The 2006 amendments also included a new Part V of the Municipal Act dealing with accountability and transparency. Under this section, municipalities were authorized, but not required, to establish codes of conduct for members of council, appoint an Integrity Commissioner, provide for a lobbyist registry and Registrar, appoint a Municipal Ombudsman, and appoint a Municipal Auditor-General. All of these provisions were modeled on the City of Toronto Act that was also passed in 2006. But the provisions were mandatory, not optional, in the case of Toronto and they arose directly from the Bellamy Inquiry into the Toronto computer leasing fiasco, an inquiry that found lapses of morality on the part of a very few Toronto elected and appointed personnel.
The Issue of Closed Municipal Meetings
A further change with the 2006 amendments was a provision that any person could request an investigation of whether a meeting of a municipal council had been improperly closed. If municipalities did not appoint a local meetings investigator (or avail themselves of a service provided by the Association of Municipalities of Ontario), the Provincial Ombudsman had jurisdiction to conduct the investigation by default. The last time I checked, about half of Ontario’s municipalities had made their own arrangements, with the other half taking advantage of the supposedly free services offered by the Provincial Ombudsman (even though the costs of his office were, of course, paid for by all Ontario taxpayers).
Over the years, the Provincial Ombudsman appeared to become increasingly anxious to assert greater authority over municipal operations. His reports were often quite critical of municipal secrecy and inappropriately closed meetings – even though his own investigations revealed a high compliance rate on behalf of municipalities. In the most recent fiscal year (2013-2014) for example, the Provincial Ombudsman’s Office investigated 49 complaints of improperly closed municipal meetings and found only 11 that failed to adhere to the open meeting requirements. Hardly an epidemic of municipal secrecy, especially in contrast to the almost totally closed deliberations that take place at the provincial (and federal) level where Cabinet secrecy covers a multitude of sins.
The Provincial Ombudsman has gone so far as to suggest that the meetings investigators engaged by local municipalities are somehow not up to the job, an assertion that reflects poorly on his judgment and professionalism. His efforts to broaden the definition of a meeting to the point that would preclude almost any kind of informal gathering or discussion involving some members of council appears to go beyond a reasonable interpretation of existing legislation. As Andrew Sanction of the University of Western Ontario has pointed out, such a definition would appear to preclude local political parties in Ontario and the caucus meetings that they would hold as a matter of course.
A Backward Step for Ontario Municipalities?
As a result of Bill 8, the Public Sector and MPP Accountability and Transparency Act, passed in December 2014, the Provincial Ombudsman will have expanded oversight of municipal governments (along with universities, school boards, and hospitals – the so-called MUSH sector). Giving the Provincial Ombudsman the authority to second-guess not only the decisions of municipal councils but also the decisions of local officers (such as a municipal ombudsman or municipal auditor-general) is not at all consistent with the notion that municipalities are a separate level of government with a democratic mandate to act on behalf of their citizens. The provisions in Bill 8 are arguably a backward step and inconsistent with the vision of more autonomous municipal governments enshrined in the previous Municipal Act amendments.