Ontario Ombudsman Andre Marin is calling for major changes to Ontario’s Sunshine Law, and says he’ll use Sudbury city council as a case in point when he meets with Premier Kathleen Wynne.
Marin was reacting to a decision Feb. 12 by councillors
to drop his office as the official closed-door meeting investigator, in favour
of a private firm, Local Authority Services. Marin is investigator for 190 of
Ontario’s 444 municipalities, while LAS has the same role for 130 towns and
cities. Oversight services for the remainder are provided by a handful of other law firms.
The Ombudsman said four changes are necessary to the Sunshine Law to give the legislation real teeth. As it stands now, he said the law is symbolic and relies too heavily on the goodwill of municipal councils.
“And there’s a time when you run out of that,” Marin said Feb. 14. “What we see in Sudbury is a perfect example of a council gone rogue and there’s nothing anybody can do about it.
“We’ve seen a huge uprising of anger among average Sudburians. And understandably so.”
Since council fired Marin, more than 40 complaints have flooded his office, alleging councillors met in private beforehand to agree to remove him. He says he won’t be investigating those complaints, or any other ones sent to his office in connection with Sudbury.
“Council expressed its desire to have another investigator for their open meetings, and I respect the will of council,” Marin said. “They are entitled to opt in and opt out, so, c’est la vie.
“And council wasn’t co-operating when we had full authority, and I can’t imagine they’ll cooperate any more now, so there’s a point where you can’t keep beating your head against a brick wall.”
So it’s time, he said, for real change in legislation. Specifically, he wants four major changes:
-Real penalties for politicians who are found to have broken the law;
-Closed-door meetings should be recorded, so rather than rely on councillors’ testimony, investigators can simply watch the video;
-All decisions made improperly behind closed doors need to be nullified; and
-An end to what Marin calls "oversight shopping" by municipalities, where they can drop their closed-meeting investigators if they don’t like them.
“I’ll be discussing with Premier Wynne that there is a failure in accountability among municipalities in Ontario,” he said. “And the best example I can provide is the rogue Sudbury city council ... Right now the law is symbolic. Councillors who want to thumb their nose at the law can without any consequence.”
With the exception of Mayor Marianne Matichuk, all councillors voted to fire Marin. It was done in the last 15 minutes of the meeting, and they were acting on a notice of motion from Ward 3 Coun. Claude Berthiaume. They voted to entertain that motion that night, as well as to reverse the original motion appointing Marin as the investigator. The speed and consensus with which the decision was made sparked public suspicions that councillors had met beforehand to discuss the matter.
Ward 11 Coun. Terry Kett flatly denies there was any discussion of the matter before the meeting. He said it was a simple matter and many councillors had long ago become fed up with Marin.
“I read the notice of motion, and I thought, ‘OK, that makes sense,’ ” Kett said Feb. 14. “I actually had been researching Local Authority Services myself and was impressed. And other individuals at other municipalities I’ve talked to have told me they’re quite satisfied.”
While clearing them in every investigation, Marin has directed criticisms at Sudbury councillors for their attitude and unwillingness to co-operate. He labelled them the least co-operative council he’s ever dealt with, and has made public comments critical of how they behave.
Kett said Marin’s insistence on making comments that have nothing to do with whether they followed the law is the source of friction between them. He said LAS is a highly-respected firm that takes a much lower-key approach.
“I was impressed by what they said about them, how professional they were. That was a nice word to hear, you know? Professional. I was glad to hear that.”
While he’s gotten some negative reaction from the public, he said people who take the time to understand why council made the decision to drop Marin change their view.
“I got a very good phone call this morning from a resident who said ‘I want your side of this.’ And I told him, and he said, ‘Well, that’s good. I’m glad I got that. Because all I was getting was the negative stuff.’ ”
He blames public perceptions at least in part on negative media coverage that doesn’t properly portray what’s going on.
“They’re not getting the whole picture,” he said.
He and others were also unimpressed that Marin wouldn’t say how much his investigations cost. But the Ombudsman dismissed that criticism out of hand.
“I oversee them, not the other way around,” Marin said. “What’s it to them what it costs? My budget is $11 million a year. We process 20,000 complaints. We do know what LAS is going to charge -- $160 an hour.
“There are 40 complaints we’ll be passing along to LAS, as (Sudbury’s) new investigator. Just do the math. Sudbury doesn’t have to worry about my budget, they have to worry about their budget. Hopefully, they have lots of money. Because if the investigations are done properly, it’s going to be costly.”
While some councillors said that nothing is free, since taxpayers fund the Ombudsman’s office, Marin said there was no direct charge to municipal taxpayers, as there will be with LAS.
“Let’s put it this way: you won’t be getting a rebate by opting out. So now Sudburians will be dinged twice: taxes won’t go down, and now they’ll have to pay $160 an hour, on top of lawyers’ fees, if councillors decide to retain lawyers.”
Sudbury council first appointed the Ombudsman as its investigator on Nov. 14, 2007. Under the Municipal Act, 2001, all municipalities must have an investigator for complaints about closed meetings. By default, it is the Ombudsman’s Office, but they can also appoint an investigator of their choice. Marin said he has never encountered resistance in a municipality that comes even close to what he’s dealt with in Sudbury.
“With Sudbury, it’s like pulling teeth every day and I don’t quite get it,” he said. “There’s a culture that’s taken hold and I can’t explain it … I think a lot of them have the sense that they are above the law -- and perhaps some of them should pursue other employment.
“I think Sudbury councillors should use this time to reflect on whether they have the royal jelly to be a councillor. This is not a free ticket. There are some obligations that come with the office.”