In fact, at the municipal level, it's a recipe for “dysfunctional” government, said Andrew Sancton, and it holds local politicians to a much higher standard than their federal and provincial counterparts.
“The idea that councillors can never discuss business informally among each other strikes me as a recipe to make councils much more dysfunctional than many people already think they are,” Sancton said. “To prevent people from talking to each other, seems to me, prevents the political process from working.”
Sancton is a Rhodes Scholar, a former director of Western's local government program and the author of several books on municipal governance. He's also the closed-door meeting investigator for the City of Brampton, although he says he's never been asked to do an investigation.
The issue has periodically dominated headlines since 2008, when the province required municipalities to appoint a closed-door meetings investigator to ensure they weren't discussing issues behind closed doors that should be debated publicly. The province gave cities and towns the option between hiring an investigator or using Ontario Ombudsman Andre Marin.
Marin has taken a tough line on what constitutes a closed meeting, including on events leading up to the Feb. 12, 2013, city council meeting where he was replaced as Sudbury's private meetings investigator. While the firm that replaced him found no evidence that an improper meeting was held beforehand, Marin disagrees. He says emails, phone and one-on-one discussions between councillors initiated by Ward 3 Coun. Claude Berthiaume constituted a gathering of councillors to further city business, which effectively is a prohibited closed meeting.
But Sancton said when closed-door meeting legislation was evolving in Ontario in the 1990s and early 2000s, the goal was to ensure city councillors didn't hold closed-door meetings where they would argue and debate issues, which later would be rubber stamped in open meetings with little discussion.
Marin is extending the reach of the legislation, he said, to the point that local politicians can't solicit each other for support on issues without potentially falling afoul of the rules.
In fact, Greater Sudbury Mayor Marianne Matichuk has said publicly she won't talk to other councillors to try and get their support on any issue because it may break the rules.
“I will not go out and lobby people,” Matichuk said after the Sept. 10 city council meeting. “If that makes me unsuccessful, if that means I may not get a resolution through, you know what? So be it.
“It needs to be discussed in public. That's where it needs to be. Not behind closed doors.”
But Sancton said that was never the intent of the meetings law in Ontario. Being able to talk to one another about issues they are passionate about is a key part of the way government works at the federal, provincial and local level, said. Chilling those sorts of discussions not only holds councillors to a higher standard, it also makes getting consensus on bigger issues far more difficult. And that makes for bad government.
“I find it hard to believe that anybody would think the intent of the act was to prevent councillors from talking to each other about municipal business outside of a meeting,” Sancton said. “If that were the interpretation, that would lead to bad municipal government ... I believe councillors have to talk to each other before meetings (because) that's the way the political process works.”
In the old days, he said some municipal committees of the whole were often where the real discussions took place, with decisions being ratified in public with little debate. The idea was to force discussions and votes to take place in open meetings to ensure the public knew what was going on.
“Those were the sorts of practices that were meant to be abolished, and I think it's a good thing,” he said. “But a councillor trying to find out in advance whether or not his proposal is going to fly? I don't consider that a serial meeting. I consider it the kind of thing I'd expect our politicians to do.
“Nobody questions whether (provincial and federal) politicians should talk to each other at that level, so why shouldn't municipal politicians talk to one another?”
But Marin said that's not what happened in Sudbury before the Feb. 12 vote. He said a group of city councillors engaged in a “serial meeting,” planning how to replace him, even discussing the wording of the motion.
“We've never said they shouldn't be able to exchange thoughts, but serial meetings with the view of avoiding the application of the law are illegal,” Marin said. In this case, “there was an exchange of emails -- when we do we present it? How do we present it? When do we do it? Back and forth.”
He's never said that local politicians can't talk to one another, Marin said. But it's when they try to advance city business away from the council table, they get into trouble.
“Innocuous socializing, getting to know one another, that sort of thing, is not the issue,” he said. “But if you look at the situation in Sudbury right now, when council decided to opt out of our fine services, they did so on a dark, winter night at the end of a council meeting, with no discussion.”
Sancton's argument would render Ontario's open meeting law useless, Marin said, since councillors could easily avoid the law and agree on how they'll vote beforehand.
“The old days when you could go to a cigar bar with fake wood panelling, to discuss the whole business of the city and then come back and vote on it publicly, is missed by many,” he said. “If you agree with what he's saying, then what is the purpose of council other than to vote on previously agreed offline discussions? What's the value then, of holding open meetings?”
He rejects the comparison to federal and provincial government, since the systems of government are different. The upper tiers are based on party loyalties, he said, where municipal government is one person, one vote. So when the provincial caucus meets behind closed doors, they're not governing. But closed-door meetings at the municipal level where decisions are being made is governing.
“When (federal or provincial governments) introduce legislation in the respective parliaments, then there's a debate,” Marin said. “People stand up and they argue.”
But Sancton said the party affiliation at the upper level of government makes getting consensus easier. At the local level, all a mayor or councillor can do is try and persuade their colleagues to support them on an issue.
“Especially on difficult issues, or on issues where politicians are trying to mobilize support – which is what politicians do, they try to mobilize support for something that's near and dear to them. And the way you do that is by talking.”
“It's not necessarily even getting people to promise to vote for you. It may be, 'What do you think about this?' so you can get a feel for the person's point of view. That's how life works, let alone politics. You have to know what people are thinking about.”
If politicians are plotting to break the law, that's a different matter, he said. In those cases, closed-meeting rules in themselves aren't going to make the difference.
“If we're talking about some sort of payoffs or other benefits, that's illegal,” Sancton said. “And it's not illegal because it violates the Open Meetings Act. It's illegal because it's municipal corruption.”