Public Sector Digest INTELLIGENCE for the PUBLIC SECTOR
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Public sector digest INTELLIGENCE FOR THE PUBLIC SECTOR. THE OMBUDSMAN: ‘SCARY FUNCTIONARY’ OR SILENT GUARDIAN? TYLER SUTTON, PSD RESEARCH DECEMBER 2012 www.publicsectordigest.com © 2012 PUBLIC SECTOR DIGEST PROCESSES & MEASUREMENT THE OMBUDSMAN: ‘SCARY FUNCTIONARY’ OR SILENT GUARDIAN? TYLER SUTTON, PSD RESEARCH The Ombudsman of Ontario 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.