Norton defends council’s retreat into closed session
The municipality’s top legal dog recently defended how and why the new council went into closed session to discuss such topics as sidewalk snow removal.
In its inaugural session last month, the new council went behind closed doors to discuss six subjects.
Those included the aforementioned sidewalk clearing and de-icing, Bothwell environmental issues, appointments to committees of council, integrity commissioner complaints, proposed acquisition of land, and proposed dispensing of property.
Municipal councils are to only go into closed session for property, personnel, labour relations, security, confidential matters, and legal advice.
John Norton, general manager of community development and for years the municipality’s head of legal services, said the discussion went into closed session strictly for legal advice.
“Legal advice is provided to council in closed session. We monitor it quite closely. The clerk in the room is responsible for policing it. She often stands up and interrupts if the discussion deviates from what should be in closed,” he said. “Open-session questions need to go into open session.”
In regard to the sidewalk issue, the provincial government has altered how it wants municipalities to remove snow from sidewalks in terms of how timely the work has to be done, and how those sidewalks need to be de-iced. The municipality is considering asking property owners to take care of sidewalk snow removal and de-icing.
Norton said the matter went into closed session under solicitor-client privilege.
“It wasn’t to discuss litigation or potential litigation,” he said. “Rather it was for advice that is subject to solicitor-client privilege.
“We were then going to have a bigger discussion in open and have a bigger debate. But then council decided to go out and do some public consultation,” he said. “It was straight legal advice.”
In 2005, RSJ Holdings of London took that city to court over a closed council session to discuss an interim control bylaw. The city used potential litigation as its reasoning to go into closed session, but lost in a court battle.
The Ontario Court of Appeal ruled the city had improperly relied on the litigation exception, and the true matter was the interim control bylaw, not potential litigation discussion.
Norton said the sidewalk snow maintenance issue was simply to offer legal opinion.
“Here’s the new legislation and we have some options open to you,” he said legal services personnel explained to council. “Increase taxes to start paying for this new salting that has to be done, or we ask the citizens to do it.”
Norton said he believes the municipality is being very transparent in its use of closed session, but admits that unless you are present behind those closed doors, you cannot tell.
“I get that it might look like we have a full public discussion in closed. There’s no way to prove against that,” he said. “But we’re being very transparent in my view.”
Norton maintains council is only heading into closed session for the reasons under the Municipal Act.
“Often, what we do is before we go into open, we go into closed to discuss what items may require legal advice,” he said. “But if they are receiving financial advice, that’s all for open. The public should weigh in on and give input on whether they want to spend the money or not.”
Norton brought up a hypothetical example of a crack discovered in a bridge. The engineer might offer an opinion on the likelihood of the bridge failing if the crack isn’t fixed.
“Council may ask for a legal opinion on what the consequences are. Are we allowed to not fix the bridge and take the risk? It’s not something you discuss in open,” he said.
That first session of the new council was packed with closed session items. Norton said there had been nothing discussed in closed for months prior.
“We were bottlenecked and needed direction from the new council,” he said.
Since that Dec. 10 meeting, the two meetings that followed had nothing on the closed agenda. But this past Monday saw four items to be discussed behind closed doors. Those included a board member appointment, a review of the year-end litigation report, proposed land acquisition, and personal matters about an identifiable individual in regard to the Lessons Learned report coming to council over the Ten-Seven Cafe
Norton thinks municipalities in general have advanced a great deal over the past decade in Ontario in terms of coming out from behind closed doors.
“What used to happen 10 years ago was to take a lot more things into closed. It was getting problematic,” he said. “Councils would go into closed session and have their whole discussion. The (provincial) government said that was inappropriate. We’re really accountable to make sure the time we spend in there is minimal.”