Council continues holding more business behind closed doors

Provincial legislation

City council continues to hold the majority of its executive committee business behind closed doors, with no indication that this practice will end anytime soon. Council is now three-quarters of the way through its four-year mandate and continues to hold more business away from the public eye than in actual council chambers.

There have been 29 executive committee meetings held from August 2018 to August 2019, with 168 reports presented, based on a review of council documents. Of those reports presented, 91 have been discussed behind closed doors — or in-camera, as is the proper term — while 77 have been discussed in public under the watchful eyes of the media, residents, and cameras.

As a percentage, city council has discussed 54 per cent of its executive committee business in-camera during the past year, compared to 46 per cent in public. This is actually an increase since this city council began its term. According to a news article previously published, there were 44 executive committee meetings from November 2016 until August 2018, with 181 reports presented. In that time, council discussed 88 reports — or 48.5 per cent — behind closed doors.

In comparison, from January 2015 to October 2016, the previous council under Mayor Deb Higgins held 33 executive committee meetings and discussed 104 reports, of which 40 — or 38.5 per cent — were discussed in-camera.

So is the discussion of so much business behind closed doors legal? Allowed? Even necessary? According to provincial legislation, all municipal councils can discuss business in-camera — although, just because they can doesn’t mean they should.

City council has the right to go behind closed doors to talk about items of a sensitive nature, such as for personnel, legal, or land/property issues. The two pieces of provincial legislation that govern municipal bodies are The Cities Act and the Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). In The Cities Act, section 55.1 sets out the requirements for councils’ procedure bylaw, which reflects how council conducts business. Section 93 outlines how city councils are required to conduct business in an open council meeting. Council procedure bylaws cannot supersede this.

Meanwhile, section 94 (2) gives council authority to close all or part of the meeting to discuss long-range or strategic planning, or one of the exemptions in Part III of LA FOIP, such as access to government or law enforcement records; advice from officials; economic development; third-party information; or solicitor-client privilege.

However, councils cannot make any decisions during an in-camera meeting. Councils must close the in-camera meeting and return to an open meeting to pass a motion or resolution.

Agenda items

Council’s executive committee agendas have quoted extensively from section 94 (2) when listing secret matters. Sections of LA FOIP indicate the reason for in-camera discussions, such as section 16(1)(e) — proposed plans or policies — or section 18 (1)(c)(iii) — contractual negotiations — or section 15 — draft resolutions or bylaws. “While the legislation provides the broad authority to close all or part of a council meeting, councils are encouraged to only use closed sessions for confidential matters and to strive to be open and transparent,” a spokesperson from the Ministry of Government Relations told the Express.

“Obviously, as a local government, (councils) have some discretionary power in deciding this, provided it falls inside the boundaries of the legislation outlined (above).” According to city hall, to be more transparent, council began holding its executive committee meetings in council chambers in October 2018 so they could be televised. Some issues it did have to discuss in-camera, though, focused on the DFFH investigation, negotiations with Carpere Canada, and discussions with SaskPower and its proposed power plant.

Council comments

Council has the obligation to adhere to provincial laws and statutes, said Mayor Fraser Tolmie. He would be more concerned about not sticking to those laws, especially with the privacy of individuals and companies’ business plans or models.

“Our job is to discuss things in public … at appropriate times,” he said. Moose Jaw is no different from other major Saskatchewan cities in having to adhere to provincial laws.

All council business goes through the city clerk’s office, which examines the issues and uses the LA FOIP legislation to determine whether they can be discussed in public.

“I’m not here to break the law,” Tolmie said. “I’m going to adhere to the laws that I’m bound to. That’s what my oath to the community was when I was sworn in on Oct. 31, 2016.” Coun. Brian Swanson has been on city council for 23 years and has never seen so much business discussed in-camera as he has during this term. Usually, the business talked about “amounts to nothing,” while the issue stretches into the future.

“I have concerns about it,” he said. “I don’t agree with all this. I don’t think a lot has to be in-camera.”

The majority of council — except for Swanson — votes to go in-camera at the end of either regular council meetings or after any public executive committee business has been discussed, he continued. While there are legitimate reasons for in-camera business, he sees many topics don’t need to be. He has raised that issue with fellow councillors but without result.

Swanson didn’t want to tell taxpayers what to think about this issue. However, he pointed out most people on council pledged during the 2016 municipal election for increased accountability and transparency.

“And as you can tell, there’s not a lot of things coming out of these in-camera meetings that result in decisions,” he added.

Coun. Heather Eby said during the previous municipal election that she believed it was necessary to have in-camera meetings for personnel issues and “delicate negotiations.” She noted she usually made her decision to go in-camera based on the advice of the municipality’s legal counsel or the city clerk.

Eby told the Express recently she was not concerned about all the business discussed in secrecy. “That’s the thing people don’t understand, is there’s things you can’t discuss in the beginning of deliberations,” she said, such as land deals, personnel issues, or contracts. This approach is how previous councils on which she served did things.

Transparency and accountability happen when council makes decisions in public, Eby added. Even if an “uncomfortable decision” needs to be made, if it meets the criteria for open discussion, then it will happen for the public to hear.

Open and transparent

“I wouldn’t say it’s more than usual … ,” said Coun.

Crystal Froese about council’s in-camera executive committee business. “We are just following the letter of the law.”

Froese was comfortable with how council handles its in-camera business, pointing back to the provincial legislation. She made an oath as an elected official to follow legislation and holds that oath in high regard. Council’s in-camera business doesn’t contradict accountability or transparency, she continued. Higher levels of government dictate to municipal councils what procedures to follow and hold all the cards in this area. “I’m very open and honest (with residents) … ,” Froese added. “From my perspective, from my role as an individual city councillor, I’m completely accountable and transparent.” Coun. Dawn Luhning said during the 2016 municipal election that she thought there were too many meetings behind closed doors. She said if she was re-elected, she would fight for greater transparency and accountability. The Express was unable to reach Luhning for comment by press time.