The following complaint was filed to the Office of the Ontario Ombudsman today by The Public Record after City Manager’s Office hide a improperly closed meeting to deal with tax adjustments.
Some of the adjustment files raise questions about City Hall administration, and City Hall is attempting to hide the files to avoid those questions.
The following is the complaint letter as filed.
On April 27, 2021, the Corporation of the City of Hamilton held an improperly closed meeting. This letter serves as the formal complaint to the Office of the Ontario Ombudsman as the closed meeting investigator for the municipality.
The Council of the City of Hamilton (the ‘City’) delegated its responsibilities under Section 357 of the Municipal Act (the ‘Act’) to staff of the City.
Section 357(5) of the Act states that Council shall meet “On or before September 30 of the year following the year in respect of which the application is made, Council shall, (a) hold a meeting at which the applicants may make representations to council; (b) notify the applicants of the meeting by mail sent at least 14 days before the meeting; and (c) make its decision”.
The jurisdiction of the Ombudsman is engaged as “Under the Municipal Act, all meetings of council, local boards, and committees of council must be open to the public, unless they fall within prescribed exceptions”.
In addition to the clear language Section 357 of the Act, the Municipal Act Appeals (the ‘Committee’ for ease of reference) operates as a Local Board for the purposes of the Municipal Act.
The four requirements for this to be a Local Board are met:
1) It is carrying on the affairs of the municipality
2) Its authority is directly from Council
3) It is a creation of Council; and
4) It operates with autonomy.
The Committee is carrying on the affairs of the City of Hamilton as per Section 357 of the Municipal Act and its related sections.
The authority of the Committee is granted by City of Hamilton By-Law 19-098 (the ‘Bylaw’). [https://www.hamilton.ca/sites/default/files/media/browser/2019-05-13/19-098.pdf] This same Bylaw creates the Committee.
The Bylaw delegates Council’s Municipal Act duties and authority to multiple staff members “with Respect to the Adjustment of Taxes and Payments In lieu of Taxes”.
The Bylaw allows for these staff members to transfer this delegated authority without restriction.
The Committee operates with autonomy. The Bylaw states the City of Hamilton Treasurer shall provide an annual report of their exercise of delegated authority. There is no review by Council of decisions, and the Committee is free to operate with full autonomy.
As a Local Board of the City, the Committee is bound by the City’s Procedural Bylaw (21-021) which requires the release of full agendas five days prior to the meeting. (Section 12.1) [https://www.hamilton.ca/sites/default/files/media/browser/2021-02-25/21-021.pdf]
The agenda was not released in its entirety. The applications being considered by the Committee have not been made public, and requests for them have been denied contrary to the Procedural Bylaw.
The April 27, 2021 Meeting
This Committee was scheduled to meet on April 27, 2021 at 9:30am.
In February 2021, I expressed to the City of Hamilton that these public meetings should be streamed as per the Municipal Act’s COVID provisions. At the time, the City provided me a WebEx access code and did not stream the meeting.
Leading up to the April 27 meeting, the City of Hamilton stated it would stream the meeting to YouTube. I planned to watch the meeting. [See my tweet here: https://twitter.com/JoeyColeman/status/1385712047984414727/photo/1]
This resolved my concerns regarding the open meeting requirement that were expressed in February 2021.
During the afternoon of April 26, the City of Hamilton declared the meeting would be held in-person at City Hall and would no longer be streamed. There was a statement about registering to participate, with a registration deadline of noon on April 26 – the deadline passed prior to this announcement. [https://twitter.com/JoeyColeman/status/1386781881002254347/photo/1]
On the morning of April 27, the City of Hamilton returned the meeting to being by video conference and stated it would livestream to YouTube. The City created a YouTube livestream for the meeting. [https://www.youtube.com/watch?v=sTPwybVFm1U]
I tuned in to watch the meeting. I checked prior to 9:30am to see if the full agenda – including the applications being considered – was made public. The agenda was not posted.
The lack of a full agenda is the second part of the complaint.
Sometime between 9:28am and 9:58am, the City of Hamilton changed the agenda again to state it would not be streaming the meeting for the public.
The City website now states “Meet as per their delegated authority – Meetings are not livestreamed”.
This complaint seeks a declaration that this meeting was improperly closed to the public, and a recommendation (due to the Ombudsman lacking authority to issue orders) that the City of Hamilton release the full agenda documentation to the public.
Without releasing the full agenda documentation, the closed meeting continues. Thus, it is necessary to recommend the release of this public information.