After much discussion over two closed city council meetings in 2015 and 2017, a motion presented by Coun. Jeff McLaren will require Kingston’s newly elected council to review what can be done in camera, or in private, during council meetings.
McLaren’s motion passed 12-1 on Tuesday evening, with Coun. Kevin George as the only dissenting vote — George did not respond for a request for comment on this story.
For McLaren, it’s an advancement in accountability and transparency for city council.
“We’ve had a lot of closed meetings,” said the councillor for Meadowbrook-Strathcona. He added that the rules around closed meetings have recently changed, and that it’s important that the council understands what is acceptable to do behind closed doors.
“Then we made a mistake — we were found to have had an illegal council meeting.”
McLaren is referring to the decision of a third-party report, written by Amberley Gavel Ltd. and released in early July, which found an in-camera session in April 2015, and a further closed meeting in April 2017, contravened sections of the Municipal Act. In the April 2015 meeting, council voted to purchase a 10.3-hectare piece of mostly provincially protected wood and wetland. The purchase of the land, known as the Cataraqui West Open Space Lands, was eventually settled for $850,000 plus HST.
Despite the fact that the land can never be developed, the third-party report notes that the city’s interest in the property began over a decade ago. That interest apparently waned at some point, because Mayor Bryan Paterson said the city decided some time before 2011 that it no longer wanted the property, although he could not elaborate why. The owners of the land, the Cataraqui West Land Owners Group, then sued the city in 2011 because they were trying to back out of the purchase.
The report says that during the contested closed meeting of April 2015, the city accepted legal advice that directed council to settle the lawsuit for the land at the “upset price.”
“It came down to whether council wanted to fight a lawsuit or if it wanted to use that money to buy that land that could be used for public good,” said Paterson. The original purchase of the land, according to the mayor, was to keep open green space undeveloped within the city limits.
The report notes that council then voted — while still in a closed meeting — to give the city’s CAO the power to purchase the land if negotiations went well.
Two years later, in April 2017, a settlement for the property was reached, and in another closed session, council adopted a recommendation to confirm the purchase of the lands. This went to a public vote, which unlike the same vote in 2015, lost with a tie.
Nevertheless, this vote was “moot” according to the Amberley Gavel report.
The report quotes the city’s solicitor Susan Nicholson, who said the 2017 vote’s loss had no impact since action had already been taken by council in April 2015 to purchase the land.
This led to a complaint submitted to the city in 2017, and council responded by hiring the Amberley Gavel to look into the issue. This report was released in July 2018 — and it found that council had contravened procedural law by making the decision to acquire the land in a closed meeting.
The third-party report said the closed meeting in 2015 was “guised as direction to staff” but in fact was used to make a “substantive decision that would conclude the matter, in the absence of the public.”
The Amberley Gavel report also claimed that council did not accurately report the decision to the public.
Nevertheless, the investigators stated in the report that “staff and the Mayor were acting in accordance with what they truly believed were lawful directions.”
Although McLaren said he’s been working to bring council’s alleged transparency issues to light, he agreed with the final point of the third-party report.
“We thought we were doing this the right way, turns out we’re not.”
Despite the Amberley Gavel report’s analysis, council then contacted their own solicitor for a second opinion, John Mascarin of the Aird and Berlis law firm.
Mascarin said he found the Amberley Gavel report fundamentally flawed, and said council did not act illegally in the procedure of buying the lands.
In his own letter addressed to council, Mascarin wrote that there was no case law that supported the statement that councillors could not vote on “substantive decisions,” like the one voted on in April of 2015.
According to Nicholson, council moved to receive both the Amberley Gavel report and Mascarin’s second opinion, despite the fact that they were diametrically opposed.
McLaren says that due to a new section of the Municipal Act introduced in 2017, the third-party report could not be challenged, and that the council was obligated by the Municipal Act of Ontario to “pass a resolution stating how it intends to address the report.”
For Mayor Paterson, the motion passed on Tuesday evening will hopefully help delineate for the next council how they are supposed to operate in closed meetings.
“There’s a lot of confusion when you get two closed-meeting investigators that tell you completely different things about what is and what isn’t allowed under a certain circumstance.”
All in all, the motion presented by McLaren on Tuesday night will see the new council reviewing closed-meeting policies. McLaren says the passing of the motion means there will no longer be decisions made during in-camera sessions.
“We can have negotiations, we can learn, we can ask questions behind the scenes. But never again can there ever be a closed back-room deal. It has to be public.”
Paterson had a slightly different reading of the motion.
“The motion is more of an exploration of best practices, and potential options for what we can do to modify our existing processes if there are improvements to be made,” Paterson said. The mayor also emphasized that the Amberley Gavel report was contested, and that in Mascarin’s legal opinion, council did follow the rule of law during the purchase of the Cataraqui West property.
“Again, we do have an opinion from a respected municipal expert that said we haven’t done anything wrong. But then that doesn’t mean that there aren’t chances and opportunities for improvement.”
The report on the motion passed on Tuesday evening will come from a committee of council in early 2019.
With files from Frazer Snowdon