Loading...
2007-135 A By-Law to Appoint a Meeting InvestigatorA By-law to Appoint a Meeting Investigator WHEREAS Section 239.2 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended authorize a municipality to appoint an investigator who has the function to investigate in an independent manner, on a complaint made to him or her by any person, whether the municipality or a local board has complied with section 239 or a procedure by-law under section 238 (2) in respect of a meeting or part of a meeting that was closed to the public, and to report on the investigation; AND WHERAS The County of Simcoe has entered into an agreement with JGM Consulting to provide meeting investigator services; AND WHEREAS said agreement provides that member municipalities of the County of Simcoe may participate; AND WHEREAS the Council of The Corporation of the Township of Oro-Medonte does now find it expedient to participate in the agreement between The County of Simcoe and JGM Consulting and to appoint a meeting investigator to investigate complaints initiated under Section 239.1 of the Municipal Act, 2001, as amended; NOW THEREFORE the Council of the Township of Oro-Medonte hereby enacts as follows: That JGM Consulting be appointed as the Township of Oro-Medonte's meeting investigator. 2. This by-law shall take effect on the 1 st day of January 2008. BY-LAW READ A FIRST AND SECOND TIME THIS 12TH DAY OF DECEMBER, 2007. --.Y-LAW READ A THIRD TIME AND FINALLY PASSED THIS 12T9 DAY OF _11ECEMBER, 2007. Mayor, H.S. Hug s RA= �� 13 THIS AGRFE MEN Tdatcd 2000 liFTWHI�"N: `THE CORPORATION OF THE COUNTY OF SIMCOE (I lercinaftcr referred to collectively as the "Municipalities" and Individually referred to as a "Municipality") - AND- JGM CONSULTING (Hereinafter referred to as the "Independent Contractor") WHEREAS: (A) section 239.2 of the Municipal Act, 2001, S.O. 2001, e.25 (the -Act"), when proclaimed in force, authorizes the Municipalities to appoint an investigator to investigate in an independent manner any complaint as to whether the Municipality has complied with the Act or a Municipal procedural by-law in respect of a meeting or part of a meeting that was closed to the public and to report on the investigation; (B) in appointing an investigator and in assigning powers and duties to him, a Municipality is to have regard to, among other things: a. the investigators independence and impartiality; b. confidentiality with respect to the investigator's activities; c. the credibility of the investigator's investigative process; (C) the Municipalities are satisfied that the Independent Contractor has the skills and ability to meet the foregoing criteria; NOW THEREFORE the parties agree as follows: Services: The Municipalities hereby retain and appoint the Independent Contractor as an investigator for the purposes of Section 239.2(1) of the Act and the Independent Contractor agrees to provide such services for and at the request of the Municipalities and accepts such appointment. The Independent Contractor confirms that services under this agreement will be carried out by John G. Maddox except as otherwise delegated by John G. Maddox. Duties - The duties of the Independent Contractor shall be: (i) to conduct investigations forrit time to time as requested by a Municipality upon receipt of* a complaint (a^Comp&int")io respect o[ meetings or part o[ meetings that are closed to the public to determine compliance with the Act or the Mnuiugm| procedural by-law and to report cm the results o[ such investigations; (`i) in conducting such investigations, to have regard 0u the importance of the moVcs listed above m recital (8); (iv) to proceed without undue delay and with due diligence to investigate a Complaint; (iv) m conduct each investigation ioprivate; (,) W hear m obtain information from such persons m the Independent Contractor thinks fit and to make such inquiries umhethinks G/; (vi) to provide un opportunity to the Municipality nr any person that may be udvcsc|y aO'ectud by a proposed report of the Independent Contractor, the opportunity to make representations respecting such report orrecommendations; (vii) to preserve the confidentiality and secrecy with respect to all mu1too that come to his orher knowledge `o the course of performing duties hereunder, save and except disclosure o[xuch muUco as in the Independent Contractor's opinion ought to be disclosed in order to establish grounds for his conclusions and recommendations; (viii) after making an invrntigaboo, the Independent Contractor shall render his opinion as N whether or not the mccdog or part of the mcc6og that was the subject mutter of the investigation appears to have been c\uar6 to the public contrary to the Act orMunicipal procedure by-law und, in either ousc. the Investigator sbu|( report his opinion and the reasons for itto the applicable Municipality and abm|l make such recommendations ux6e thinks fit. In performing xuuhdudcs,thcIndepcndentContruckxsho|hovcthepnneroaioutinSubscc600 223.13(6) and Sections 223.14 to 223.18 of the Act copies of which are uUuuhmJ hereto as Schedule "A". }o!.nL_Kctainer - The [odcprodnui Contract acknowledges that the independent Contractor is appointed as an lovcmdguu/r for each of the Municipalities. In addition, the Independent Contractor ugrcoa to also be the Investigator for the member municipalities o/ Simcoc County listed in Schedule ^'B^ 6rrctu uttuc6cd, at the written request of Bim000 County together with payment of the Additional fee, defined below. 4. Fees (a) Annual Retainer -Tho County ofSincoc shall pay N the Independent Contractor on or before the commencement date Two TrI0uSAmoFwpHUNDRED DOLLARS ($2,500.00) plus upp}ioub|x taxes. In order to add the Included Municipalities to the duties of Independent Contractor and additional 6:c of35.00V.00(^`/\dddioual Fcc'`) shall 6epaid 6y the County o[Sinouoc, (b) Hourly Rat - Inuddidon,the Independent Contractor shall be paid ufee ofS�E'[N'TY- [|V6 D0LL/1D8 ($75.00) per hour plus applicable taxes during such time the Independent Contractor is performing his duties hereunder. The Independent Contractor agrees such rate shall be charged only for such time that the Independent Contractor in actively investigating a Complaint and preparing and representing his report with respect thereto. The Independent Contractor would be entitled um6creimbursed other reasonable ruuoipted oxpcnoca related to his duties, including food and hotel :nuts, oar cnn<oL kilometre rate at the respective municipal rate or railway tickets. (c) Responsibility for Pmyn/mu/-The Independent Conti-actor further convents and agrees that his hourly l*ee and related expenses hereunder shall bm paid hythe Municipality or Included Municipality against whom the Complaint is nmdo and which initiated the investigation. Fuch Municipality agrees mburesponsible for such fees and expenses and, nmUowid6mmnJiug the Joint retainer, the Independent Contractor uhul not bmN the other %Junioipu|diem responsible 6x such payment obligation. The Independent Contractor shall invoice the applicable Municipality upon cornpletion ot*his report. Tcnn The <cnnn[d6im agreement (the '"[cnn']ia for z fixed one (\) year term commencing the et't'ecnve date of' the proclarnation by the Lieutenant Governor amending the Act by addition Sections 239.1 and 230.2 (the "commencement Jute'l and ending mothe first anniversary date iken:o[ unless renewed and/or extended by agreement of all the parties. The Independent Contractor or any municipality party to this Agreement shall give ni least 3O days written notice prior to the end o[|hc 7cnn of his intent not to muo* this &#rccneot if such rcuowu| were to be Faxes All arnounm payable m the Independent Contractor shall be paid without deduction. The Independent Contractor ohuU be responsible kn any onutci6uiioom imposed or required under employment insurance, health tax, social insurunoc, income zus |m*n. Worker's Compensation (if elected to enrol), pension with respect to any amounts paid tothe Independent Contractor. The Municipalities assume no obligation or liability as between the parties to this Agreement to deduct nrremA any statutory mgovernment remittances. Independent Contractor - The Independent Contractor is u contractor independent of the Municipalities. Nothing herein shall be interpreted to create u relationship ofccnp1oycr/omp(uycc partnership, 6nocbiyc, agency or joint venture o«other like arrangement. Dc|c-u6uo - In the event more than one Complaint is made u/ any one time requiring more than one mvcsdguhoo. oid6cr with the xumc or more than one Municipality, and the Independent Contractor determines it to be necessary to delegate some or all of his powers and duties, then he may do so in writing to any person other than o member of council, provided that the porymu to whom such a delegation is made agrees in writing to be governed by the same duties of secrecy as the Independent Contractor and to abide by the tcnns and conditions in this /\QrcernunL Such person shall always be under the supervision and direction ofthe Independent Contractor. Such delegation s6uU not be boa member nf council or staff of any Municipality and shall not result in any additional costs or fees to the Municipalities. Invoices shall 6o rendered bythe Independent Contractor and payments made to the Budupeo6cot Contractor and the Independent Contractor sbu}| otherwise be responsible for the fees and disbursements of any of his delegates. Binding - This agreement ebuA oourc 10 the 6eucDt of and bind the parties and their respective heirs, successors and permitted assigns. iO, hdemnification - lhe Municipalities agree mindemnify and save harmless the Independent ConoacWr, its ugcot« and uxm@nn, from and against any and all liabilities, losses, muhs, o|abno, demands, Jomugox` cxpcoaeo. costs (including all legal costs), 6ucm and actions of any ldoJ or vo/uo whatsoever arising out nyorin connection with the Independent Contractor's provision of services and currying out of its duties ino|uding, but not limited /o, any u||cgod breach of this agreement, any procedural defect or other breach of relevant statutory provisions. |l. Entire Agreement - ThimAgreement contains the entire agreement between the parties and svprcyeJcs all previous ucgotiaboon, understandings and arrangements, verbal or "/huvn with respect to any matters referred to in this agreement. IN WITNESS HEREOF each of the parties hereto have set its hand and seal as of this clay of 204 SIC NED, SEALED & DELIVERED AUTHORIZED BY BY-LAW NO. PASSED BY THE COUNCIL OF THE CORPORATION OF THE THE CORPORATION OF COUNTY OF SIMCOE ON ti—dy, 2--7 20–1 By:__ Nam e/ Fitle: "F6 is Warden By: Name/Title: Cj R. Knox, County Clerk 'I he Independent Contractor hereby accepts and agrees to the terms and conditions herein contained. DATE: .2007 WITNESS 4 �-Z JOIN MADDOX SCH1,F)LITE "A" TO Agreement re: Municipal Investigator MUNICIPAL ACT, 2001 S.O. 2001, CHAPTER 215 EXTRACT PROCEDURE BY-LAW Procedure by -law Definitions 238. ( 1) In this section and in sections 239 to 239.2, ..corrintittee" means any advisory or other committee, subcommittee or similar entity of which ai. least 50 per cent of the members are also members of one or more councils or local boards; ("comitC) "local board" does not include police services boards or public library boards; ("conscil local") "meeting" means any regular, special or other meeting of a council, of a local board or of a committee ofeither of them. (­r6umon") 2001, c. 25, s. 238 (1), 2006, e,.32, Sched. A, s. 102 (1, 2). Procedure by-laws respecting meetings C2 - ) Every municipality and local board shall pass a procedure by-law for governing the calling, place and proceedings of meetings. 2001, c. 25, s. 238 (2). Notice L2.11 The procedure by-law shall provide for public notice of meetings. 2006, c. 32, Sched. A, s. 102 (3). Outside municipality C31The procedure by-law may provide that meetings be held and public offices be kept at a place outside the municipality within an adjacent municipality. 2001, c. 25, s. 238 (3). Presiding officer C4) The procedure by-law may, with the consent of the head of council, designate a member of council, other than the head of council, to preside at meetings of council. 2006, c. 32, Sched, A, s. 102 (4). Secret ballot [5) A presiding officer may be designated by secret ballot. 2006, c, 32, Sched. A, s. 102 (4). Meetings open to public 239. (1) Except as provided in this section, all meetings shall be open to the public. 2001, c.25, s, 239(l). Exceptions (2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is, (a) the security of the property of the municipality or local board; 5 (6) personal matters about an identifiable indiviJmJ, including municipal or local board unp/oycco (c) a proposed or pending acquisition nr6`spoatkm of land by the municipality or local board: (d) labour relations e« employee negotiations, (c) 6tigab000rpnomtb|libgu�ou including matters before udoinim�aivckJbunaa`aOeodng�e municipality ' or local board; (f) advice that is subject (usolicitor-client privilege, including communications necessary for that purpose, (g) o matter in respect of which u uoouoU, board, committee or other body may hold u closed meeting under another Act. 2001.z.25,s.239 (2). Other criteria (31—A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Nfunicipal Freedom of Inforination and Protection of* Privacy Act if the council, board, commission or other body is the head of an institution for the purposes of that Act. 200 1, c. 25, s. 23 9 (3) Educational or training sessions meeting of u council or kmuj board or of oomuzocc of either of them may be closed to the public i[ the following conditions are both satisfied: |. The meeting ie held for the purpose o[ educating m training the members. 2. At the meeting, no member dimoumoy or otherwise deals with any matter in a way that mutenu||y advances the huuiocam or decision-making of the council, local board or cnrooitnnc. Ren*imttum Before holding u meeting or part of meeting that is W be closed 0o the puh|ic, u municipality or local board or committee o[ either o[ them shall state 6yresolution, (a) the fact of the holding of the o\oacd meeting and the general outunc of the matter to be considered uL the closed meeting; or (b) in the cuoc of mccduQ under subsection (3J)` the fact of the holding of the closed mccdog` the general outucc of its subject-matter and that it is to be closed under that subsection. Open meeting (I) Subject w subsection (6).0 meeting shall not 6e closed uo the public during the taking ofavote. 2001, Exception to Despite section 244, a meeting may be closed to the public during a vote if, (a) subsection (2) or (3) permits or requires the meeting to be closed to the pubhc and (W the for a procedural matter or for giving directions or to officers, ".f."x`," or a*ox^ of the municipality, /vua/ vv^u on xvovmuoeo of either of them or pcooua retained by or under a contract with the municipality or local board. 2001, c. 25, s. 239 (6). Record ofmeeting Cl �_ A municipality or local board or a uocuodttcx nfcider of them mbuU record without note or cnouocut all rcsolutions, decisions and other proceedings at a meeting of the body, whether it ia closed m the public or riot. 2006, c. 32. Oshcd. /\.s. 102 (3). Same 6 (8-) The record required by subsection (7) shall be made by, (a) the clerk, in the case of a meeting of council; or (b) the appropriate officer, in the case of a meeting of a local board or committee_ 2006, c. 32. Sched. A, s. 103 (3). Record may he disclosed n Clause 6 (1) (b) of the Afunicipal Freedom of Information and Protection of Privacy ,4ct does not apply to a record of meeting closed under subsection (3.1). 2006, c. 32, Sched. A. s. 103 (3). Investigation 239.1 A person may request that an investigation of whether a municipality or local board has complied with section 239 or a rocedure by -law under subsection 2313 (2) in respect of a meeting or part of a meeting that was closeyto the public be undertaken, (a) by an investigator referred to in subsection 239.2 (1); or (b) by the Ombudsman appointed under the Ombudsman Aci, if the municipality has not <tppointed an investigator referred to in subsection 239.2 (1). 2006, c. 32, Sched. A, s. 104. Investigator 239.2 (1) Without limiting sect' ions 9, 10 and 11, those sections authorize the municipality to appoint an investigator who has the functio to investigate in an independent manner, on a complaint made to him or her by any person, whether the municipality or a local board has complied with section 239 or a procedure by -law under subsection 238 (2) in respect of a meeting or part of a meeting that was closed to the public, and to report on the investigation. 2006, c. 32, Schcd. A, s. 104. Powers and duties (2) Subject to this section, in carrying out his or her functions under subsection (1), the investigator may exercise such powers and shall perform such duties as may be assigned to him or her by the municipality. 2006, c. 32, Sched. A, s. 104. Matters to which municipality is to have regard L3� In appointing an investigator and in assigning powers and duties to him or her, the municipality shall have regard to, among other matters, the importance of the matters listed in subsection (5). 2006, c. 32, Sched. A, s. 104. Same, investigator (4) In carrying out his or her functions under subsection (1), the investigator shall have regard to, among other matters, the importance of the matters listed in subsection (5). 2006, c. 32, Sched. A, s. 104. Same (5) The matters referred to in subsections (3) and (4) are, (a) the investigator's independence and impartiality; (b) confidentiality with respect to the investigator's activities; and (c) the credibility of the investigator's investigative process, 2006, c. 32, Sched. A, s. 104. Delegation L6) An investigator may delegate in writing to any person, other than a member of council, any of the investigator's powers and duties under this Part. 2006, c. 32, Sched, A, s. 104. Same (IL) An investigator may continue to exercise the delegated powers and duties, despite the delegation. 2006, c. 32, Sched. A, s. 104. Status (_81_ An investigator is not required to be a municipal employee. 2006, c. 32, Sched. A, S. 104. Application (9) Subsection 223.13 (6) and sections 223.14 to 2213.18 apply with necessary modifications with respect to the exercise of functions described in this section. 2006, c. 32, Sched. A, s. 104. Report and recommendations (j (Y ) If, after making an investigation, the investigator is of the opinion that the meeting or part of the meeting that was the subject-matter of the investigation appears to have been closed to the public contrary to section 239 or to a procedure by-law under subsection 238 (2), the investigator shall report his or her opinion and the reasons for it to the municipality or local board, as the case may be, and may make such recommendations as he or she thinks fit. 2006, c. 32, Sched. A, s. 104. Publication of reports ,oi) The municipality or local board shall ensure that reports received under subsection (10) by the municipality or local board, as the case may be, are made available to the public. 2006, c. 32, Sched. A, s. 104. See: 2006, c. 32, Sched. A, ss. 104, 192 (2). Powers paramount 223.13 (6) The powers conferred on the Ombudsman under this Part may be exercised despite any provision in any Act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect of them, or that no proceeding or decision of the person or organization whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question. 2006, c. 32, Sched. A, s. 98. Investigation 223.14 (1) Every investigation by the Ombudsman shall be conducted in private. 2006, c. 32, Sched. A, s. 98. Opportunity to make representations (2) The Ombudsman may hear or obtain information from such persons as he or she thinks fit, and may make such inquiries as he or she thinks fit and it is not necessary for the Ombudsman to hold any hearing and no person is entitled as of right to be heard by the Ombudsman, but if at any time during the course of investigation nvestigation it appears to the Ombudsman that there may be sufficient grounds for him or her to make any report or recommendation that may adversely affect the municipality, a local board, a municipally- controlled corporation or any other person, the Ombudsman shall give him, her or it an opportunity to make representations respecting the adverse report or recommendation, either personally or by counsel. 2006, c. 32, Sched. A, s. 98. Application of Ombudsman Act Q) Section 19 of the Ombudsman Act applies to the exercise of powers and the performance of duties by the Ombudsman under this Part. 2006, c. 32, Sched. A, s. 98. Same (4) For the purposes of subsection (3), references in section 19 of the Ombudsman Act to "any governmental organization", "the Freedom of Information and Protection of Privacy Act" and "the Public Service of Ontario Act, 2006" are deemed to be references to "the municipality, a local board or a municipally- controlled corporation", "the Municipal Freedoni of'Infi)rmation and Protection qf'Privacy .,I ct" and "this Act", respectively. 2006, c, 32, Sched. A, s. 98; 2006, c. 35, Sched. C, s. 134 (3). Note: On the dav the Statutes of Ontario, 2006, chapter 35, Schedule C, section 134 comes into force, subsection (4) is amended by the Statutes of Ontario, 2006, chapter SCHEDULE "B' To , 0 Agreement re: Municipal Investigator The Corporation of the Town of Bradford West Gwillimbury The Corporation of the "Township of Clearview The Corporation of the Town of Collingwood The Corporation of the Township of Essa The Corporation of the Town of Innisfil The Corporation ofthe Town of Midland ']'he Corporation of the Town of New Tecumseth The Corporation of the "Township of Oro-Medonte The Corporation of the Township of Ramara. The Corporation of the Township of Severn The Corporation of the Township of Springwater The Corporation of the Township of Tay The Corporation of the Township of Tiny 1'he Corporation of the Town of Wasaga Beach 10