Column: If Council can’t state what it’s doing with Leisure Centre lands, stop doing it

[playht_player width=”100%” height=”90px” voice=”en-US-JennyNeural”]

by Ed Cowley, freelancer

“At the Aug. 23 council meeting, there was no discussion or objection to the Morinville Leisure Centre Lands Update being taken into closed session. Why did you feel it necessary to eliminate electors and businesses from hearing an update of a property owned by the taxpayers of the town?”

It seemed like a simple question to what appeared to be an error in process. The electors of the town of Morinville own the Leisure Centre Lands; there is no plan to sell or buy any more property, the utilities are all installed. So what could possibly be a topic for updating council that taxpayers cannot hear? The project created debt that will take taxpayers decades to pay off, and the actions of the current council prevent residents from being aware of issues regarding the site. How can residents provide input to council when council won’t tell them what’s being considered?

“A closed session may be required when Council or a Council committee must discuss something in private.  Items to be included on the Closed Session Meeting Agendas are approved by the Agenda Review Committee or by the Mayor in consultation with the Chief Administrative Officer (CAO) in accordance with the provisions of the Municipal Government Act (MGA),” stated Mayor Simon Boersma regarding how it was determined to place the topic in closed session.

In an earlier response, the Mayor said “Whether or not something is deemed private is outlined under Division 2, Part 1 of the Freedom of Information and Privacy Act (FOIP). Failure to hold in confidence any information that is protected by the Act and its exceptions to disclosure could result in serious legal and/or monetary repercussions for the municipality.  Municipalities have no discretion when to enforce this act.

“Section 197(2) of the MGA authorizes a council and its committees to close all or part of their meetings to the public if a matter to be discussed is within one (or more) of the exceptions to disclosure contained in Division 2 of Part 1 of the FOIP Act.

“Based on the FOIP act sections highlighted below, the Morinville Leisure Centre Lands Update required the discussion to be held in closed session. The FOIP sections relative to this item, as identified on the agenda, were FOIP sections 16, 23, 24 and 25,” stated the Mayor in attributing the town decision to provincial legislation rather than the town’s interpretation of that legislation.

Councillors had fallen into line behind the secrecy interpretation with their response to the initial question before the Mayor emailed stating that any email contact by media would be deemed a request for official comment by the town and only responded to by the Mayor.

“I read my agenda package ahead of the meeting although, I’m not privy to the detailed contents. I  understand the need for this meeting, and have no doubt my colleagues felt the same need. This Council is very committed to transparency and I have no doubt, a closed session was required,” stated coun. Rebecca Balanko.

“The reason I did not object to the closed session around MLC Lands update is I did not want to be in contravention of Freedom of Information and Protection of Privacy Act in particular but not exclusive to s.16, s.23 and s.25. I can appreciate you not understanding why this would violate the Act but my obligation is to keep issues confidential when necessary and I will continue to do so should a similar situation occur,” stated coun. Ray White.

“You are correct that the public has a right to know about public land. If the discussion that was had were about where we plan to place the ball diamonds and the soccer fields down the road, whether apple trees or flowering shrubs were best suited for the landscaping, or several other discussions that may come up, then I’d fully expect that discussion to be in the public realm per the Municipal Government Act, likely in a committee of the whole meeting. However, some discussions or updates are allowed under the MGA and required under FOIP to be held in closed sessions until such time as they can be made public. This discussion, which I am required to keep confidential, certainly qualified under sections 16, 23, 24, and 25 of the FOIP ACT. While I do not speak for the mayor or any of my other colleagues, I can assure you that in my experience, this is not a group that would countenance any use of closed sessions that were not fully required or warranted. The same applies to our interim CAO,” stated coun. Stephen Dafoe.

According to the agenda the issue was put on the closed session for a barrage of reasons. “Morinville Leisure Centre Lands Update. FOIP s. 16 (Disclosure harmful to business interests of a third party), s. 23 (Local public body confidences), s. 24 (Advice from officials), and s. 25 (Disclosure harmful to economic and other interests of a public body) of the Freedom of Information and Protection of Privacy Act, RSA 2000, Chapter F-25.”

So, in theory, the update was concerning an issue that would be harmful to a third party if publicly disclosed, that is required to be kept in confidence by the council, that is advice from town officials, that would be harmful to the economic interest of the town, and that would be in breach of someone’s privacy. It sounds fairly major and something that can take a bite out of taxpayer wallets if not being overstated.

It is an open secret among media and politicians that FOIP (Freedom of Information Protection of Privacy) legislation allows such a broad interpretation that there are very few issues which cannot be heard in closed session if it is the desire of council to keep it away from public scrutiny. There has never been a decision to move something into closed session overturned because there is no independent oversight that reviews the contents of closed sessions. In fact if a councillor even publicly challenges that something in closed session shouldn’t have been, the moment the substance of the argument emerges the councillor has breached the confidence of a closed session and is subject to removal from council.

If there is one component of an issue that needs to be discussed in closed session—such as the name of someone involved or the dollar amount being negotiated in a settlement—such details don’t mean the whole topic has to be discussed in secret. It all depends upon whether council is committed to transparency or to the illusion of transparency.

The Leisure Centre Lands discussion should stimulate councillors to bring in an independent municipal expert (George Cuff and Russell Farmer are reputable firms) to meet with council about criteria for closed sessions. This should be done in the absence of administration to prevent undermining the message presented by the experts.

I have no idea what is being hidden regarding the Leisure Centre Lands, but my guess would be a bureaucratic error—planned development won’t actually fit where it was pencilled to go, or utilities were installed in an area that is going to cause a problem when the site is fully built-out for recreation. Maybe the town could be trying to sort out some dealings with the adjacent county-owned property that was purchased at the same time and has town services extended to it. Perhaps the town has found a First Nations or municipality willing to participate in making the site and facility a regional entity (as originally conceived). But none of these check all the boxes on the agenda reasons for going into closed session, so your guess is probably better than mine.

The bottom line is simple—council has decided you don’t need to know what is happening regarding the Leisure Centre Lands, and the Mayor has put a chill on councillors stating their views by citing ominous-sounding sections of the council Code of Conduct.

“As outlined on our website, media inquiries are requested to go through Corporate Communications.  As stated in an earlier email, all media requests received by email, including those through the Mayor and Council email and/or the Town website, will be deemed an official media request and myself as Mayor, as the official spokesperson, will provide the response on behalf of the Town,” stated Boersma. “Your email sent as a Freelance Columnist was deemed an official media request. Our Council Code of Conduct Bylaw provides direction on communicating on behalf of the municipality:

“5.2. Unless Council directs otherwise, the Mayor is Council’s official spokesperson and in the absence of the Mayor, it is the Deputy Mayor. All inquiries from the media regarding the official Council position on an issue shall be referred to Council’s official spokesperson.

“5.7. As a member of the community, Members retain the right to make public comment or speak to the media. Members shall, when not speaking on behalf of Council, clearly identify that stated opinions are personal opinions and do not necessarily represent the position of Council nor unduly reflect on any Council decision.

“For clarity, if you are looking for an official media response from the Town of Morinville, please use the Mayor and Council email address and you can expect one official media response.  If you are looking for individual views of the Mayor and councillors and not requesting an official statement from the town, please e-mail each member of Council individually.

“I will have [administration] set up a meeting to discuss this in person should you have any further questions,” stated the official spokesman for the town.

The ‘official spokesman’ had responded to a request for the criteria limiting councillors from responding through the site. “I can find nowhere in the link you sent in which there is any reference to a restriction on using the ‘Mayor and Council’ contact to ask all members of council for their view on a situation or topic. Please forward the full list of restrictions and regulations regarding the use of the ‘Mayor and Council’ contact.”

It also asked if the decision to move into closed session had been made through legal advice or by council consensus. The Mayor’s response contained no reference to any rules prohibiting councillors from responding to email requests for views, and it is clear that there was no legal opinion indicating the full issue needed to be discussed in closed session.

You can try to get an update on the Leisure Centre Lands commotion by directly contacting the council member of your choice. If you voted for the councillor or Mayor it may not hurt to remind them of that fact. Also remind them that they are dealing with public funds and lands owned by the electors of the town of Morinville.

If council is doing something that it cannot tell its residents about, then it should not be doing it.