Joey Coleman: Hamilton City Solicitor questions work of Ontario's Ombudman's office

Hamilton City Solicitor questions work of Ontario's Ombudman's office

[box style=”box_gray” type=”download_box”]Download the electronic version of Mr. Barkwell’s report LS-12001 (Ontario Ombudsman) {1.75MB PDF} [/box]

City Solicitor accuses Ombudman’s office of negligence and portraying Hamilton Council in an “unfairly negative light”

Hamilton’s City Solicitor Peter Barkwell is taking issue with the Ontario Ombudsman’s office assessment that Hamilton City Council improperly met behind closed doors three times this term.

In a closed-session report given to Council, Mr. Barkwell accuses the Ombudsman’s office of making “serious factual errors or omissions” in their reports adding “that the effect of those errors is to portray the actions of Council in an unfairly negative light.”

He suggested that Council could ignore the Ombudsman’s reports and not release any information to the public. “It is our opinion that the City of Hamilton would be well within its rights to refuse to publish the December 28th, 2011, communications at they are not reports within the meaning of Section 14(2.6) of the Ombudsman Act”.

Council releases letters and report – rejects accusations against Ombudman

Admit fault, propose solutions

Hamilton City Council released Mr. Barkwell’s report Wednesday as they rushed to publicly show themselves serious about transparency, recognized it erred by excluding the public from meetings, and promised reforms to prevent improper closed session meeting in the future.

Ward 4 Councillor Sam Merulla suggested a colour-code system to guide Council on the sensitivity of information. He plans to bring a motion to empower clerks to end closed session meetings if the discussion properly belongs in public session.

City Solicitor claims Ombudsman denied City “due process and natural justice”

In his ten-page report, Mr. Barkwell further accused the Ombudman’s office of denying the City of Hamilton “due process and natural justice” in the developments of the reports – with the word “reports” in quotation marks. Mr. Barkwell stated he did not consider the correspondence from Mr. Marin’s office to constitute reports.

Mr. Barkwell’s report, while scathing of the Ontario Ombudsman Andre Marin and his office, nonetheless recognized the desire of Council to appear transparent and gave Council four recommendations, two of which being to receive Mr. Barkwell’s report and then make it public. Council adopted these.

As Council voted in-camera Monday on Mr. Barkwell’s findings, I’m unsure if Council adopted two other recommendations in the package – one to forward a copy of Mr. Barkwell’s opinion to Mr. Marin and the other that all other communications with Ombudsman about closed meeting investigations be directed to the City Solicitor.

Update: 13 Jan 12 1553EST: Council rejected Mr. Barkwell’s recommendations to forward his report to Mr. Marin and that all future communications with the Ombudsman about closed meeting investigations be directed to the City Solicitor. (For more about this update, please read my clarification post)

City Solicitor hints at dumping Ombudsman for City-appointed private investigator

On page 9 of his report, Mr. Barkwell reminds Council their original decision to use the Ombudsman – instead of a Council appointed private investigator – to review complaints about closed session meetings was only for a two year term. This decision was four years ago. Mr. Barkwell states at the end of the original two year term, they had yet to receive a complaint.

Now that four complaints have been investigated by the Ombudsman, Mr. Barkwell states Council has experience with the process to a review of their decision to engage the Ombudsman. Mr. Barkwell closed his report by providing alternative recommendations to Council including the City “could retain its own closed meeting investigator and cease using the Ombudsman to conduct such investigations.”

Ombudsman responds

Mr. Marin responded swiftly on his Twitter account @Ont_Ombudsman.[blackbirdpie url=”https://twitter.com/#!/Ont_Ombudsman/statuses/157271682816552960″]

Mr. Barkwell also took issue with the “informal” resolution of the closed session complaints instead of a full Ombudsman’s office investigation. Mr. Barkwell wrote of these resolutions “[I]t flies in the face of the requirements of the Ombudsman Act and the Regulations there under.”[blackbirdpie url=”https://twitter.com/#!/Ont_Ombudsman/statuses/157294499826106369″]

Mr. Marin continued to pull no punches on Twitter this morning, and stated he will be issuing a full response today:[blackbirdpie url=”https://twitter.com/#!/Ont_Ombudsman/status/157481818399051776”]