(Updated) Evidence Supports Claim Burlington City Hall More Secretive Than in 2018

An ongoing disagreement between Ward 4 Councillor Shawna Stolte and several other members of Burlington Council over the use and overuse of closed session meetings became highly public last week when it emerged the Councillors Rory Nisan and Kelvin Galbraith had made multiple complaints to Burlington’s Integrity Commissioner alleging that Stolte had revealed confidential information. The Commissioner’s Report upheld two of four complaints.

Tonight Councillor Stolte unexpectedly announced she would not seek re-election later this year, apparently as a result of exasperation at the disagreement with colleagues escalating to absurd proportions in reaction to her campaign for clarity about closed session meeting criteria.

Councillor Stolte had been waging a personal campaign for over a year asking for updated protocols on closed session meetings, as a means to guarantee to the public that closed sessions are being used appropriately.

It is ironic that a councillor of manifestly greater integrity, and greater public spiritedness than numerous councillors who have received little or no official rebuke in other municipalities, despite their often egregious, threatening and disruptive behaviour displayed for years on end, should be the one who has been forced from office. Councillor Stolte’s crime appears to be little more than offending the city hierarchy’s amour propre by suggesting it could do a slightly better job.

But what is the evidence? Can it be demonstrated unambiguously that Burlington is holding more closed session meetings that it did previously, and releasing less information about them?

More Closed Sessions, With Fewer Public Details

We have compared January to March 2018 to January to March 2022, identical months at identical points in the four year election cycle, to see how closed session meetings were used four years ago and today.

The evidence from these three month samples is that over twice as many items are being considered in closed session at present than in 2018.

More damningly, when items are considered in closed session, the public record today generally includes far fewer details than in 2018.

In 2018, it was generally a simple matter to understand what was under discussion, even if the conclusions reached by council were confidential. For instance, an item in January 2018 appears in the public agenda as “Confidential update on appeal to OMB regarding 4853 Thomas Alton Boulevard”. Another is recorded as “Confidential letter from Quinto M. Annibale, Loopstra Nixon, Barristers and Solicitors” – an item that, while witholding the details of the lawyer’s letter, provided relatively fulsome details about the source of the letter.

In contrast, in 2022 numerous items are recorded as “Confidential update on a litigation matter”. Such agenda items provide the absolute minimum amount of information possible, and we believe fall short of the standard required by municipalities when entering closed session.

Specifically, the Ontario Ombudsman requires the following of municipalities when going into closed session. A resolution must be passed that:

• States the general nature of the topic
• Cites the applicable section of the Act and
• Gives as much information about the subject as possible, without undermining the reason for closing the meeting [emphasis added]

It appears that there is a clear prima facie case to be made that Burlington is routinely failing to provide sufficient detail to meet the Ombudsman’s requirement about closed session meetings, in contrast to the city’s practice in previous years.

[Update – 12pm April 20th 2022]

This article is very much a preliminary study of some raw evidence from two three month periods in 2018 and 2022. We hope to expand the analysis in the future, and also explore the usual practices seen in other municipalities.

This initial examination is enough to verify two simple claims – that more closed session meetings are being held, and less information is being provided. The current political and legal context of the Interim Control Bylaw and Official Plan is not necessary to confirm the veracity of those claims. They are simply true as a matter of documented fact, at least for the three months studied.

Nevertheless, it is fair to say that a large amount of city business is now required to be conducted in closed session because of the ICBL and other major planning updates. I raised exactly this issue on one of the last occasions I delegated to Burlington City Council on December 5th 2019. If I remember right, it wasn’t a popular point of view with many.

The ICBL took away Council’s public role in downtown planning decisions (with the exception of two areas), forcing any development proposal that wishes to proceed in downtown Burlington to be appealed to LPAT/OLT. Since many, perhaps most, OLT appeals end with negotiated settlements between the municipality and developer, and those settlements have to discussed and voted on in closed session, much of Burlington Council’s most important work since 2018 has been made behind closed doors. Inevitably, there has been an increase in closed session meetings. Burlington is now stuck with the ICBL until all the appeals that have arisen as a result of the planning recommendations arising from it are resolved.

That fact does not negate the accusation that closed session meetings are being held with much less information being made routinely available to the public. Once again, while some of our example sessions from 2018 are also far from detailed in their agenda items, there was a clearly a trend towards providing more details four years ago than there is today.

Moreover, we know that there have been several prominent instances, above all with the discussions over the purchase of the Robert Bateman High School property, where the legally required confidentiality about purchase details appear to have enabled an almost blanket blackout of discussion of the purchase and its implications for the city, city reserves and other forthcoming major expenditures. Such silence is contrary to the guidance of the Ontario Ombudsman, and the intent of the Municipal Act’s stipulations on closed sessions.

Comparing Closed Session Items in 2018 and 2022

Creative Commons (CC BY 2.0) Image by Ivan Radic