Douglas W. Judson
Comment on Procedural Decision of September 17, 2021
There has been some media and community interest in a special session of Committee of the Whole of Council of the Town of Fort Frances that I chaired on Friday, September 17.
Mayor June Caul called this special meeting on short notice. The single item of business was a proposed in-camera discussion of a “litigation or potential litigation” matter, described only as “pending civil matter”. This was the only information made available to Council in the agenda package. No material was appended to the agenda.
Prior to the meeting, the Mayor informed councillors that she had called the meeting on the advice of her legal team (i.e., not the town’s lawyers) regarding coverage of legal fees by the Town which may accrue to her. She did not disclose what the legal fees were for. It was unclear what was being requested at the meeting, particularly in light of the existing financial coverage for members who have acted in good faith under the Municipal Act, 2001 and our Code of Conduct.
The Municipal Act, 2001 places strict rules on council meetings to promote transparency and accountability in the decision-making process of local governments. Its requirements include publishing agendas with sufficient information in advance and that all meetings are to be held in public. Council can only meet privately in closed session (also known as “in-camera”) in very limited circumstances.
As chair of Friday’s meeting, I was required by our Procedural By-Law to ensure that appropriate procedures were followed, including those governed by the Municipal Act, 2001, the Municipal Conflict of Interest Act, and the Town’s Code of Conduct and Council/Staff Relations Policy. Accordingly, I ruled this item of business out of order on the basis that there was neither sufficient nor meaningful information on the agenda for members to assess whether they had an interest or for members to properly consider whether we were able to move into closed session. It was also unclear whether there was any person without a conflict or procedurally able to advise Council on the subject matter, even if we had went into closed session.
After I gave my reasons, the Mayor informed Council that it was her intention to declare a conflict of interest once we were in closed session. I was alarmed that the Mayor thought this would be appropriate. Conflicts must be declared at the start of the meeting in the public session. The public has a right to know when any member of Council has a pecuniary interest in a matter before Council.
The Mayor further told us that she planned to remain in the in-camera meeting but have her lawyer speak for her. It is a requirement under both the Procedural By-Law and the Municipal Conflict of Interest Act that members who have declared a conflict in a closed meeting item leave the meeting when it is discussed. It would have been unlawful for the Mayor to stay in the meeting and inappropriate for her lawyer to attend an in-camera session on her behalf.
It is critical to the good governance of the municipality and to maintaining public confidence in our work that appropriate procedures be followed. Procedural scrutiny and rigour must be especially observed in cases where the interests of individual members of Council may be in conflict with those of the municipality.
This is why I recommended that the Mayor formally submit her request in writing for consideration by Council, with sufficient particulars for administration to provide an independent recommendation. Administration cannot be directed by the Mayor - only Council as a whole - and cannot provide advice unless Council requests it. In this case, administration’s input could include independent legal advice from lawyers acting for the municipality and not just an individual member of Council. Council could then consider this advice in the absence of members who may have an interest in the subject matter.
In reaching my decision on Friday, my objectives included ensuring that municipal staff were protected and given direction from Council to provide a recommendation in the best interests of the municipality, to ensure that Council did not inadvertently hold an improper closed meeting, and to ensure that no members of Council found themselves in a contravention of our conflict of interest rules.
Given the gravity and complexity of these issues, I prepared my procedural decision in writing. It can be viewed online. I have no further comments at this time.
Douglas W. Judson