Three times in this term of office, our City Council has been investigated by the Ontario Ombudsman for potential misconduct. Once was as a whole for going behind closed doors (“in-camera”) to decide the fate of the Occupy London occupation of Victoria Park, and twice as a minority of council for meeting together in a private meeting around the 2012 and 2013 budget processes.
I have tried my best to follow these events, and learn more about the Ontario Ombudsman Andre Marin and the role he plays as I went along. I wrote these three posts about the events in 2012, and after the “Billy T’s” incident and investigation were revealed, I recently wrote this post about it, giving a short summation of what lead to this second investigation, and where we are now.
In response to being investigated for the 2012 meeting (for which the group that met were cleared of legal wrongdoing, though the meeting was called “unsavoury”), some members of Council (all having been under investigation for having participated in the Harmony Grand Buffet meeting) said that we should consider opting out of using the Ontario Ombudsman as our closed meeting investigator. This is completely within their legal right as a municipality, though it would mean London taxpayers would be paying the salary of this new investigator, while the province would continue to pay for the Ontario Ombudsman with our provincial tax dollars.
It is against this backdrop that the Ontario Ombudsman published this editorial. He says:
It has never made sense to allow municipalities to opt out of using the Ombudsman and hire an investigator of their choice. Think of it as oversight shopping. It allows municipalities to hire friendly watchdogs — anyone at all, even former councillors or city officials — who will be more inclined to treat them with kid gloves or absolve them of wrongdoing, no questions asked.
This is the concern I and many other Londoners have about the idea of appointing a different closed meeting investigator. I am also instinctively suspicious of any council member that would want to replace the Ombudsman that has been rightfully investigating their conduct with someone else. To maintain public confidence in elected officials, it is their duty to be under appropriate scrutiny.
One major criticism of the Ombudsman’s position is that, though Mr. Marin sells himself as the province’s watchdog, he is “without teeth”. This is because he can only assist and advise councillors that are under investigation, even if misconduct is found. He can say that the Municipal Act has been breached and penalize the councillors in question in the court of public opinion (a ruling that could lose them a re-election bid), but not by any other means. So he goes on in the article to discuss the merits of being able to give out even a small financial penalty:
It makes sense, because this is about enforcing the law. Ontario’s legislation carries no consequences at all. It remains hopelessly toothless in tackling an entrenched culture of backroom dealings in municipalities.
I completely agree. As Mr. Marin states, for some councillors (including those under investigation a second time for the exact same activity), the only way to make the point stick may very well be through the politician’s pocketbook. He concludes:
The solution is simple. First, have one coherent and uniform oversight system that the public can access to hold municipal politicians accountable. Second, fine politicians who flout the system. The fines don’t have to be exorbitant — perhaps they can be in line with the kinds of fines municipalities levy on the rest of us for various infractions. But hitting rogue councillors in the pocketbook would get their attention that the rule of law applies to them, too.
The Ontario Ombudsman has worked hard to push the province of Ontario to expand his oversight jurisdiction, noting that the Ombudsman Act doesn’t give him the ability to investigate in many areas allowed to other provincial ombudsman (this chart on the Ombudsman website gives an excellent demonstration of how it compares). I agree that with his assessment that a universal oversight system should be implemented, and that politicians that don’t follow the rules should be fined.
As the chart shows, currently many jurisdictions (including the extremely controversial ORNGE) have the ability to police themselves, when a third party, impartial judge should be doing the job. And we don’t have to look further than our own London City Council to see councillors that just don’t seem to get it. The electorate are the ultimate authority and judge, but I don’t think we should have to suffer for four years under politicians unwilling to follow the rules. Right now, it seems some members of Council are much more interested in seeing how much they can get away with in their time in office, instead of working in the best interest of London’s citizens. If citizen complaints and investigations by the Ontario Ombudsman are treated with contempt, perhaps the potential for fines are the only language they will understand.
Update (3:30pm 3/20/2013): Since posting this, Councillor Orser has said that having the Ombudsman as the City of London’s closed meeting investigator has created a “culture of fear”, and that after the “Billy T” investigation wraps up, he will table a motion for Council to choose a different investigator. Details can be found here and here.