Thursday, April 4, 2013

OMLET – or simply broken eggs

The Office of the Ontario Ombudsman was established in 1975 as an independent officer of the provincial legislature in Ontario, Canada. He has the authority to oversee and investigate public complaints about the government of Ontario, including more than 500 provincial government ministries, agencies, corporations, tribunals, boards and commissions. His slogan is a catchy one, “Ontario's Watchdog,” although the Ombudsman is still on a leash of sorts.

Andre Marin was appointed as Ontario's sixth Ombudsman in April 2005, and although he likes to lay claim to the fact that government actions were as a result of investigations conducted by his office, still there are what he calls “MUSH sectors.” The Ombudsman's office still has no oversight in municipalities, universities, school boards and hospitals, as well as children's aid societies and police. Not to forget that the Ombudsman has no authority at all to investigate the Ontario Cabinet or any elected members of government regardless of how serious a breach has been committed by any such individual.

Upon instalment as the sixth Ombudsman of Ontario in 2005, Marin created SORT, the Special Ombudsman Response Team. This is a special team of experienced investigators who handle the large investigations such as the Municipal Property Assessment Corporation, legal aid and the Ontario Lottery and Gaming Corporation, to name a few.

In January 2008 the Ombudsman's jurisdiction was expanded a little to a new responsibility. Now it was the Ombudsman's authority to enforce the Ontario Municipal Act and its requirement that all municipal councils, committees, and most local boards keep their meetings open to the public. Though it must be stressed that it is only this one requirement of the Municipal Act and no other that now falls into the Ombudsman's jurisdiction. The leash has only been slightly loosened though not released.

A new team was created under the title of OMLET – the Open Meeting Law Enforcement Team. This new team was to specialize in investigations of closed meeting complaints by municipal councils, committees and local boards. The show was ready to start and Andre Marin published a program guide titled, The Sunshine Handbook – Open Municipal Meetings in Ontario.

Prior to the new “sunshine law” if municipal politicians decided to meet behind closed doors improperly the only avenue for a challenge was through the courts. Ontario's Municipal Act enforces little if anything in relation to breaches by those elected into any public office. For instance accepting illegal campaign contributions, though considered illegal under the Elections Act, has a free get out of jail card. Simply give the money back when caught and voila continue business as usual. On the surface the new “sunshine law” seemed a little refreshing.

As anything with government, particularly in Canada, scepticism is not only healthy it is imperative. Some municipalities have their own investigators appointed where Ontario's OMLET may not interfere. In all other municipalities across the province of Ontario the Ombudsman's OMLET has the authority to interview all members of a council, committee or local board, including mayors to gather information once a complaint is received.

Although the Ombudsman appears to have authority in fact he has none. It is up to the individual municipality to cooperate or not. An example was the City of Greater Sudbury where 10 out of the 13 elected members of its council refused to be interviewed during a June 2012 investigation. Other municipalities such as the City of Hamilton and the City of London, Ontario had councillors with their lawyers in tow criticizing publicly the Ombudsman's office and its procedures.

In the end Ontario's Watchdog can only bark on a leash and refrain from biting. There is no real consequence for any municipality or elected official in breaking the new “sunshine law.” The Ombudsman can only report the results of his OMLET team's investigation to the municipality, or local board or committee that was under investigation. He can make recommendations on how to redress the situation. It is up to the municipality, local board or committee to accept or reject his recommendations. In his own words from the 2011-2012 OMLET Annual Report, the Ombudsman says, “My only power remains the power of moral suasion.”

An annual budget of $10.75 million for 2011-2012, a staff of some 85 and a bunch of acronyms such as SORT and OMLET and the final result is simply “moral suasion.” Ontario's Ombudsman has no real authority whatsoever and lags behind US jurisdictions dramatically. In the US courts can levy serious penalties if proven that the Sunshine Law has been broken and meetings had been closed illegally. In Arizona and Iowa, such violations of the Sunshine Law can result in fines against elected officials, and removal from office. In Illinois violation of the Sunshine Law is a criminal misdemeanour, with a maximum 30 days prison sentence and or a fine of $1500.00 as a penalty. Ontario's Ombudsman can only lament on this in his annual report (page 4, Truth and Consequences, Ontario Ombudsman 2011-2012 OMLET Annual Report), and offer “moral suasion.”

In today's world morality seems far more passe and “moral suasion” simply a cute term for a colourful dude for the consumption of media. His own words make it quite clear, “I cannot enforce the implementation of my recommendations. In municipal cases, councils reign supreme.” (OMLET Annual Report 2011-2012, Watchdogs Have Teeth page 11). Andre Marin may fall back on the excuse that it is the lack of legislative authority that holds him back. Canada is absolutely reluctant to provide any watchdog with real oversight powers. Here watchdogs are merely spaniels or chihuahuas on short leashes. Yet what can be said when the 'watchdog' perpetuates the secrecy he claims to investigate?

That is exactly the situation in relation to Ontario's Ombudsman and a recent report he released regarding an investigation of the Niagara District Airport Commission. In his report the Ombudsman found breaches of the Sunshine Law, making his recommendations on a number of points for redress. Outgoing Niagara District Airport Commission chair Ruedi Suter was reported as saying, “I'm really pleased the complaint filed was found to be not true. However, through the process they did find other procedural flaws.” (Melinda Cheevers, Niagara this Week, February 28, 2013).

Recommendation 1 from the Ombudsman's report states: “The Niagara District Airport Commission should ensure that discussions that take place in closed session under an exemption to the Municipal Act's open meeting requirements are limited to those matters that the commission is permitted to discuss in camera under the exceptions in the Act.” The Sunshine Law frowns on the secrecy that too often appears to be demanded by municipal councils, local boards and commissions. These are public entities dealing with public business and secrecy rarely has any place in the proceedings.

The issue at hand is not the Niagara District Airport Commission or its outgoing chair Mr. Suter and his reason for resigning. It is the issue of secrecy, in particular that of the watchdog who is supposed to enforce the rules that break up secrecy. A former US Supreme Court Justice Louis Brandels had said that “Sunlight is the best disinfectant.” In relation to the Sunshine Law that would be refreshing and now it seems the Ombudsman of Ontario needs a gallon or two.

The Ombudsman's report on the Niagara District Airport Commission February 2013, page 7, point 31 states: “We were told during our interviews that the commission discussed comments made by a local mayor. These comments were made in the mayor's official capacity and the commission was considering how to respond in its official capacity. The discussion regarding the mayor's professional relationship with the commission does not qualify as personal information.”

Further in the report point 33 identifies by name an individual as, “Mr. Montgomery, who wrote the letter of complaint to the mayor about the commission...” This individual is not referred to by the Ombudsman as “a local resident,” or in any other form of camouflage. Yet the “local mayor” is not identified by name even though the issue refers to his comments in his official capacity as a mayor.

Nowhere in the 16 pages of the report is the identity of the mayor made public even though it is confirmed that the mayor had acted in his official capacity. Andre Marin has complained the lack of oversight he has over the “MUSH sector,” ie: municipalities, universities, school boards and hospitals. He has finally been granted jurisdictional oversight over the Sunshine Law and a big toe into the weird and wonderful world of municipal governance. In response Andre Marin joins the gravy train and further perpetuates the secrecy he and his team of OMLET chefs are expected to break up.

OMLET's Annual Report for 2011-2012 on page 11 brags in bold print “Watchdogs Have Teeth”. He goes on to say “while the Municipal Act carries no penalty, the Ombudsman Act does. Failure to comply with my lawful requirements is a provincial offence, punishable by a fine of up to $500.00 and/or imprisonment for up to three months.” Marin claims, “I am prepared to use all available means to ensure co-operation with my investigative process in future, to preserve its integrity and uphold the law.” Although he admits that he has never exercised his authority to lay charges for a lack of co-operation.

Laying claim to preservation of integrity and upholding the law equally applies to the Ombudsman as it does to those over who he has oversight jurisdiction. Yet Andre Marin simply shows off his flare with tags rather than acting out his own script. He has shown that secrecy is only wrong when it is not his own.

The true essence of the “Watchdogs Have Teeth” is best explained in Andre Marin's own words. “Whether my investigation is provincial or municipal, the last word always remains with the body under investigation. I cannot enforce the implementation of my recommendations.” In the end the bottom line here is that the taxpayer paid out almost eleven million dollars in 2011-2012, for semantics and a watchdog to whimper out, 'please sir.'

If questionable irregularities are identified in relation to the Ombudsman or any of his bunch, who has any oversight over Andre Marin? Now we approach an alarming situation. Ontario Ombudsman in fact swims in double osmosis rarefied waters. The Office of the Privacy Commissioner has no oversight authority. Our provincial government only selects the Ombudsman and provides the contract, oh and taxpayer's dollars. He himself is an independent officer of the legislature. Turning to the Lieutenant Governor of Ontario the left arm representing the Monarchy, would be as useful as asking the Governor General for help. Neither could offer anything more than tea, with the only possible difference being one serves loose leaf, the other tea bags. The Ombudsman handles complaints about the Ombudsman or his staff only.

A motion being prepared for the Council of the City of London, Ontario to dump the Ombudsman as the watchdog over breaches of the Sunshine Law further exemplifies the true value of the Ombudsman and OMLET. In this case the Ombudsman is investigating a complaint by some 60 citizens over a lunch by Mayor Joe Fontana, Councillor Steven Orser and five other councillors. Apparently the bunch met over burgers in a backroom of a restaurant. Councillor Orser said “If we want to go out for a cheeseburger with a colleague, why can't we.” (Patrick Maloney, QMI Agency, March 12,2013). Some twelve months ago Marin had investigated a pre-budget lunch by councillors from the City of London and even though he had not found any rules were broken at the time he did say that it was ill-advised and provided for “unsavoury-optics,” (more of Marin-semantics or simply Marin-antics).

In Canada watchdogs are simply mutts on a leash. Andre Marin has no authority to do anything even if he finds that laws have been breached. In the case of the Sunshine Law a municipality can simply dump the Ombudsman without consequence or explanation. The City of Sudbury has done so and now the City of London is planning to follow down the same path. More alarming is the fact that there is no oversight over the watchdog himself. Marin and his bunch can do as they please and not answer or explain their actions. Marin himself has said, “...elected officials must ultimately answer to voters for their conduct.” Who does Marin ultimately answer to?

In the case of the investigation into the Niagara District Airport Commission, Andre Marin states, “As a result of our investigation, we have determined that the commission contravened the open meeting requirements of the Act in a number of aspects.” This is section 15 of the Ombudsman's report dated February 2013. Outgoing chair Ruedi Suter can make his excuses and claim publicly that he was glad that “the complaint filed was found to be not true,” it may help him sleep more soundly. The facts are simple and on record.

Yet the Ombudsman who is there to ensure that the public are able to have full access to what's happening in their local government perpetuates the very secrecy he claims to break up. An official release by the Office of the Ombudsman June 17th 2008 in bold print claims, 'Backgrounder – Ombudsman's OMLET to crack open municipal meetings'. “Ombudsman Andre Marin's newest investigative team will specialize in probing municipal meetings that are closed to the public.” Now a new press release is in order in February 2013: Ombudsman Andre Marin and his newest investigative team OMLET left with egg on face and the yolk of secrecy intact.

An email had been sent to the Office of the Ombudsman requesting clarification as to why the name of the “local mayor” was withheld from the official report. No response has been received to date of publishing.

In the end Andre Marin has more in common with Dexter's omelette from Dexter's Laboratory than one would think.

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