Last week Ontario’s Ombudsman Andre Marin released his annual report into the state of open meetings for local governments and municipal agencies. The good news is that none of the report’s most glaring abuses involved Hamilton city council, but that doesn’t mean that they’re doing everything right.
Council’s decision not to electronically record all closed door sessions was seen as a disappointment by the Ombudsman. By law, records must be kept of all council meetings, even if they are in camera (which Hamilton does). What Marin had found in other jurisdictions is that those records were often poor and left out key information that would enable his office to judge if the meeting met the legal requirements to exclude the public.
Several Hamilton councillors cited potential legal concerns if what they said behind closed doors was to be made public. While municipal politicians don’t have the same parliamentary privilege against being sued as their provincial and federal counterparts enjoy, Marin points out that “they are legally protected from claims of libel if their comments are made in good faith.”
But just because Hamilton wasn’t the main focus of the Ombudsman’s report, it doesn’t mean that citizens can be complacent.
It doesn’t take much for a culture of secrecy to develop in what is supposed to be an open democracy.
The report found several examples from across the province, in communities big and small, where municipal councils and staff seem to flout the open meetings law. And why not? At the moment, other than a potentially embarrassing report by the Ombudsman there are no penalties for these lawbreakers.
Think about that for a second. Someone can egregiously abuse the democratic system, unlawfully shut the people out from the decision making process, be found to have breached the law but then face no repercussions.
Imagine if all criminals had it that easy.
And it isn’t hyperbole to call them criminals. Councils who hold, and municipal staffers who counsel the holding of illegal meetings are committing a crime just as much as if they robbed a bank, only if they’re caught, not only are they allowed to go free, but they get to keep the loot too.
The whole purpose behind open meetings is to provide a check on our elected reps to ensure that they are not saying one thing to get elected, doing the opposite where no one can see, and then continuing to publicly oppose what they just approved. Democracy cannot work without governmental transparency and transparency cannot be assured without consequences for those who illegally chose to draw the curtains over the process.
To that end Marin recommended four intelligent and sensible changes to the existing law to give it some teeth and force councils to respect the fundamental tenants of democracy. He suggested fining offenders the same way they do in the United States; declaring anything decided during an illegal meeting invalid; ensuring that whoever is investigating an open meeting case, be it his office or another body, is both independent and, once engaged, is not replaced until the end of their investigation; and that all meetings be recorded electronically and verbatim.
At the moment breeches of open meetings laws aren’t Hamilton’s problem, but it’s important for all citizens to be able to know that if it ever is, provincial law will be there to protect their democratic rights and to truly punish those who tried to take them away.