It’s one of the conclusions of the last two investigations carried out by Ombudsman André Marin before council fired him Feb. 12 as Greater Sudbury’s closed-door meeting investigator. As a result of those negotiations, Bigger’s contract was reduced from three years, as set out in the original bylaw, to one year.
While city council has until its next meeting Feb. 25 to make Marin’s findings public, Northern Life has obtained a copy of the report and its conclusions.
At issue were two closed-door meetings held in 2012, one held June 12, the other June 26. Both were held, in part, to discuss Bigger’s contract.
Ironically, the meetings were held around the same time as Marin’s investigators were in town looking into a separate closed-door meeting complaint, stemming from meetings held in 2011.
Council was cleared of those complaints, but in his report on the matter, Marin chastised council as the least co-operative he had ever dealt with. That report played a large role in councillors’ decision to fire Marin.
The latest investigation began when a member of the public complained to Marin’s office following a Dec. 27 Northern Life story that made Bigger’s shortened contract public for the first time.
“The complainants allege that the decision to cut back the auditor general’s term had never been debated or voted on in open session, and accordingly the decision must have been improperly made in camera,” writes Michelle Bird, legal counsel for the Ombudsman’s Open Meeting Law Enforcement Team (OMLET), in a letter addressed to Caroline Hallsworth, the city clerk.
To conduct its investigation, the Ombudsman’s team interviewed Hallsworth and went over information for both the closed-door and public meetings held on those dates in June. After meeting in camera June 12, councillors reported publicly they had met and discussed a personnel matter and passed a resolution.
“While in camera, council discussed the auditor general’s employment contract,” Bird’s report reads.
“Council voted during the closed session to direct the mayor and three councillors, as well as the director of human resources, to enter into contract discussions with the auditor general based on council’s position, which was outlined in the in-camera motion.”
Under the Municipal Act, Bird writes, a council can vote in camera if it’s a procedural matter or if it’s to give “directions to officers, employees or agents of the municipality.”
While Mayor Marianne Matichuk and HR director Kevin Fowke qualify under the latter definition, the three councillors do not. Only in exceptional or unusual circumstances could councillors be considered officers of the municipality, Bird concludes.
“There do not appear to be any such ‘unusual’ circumstances regarding the direction given to the three council members during the June 12 meeting,” she writes. While Fowke is a city employee, “this was not sufficient to authorize the vote as a proper in-camera direction … since the three councillors included in the direction were not officers or employees of the municipality.
“Accordingly, the vote was not permissible under (Section) 239(6) and was taken in violation of the Municipal Act.”
As for the June 26 closed-door meeting, which offered council an update on contract talks with Bigger, Bird concludes that no rules were broken, since no resolutions were passed. However, she said council should try and release as much information as possible in these sorts of cases.
“We encourage council to consider dealing with such issues in a more transparent fashion in the future,” she writes.
“Given the media discussion and complaints to our office that resulted from these meetings, it is clear that there is significant public interest on this issue …”
Since the purpose of allowing councils to close meetings for personnel matters is to protect the identity of the person being discussed, Bird said they could have asked Bigger to waive his right to privacy.
If he agreed, that would have allowed a more open discussion of a matter with significant public and media interest.
“Some of the public speculation regarding this matter may have been avoided had council provided more information in its resolution to proceed in camera.”
She also criticized the vagueness of the information given to the public about what matters were discussed in camera. After the June 26 meeting, for example, Ward 12 Coun. Joscelyne Landry-Altmann reported they had met behind closed doors to discuss “a personnel matter about an identifiable individual and one solicitor-client privileged matter regarding legal representation, and that no resolutions emanated therefrom.”
“As best practice, the Ombudsman encourages municipalities to report publicly in open session on what transpired in closed session, at least in a general way,” Bird writes.
While some instances require greater secrecy, she writes that “in other cases, however, the nature of the discussion might allow for considerable information to be provided publicly.”