Ombudsman: Saugeen Municipal Airport Commission contravened Municipal Act

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TORONTO – The report has been released by Ontario Ombudsman Paul Dubé regarding a complaint that Saugeen Municipal Airport Commission (SMAC) contravened the Municipal Act, 2001 regarding a closed meeting on Sept. 27, 2021.

The ombudsman found that part of the discussion, about an access agreement, was permissible under the act. However, the commission contravened the act when it “discussed an agreement with municipalities and the related withdrawal process, as well as financial information.” This part of the discussion should have occurred in open session.

Under the Municipal Act, all meetings of council, local boards (which SMAC is) and committees must be open to the public, with certain exceptions.

The report stated that after receiving the complaint in November 2021, the ombudsman’s office reviewed records relating to the Sept. 27 meeting and interviewed all members of the commission present at the meeting (six of the seven).

According to the report, the meeting was called to order at 6:59 p.m. and went in camera two minutes later, citing advice subject to solicitor-client privilege, and plans and instructions for negotiations.

Once in camera, there were discussions on four items – the access agreement, the municipal agreement, the municipal agreement’s withdrawal clause and financial matters.

Regarding the access agreement discussion, the exception given for the closed meeting discussion was advice subject to solicitor-client privilege, although one commission member also cited personal matters about an identifiable individual. That portion of discussion met the requirements for an exception under the act.

However, the remainder of the discussion did not.

Changes to the municipal agreement involved such things as “updating the document to reflect current dates.”

Regarding the exception cited, for solicitor-client privilege – there was no solicitor present at the meeting, and those interviewed said no legal advice was delivered at, or prior to the meeting. Moreover, the report stated there was no evidence that there was discussion about plans for future negotiations with a potential buyer or with the participating municipalities.

Regarding the withdrawal clause, at the time of the meeting, none of the three participating municipalities – West Grey, Hanover or Brockton – had given notice of withdrawal. SMAC was not conducting any negotiations relating to withdrawal at the time of the meeting. The report noted the municipal agreement is a public document.

Regarding the financial matters, the report stated those interviewed said discussion was on how close they were to the budget, what their financial position would be at the end of the year, and what would need to be added to the 2022 budget. One commission member indicated the discussion was about requesting “an appropriate contribution from the participating municipalities.” However, the ombudsman was told the commission was not negotiating with the municipalities for a change in funding at the time of the meeting, and did not discuss plans for future funding negotiations.

The ombudsman’s office was told that while financial matters are usually discussed in open session, in this case SMAC wanted to review the increased legal fees for 2021. These fees resulted from an ongoing negotiation with a specific individual, although no personal information about the individual was revealed in the course of the discussion.

The bottom line was, no solicitor was present at the meeting and no legal advice relating to the 2021 financial position was provided at the meeting. As stated in the report, “the amount of legal fees paid by a municipality to defend an action is not personal information because the information is about the municipality’s expense and not about the opposing party.”

The report stated the ombudsman’s office was told the discussion about legal fees “had to be … in camera to protect the commission’s bargaining position with the client.” The ombudsman stated this does not mean “a position, plan, procedure, criteria or instruction.”

One member of the commission said discussions about SMAC’s financial position would weaken its position when negotiating a change in funding with the municipalities. Again, though, the bottom line was, no legal advice was obtained during the financial discussion.

The report stated the discussion about the access agreement could have been held in camera, with the other parts of the discussion in open session. In addition, SMAC failed to provide “meaningful information” to the public about the matters that would be discussed in camera.

The ombudsman’s recommendation included members of SMAC being “vigilant in adhering to their individual and collective obligation to ensure compliance with their responsibilities under the Municipal Act.” SMAC should ensure no subject is discussed in closed session unless it clearly comes within one of the statutory exceptions to open meeting requirements.

The full report is available on the ombudsman’s website.

Pauline Kerr, Local Journalism Initiative Reporter, The Walkerton Herald Times

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