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Burlington Council Unanimously Approves New & Enhanced Policies in Closed Session Protocol

Council Approved - Enhanced Closed Meeting Protocol - TW

At our June 21 meeting, Burlington Council unanimously approved the new and enhanced policies within our Closed Session Protocol for the City of Burlington.

Here is the full motion we approved:

  • Approve the Closed Session Protocol attached as Appendix A to city manager’s office report CM-18-22; and
  • Direct the City Clerk to bring forward all related Procedure By-law amendments to the July 2022 Corporate Services, Strategy, Risk and Accountability Committee meeting.

Aird & Berlis LLP made a presentation to committee on June 6 that breaks down the new enhancements to the protocol, what stays the same and an overview of the Protocol. The enhancements include:

  • Standard naming convention for Closed Meeting Reports;
  • Electronic distribution of materials (forthcoming process);
  • Standardized resolution to convene a Closed Meeting;
  • Voting during a Closed Meeting;
  • Options for Staff recommendations to Report Out;
  • Standardized process for waiving confidentiality;
  • Structure & content of Closed Meeting Minutes; and
  • New Closed Meeting Investigation Process being embedded directly in the Closed Session Protocol.

A summary and excerpts from the report are also further down this post under the “Background” header.

See below links to the staff report, supporting documents and presentation:

MY TAKE:

Thank you to Aird & Berlis for their excellent work in this report and context setting – it’s nice to hear that we’re leading the way with our updated Closed Session Protocol. I welcome this report and its recommendations. We heard the representatives from Aird & Berlis were very satisfied with how we do things at committee and council, and this is an opportunity to further enhance the way we do things.

The vote for an enhanced closed meeting protocol was unanimous. That’s a great sign of commitment from every member of Council towards public transparency. I think standardizing the naming conventions of confidential reports is a great improvement. It’s also helpful for the Close Meeting Investigation process to be outlined directly in the protocol itself for anyone who is reading it. Our City Clerk Kevin Arjoon has worked really hard to ensure we’re on the right side of protocol since he’s come on board with our City. It’s always a balancing act — in order to protect matters of public interest, we have to go in closed session, while we also strive to discuss as much as we can in open session. Our process has been evaluated and found to be appropriate, and we’re also grateful for the opportunity to do it even better.

•          •          •          •          •

BACKGROUND:

Council members discussed options to enhance procedures for closed meetings, at committee on June 6. The options are contained in an independent report from the city’s Closed Meeting Investigator. The report was commissioned following a unanimous vote by City Council on a report by the City Manager, with a companion motion by Councillors Rory Nisan, Paul Sharman and Shawna Stolte.

The report also spells out the obligations of council members protect confidential information to protect the public interest. As noted in the report, “Members will require access to highly sensitive, confidential, and privileged materials and information in order to make informed decisions on matters during a Closed Meeting. It is imperative that Members recognize the importance of confidential information, and that they must take every precaution against the unauthorized disclosure of such confidential information. Members shall observe strict compliance with their ethical obligations regarding confidential information outlined in the City’s Code of Good Governance.”

Where possible and in the public interest, Council will vote together to release confidential information, and can only do so by a collective vote to “waive privilege” over that information. As noted in the report, “privilege cannot be waived by any single Member of Council, even if purporting to be acting in the public interest.”

Summary and Excerpts from the Report:

The report before committee recommends approving a new Closed Session Protocol, in order to enhance and support the City’s existing Closed Session procedures as prescribed by the Municipal Act, 2001 and the Procedure By-law. Subject to approval to the Protocol, Staff will bring forward amendments to the Procedure By-law to the July Corporate Services Strategy Risk and Accountability Committee meeting to align the By-law with the Protocol.

The proposed protocol also embeds the procedure for conducting closed door meeting investigations that is currently posted on the city website. Any person may submit a request pursuant to investigate compliance with Closed Door Meeting provisions in the Municipal Act. Details are here: Closed Meeting Investigation.

The proposed Protocol covers who decides whether an item should be discussed in closed, and why, how the item is reported on the public agenda, and how the decision is reported back to the community after the closed meeting.

Who Decides:

The Protocol recommends the relevant Department Head identifies matters to be considered in a Closed Meeting,  in consultation with the Clerk, the City Manager, and/or the City Solicitor, when necessary.

Why Closed:

The Protocol recommends staff first determine whether the item meets one of the Municipal Act  exceptions to discuss in closed, whether there is a compelling reason to discuss it in closed and whether full transparency and disclosure in the immediate term would compromise municipal interests.

How it’s Reported:

The Protocol recommends listing the address/legal file or other descriptor to identify what is being discussed, unless doing so would undermine the very reason for excluding the public in the first place. A proposed “naming convention” is provided for how documents should be listed on the public agenda:

Naming Convention:

Confidential Report of the [Department Head] with respect to [Subject Matter / Property / Party / Appeal Reference Number] [Corporate Report Number (X-00-00)] – [Reference to Closed Meeting Exception]

For example:

Confidential Report of the City Manager with respect to the Lease of 426 Brant Street to Burlington Corp. (CM-01-22) – s. 239(2)(c) “proposed or pending acquisition or disposition of land.”

How to go into Closed:

Pursuant to subsection 239(4) of the Municipal Act, 2001, before holding a Closed Meeting, Council must pass a resolution stating the fact of holding a Closed Meeting, and the general nature of the matter(s) to be considered at the Closed Meeting. The Protocol recommends that the resolution to convene in a Closed Meeting should maximize the information available to the public, while at the same time not undermining the reason for excluding the public in the first place. This resolution should not simply recite the applicable closed meeting exception.

In some limited circumstances, the need for confidentiality may encompass the very fact that Council is considering a matter in a Closed Meeting. This may include, but is in no way limited to, circumstances where the identification of a specific party, property or matter in a resolution to convene a Closed Meeting would, in and of itself, reveal the interest sought to be protected by the Closed Meeting.

Rules for Hybrid Meetings:

Closed Meetings may be conducted as a Hybrid Meeting with members participating remotely. Remote participants must ensure they’re in a physically and technologically secure location, and take precautions against authorized viewing or listening to the proceedings of a Closed Meeting.

Sticking to the topic/Duties of the Chair:

Members can only discuss the items allowed under the Closed Meeting exception. Where a Member begins to stray from an appropriate Closed Meeting topic, the Chair shall promptly advise the Member of their obligation to remain on topic and to refrain from discussing unrelated or unpermitted topics.

Reporting to the public after a closed meeting:

“Reporting out” or “reporting back” immediately following a Closed Meeting is not a requirement in the Municipal Act, 2001. However, it is recognized as a best practice for enhancing the transparency of municipal decision-making. The extent of Council’s obligation to report out will be enshrined in the Procedure By-law, as amended from time to time. Further, the content of or details contained in a resolution to “report out”, not being statutorily prescribed, is within Council’s purview.

Balancing obligations to confidentiality with commitment to report out as much as possible:

The Protocol strikes a balance between the obligation to protect confidential information, with the commitment to transparency in decision-making.

As noted: “While the City is committed to enhancing the transparency of its decision-making process, it also recognizes that, in certain circumstances, full or substantial disclosure of the deliberations of Council in a Closed Meeting in the immediate term is simply not appropriate….In making a determination on the content of the resolution to report out, the Department Head responsible for the Confidential Report shall consider whether full or substantial disclosure of the of the deliberations of Council or the matters considered in the Closed Meeting in the immediate term would be prejudicial to the interest considered at the Closed Meeting.”

Where there would be no harm to the corporate interests in advising the public that the specific matter was considered, those details should be disclosed, states the Protocol.  For example, Council may report out the fact of having considered and given direction on the sale of City property, but without disclosing precisely what direction was given.

Waiving privilege to release confidential information:

Council will often seek and be provided with legal advice during a Closed Meeting. Such advice is protected by solicitor-client privilege, which is itself enshrined as a closed meeting exception in clause 239(2)(f) of the Municipal Act, 2001. Solicitor-client privilege is designed to protect the interests of the client in seeking or receiving legal advice, but may be waived where prudent to do so. However, as the City (i.e., the client) can only act through Council, privilege can only be waived through an express resolution of Council, voted on by a majority of Members present at a meeting. Solicitor-client privilege cannot be waived by any single Member of Council, even if purporting to be acting in the public interest.

This Protocol is based upon the following principles:

  • Mature, responsible local government is fostered by an informed electorate;
  • A decision-making process which is open and transparent to the public enhances the democratic legitimacy of local government;
  • To the greatest extent possible, the public should be able to observe municipal government in process;
  • In some circumstances, the public interest is best served by maintaining the confidentiality and privacy of certain information and decisions;
  • The law recognizes that there are legitimate reasons for various enumerated subject matters to be discussed and debated in the absence of the public.
  • Members bear ethical obligations to preserve the confidentiality of such information. Inadvertence or indiscretion in relation to Closed Meeting matters may significantly harm the City’s interests – financial, legal and reputational – and the overall public interest.

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1 thought on “Burlington Council Unanimously Approves New & Enhanced Policies in Closed Session Protocol”

  1. Who decides? In some cases it is mandated by the Municipal Act.
    Staff may recommend going into closed session, but it is ultimately decided by Council voting to go into Closed Session.

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A Better Burlington began in 2006 after my neighbours said they felt left out of city decisions, learning about them only after they’d been made. As journalist for 22 years, I thought “I can do something about that” and a website and newsletter were born. They’ve taken various forms and names over the years, but the intent remains: To let you know what’s happening at City Hall before decisions are made, so you can influence outcomes for A Better Burlington. The best decisions are made when elected representatives tap the wisdom of our community members, and welcome many different perspectives.This site allows residents to comment and debate with each other; our Commenting Guidelines established in 2016 aim to keep debate respectful. Got an idea or comment you want to share privately? Please, get in touch:

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