Public sector digest INTELLIGENCE FOR THE PUBLIC SECTOR.

THE OMBUDSMAN: ‘SCARY FUNCTIONARY’ OR SILENT GUARDIAN? TYLER SUTTON, PSD RESEARCH

DECEMBER 2012

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© 2012 PUBLIC SECTOR DIGEST

PROCESSES & MEASUREMENT

THE OMBUDSMAN: ‘SCARY FUNCTIONARY’ OR SILENT GUARDIAN? TYLER SUTTON, PSD RESEARCH

The Ombudsman of is first and foremost an Officer of the Provincial Legislature. The Ombudsman is independent of both government and political parties, and is responsible for ensuring that the administration of provincial government services has proper oversight. The word ‘ombudsman’ has its origins in an Old Norse word meaning ‘representative of the people’. The official role of an ombudsman was first adopted in the early 18th Century by King Charles XII of Sweden. The Swedish King was frequently abroad fighting wars and needed a trusted officer back home to ensure that his rules were being followed by government workers, judges and the military. Today, an ombudsman exists in most large organizations, working to strengthen accountability, and to provide a voice for the individuals or citizens that count on the services provided by these organizations. Mr. André Marin has been the Ontario ombudsman since 2005, having been reappointed for a second five-year term in 2010. Since taking office, Mr. Marin has introduced several changes to his own administration and has led the charge to improve the effectiveness and visibility of his office’s oversight of one area of government in particular: municipal council meetings. PUBLIC SECTOR DIGEST | DECEMBER 2012 THE OMBUDSMAN OF ONTARIO In Ontario, the Ombudsman’s powers are bestowed upon him by the legislation contained in the Ombudsman Act. The ombudsman is appointed by the Province for a five-year renewable term. Under Ontario’s Municipal Act, the ombudsman has the authority to investigate complaints about closed municipal meetings in all municipalities that have not appointed their own investigators. To address these complaints, the Ombudsman’s Office created the Open Meeting Law Enforcement Team, with the unique acronym OMLET. Of Ontario’s 444 municipalities, the ombudsman is currently the formal investigator for closed meeting complaints in 199 of them. In 2010-2011, OMLET formally investigated three closed meeting cases in Ontario.

While the law surrounding open and closed municipal meetings appears to be clear, it has been anything but that for municipal councils across the province. Municipal councils were traditionally spared from any external oversight on the matter, but with the Provincial ombudsman now Top 5 Reasons for Complaints to Ontario’s Ombudsman overseeing 199 municipalities, accountability has been strengthened and controversy has inevitably ensued. This year, the City of London came into the (2011-2012) spotlight for being investigated by the ombudsman for a closed meeting 1) Wrong, unfair decisions complaint. In February 2012, six members of London’s 15 member city 2) Bad service council, including the mayor, met for lunch at a local restaurant prior to a budget meeting and several committee meetings. 3) Delays 4) Misread policies A complaint was put forth to the ombudsman over the concern that official city business was being discussed in a closed meeting. Although a quorum of 5) Miscommunication councillors was not present at this luncheon, the concern centred on the fact that the participants represented a quorum of the members on two of the The Ombudsman cannot investigate: committees meeting later that day. At the end of the investigation, the . Complaints about private companies or individuals ombudsman found that the City of London did not contravene the open . Doctors meeting requirements for municipalities; however, he did issue a caveat that city councillors should have been more cognizant of the implications of their . Lawyers actions. He stated, “I am…disturbed by the fact that a number of council . Decisions of judges or courts members gathered in the manner they did shortly before an important council meeting on the city budget. While these council members did not have the . Ontario Cabinet legal authority to exercise the collective will of council, the public impression . Federal government left is still unsavoury.” . MUSH sector – municipalities (except for closed- The ombudsman’s investigation, despite having no legal ramifications for the meeting complaints), universities, school boards, City of London or its councillors, triggered a firestorm of media attention. One city councillor appeared on a radio talk show expressing concern that a group hospitals, nursing homes and long-term care of citizens can provoke an official investigation from the ombudsman, one that facilities, police, and children’s aid societies. may result in legal fees for the municipality, but then still remain completely anonymous. The ombudsman’s investigation, coming from an external body, was subsequently characterized as an act of a police state. The investigation in BY THE NUMBERS London, along with more recent issues with closed meetings bubbling up across Ontario, signifies the importance of the ombudsman’s efforts to bring 18,541: Number of cases handled in 2011-2012 by the awareness of the issue to both municipalities and regular citizens. PSD chatted Ombudsman with André Marin to learn more about his work with municipalities and his broader efforts to hold the Province of Ontario accountable to the people. 500: Number of provincial ministries, Crown corporations, tribunals, agencies, boards and

commissions overseen by the Ombudsman In your investigation with the City of London, you found that the 29: Increase in percentage of MUSH sector complaints council members in question did not contravene the open meeting over last year requirements for municipalities. That’s right. From a strict legal standpoint it may have passed the test, but it 119: Number of complaints about closed municipal certainly didn’t pass the smell test, that’s for sure. meetings in 2011-2012

Was the overwhelming media response to this investigation 3: Number of municipalities investigated for closed typical of your closed meeting cases? meetings Cases at the local level tend to attract a lot of local attention. There’s no typical municipality. Every municipality in Ontario has its own culture. The only common denominator I have found between municipalities is that we all have a lot of work to do. This Open Meeting Legislation has been in effect even before Confederation, but the new twist is that the ombudsman overseas municipalities by default, unless they have opted out, which means we oversee about half of the municipalities in Ontario. In the old system, if you thought a municipality had broken the law by meeting secretly to do city business, then the only recourse was the courts and that meant that unless you had deep pockets and a lot of time, you were out of luck.

Now, there is this new oversight element, being the Ombudsman’s Office, but because municipalities were rarely challenged—not for any other reason than that people couldn’t afford to challenge them—that led to many municipalities not understanding their obligations under the law. Even though the law predates confederation, we basically have to go back to the drawing board in educating municipalities on what they can and cannot do. Depending on your perspective, [you’re either a guardian] or some scary functionary from Toronto telling elected representatives how to run their business. It’s been an onerous challenge for this office. I hate to generalize, but some councillors have been very hostile and defensive, saying “I’ve been elected, who are you to tell me what to do?” In other cases PUBLIC SECTOR DIGEST | DECEMBER 2012 we have had city solicitors get involved with no understanding at all of how we function as an office and making it far more complicated from a legal perspective than it should be.

Is it the norm for municipalities being investigated by your office to involve a legal team? I would say yes it is. Lawyers, by the virtue of the office they occupy, have a lot of power. I think councillors have to realize its legal advice. They are the client, they’re in charge, and they should not hesitate to challenge legal opinions that they find are unsound. I would say the vast majority of city solicitors have zero knowledge of this office and have zero knowledge of how we operate. They are in some cases a hindrance instead of being helpful. The thing about this office is that we aren’t prosecuting anybody, nobody goes to jail, there’s no penalty. We don’t even investigate people; we investigate process and if we feel a process has failed, we make a recommendation that can either be accepted or rejected. The municipal council rules throughout, but they have to respect the way this office functions. Where they don’t rule is how we conduct our investigation, and there is a disconnect there with some municipalities that don’t understand our process and are ignorant of how we proceed with these cases.

The Province and this office have a 37 year history, so there is a culture there. They know what we’re about and we know what they’re about, so there is no cooperation issue. Cities come up all the time—they challenge this office. They’re indignant, and quite frankly, when this grace period that we’ve been going through—and it is a grace period because we have bent over backwards to educate and inform and reassure—is over, these recalcitrant councillors will simply get a subpoena and bus money, and they’re going to have to show up in Toronto at our offices because those are the powers we enjoy under legislation. So there is a point where they are going to have to play ball, or opt out and hire one of their buddies to investigate them and then live with the results—with dubious credibility.

The results from these investigations are simply recommendations, so there are no legal repercussions for municipalities? No there’s not. We do the investigation—we find that you’ve met illegally and you need to not do that again. We can clarify your by-laws and then we make recommendations to make sure it doesn’t happen again and to fix the problem. In some US states, local representatives face fines or jail if they have been found to have met secretly. Here, there is no penal consequence, and I’m okay with that. For the time being, let’s work with the current system. We have an Act, called the Ombudsman Act, setting out our authorities, protecting our independence, and when we’re involved doing investigations of municipalities, that Act is there to govern how we operate. We are not employees of the city. I think that’s where we run into difficulties with some municipalities.

So why would a municipality choose to opt out? It’s entirely up to them. Some municipalities have more money than others—we’re free. Others chose to opt out to have more control over the process. You hire your own in-house, so called ‘independent’ investigator under a two year contract. The person is then beholden to the municipality. I have to say though that some municipalities that have opted out have very good open meetings investigators, others have opted out and hired buddies of the mayor or outgoing local city officials. Some municipalities are faring better. Our office takes the position that if you stay with us, you accept that the Ombudsman Act works and takes precedence, and at the end, you enjoy credible results. When we issue a report to a municipality, it’s the end of it. We’ve cleared the air. That comes with the cost of not being able to tell us how to run the investigation.

What would you say to someone who asks what the big deal is with open meetings? Why is it important to have this watchdog function at the municipal level? It gives it credibility first of all. We have no affiliation with another municipality; we have an Act. The second point is open meetings in municipalities is an important concept. Some councillors will say, “Well, you know, we can’t ask a stupid question. We should be allowed to go behind closed doors to ask stupid questions.” In fact, when the legislation was passed, municipalities wanted a stupid question exemption. Well that’s a little silly. You know that federal parliament operates openly when it conducts business. Provincial parliament operates openly. So why should it be different for municipalities who are passing city business? City business has to be open so citizens can see through it and keep the process honest and legitimate.

The Ombudsman’s authority has not been updated in more than 35 years. As a result, Ontario’s Ombudsman now has the most limited authority in Canada with respect to the oversight of the MUSH sector (municipalities, universities, schools and hospitals). Why is that? While the first ombudsman, Arthur Maloney, was taking office in 1975, he issued a blueprint for reform of the office saying, “Uh oh we missed something, the MUSH sector.” So it’s been outstanding for 37 years now. Why? Once the oversight began, the page was turned and government business moved on. [Each] successive ombudsman since 1975 [has] made the same point. But often when the issue of overseeing the MUSH sector has arisen, the organizations that make up the MUSH sector have been vigorous in their opposition. They are all provincially funded organizations—your money and mine—and they have used that money to mount effective public relations campaigns to shut down oversight. I’m happy to say though that this year we have been having discussions with the Premier’s office with the view to explore this particular issue. Right now, it’s too soon to tell, but we are engaged in fruitful discussions, so we’ll see.

Do you see a role for yourself to provide oversight in all of these areas of the MUSH sector or are some more important than others? While definitely. This office’s resources have to be prioritized to serve the most vulnerable citizens in society and I would think that long-term care, children, and protection fall under that category. My view is that these are the categories that require a greater degree of priority when it comes to the oversight of the MUSH sector.

PUBLIC SECTOR DIGEST | DECEMBER 2012 OVERSIGHT IN MUSH SECTOR FOR PROVINCIAL OMBUDSMAN (OFFICE OF THE ONTARIO OMBUDSMAN)

Nursing Police Boards Child Homes and Public Complaints Province of Protection Long- Municipalities Universities Hospitals Review Education Services Term Care Mechanism Facilities

Ontario No No No No No No No Alberta No Yes Yes Yes No Yes No British Columbia Yes Yes Yes Yes Yes No Yes Manitoba No Yes Yes Yes Yes Yes No New Brunswick Yes Yes Yes No Yes Yes No Newfoundland Yes Yes Yes Yes No Yes Yes and Labrador Nova Scotia Yes Yes Yes Yes Yes Yes No Quebec No Yes Yes Yes No Yes No Saskatchewan No Yes Yes Yes No Yes No Yukon Yes Yes Yes Yes Yes No No

For the most part, your recommendations are overwhelmingly accepted by the government. Are there any areas where that is not Top 10 Provincial Organizations Complained always the case? about in 2011-2012: The only area that is particularly sticky so far is police oversight. We’ve made some recommendations to tighten the net to make sure we improve police 1) Family Responsibility Office oversight in Ontario. The government hasn’t been as accommodating in that 2) Workplace Safety and Insurance Board respect, but it’s an ongoing issue, so I’m hoping one day we get where we want 3) Ontario Disability Support Program to go. 4) Driver Licensing You have been the North American Regional Vice-President of the 5) International Ombudsman Institute since July 2006. What have you learned from how things are done in other countries? 6) Legal Aid Ontario Well, we have the role of exchanging information, and this office has been the 7) Office of the Public Guardian and Trustee leader in educating other offices. We have a course called Sharpening Your Teeth, a course for administrative investigators which we have brought all 8) Landlord and Tenant Board around the world sponsored by the United Nations and by the International 9) Ontario Student Assistance Program Ombudsman Institute. In some cases, we have offered it to police services, such as the internal affairs unit in Chicago. There is a course offered yearly in 10) Ontario Provincial Police Vienna in French and in English, so if anything, this office is a world leader in administrative oversight and my function at the IOI has been to share best practices with the world. We’re happy to share the information.

Do you ever get complaints about the efficiency of how government operates or is it for the most part about fairness and justice? Efficiency is huge. If you look at the disaster that is and was in Ontario—millions of dollars squandered. Ornge is a perfect example of a fish rotting from the head down and many suspect that what we’ve heard is only the tip of the iceberg. Ornge is a good example of an organization where efficiency was just about the last priority and we received many complaints about Ornge that we were not able to deal with. Ornge itself is still vigorously opposed to oversight, which I find to be not very encouraging. It’s a perfect example of a body whose efficiency is very much in question and who has managed so far to elude proper oversight mechanisms.

That’s because Ornge is outside of your jurisdiction? That’s correct.

Is there a case from your time as ombudsman that sticks out as being more meaningful? The one that gave me the most satisfaction was the newborn screening case when we got involved with coroners and medical specialists telling us that the screening of newborn diseases was so far behind that it was directly responsible for 25 baby deaths a year and 25 severe disabilities affecting babies. The Government wasn’t prepared to make the technology more advanced and so we got involved and the tests for newborn screening went from two to 29, which is the recommendation from the World Health Organization. So you know, saving babies from death, it doesn’t get much better than that.

What long-term trends and challenges do you see for Canada’s public sector as a whole? Well we know that governments have run out of money. Municipal, provincial, federal—we know the money is tight. We know there are tough government decisions that need to be made. We want to make sure that those decisions made to become more restrained financially are done in a compassionate way, not arbitrarily. There has to be some governing principle behind the cuts. We want to make sure, for example, that the most vulnerable won’t get hit over the head. If there are going to be cuts that they are made in a reasonable way, in a compassionate way, and in a fair way. It’s a challenge for us and one that we welcome. PUBLIC SECTOR DIGEST | DECEMBER 2012