When is a meeting a meeting?

Municipal politicians face a high legal standard for transparency

The recent troubles on Richmond County council have me reflecting on the legal interpretations and precedents concerning legitimate and illegitimate meetings of municipal councils and committees.

When is a meeting a meeting? What are the standards of transparency for meetings? These are important questions for all municipal politicians in Nova Scotia.

The council of Richmond County is small (too small). There are only five councillors. The quorum (a majority) is three.

As it happens, three Richmond County councillors have taken a coordinated approach to key, controversial municipal decisions. They have to be careful to stay within the law.

If the three were to gather off-line to work on county business, craft motions or strategize on how to control the council, it would likely constitute a “meeting” subject to the checks and balances of section 22 of Nova Scotia’s Municipal Government Act (MGA).

Based on jurisprudence (relevant legal cases and ombudsman findings in other places), an informal gathering or strategy session becomes a “meeting” if a quorum of councillors is present and if municipal business is “materially” advanced.

The MGA requires that council meetings be usually open to the public.

Meetings may sometimes be closed for specified reasons. A performance evaluation of a chief administrative officer with sensitive personal information could be one such matter.

But even in those cases where a meeting of councillors is properly closed to the public, there is a required, transparent procedure: There must be a public record of the confidential meeting and the date.

And the full council (not just a majority of council) must be notified in advance that a meeting will be taking place to discuss council business.

The majority of councillors cannot simply decide to get together on the side to work things out among themselves. The deliberations must be subject to scrutiny.

As such, municipal councillors are actually held to a higher standard of transparency than their federal and provincial counterparts. A majority party of MPs or MLAs will regularly meet behind closed doors. They will decide in private among themselves what they’re going to push through the House. This is legal.

Municipal councillors, by contrast, cannot organize a majority coalition that meets in private to plan how to outmanoeuvre or surprise the minority with a motion once in open council.

In the body of case law, the courts have placed a high priority on municipal transparency. Many cities were once stung by secrecy and corruption. These laws were part of the response.

In a 2007 case, the Supreme Court of Canada noted: “The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law.”

A key case is Southam Inc. v. Ottawa City. This is a 1991 decision of the Ontario Divisional Court. Ontario had legal requirements for council meetings similar to Nova Scotia’s.

In the Southam case, councillors gathered for a retreat. They didn’t consider it a meeting, but the court did. The retreat amounted to “a function at which matters which would ordinarily form the basis of council’s business are dealt with in such a way as to move them materially along the way in the overall spectrum of council decisions.”

The current ombudsman of Ontario, Paul Dubé, has attempted to provide some clarity for councillors.

He assures them that social gatherings without municipal business are fine.

“However,” Ombudsman Dubé writes, “if the purpose of the gathering [of a quorum of council] is to discuss business of the council, local board or committee and/or to make decisions, it is more likely to be deemed a `meeting’ that is subject to the open meeting requirements.”

In his 1972 book Up Against City Hall, John Sewell describes being elected to municipal office only to find “that all decisions were made behind closed doors, and that Council was a charade that must be endured.” As a reformer, he was not invited to these unannounced, secret meetings. He was part of a generation of reformers across the country who pushed successfully for more municipal transparency.

Essentially, municipal councils in 2019 should ensure that that they hold their deliberations in the front rooms, not the backrooms, according to laws and procedures.