By Graeme McNaughton/ The Oshawa Express
Two meetings on the Durham York Energy Centre closed to the public breached provincial regulations surrounding public meetings, a report that has been in regional hands since July has found.
Due to be presented at Sept. 14’s meeting of regional council, a report by Amberley Gavel, the closed meeting investigator for the Region of Durham, meetings in December 2015 and January 2016 regarding the incinerator breached the open meeting requirements of the Municipal Act.
“In our opinion, there were major portions of the discussions that could have been, with good planning and careful management of the flow of the meeting, been made public and transparent,” the report, written by Nigel Bellchamber, concludes.
The report comes following complaints filed in the spring that the two meetings should not have been closed to the public.
On Dec. 22, the regional committee of the whole met in a closed meeting at regional headquarters to discuss the incinerator. According to minutes of the meeting posted to the Region of Durham’s website, councillors received a confidential verbal update on acceptance testing for the incinerator.
The day following the meeting, the region announced that Covanta, the operator of the incinerator, had not passed its acceptance testing, citing that the facility had produced more ash than was acceptable under the contract between the region and the operator.
On Jan. 27, following a meeting of regional council, the committee of the whole again met behind closed doors to discuss the incinerator. Following that meeting, regional council reconvened, and voted to amend the contract between Durham and Covanta, allowing the operator to produce more ash.
As a result, the incinerator was given the go ahead to go into commercial operation the following day.
Speaking with The Oshawa Express, Bellchamber says that some of the matters discussed during the closed portions of both meetings could have been held in public.
“We’ve found this in other municipalities. There will be an appropriate reason for going into a closed session, but then there will be a portion of the material that is discussed that could be easily separated without prejudicing the information that needs to be dealt with in a closed session,” he says, adding that he is unable to disclose what items discussed behind closed doors could have been talked about openly.
“What we’re really saying is that there are some things they discussed that weren’t eligible for being held in a closed session. Some items were eligible, some items weren’t.”
Bellchamber says that the exception under the Municipal Act utilized by the region for closing the meetings – that the matter dealt with litigation or potential litigation – was not a valid one.
“Municipalities can be sued or taken to an administrative tribunal…over any number of matters,” he says.
“But in order to use the litigation section (of the Municipal Act), we think there has to be some evidence that either something has already been filed or there’s a clear intention to file in order to use that exception. It isn’t just a case of it might be filed.”
At the time of the December meeting, no decision had been announced on the status of the incinerator, which had finished its acceptance testing but had not passed the requirements for ash production.
In the report, Bellchamber adds “it is also somewhat contradictory to say ‘we were not making it public because we hadn’t given a decision to Covanta,’ but then to use the exception of ‘potential litigation’ without first having made a decision that could trigger potential litigation. If Covanta wasn’t given a decision, they could have no foundation for litigation.”
For the January meeting, Bellchamber says the region’s utilization of the Municipal Freedom of Information and Protection of Privacy Act to protect “disclosure of information related to confidential third-party commercial information” was improper, as “council cannot use the more restrictive provision of MFIPPA in order to justify not allowing the public the ‘right to observe municipal government in process.’”
Amberley Gavel’s report was actually finished in July and delivered to the region at that time. However, the report is only being made public now as, under council bylaws, such reports are only officially released after being voted on by regional council.
Going forward, Bellchamber says that to avoid similar investigations and reports in the future, municipalities need to task their staff with looking at what can and cannot be dealt with in public.
“It’s a staff role to take a look at the material they’re intending to present to council in closed session, and to get a sense of what can be carved off to be dealt openly and what can be dealt with in closed (session),” he says.
“Staff are in the best position to do that, and not just the staff putting the report forward, but their legal advisors as well. It’ll vary from case to case.”
The Region of Durham did not respond to The Oshawa Express’ request for comment prior to press time.
“We’ll get our wrists slapped. So what?”
While she is happy to see her concerns were proved correct, Linda Gasser, a council critic and one of those who filed a complaint that lead to the closed meeting investigation, says the region does not stand to lose anything as a result.
“I think that until there are sanctions that the province enacts for holding closed meetings improperly, for closing the Municipal Act, I’m not sure that much will change,” Gasser says.
“On very touchy issues, municipalities might be tempted just to roll the dice and say, ‘Hey, let’s close it. People can complain, and we’ll get our wrists slapped. So what?’”
Gasser says that to prevent events such as these from occurring, the province needs to put sanctions in place against municipalities that break the Municipal Act.
The council critic is not alone in this thought. While still the provincial ombudsman, Andre Marin wrote in a 2014 report that the province needs to look at adding punishments to Bill 8, which dictates transparency in the public sector.
“One area of reform that Bill 8 does not tackle is the issue of penalties for violating the open meeting law. Simply put, there are none,” Marin wrote in 2013-2014 OMLET Annual Report.
“Even when council, local board or committee members engage in brazen and multiple breaches of the law, the only remedy is for the investigator to issue a report with recommendations. There is no sanction for lawbreakers or requirement for any public validation of business that was improperly conducted in secret.”
Marin pointed out several American jurisdictions – Arizona, Georgia, Iowa, Illinois, Michigan and Wisconsin – that have the power to fine those who break transparency laws, and two – Michigan and Illinois – that actually have to power to send violators to jail.
Gasser says implementing such a system would lead to more transparent governments.
“This could, if enacted, have the type of serious consequence that would cause a municipality to think twice before closing a meeting without being absolutely 100 per cent sure that they were doing so under one of the allowed exemptions,” she says.