Open, Transparent and Democratic? NOT!
by Mike Sullivan
The more answers we get, the more questions it raises. In November of 2020, Get Concerned asked for an investigation into the propriety of doing business in closed (secret) meetings. We were hunting for exactly when council voted to seek a ministerial zoning order (MZO), and to enter agreements with Xinyi Glass. Since the Mayor asked for the MZO in November, we guessed that council would have had to act sometime between September and then. What the investigator found was that the Mayor acted on his own to seek the MZO, and that he briefed council on the Xinyi proposal in a closed meeting in September of 2018, but the meeting should not have been closed. He also found that the city was routinely violating the act and the Stratford By-Laws by failing to disclose the nature of the business being discussed in closed meetings.
When Stratford published his report in June of 2021, they began revealing the nature of the business. Attempts by councilor Sebben and others to retroactively reveal the nature of the business was met with refusals by the clerk and Chief Administrative Officer, stating that if someone wanted to know it, they would have to file another request for an investigation.
In November of 2021, I did just that, filing requests for investigation for 150 odd meetings in the past. The investigator asked, and I agreed, to reduce the request to those meetings from January of 2020 until June of 2021, some 50 odd items.
He filed his report in October of 2022. He found that all the meetings were in violation of the act and by-laws by failing to reveal the nature of the business. His report revealed the nature of the business of all the closed items. In addition he found that council was, on 30 odd occasions of the 50, illegally discussing matters that should have been discussed in public. That investigation cost the city (and you the taxpayer) $47,000.
Now that we knew what was discussed, and which were illegal, I asked to see the minutes of all the meetings he found to have been illegally in closed meetings. I was met with stony silence from the clerk for several months. After asking the mayor and council to intervene, I was told that if I wanted to see minutes of meetings I would have to file a freedom of information request (cost $5). I did that in March, asking to see minutes and any accompanying reports and letters for the issues illegally discussed in closed meetings. At the end of May I got a response, and a bill for $180.
So now I get the minutes, right? Not so fast. I got some minutes, and some letters and reports. But many are redacted (blacked out) and in some cases the clerk has decided that they disagree with the closed meeting investigation decision and have withheld those where they disagree. They have also claimed exceptions in the Freedom of Information Act to hide some of the discussions.
But wait, there’s more. Under the closed meeting rules, councils are prohibited from taking votes. There are two exceptions – one is if it is a purely procedural matter – like working past the scheduled time. The other is when they are voting to give direction to staff or a contractor. So, for example, if the discussion was about whether federal or provincial grants are available, they can give direction to staff to apply for such grants. They are not making a substantive decision on the running of the city.
But the Stratford council votes far more than on just those two things. In the 16 sets of minutes partly released to us, there were 20 votes, 11 legal and 9 which were substantive and should not have been conducted in camera. There were literally dozens of other items on those closed meeting agendas which the investigator found to be legitimately in closed session. But he did not examine whether votes were legitimate. So, if in the 16 sets of minutes, of which about one quarter were released, there were 9 illegal votes, how many more were there in the dozens of other items we did not see. And over the past few years, how many times did council vote illegally – on things like Xinyi? One of the councilors complained that the Mayor was upset with her for having changed her vote. How can that be if all votes are in open session? There were zero decisions in open session on Xinyi, over the course of more than two years.
Councillor Sebben, it is revealed in one set of minutes, tried to find out when exactly decisions were made by council on seeking the MZO and signing a deal with Xinyi. When it appeared that the Mayor had acted alone, the CAO stated that the Mayor can do such things as ‘head of council’. That’s just not true. Ontario’s laws only give the mayor the power to chair the council meetings and ceremonially represent the city. He is just one of 11 members of the council, and cannot act alone. Justice Bellamy reported, in her decision on the city of Toronto Computer Leasing Inquiry
“The most important ground rule is that Council is the source/primary locus of almost all authority with relatively few exceptions, including all legislative authority. Council makes the decisions with respect to whether and to what extent to delegate this authority to others, including the Mayor, various standing or other committees, and the administrative staff. The statutory authority of the Mayor/head of Council is actually quite limited, with an emphasis on chairing Council meetings and performing largely ceremonial duties.”
And whether a discussion is held by council behind closed doors is optional. All meetings are to be in public, unless one of 14 exceptions in the municipal act are met. Only 2 of those exceptions are mandatory. The other 12 are at the discretion of council. The clerk routinely lists, on the closed meeting agenda, all items which are permitted to be there. So far as I know, with the exception of Councilor Sebben last month, no councilor has ever asked to reveal anything. He attempted to reveal the discussions about the demolition of Avon Crest Hospital. Council was discussing an opinion from a heritage planner, and that opinion is hidden from the public.
So off to ask for more closed meeting investigations. And to appeal the decision on the FOI. It never seems to change.
A big thank you to all the supporters of Get Concerned Stratford. Your donations and support have allowed us to continue this attempt to shine light on Council’s activities. We will post the minutes that have been revealed, and you can read them for yourself. The city has no intention of posting them as part of its public record.