County to start procurement process for a new closed meeting investigator

by Sylene Argent, Local Journalism Initiative

The County of Essex’s agreement with Local Authority Services Ltd. (LAS) to provide closed meeting investigations will end in July, due to the discontinuation of the service. That left the regional decision-makers having to decide to appoint another independent firm or proceed with using the Ontario Ombudsman.  

  County Clerk, Katherine Hebert, noted this is needed to meet legal requirements under the Municipal Act.

  At the May 20 meeting, a majority of County Council approved directing administration to proceed with a procurement process, but that was not without some County Councillors voicing concern. That will include accepting Request for Proposals, with the resultant recommendation for appointment of a Closed Meeting Investigator be brought back to Council for consideration and for the passing of an appointment by-law.

  Her report notes that LAS was created in 1992 by the Association of Municipalities of Ontario and has offered its Closed Meeting Investigator Program since 2008.

  Closed meeting investigators review complaints to determine if Council improperly held meetings in private.

  “The County has rarely needed this service. Only once in 2009, when the investigation proved no wrongdoing was found on behalf of the County of Essex,” Hebert explained.

  The contract with LAS has been in place since 2008, having been on an automatic renewal every two-years, unless the County expressed interest in discontinuing the service.

  Under the Municipal Act, a closed meeting is considered improper when a municipality closes a meeting – or part of one – without meeting the legal requirements.

  A closed meeting is deemed improper if the topic does not fit into one of the exceptions, if the Procedure By-Law is not followed as it relates to closed meetings, if no proper resolution is passed before closing the meeting, or if the discussion goes beyond the allowed topic.    

  There are pros and cons of defaulting to the Ontario Ombudsman, Hebert explained, adding several local municipalities use that service.

  The other option was to hire an independent investigator through a procurement process. That was the action County administration recommended, Hebert explained. That allows for a comprehensive evaluation of submission, based on a prescribed scope, the proponent's experience, and credentials.  

  She said hiring independently gives Council more control over the selection process and sets a standard for reporting back to Council. If they issue a Request for Proposal, County Council could always default to the Ombudsman if they choose to do so.

  Costs are low and are expected to remain low in the future, Hebert added.

  There is a $400 annual budget for this service. The County has paid LAS a retainer of $250 annually.

  In answering LaSalle Mayor Crystal Meloche’s question on the difference in costing between the Ombudsman and a private firm, Hebert said there is the annual retainer in addition to costs and the per-use cost, including per diem and travel costs, if the service is needed because a complaint was made.

Mayor Sherry Bondy believes needing a closed meeting investigator at the County is not an issue, based on the data Hebert provided. Because of that, she believes the County should go with the Ombudsman.

  The Town of Essex has had an Ombudsman investigation in the recent past, and the Town is following the recommendations provided.

  Pushing back on the comment it gives Council more control, Bondy asked if Council would be involved in the development of the Request for Proposal or awarding of the tender, should it choose the private firm. She believes it gives administration more control.

  Hebert said Council is not involved in the process, and it would be taken care of administratively, which would set the criteria. Staff would use examples of other closed meeting investigator reports to evaluate what the criteria would be. That would be helpful to Council in what members would like to see in a closed meeting investigator report, and what would provide the best information so the action could be corrected. The RFP would come back to Council to make the formal appointment.

  Essex Deputy Mayor Rob Shepley believes the optics looked bad in County Council hiring its own investigator for closed meetings.

  He asked what if a complaint comes in and the submitter doesn’t like the report from the hired assessment. Would it go to the Ombudsman then? Hebert noted the report coming out of a closed meeting investigation is presented to Council and posted publicly with its recommendations. There is no objection to the report, just implementing any recommendations made for future closed meetings.

  If Council appoints an independent closed meeting investigator, it can set criteria, such as qualifications and experience.

  The downside of using the Ombudsman, from the feedback Hebert has heard, is that a timely response is not necessarily something that can be relied upon. She said she also heard interpretation of legislation is not something the Ombudsman sticks to. It believes it can use past precedent to set recommendations for current investigations, she claimed.

  Lakeshore Mayor Tracey Bailey said hiring an independent ensures the qualifications and expertise are at their fingertips, with quicker turnarounds.

  Amherstburg Mayor Michael Prue said that is money the taxpayers may not want spent on retainers.

  When the Ombudsman's office opened, it gave the public a sense of empowerment in that they could bring concerns to it. Prue was not sure if the public would have the same sentiment if Council appointed someone.

  He was inclined to go with the Ombudsman.

  Kingsville Deputy Mayor Kim DeYong was in favour of going with the Ombudsman.

  “I think the ombudsman is provincially appointed. We complain around this table about the Province constantly downloading stuff to us, and here we are debating whether we should take this on from the Province and may – with our local tax dollars – [pay for] something that is already provincially funded,” DeYong said.