Hamilton committee’s out-of-town meetings to hire city manager did not violate law, Ombudsman finds

(TORONTO – October 4, 2019) A committee of Hamilton city council did not violate the Municipal Act when it held two closed-door meetings at a resort in Niagara-on-the-Lake last February to interview job applicants, Ontario Ombudsman Paul Dubé has found.

However, the open portion of the first meeting was illegally closed to the public due to “a breakdown in communication” between the city, its recruitment firm and the venue, the Ombudsman says in his report on his Office’s investigation of the meetings, released today.

The controversial meetings of the City Manager Recruitment Steering Committee prompted 77 complaints to the Ombudsman’s office, more than any other meeting the office has investigated to date. Public interest in the process intensified after the committee’s February 1 decision to meet at the White Oaks Resort and Conference Centre in Niagara-on-the-Lake, more than 60 kilometres away from Hamilton.

A citizens’ group organized a bus to transport members of the public to protest at the first meeting at the resort, on February 9. However, they arrived to discover that the meeting – originally scheduled to start at 9 a.m. – had begun at 8:30, and the public portion of the meeting was already over. Members of the group recorded video of White Oaks staff telling them that the meeting was private and ordering them off the property.

The Ombudsman found that the city’s failure to ensure that the public could attend the open portion of the meeting – including inadequate public notice of the changed meeting time – constituted an illegal meeting, even though it was the recruitment firm and resort staff who prevented public access.

“The city attempted to convey appropriate instructions for opening the meeting to the public, but failed to ensure that the instructions were passed on to the White Oaks staff or followed,” he writes in the report. “Ultimately, it is the city’s responsibility to ensure that the meetings of council and its committees comply with the open meeting rules and legislation.”

The city had posted the new meeting time in one place on its website, but not on its online calendar or on the committee’s webpage, the Ombudsman reported, adding that it cleared up the confusion for the subsequent meeting on February 23. At that meeting, the public was allowed to attend the brief open session, “and White Oaks provided access to a lounge area for the public to wait in while the meeting was closed.”

As for the broader questions of whether it was appropriate for the committee to meet in private, and outside of the city, the Ombudsman found both were permissible.

His report states that “the Municipal Act allows parts of the recruitment process to take place outside of the public spotlight,” noting that “most hiring interviews take place in private for good reason.”

“In order to avoid deterring prospective applicants and to attract the best candidates, the city has a practical and legitimate interest in maintaining confidentiality during the recruitment process,” he writes, concluding that the meetings fit within the Municipal Act exception that allows closed meetings for discussion of “personal matters about an identifiable individual.”

He also found that there is no legal requirement for Hamilton council committees to hold their meetings within the city.

The Ombudsman made three recommendations in the report, including that council members be vigilant in ensuring that the open meeting rules and the city’s own procedural by-law are followed; that the public has access to all open meetings of council and committees, and that it update its procedural by-law to ensure public notice is provided for all committee meetings.

The city is required to pass a resolution stating how it intends to respond to the Ombudsman’s recommendations.

This is the Ombudsman’s fifth report on an investigation of a closed meeting in Hamilton this year. Previous investigations can be found on the Ombudsman’s website (under Resources) and searched via the Ombudsman’s digital digest of open meeting decisions: https://www.ombudsman.on.ca/digest/home

In fiscal 2018-2019, the Ombudsman investigated 46 meetings in 16 municipalities and found 18 procedural violations and 12 illegal meetings. The Ombudsman’s office also handled 27,419 general complaints about Ontario government and public sector bodies, including provincial ministries, agencies, boards, commissions and corporations, school boards, municipalities and universities. As of May 1, 2019, the Ombudsman also takes complaints about child protection services and French language services.


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