Kincardine in breach of Municipal Act for closed door meetings

Municipality disagrees with findings, public meeting scheduled

By Barb McKay


An investigation into closed door meetings held by Kincardine council over the sale of Bruce Telecom has found that the municipality has violated the Municipal Act.


According to the report, prepared and released to the municipality by Amberley Gavel Ltd. on July 22, “Amberley Gavel has concluded the council for the Municipality of Kincardine intentionally breached the open meetings requirement of the Municipal Act in closing its meetings to the public between February 6, 2013 and January 20, 2014 during discussions of the proposed sale of Bruce Telecom.”


The investigation was prompted in April by a complaint launched by the Tiverton and District Ratepayers Association, which was concerned that meetings held in closed session to discuss details of the potential sale of Bruce Telecom was in contravention of the open meetings provision of the Municipal Act. Amberley Gavel Ltd. is contracted by Local Authority Services (LAS), which was appointed by the municipality as its closed meeting investigator. The sale of Bruce Telecom to Eastlink for approximately $26.5 million is pending.


As required by the investigator, the municipality provided the minutes of the closed session meetings held over the period for which the investigation was initiated. Council’s reasoning for holding the meetings “in-camera” was to protect the value of its asset, Bruce Telecom, during negotiations. According to the Municipal Act, a meeting can be held in closed session if the subject matter being considered is the security of the property of the municipality or local board. Amberley Gavel interprets the provision to mean the protecting against the physical loss or damage of municipal property.


The municipality stated in a media release that it strongly disagrees with the findings and in no way accepts that the Municipal Act was violated. It has asked Amberley Gavel to reconsider the decision it has reached.


Nigel Bellchamber of Amberley Gavel told The Independent Friday that investigators will not be reconsidering their decision.


“We are quite surprised that they don’t agree (with out conclusion) because it is pretty clear that they breached the Municipal Act,” he said.


The Municipal Act does not permit investigators to impose penalties as a result of their findings, Bellchamber said.


“In some cases, the investigator will give recommendations where municipalities do not know the procedures, but in this case the municipality knew the procedures it just chose not to follow them.”


In a letter to Amberley Gavel, Mary Flynn Guglietti, solicitor for the municipality in this matter, argued that it was “reasonable to assume that the public disclosure of the municipality’s bargaining strategy, the price being negotiated for the sale of Bruce Telecom’s assets, including land, and Bruce Telecom’s relative competitive position could result in potential loss or damage to the property and assets of the municipality by affecting the price that potential purchases would be willing to pay.”


She pointed to a finding from the investigator’s report, “it makes sense that a council or local board would not have open public discussions about its negotiating strategy, most specifically the price it is willing to pay for lands it wants to acquire title to or receive for lands it wants to dispose of…Potential purchasers or sellers ought not to know what value a council is willing to accept or pay.” Therefore, the report states, the discussion can be held in closed session.


However, Amberley Gavel goes on to say that the municipality was not selling land, it was selling an entire operation and the Municipal Act exemption should not be used so broadly. “Had the Legislation intended to shield the sale of a municipal operation from public discussion or disclosure, it would have provided for that explicitly in the legislation.”


Kincardine mayor Larry Kraemer said Amberley Gavel’s interpretation of the Municipal Act flies in the face of the guidance the municipality received from LAS. In its document, What You Need to Know About Closed Meetings, LAS refers to the security of property of the municipality or local board. It states, “This first exception to the open meetings rule covers more than the locks on the doors at municipal facilities. Property includes not only the physical assets of the municipality, but also some of its financial records and intellectual property. Security of information and records, both in hard copy and electronic, are included in this exception.”


“Did we dot every ‘I’ and cross every ‘T’?” Kraemer asked. “I’m not sure anyone could.”


But, he added, what was done was done in the best interest of the municipality.


Aside from misinterpreting Municipal Act exemptions, Amberley Gavel also found that council added supplementary matters to the agenda while in closed session. The report notes three occasions where council added an item to the agenda by resolution. According to the report, council may discuss in closed session only those matters for which it is given authority by resolution in an open meeting of council.

Council will hold a special public meeting on Aug. 27 where it will make public materials considered during the closed meetings. Council will also receive deputations from the public regarding the sale of Bruce Telecom.