Paul Dubé, Ontario Ombudsman, investigated a complaint to his office that Mayor Paula Assaly and “a quorum of councilors” violated the Municipal Act guidelines on open meetings. The complaint was that on June 15 2020, they talked about and agreed on the dismissal of three town staff members the day before the topic would come up for discussion during a regular session of council. Dubé dismissed the allegation in his report presented to town council during its March 29 meeting.
“Council for the Town of Hawkesbury did not contravene the Municipal Act’s open meeting requirements,” stated Dubé in his report, adding that the discussions between the mayor and the three councilors involved “did not constitute meetings under the Municipal Act.
The Ombudsman investigation began September 2020 and received “full co-operation” from the mayor, council, and municipal staff during the process.
Investigators reviewed the municipality’s procedural bylaw, agendas for both the open and closed meeting sessions for June 16, the June 16 committee of the whole council minutes, and documents from a special council session August 5 that were related to the issue, along with email provided by municipal staff and council members related to the subject, and other documents. Interviews were done with the mayor, all council members, and the town clerk at the time of the matter.
The issue involved in the investigation concerns the events before and during the June 16, 2020 committee of the whole council session. A majority of council voted to approve dismissal of three municipal employees following discussion of the topic during the closed-door in camera part of the meeting. Councillors Raymond Campbell, Yves Paquette and Robert Lefebvre opposed the motion for dismissal and stated during later interviews that they were not aware that the topic was going to be part of the agenda schedule until it was brought up during the in-camera session.
In his report, Dubé noted that the dismissal vote seemed the result of individual discussions between the mayor and three other members of council.
“The mayor told my office that on the afternoon of June 15, 2020, she individually spoke with three councilors at various locations to determine if they were in favour of terminating identified municipal employees. The Town of Hawkesbury has seven members of council, so confirming the support three others would mean a majority supported the terminations.”
Dubé noted that after getting their support, Mayor Assaly asked each councillor to sign a “confidential” two-page typed document “setting out the steps they wanted the municipality to take during a planned closed session discussion the following day.” A copy of the document, with the signatures of the mayor and the three councilors was given to the Ombudsman’s office.
“The document identified specific individuals to terminate, as well as an employee who would take on new responsibilities. It also set out the rational for these actions.”
Dubé noted that the three councilors whose names were not on the document told his investigators that “they were not approached by the mayor prior to the June 16 2020 council meeting” and that “they had no idea that the mayor and other councilors were intending to introduce new business at the June 16 meeting that would lead to the termination of certain employees.” He also observed that the mayor “confirmed to our office that she did not approach the other three councilors because she did not believe they would support the terminations.”
Dubé reported that the mayor justified her actions because “she thought this was acceptable under the Municipal Act because the (individual) discussion did not involve a quorum of council” and that no actual decision was made and also any of the three councilors could have changed their mind before the June 16 council session took place.
Dubé reviewed the Municipal Act guidelines on open and closed meetings and noted that a quorum is needed for a discussion “that materially or significantly advances council’s business or decision-making.” The pandemic has forced municipal councils to use virtual meetings for their business now but that does not change the definition for a “meeting” under the Municipal Act.
“The mayor’s individual discussions with three councilors did not amount to a ‘meeting’ under the Act,” stated Dubé, “because the sequential nature of the discussions meant that a quorum was never present.”
He also noted that “it is important that council members be able to speak freely with one another outside the structure of a formal meeting” and the Municipal Act does not forbid that either.
“However, the discussion in this case went beyond members sharing information informally,” stated Dubé. “Instead, the mayor effectively organized a voting bloc of councilors, who strategically agreed ahead of time about how to deal with a specific matter. This denied other councilors, who weren’t approached, the opportunity to participate in the discussion, and meant that meeting minutes and other municipal records would not record this discussion.”
Dube stated that Mayor Assaly “could have acted in a more transparent and accountable fashion by introducing this matter at a formal council meeting.” He also noted that the Municipal Act does not forbid this type of action but indicated that the provincial government may need to consider the issue of “pre-arrangements by a majority of council” during its next revision of the Municipal Act guidelines on open meetings.
Council accepted the Ombudsman’s report without comment. The report is available at www.ombudsman.on.ca.