about an identifiable individual, including municipal employees;

(c) a proposed or pending acquisition or disposition of land by the municipality;

(d) labour relations or employee negotiations;

(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality;

(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.

(h) certain matters under the Municipal Freedom of Information and Protection of Privacy Act and the Ombudsman Act,

(i) The meeting is held for the purpose of educating or training the members where no member discusses or otherwise deals with any matter in a way that materially advances the business or decision-making of the council, or committee.

Section 238 (2.1) of the Act provides that muncipal procedure by-laws must provide for public notice of all meetings, open or closed.  Napanee Procedure By-law provides in s. 10.3(1):

Notice of a Council Meeting to the public shall be provided through:

(a) release of a meeting agenda by the Clerk; and

(b) posting of the time and date of the meeting on the municipality’s web site.

If council decides to hold a closed session, the public must still be provided with notice. Council can only go into closed session if it first holds an open session and passes a resolution to go into closed session and states the general nature of the matter to be considered at the closed meeting.

The practice in Napanee is to state the purpose of going into closed session in the vaguest possible terms. Often, the resolution to go into closed session simply parrots all the exceptions in s. 239.

Council is required to have an agenda for the closed session but the agenda is never posted on the website or published. The agendas and briefing papers for closed sessions are printed on pink paper to indicate that it is for eyes only and sometimes distributed to council members with the briefing papers. In recent times the practice has been to distribute the pink papers after going into closed session and to collect them before opening the doors at the end of closed session. Apparently, if you want to be a good councillor in Napanee, it helps to develop speed reading skills and have a photographic memory.

Are the deliberations and decisions at closed session kept confidential. Amazingly, in most cases they are. There was a notable exception at a council meeting on October 27, 2015 when the mayor gave his version on what was said at a closed session on June 17 when the legality of the current tax policy was discussed with the municipal lawyer.

As reported in Nov 5 Beaver, the mayor stated:

“Though the Municipal Act does state that tax rates are to be the same for all properties and classes in a municipality, it also give examples for tiered municipalities. Mayor Gord Schermerhorn said the law can be ‘interpreted’ many ways and the municipality and it’s lawyer believe Greater Napanee’s two-tiered tax rates are not illegal.  ‘We’re going to start a committee up this evening to deal with the whole issue, and yes you can say we’re breaking the law. The law is an interpretation. And, yes, we might be wrong but we don’t think we are,’ said Schermerhorn… Our lawyer told us that there is no precedent set to show that we’re wrong. He said there is no case law there that could prove you’re doing anything wrong, or defend that you’re doing anything wrong’ Schermerhorn said.”

The mayor’s apparent transgression of the Procedure By-law was pointed out but the mayor claimed he had done nothing wrong.

What happens after a closed session?  A review of the minutes of Napanee council meetings invariably read that after the closed session, council goes back into open session it moves that the recommendations made in closed session be adopted without saying what decision, if any, was made.  Does this comply with the Municipal Act?

The practice in Napanee is usually, but not always to hold a closed session at the end of every council meeting. At that point the public is ushered out and the doors locked. They are not opened until after council has left so the public never sees the open session that takes place after council leaves where the recommendations made in closed session are adopted.  The public are at least entitled to see who voted for and against such recommendations but this doesn’t happen.

Notwithstanding the clear wording of the Act, “caucus meetings”, as they are sometimes called are still held in some municipalities.  Many years ago it was a poorly-kept secret that there was always a meeting-before-the-meeting in Old Napanee at which important decisions were made.  In some municipalities this is done openly. For example, the Public Inquiry of the Elliot Lake Mall Collapse heard extensive evidence of this practice.

The closed session procedure can sometimes have curious results. For example an assessment appeal by OPG took several years to resolve and has had considerable negative impact on the Town’s finances. But the entire episode was treated as a litigation matter and dealt with in closed session with only oblique references to it in the agendas, minutes of the public meetings and budget papers. Even after a settlement was made in April 2013, the result was kept secret until included as a Note to the auditor’s 2014 Financial Statement released on September 22, 2015. The note reads:

17. ASSESSMENT APPEAL SETTLEMENT On April 5, 2013 the Corporation reached an agreement regarding an assessment by a taxpayer for the years 2003 to 2012. The Corporation is refunding the taxpayer the total amount of $3,500,000, repayable in annual payments of $350,000 commencing in 2014. $950,430 of this liability, being the County’s share has been recovered from the County of Lennox and Addington in 2014. A reserve been established regarding this liability and is reported in schedule 2 to the financial statements.

Another example is a recent decision to purchase 18 Water St E., a small waterfront building surrounded by Lions Park, was made in closed session. The Heritage Committee was unaware of the purchase until after it was completed and a decision had been made to demolish it. The Heritage Committe immediately made a presentation to council requesting an opportunity to investigate the heritage value of the building before demolition, complaining (correctly) that the Heritage Act and the Town’s By-laws were not followed in the decision to demolish.

There have been two recent examples in Napanee where s.239 of the Act and the Procedure By-law do not appear to have been followed.

1.  A secret meeting with the municipal solicitor on the legality of the current tax policy was held on the afternoon of June 17, 2015.  It was quite proper that this meeting be held in closed session.  However, no notice of the meeting was published. There is no record on the Town website of any public meeting having been held to hold the closed meeting as required by s. 239.   Three motions to publicize the advice on the legality of the tax policy were defeated.  Yet the mayor, at an open meeting of council, gave his take on what was discussed while voting against a motion that would have allowed other councillors to do likewise.

2.  Secret meetings with the Town’s external auditors, Welch & Co., were held on September 22, 2015 and September 13, 2016 to review the Town’s audited financial statements for 2014 and 2015. There is no record anywhere of publication of these meetings or of any motion to go into closed session. No minutes appear on the Town website. In each case, the secret meeting was followed by a public meeting at which the auditors took a few minutes to formally present the Town’s audited financial statements, despite the fact that they had already been presented and reviewed in secret meeting earlier. There are several direct violations of the Municipal Act here.

Why was this done? Were council and staff trying to conceal from the public the amount of the tax arrears owing and a large account payable ($3.5-million) owing to OPG?

We may never know.