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5.16Ombudsman

ONTARIOC NTARIO S vY/ATC} IDOG

CH[IN DE GARDE 191{ L'ONTARIO

December 28, 2011Ms. Rose Caterini, City ClerkCity of Ham ilton77 James St. NorthP.O. Box 2040, LCD1Hamilton, ONL8R 2K3Dear Ms. Caterini,R E: Our File No. 242820-001I am writing further to our conversation of December 12, 2011 regarding theresults of the Ombudsman's preliminary review of a complaint received regardingthe June 27 G eneral Issues Co mm ittee (the C om mit tee) meet ing. Speci fical ly ,the complaint al leged that the Committee improperly discussed a grant requestfrom McMaster University behind closed doors.As part of our Office's review, we spoke with you as well as certain members ofC ounci l . We also reviewed relevan t sect ions of the Mun icipal A ct, 2001 (the A ct)and the City's Procedure By-law (10-053), as well as the meeting materials forthe June 27 meeting.The informat ion provided to our O ffice indicates that on June 27, 2011, theCommittee went in camera to hear a presentation from McMaster University(McMaster). According to the minutes, the meeting was closed under the"proposed or pending acquisit ion or disposit ion of land" exception (s. 239(2)(c) ofthe Act). The minutes indicate that f ive representatives of McMaster University"addressed the Co mm ittee wi th respect to a proposed McMa ster Heal th Ca mpus

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O'OmbudsmanON TAR IO 'S WATC H D OG o C H IEN D E GAR D E D E L 'ON -TAR IO

on the property where the Ha mil ton Wen tworth District Schoo l Boardadministration offices are currently located." The McMaster representativesrequested a $20-million dollar contribution from the City for this venture.The minutes note that during the McM aster presentat ion, the Co mm ittee C lerkadvised the Co mmit tee Cha ir that the contents of the presentat ion did not fal lwithin the cited exception for proceeding in camera. The City Solicitor alsoexpressed to the Committee that questions and discussions had to stay withinthe parameters of the exception. The information provided to our Office indicatesthat the meeting continued in camera despite these cautions.Once the McMaster representatives left the room, staff advised the Committeethat a staff report would be brought back at a future meeting, outlining issues thatrequire further investigation. The Committee then reconvened into open session.In open session the Committee passed a motion that the presentation providedby the McMaster delegat ion wi th respect to a McMa ster H eal th Ca mpus proposalbe received. The Committee also voted to direct staff to "analyze and report backon the accommodation requirements of Public Health Services, and determinethe impacts of the leasing proposal."Two members of Council advised our Office that the McMaster presentation wasrepeated almost verbatim in open session at a later meeting. One member ofCouncil found it "puzzling" that the presentation was held in closed session onJune 27, since it only involved a "broad overview" of the McMaster project.AnalysisThe informa t ion provided to o ur Off ice indicates that on June 27 the Co mm itteeproceeded in camera under s. 239(2)(c) of the Act ("a proposed or pendingacquisition or disposition of land by the municipality or local board"), to hear apresentation from representatives of McMaster University. It does not appear thatthe McMaster presentation and subsequent discussions fal l squarely within thecited exception, as it was not the municipality or a local board that would beacquiring or disposing of the land; McMaster was attempting to acquire land fromthe School Board. As discussed on December 12, a school board is not a "localboard" for the purpose of the Act. This session was therefore improperly closedto the public.A ccording to the minutes, both the Co mm ittee Clerk and the C i ty S ol ic itoridentif ied that the in cam era presenta tion a nd discussions did no t fal l within thecited exception, and took appropriate steps to bring this non-compliance to the

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OmbudsmanONTARIO

Committee's attention; however it also appears that the discussions continuedafter these notifications.In the future, all Council members should be vigilant in ensuring that in cameradiscussions come within the narrow exceptions outlined in s. 239 of the Act.We also n oted that C ounci l should exercise caut ion when bringing th ird part iesinto a closed session . Although this is no t prohibited under the A ct, meeting withthird part ies behind closed doo rs has the potential to crea te suspicion in the eyesof the public. Unless discussion s clearly fal l within the exception s to the o penmeeting requirements, and it is absolutely necessary for Council to meet withthird parties for confidentiality reasons, it is preferable that such meetings takeplace in open session.You expressed general agreement with the findings and comments made by ourOffice, and agreed to share them with Council publicly. We ask that you noti fy uswhen yo u have ha d the opportuni ty to do so . We wi l l also be prov iding thecomplainant with the outcome of our review.I would also l ike to take th is opportuni ty to thank yo u for the cooperat ion o urOffice received during this review.Sincerely,

Michelle BirdOmbudsman Ontario