THE ISSUES - OMBUDSMAN
OVERVIEW
In order to hold a closed meeting, Council is required to follow a certain procedure, including providing public notice of the meeting. There are other requirements as well, and if any of these are not followed, the public has the right to request the closed meeting to be investigated.
By default, the system is set up for investigations to be handled by the provincial Ombudsman, at no additional charge to the Township. That is very significant, because it removes the barrier of cost from the process. Unfortunately, the Municipal Act also allows Councils to select someone else to handle any of their investigations - but those services cost money. Any reasonable taxpayer would likely be reluctant to cause their own Township more expense by requesting an investigation.
In tough financial times, you would think most Councils would elect to leave well enough alone, and stick with the "free" (provincially-provided) service. But not our Council. They have selected a third party called LAS - Local Authority Services - at a cost (as of 2014) of $330/yr for a retainer, plus $225/hr for any actual investigations (which take about 18 hours each, on average - or roughly $4,000 apiece). LAS is a subsidiary of AMO - Association of Municipalities of Ontario. You can think of AMO as a sort of "union" for municipalities. Get the picture?
Council claims that the provincial Ombudsman is too "sensational" for their liking, and they've tried to justify their choice with all kinds of numbers and statistics. Ironically, those very statistics cancel out their own argument.
By default, the system is set up for investigations to be handled by the provincial Ombudsman, at no additional charge to the Township. That is very significant, because it removes the barrier of cost from the process. Unfortunately, the Municipal Act also allows Councils to select someone else to handle any of their investigations - but those services cost money. Any reasonable taxpayer would likely be reluctant to cause their own Township more expense by requesting an investigation.
In tough financial times, you would think most Councils would elect to leave well enough alone, and stick with the "free" (provincially-provided) service. But not our Council. They have selected a third party called LAS - Local Authority Services - at a cost (as of 2014) of $330/yr for a retainer, plus $225/hr for any actual investigations (which take about 18 hours each, on average - or roughly $4,000 apiece). LAS is a subsidiary of AMO - Association of Municipalities of Ontario. You can think of AMO as a sort of "union" for municipalities. Get the picture?
Council claims that the provincial Ombudsman is too "sensational" for their liking, and they've tried to justify their choice with all kinds of numbers and statistics. Ironically, those very statistics cancel out their own argument.
DETAILS
NOTE: This was topic #5
of 5 in a comprehensive survey/petition which we circulated in the
Fall of 2012. If you're interested in reading the original background
material for this topic (which we circulated as part of the survey at
the time), along with Council's official written response (which they
subsequently mailed out to the 300+ participants), we have a separate
page dedicated just to that. A word of warning - there might be a
lot of reading there, too.
[Click] to see the Background Info and Council's Official Response regarding the Ombudsman.
Otherwise, if you trust us, you can skip that and just keep reading on, below.
Our "position statement" on the topic was as follows:
[Click] to see the Background Info and Council's Official Response regarding the Ombudsman.
Otherwise, if you trust us, you can skip that and just keep reading on, below.
Our "position statement" on the topic was as follows:
I believe that Council should conduct all of its affairs in the most transparent, open, and accountable manner possible. To that end, Council should immediately terminate its appointment of LAS as the investigator for closed meeting complaints, so that the Ombudsman’s office can deal with any future investigations which may arise - at no cost to the Township.
As with all 5 topics, the results were extremely clear and compelling. 98.7% of residents agreed with our position to terminate the appointment of LAS, and switch to the provincial Ombudsman for closed session investigations.
( click on the image to view a larger version )
It is obvious that we really struck Council's nerve with this topic. If you haven't already read our background info, and especially Council's official response, you really should. (The link was provided above, but we've reproduced it [here] for your convenience.) Council's response about the Ombudsman was the longest, and most involved, of all 5 topics - by far.
To quote that famous Shakespearean line from Hamlet, "The lady doth protest too much, methinks.".
As you may have noticed, Council's response repeatedly used terms such as "accountability", "openness", and "transparency". Let's consider just one such statement from their response (which refers to an excerpt from By-law 08-11):
To quote that famous Shakespearean line from Hamlet, "The lady doth protest too much, methinks.".
As you may have noticed, Council's response repeatedly used terms such as "accountability", "openness", and "transparency". Let's consider just one such statement from their response (which refers to an excerpt from By-law 08-11):
Accountability, transparency and openness are standards of good government that enhance public trust.
Council already established, elsewhere in their full response to our survey/petition, that they are not bound by their own by-laws - and their actions surrounding the elimination of brush disposal fees clearly demonstrated that they are quite comfortable operating outside/above their own by-laws. Obviously, they feel it is a perfectly acceptable and defensible practice.
If you're not already familiar with the topic of brush fees, [click] to read about it.
Since Council - through its own actions and its subsequent justification - has eroded the value of its own by-laws, any words contained in their by-laws also have little if any value; they are merely words. Did the handling of the brush fees enhance public trust? Much worse, are a cover-up and the convenient manipulation of meeting minutes in keeping with any of those nice words in By-law 08-11 (accountability, transparency, openness, good government, and/or public trust)? Maybe they can talk the talk, but they sure can't walk the walk.
If you don't already know about their blatant cover-up, [click] to read about it (under construction).
In defending its choice to pay LAS to investigate closed meeting complaints (instead of allowing the provincial Ombudsman to do it at no additional cost), Council's response included some very interesting statistics and math. Unfortunately, several parts of the math were just plain wrong - and beyond that, the underlying premise was highly flawed.
Let's deal with correcting the math, first. Here is the portion of Council's response which contains a number of mistakes:
If you're not already familiar with the topic of brush fees, [click] to read about it.
Since Council - through its own actions and its subsequent justification - has eroded the value of its own by-laws, any words contained in their by-laws also have little if any value; they are merely words. Did the handling of the brush fees enhance public trust? Much worse, are a cover-up and the convenient manipulation of meeting minutes in keeping with any of those nice words in By-law 08-11 (accountability, transparency, openness, good government, and/or public trust)? Maybe they can talk the talk, but they sure can't walk the walk.
If you don't already know about their blatant cover-up, [click] to read about it (under construction).
In defending its choice to pay LAS to investigate closed meeting complaints (instead of allowing the provincial Ombudsman to do it at no additional cost), Council's response included some very interesting statistics and math. Unfortunately, several parts of the math were just plain wrong - and beyond that, the underlying premise was highly flawed.
Let's deal with correcting the math, first. Here is the portion of Council's response which contains a number of mistakes:
The Ombudsman is the investigator for 191 of the 444 municipalities in Ontario. LAS, through Amberly Gavel, is another popular option. Some municipalities have appointed another third party, whether that is a retired municipal employee or a local solicitor.
When considering the number of Council and committee meetings held in the Province of Ontario in one year, the number of reported investigations is quite low. Over the past 4 years, since the legislation came into force, 74 municipalities have been investigated for possible breach of the closed meeting legislation. These 74 municipalities could have held 592 meetings (2 meetings per month over 4 years). There have been 74 violations found between LAS and the Ombudsman, or 12% of the meetings were in violation. When taken with the number of municipalities, estimating that LAS is representing half of the remaining Ontario municipalities (126), this would result in 74 meeting over 2,546 meetings (191 + 126 = 317 municipalities at 2 meeting per month = 634 meetings over 4 years = 2,536), or 2.91% of meeting were in violation.
We'll break it down and deal with only one item at a time - otherwise, things will just get too confusing. (We are taking the various statistics - such as 74 municipalities having been investigated, etc. - at face value; we're only correcting the math.)
These 74 municipalities could have held 592 meetings (2 meetings per month over 4 years)
74 municipalities times 2 meetings per month = 148 meetings per month ... times 12 months per year = 1,776 meetings per year ... times 4 years = 7,104 meetings that could have been held. Not 592 as stated in Council's response.
There have been 74 violations found between LAS and the Ombudsman, or 12% of the meetings were in violation.
74 violations out of what we have now calculated to be 7,104 meetings, is 1%. Not 12% as stated in Council's response.
When taken with the number of municipalities, estimating that LAS is representing half of the remaining Ontario municipalities (126), this would result in 74 meeting over 2,546 meetings (191 + 126 = 317 municipalities at 2 meeting per month = 634 meetings over 4 years = 2,536), or 2.91% of meeting were in violation.
Okay, so, the Ombudsman represents 191 municipalities out of a total of 444 ... leaving the remaining 253 municipalities with other arrangements. Estimating that half of those are represented by LAS, that would account for 126. The Ombudsman's 191 plus the 126 handled by LAS amounts to 317 municipalities. So far so good. Now, 317 municipalities times 2 meetings per month = 634 meetings per month ... times 12 months per year = 7,608 meetings per year ... times 4 years = 30,432 meetings that could have been held. Not 2,546 or 2,536 as stated in Council's response. And 74 violations out of what we have now calculated to be 30,432 meetings, is 0.24%. Not 2.91% as stated in Council's response.
Wait a minute ... why did we just correct Council's math? Doesn't that help to strengthen their position?
The answer is simple. We corrected the math because we're all about doing things properly - being open, transparent, and accountable. It would be unfair of us, not to mention pointless, to argue against a position which is full of mistakes. Besides, the math itself is nearly irrelevant, since the underlying principal on which it is based is fundamentally flawed.
To accept Council's idea that the Closed Session violations of the Municipal Act only amount to 0.24%, you would have to believe that every one of the 30,432 meetings (that is, every single meeting, held by every single municipality) involved a closed session. Otherwise, if some of the meetings did not involve a closed session (as many would not have), there wouldn't have been an opportunity to violate the Act anyway - so they really don't count. You'd also have to believe that every actual violation was detected and reported by someone so that it could be investigated.
Look at it this way. Let's say that if you're going to speed, you only ever do it when you're driving on 4-lane highways (like the 401), and you never speed on "normal" roads. And let's say that when you drive back and forth to work each day (Mon-Fri), you only need to travel on "normal" roads (ie. the 401 would be out of your way). You typically take a trip out of town (to visit friends, or go shopping, etc.) twice a month and you typically use the 401 for those trips. You only actually speed about 20% of the time, and when you do speed, you get caught about 10% of the time.
Starting to get the picture? Your normal daily drive is like the normal municipal meetings (without closed sessions), and your out of town trips are like the closed sessions. So now lets use some of Council's tricky math to see how favourable we can make your driving record look.
5 work days per week times 52 weeks per year = 260 work days per year ... times 2 trips per day (ie. there and back) = 520 work trips per year. 2 outings per month times 12 months per year = 24 outings per year ... times 2 trips per outing (ie. there and back) = 48 outing trips per year. That's a total of 568 trips (520+48) per year. Since you speed 20% of the time that you're on the 401, that works out to 9.6 trips (ie. 20% of the 48 outing trips). Let's just call it 10 trips. 10% of the time, you get caught ... so, out of those 10 trips when you speed, you're going to get nabbed once.
1 speeding ticket out of your total 568 trips in a year amounts to a 0.18% rate of violation. That looks like pretty good behaviour, doesn't it. It's amazing what can be done with a bit of smoke and mirrors. And if we added in some routine trips to the local grocery store etc., we could get your violation rate down even lower.
But it's all just an illusion. The reality is, you actually break the law 20% of the time - not just 0.18%. Your 520 work trips per year don't count, because you never put yourself in a position of being at risk for a violation ... just like municipalities are not at risk of violating the Closed Session rules unless they actually try to hold a closed session (or they meet when they shouldn't). And unless there are savvy members of the public around who just happen to be in the right place at the right time, Councils could get away with many closed session violations which go completely undetected and unreported.
There's something else interesting about Council's response. Consider the following two statements which they made:
Wait a minute ... why did we just correct Council's math? Doesn't that help to strengthen their position?
The answer is simple. We corrected the math because we're all about doing things properly - being open, transparent, and accountable. It would be unfair of us, not to mention pointless, to argue against a position which is full of mistakes. Besides, the math itself is nearly irrelevant, since the underlying principal on which it is based is fundamentally flawed.
To accept Council's idea that the Closed Session violations of the Municipal Act only amount to 0.24%, you would have to believe that every one of the 30,432 meetings (that is, every single meeting, held by every single municipality) involved a closed session. Otherwise, if some of the meetings did not involve a closed session (as many would not have), there wouldn't have been an opportunity to violate the Act anyway - so they really don't count. You'd also have to believe that every actual violation was detected and reported by someone so that it could be investigated.
Look at it this way. Let's say that if you're going to speed, you only ever do it when you're driving on 4-lane highways (like the 401), and you never speed on "normal" roads. And let's say that when you drive back and forth to work each day (Mon-Fri), you only need to travel on "normal" roads (ie. the 401 would be out of your way). You typically take a trip out of town (to visit friends, or go shopping, etc.) twice a month and you typically use the 401 for those trips. You only actually speed about 20% of the time, and when you do speed, you get caught about 10% of the time.
Starting to get the picture? Your normal daily drive is like the normal municipal meetings (without closed sessions), and your out of town trips are like the closed sessions. So now lets use some of Council's tricky math to see how favourable we can make your driving record look.
5 work days per week times 52 weeks per year = 260 work days per year ... times 2 trips per day (ie. there and back) = 520 work trips per year. 2 outings per month times 12 months per year = 24 outings per year ... times 2 trips per outing (ie. there and back) = 48 outing trips per year. That's a total of 568 trips (520+48) per year. Since you speed 20% of the time that you're on the 401, that works out to 9.6 trips (ie. 20% of the 48 outing trips). Let's just call it 10 trips. 10% of the time, you get caught ... so, out of those 10 trips when you speed, you're going to get nabbed once.
1 speeding ticket out of your total 568 trips in a year amounts to a 0.18% rate of violation. That looks like pretty good behaviour, doesn't it. It's amazing what can be done with a bit of smoke and mirrors. And if we added in some routine trips to the local grocery store etc., we could get your violation rate down even lower.
But it's all just an illusion. The reality is, you actually break the law 20% of the time - not just 0.18%. Your 520 work trips per year don't count, because you never put yourself in a position of being at risk for a violation ... just like municipalities are not at risk of violating the Closed Session rules unless they actually try to hold a closed session (or they meet when they shouldn't). And unless there are savvy members of the public around who just happen to be in the right place at the right time, Councils could get away with many closed session violations which go completely undetected and unreported.
There's something else interesting about Council's response. Consider the following two statements which they made:
The Ombudsman investigated 45 municipalities, 23.56% of those represented by them. Of the number of meeting that could have been held by the 191 municipalities over the four year period (18,336), only 45 violations were found (0.24%).
LAS represents approximately 126 municipalities (12,096 possible meetings over 4 years) with 29 violations found (0.24% of meetings).
EK-COG Note: Emphasis denoted above is our own, for clarity.
So according to Council, the results from the Ombudsman and the results from LAS are apparently the same - they are both 0.24%. Why, then, should taxpayers fork over a $330/yr retainer to LAS, plus be at risk to pay out roughly $4,000 per investigation (if a complaint is filed), when the Ombudsman would provide the same services at no cost to the Township?
By the way - if you want the real performance numbers, directly from the horses' mouths, here they are ...
Reports released by LAS for 2012 and 2013 both state the violation rate for completed investigations as being 46%. In his 2013 report, the Ombudsman states that 20% of the meetings which his team investigated were found to be illegal.
Apparently, even the provincial government doesn't think that municipalities are necessarily being as open, transparent, and accountable as they purport to be. There was an announcement made by the Provincial government that legislation is pending to open up the investigative authority of the Ombudsman's Office to include the municipal sector - beyond just the closed session portion of the Municipal Act. This is something that the Ombudsman has be advocating for some time.
Not surprisingly, AMO (the Association of Municipalities of Ontario is dead set against the idea. AMO is a sort of "union" for municipalities - of which LAS is a branch, offering fee-based investigation services. No bias there, right? Check out our "Resources and Supporting Materials" section, below, for links to additional info on all of this.
By the way - if you want the real performance numbers, directly from the horses' mouths, here they are ...
Reports released by LAS for 2012 and 2013 both state the violation rate for completed investigations as being 46%. In his 2013 report, the Ombudsman states that 20% of the meetings which his team investigated were found to be illegal.
Apparently, even the provincial government doesn't think that municipalities are necessarily being as open, transparent, and accountable as they purport to be. There was an announcement made by the Provincial government that legislation is pending to open up the investigative authority of the Ombudsman's Office to include the municipal sector - beyond just the closed session portion of the Municipal Act. This is something that the Ombudsman has be advocating for some time.
Not surprisingly, AMO (the Association of Municipalities of Ontario is dead set against the idea. AMO is a sort of "union" for municipalities - of which LAS is a branch, offering fee-based investigation services. No bias there, right? Check out our "Resources and Supporting Materials" section, below, for links to additional info on all of this.
RESOURCES and SUPPORTING MATERIALS
[Click] - Recorder & Times article on the lead-up to the presentation of our survey/petition to Council.
Note: Our petition lead-up also got coverage on CKWS TV's evening news - but the online video clip is no longer available on their website, so we are no longer able to link to it.
[Click] - Background Info Package which was provided to anyone who participated in our survey/petition.
[Click] - Sample Survey/Petition Sheet.
[Click] - Survey Guide outlining the design details and methodologies used in the survey/petition to ensure that it was accurate, meaningful, and statistically representative of the entire population.
[Click] - Presentation/Speech. The "script" which EK-COG's spokesperson, Brant Burrow, used when we were recognized as a delegation at Council's November 26th, 2012 meeting, in order to present Council with our survey/petition results.
[Click] - Recorder & Times article covering Council's November 26th, 2012 meeting at which we presented the compelling results of our survey/petition.
(will be added soon) - Township's Full/Official Response to the Survey/Petition.
[Click] - Bill 8, Public Sector and MPP Accountability and Transparency Act, 2014 - the full online text of the proposed legislation.
[Click] - Provincial Ombudsman - The PUSH for MUSH (Municipalities, Universities, School Boards, Hospitals). There are many other resources available at the Ombudsman's website; explore them.
[Click] - Ontario Coalition for Accountability - Demand the Ombudsman Investigate the MUSH Sector. Consider adding your name to this electronic petition.
[Click] - AMO's Initial Reaction to the proposed legislation when it was first introduced (prior to the 2014 Provincial Election). Notice how upset AMO is that it was not consulted first, before the legislation was introduced.
[Click] - AMO's Subsequent Response to the proposed legislation when it was re-introduced by the new Provincial Government (after the 2014 Provincial Election). Notice how AMO continues to be very protective of its own interests and those of its members (ie. the Municipalities).
Note: Our petition lead-up also got coverage on CKWS TV's evening news - but the online video clip is no longer available on their website, so we are no longer able to link to it.
[Click] - Background Info Package which was provided to anyone who participated in our survey/petition.
[Click] - Sample Survey/Petition Sheet.
[Click] - Survey Guide outlining the design details and methodologies used in the survey/petition to ensure that it was accurate, meaningful, and statistically representative of the entire population.
[Click] - Presentation/Speech. The "script" which EK-COG's spokesperson, Brant Burrow, used when we were recognized as a delegation at Council's November 26th, 2012 meeting, in order to present Council with our survey/petition results.
[Click] - Recorder & Times article covering Council's November 26th, 2012 meeting at which we presented the compelling results of our survey/petition.
(will be added soon) - Township's Full/Official Response to the Survey/Petition.
[Click] - Bill 8, Public Sector and MPP Accountability and Transparency Act, 2014 - the full online text of the proposed legislation.
[Click] - Provincial Ombudsman - The PUSH for MUSH (Municipalities, Universities, School Boards, Hospitals). There are many other resources available at the Ombudsman's website; explore them.
[Click] - Ontario Coalition for Accountability - Demand the Ombudsman Investigate the MUSH Sector. Consider adding your name to this electronic petition.
[Click] - AMO's Initial Reaction to the proposed legislation when it was first introduced (prior to the 2014 Provincial Election). Notice how upset AMO is that it was not consulted first, before the legislation was introduced.
[Click] - AMO's Subsequent Response to the proposed legislation when it was re-introduced by the new Provincial Government (after the 2014 Provincial Election). Notice how AMO continues to be very protective of its own interests and those of its members (ie. the Municipalities).
PLEASE ATTEND COUNCIL MEETINGS
The clearest, most effective message you can send to Council, is to attend their meetings. So long as the public gallery is empty, they will get the impression that no one cares.
It would be hypocritical to hold Council responsible for the outcome of all things if we are perpetually absent from the process, ourselves.
Typically, Council meetings are held on Mondays. [Click] to open the Township's official calendar in a new window.
It would be hypocritical to hold Council responsible for the outcome of all things if we are perpetually absent from the process, ourselves.
Typically, Council meetings are held on Mondays. [Click] to open the Township's official calendar in a new window.