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2014-003 Appoint a Meeting InvestigatorTHE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE BY -LAW NO. 2014 -003 A By -law to Appoint a Meeting Investigator and Repeal By -Law No. 2012 -037 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 for 2014 and 2015; 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 find it expedient to continue 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; AND WHEREAS Council for The Corporation of the Township of Oro - Medonte declared, by Motion No. C131023 -15, that the Township continue to participate in the agreement between the County of Simcoe and JGM Consulting for closed meeting investigation services for 2014 and 2015; 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 for 2014 and 2015. 2. That the attached agreement between The Corporation of the County of Simcoe and JGM Consulting forms part of this By -Law. 3. That By -law No. 2012 -037 is hereby repealed in its entirety. 4. And That this by -law shall take effect on the final passing thereof. BY -LAW READ A FIRST, SECOND AND THIRD TIME, AND PASSED THIS 8T" DAY OF JANUARY, 2014. THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE r r Aay'0r',' "ghes J. Dotfabs Irwin THIS AGREEMENT dated December�2013 BETWEEN: THE CORPORATION OF THE COUNTY OF SIMCOE (Hereinafter referred to collectively as the "Municipality ") WTI CONSULTING (Hereinafter referred to as the "Independent Contractor ") WHEREAS: (A) Section 239.2 of the Municipal Act, 2001, S.O. 2001, c.25 (the "Act), authorizes 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 procedure 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 investigator's independence and impartiality; b. confidentiality with respect to the investigator's activities; c. the credibility of the investigator's investigative process; (C) The Municipality is satisfied that the Independent Contractor has the skills and ability to meet the foregoing criteria; NOW THEREFORE, the parties agree as follows: Services The Municipality hereby retains and appoints 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 Municipality 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. 2. Duties The duties of the Independent Contractor shall be: (i) to conduct investigations from time to time as requested by the Municipality upon receipt of a complaint (a "Complaint") in respect of meetings or part of meetings that are closed to the public to determine compliance with the Act or the respective municipal procedure by -law and to report on the results of such investigations; (ii) In conducting such investigations, to have regard to the importance of the matters listed above in recital (B); (iii) to proceed without undue delay and with due diligence to investigate a Complaint; (iv) to conduct each investigation in private; (v) to hear or obtain information from such persons as the Independent Contractor thinks fit and to make such inquiries as he thinks fit; (vi) to provide an opportunity to the Municipality or any person that may be adversely affected by a proposed report of the Independent Contractor, the opportunity to make representations respecting such report or recommendation; (vii) to preserve confidentiality and secrecy with respect to all matters that come to his knowledge in the course of performing duties hereunder, save and except disclosure of such matters 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 investigation to render his opinion as to whether or not 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 the Act or Municipal procedure by -law and, in either case, the Investigator shall report his opinion and the reasons for it to the Municipality and shall make such recommendations as he thinks fit. In performing such duties; the Independent Contractor shall have the powers set out in Subsection 223.13(6) and Sections 223.14 to 223.18 of the Act, extracts of which are attached hereto as Schedule "A ". 3. Joint Retainer The Independent Contractor acknowledges that the Independent Contractor is appointed as an Investigator for the Municipality. In addition, the Independent Contractor agrees to also be the Investigator for the member municipalities of Simcoe County as listed in Schedule "B" hereto attached, at the written request of the County of Simcoe together with payment of the additional fee, defined below. 4. Fees (a) Annual Retainer The County of Simcoe shall pay to the Independent Contractor on or before the commencement date ONE THOUSAND DOLLARS ($1,000.00) PLUS APPLICABLE TAXES. In order to add the participating member municipalities to the duties of Independent Contractor an additional fee of THREE HUNDRED DOLLARS ($300.00) ( "Additional Fee ") for each additional member municipality shall be paid by the County of Simcoe, as per the listing of participating municipalities on Schedule "B" attached hereto. Such fees to be paid on or before January 31 in each year of this Agreement plus applicable taxes. (b) Hourly Rate In addition, the Independent Contractor shall be paid a fee of ONE HUNDRED DOLLARS ($100.00) per hour plus applicable taxes during such time as the Independent Contractor is performing his /her duties hereunder. The Independent Contractor agrees such rate shall be charged only for such time that the Independent Contractor is actively investigating a Complaint and preparing and presenting his report with respect thereto. The Independent Contractor would be entitled to be reimbursed other reasonable receipted expenses related to his duties, including food and hotel costs; car rental; kilometre rate at the respective municipal rate or railway tickets. (c) Responsibility for Payment The Independent Contractor further covenants and agrees that his hourly fee and related expenses hereunder shall be paid by the Municipality against whom the Complaint is made and which initiated the investigation. The Municipality agrees to be responsible for such fees and expenses. The Independent Contractor shall invoice the Municipality upon completion of his report. 5. Term The term of this Agreement (the `Term ") is for a fixed two (2) year term commencing January 1 st, 2014 and ending on the second anniversary date thereof unless renewed and /or extended by agreement of all the parties. The Independent Contractor or the Municipality shall give at least 30 days written notice prior to the end of the Term of their intent not to renew this Agreement if such renewal were to be available. 6. Taxes All amounts payable to the Independent Contractor shall be paid without deduction. The Independent Contractor shall be responsible for any contributions imposed or required under employment insurance, health tax, social insurance, income tax laws, Worker's Compensation (if elected to enrol), pension with respect to any amounts paid to the Independent Contractor. The Municipality assumes no obligation or liability as between the parties to this Agreement to deduct or remit any statutory or government remittances. 7. Independent Contractor The Independent Contractor is a contractor independent of the Municipality. Nothing herein shall be interpreted to create a relationship of employer / employee, partnership, franchise, agency or joint venture or other like arrangement. 8. Delegation In the event more than one Complaint is made at any one time requiring more than one investigation, the Independent Contractor may determine that it is necessary to delegate some or all of his powers and duties, then he may do so in writing to any person other than a member of council, provided that the person to whom such delegation is made agrees in writing to be governed by the same duties of secrecy as the Independent Contractor and to. abide by the terms and conditions of this Agreement. Such person shall always be under the supervision and direction of the Independent Contractor. Such delegation shall not be a member of council or staff of any Municipality and shall not result in any additional costs or fees to the Municipality. Invoices shall be rendered by the Independent Contractor and payments made to the Independent Contractor and the Independent Contractor shall otherwise be responsible for the fees and disbursements of any of his delegates. 9. Binding: This Agreement shall ensure to the benefit of and bind the parties and their respective heirs, successors and permitted assigns. 10. Indemnification The Municipality agrees to indemnify and save harmless the Independent Contractor, its agents and assigns, from and against any and all liabilities, losses, suits, claims, demands, damages, expenses, costs (including all legal costs), fines and actions of any kind or nature whatsoever arising out of or in connection with the Independent Contractor's provision of services and carrying out of its duties including, but not limited to, any alleged breach of this agreement, any procedural defect or other breach of relevant statutory provisions. 11. Entire Aareement This Agreement contains the entire agreement between the parties and supersedes all previous negotiations, understandings and agreements, verbal or written 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 5 day of DeC�J"T"7b� -+� , 2013. SIGNED, SEALED & DELIVERED THE CORPORATION OF THE COUNTY OF SIMCOE: WARDEN, COUNTY OF SIMCOE . kv'� � &4 CLERK, COUNTY OF SIMCOE The Independent Contractor hereby accepts and agrees to the terms and conditions herein contained. DATED: 100 n ZO , 2013. NESS: J N . MADD X for JGM CONSULTING AUTHORIZED BY BYLAW NOILL� aPASSED BY THE COUNCIL OF THE 9ORPORATION OF THE COUNTY OF SIMCOE ON yp SCHEDULE "A" to Agreement AGREEMENT BETWEEN THE CORPORATION OF THE COUNTY OF SIMCOE AND JGM CONSULTING MUNICIPAL ACT, 2001 S.O.2001, CHAPTER 25 EXTRACT Procedure by -law Definitions 238. (1) In this section and in sections 239 to 239.2, "committee" means any advisory or other committee, subcommittee or similar entity of which at least 50 per cent of the members are also members of one or more councils or local boards; ( "comit6 ") "local board" does not include police services boards or public library boards; ( "conseil local ") "meeting" means any regular, special or other meeting of a council, of a local board or of a committee of either of them. ( "reunion ") 2001, c. 25, s. 238 (1); 2006, c. 32, Sched. A, s. 102 (1, 2). Procedure by -laws respecting meetings (2) 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 (2.1) The procedure by -law shall provide for public notice of meetings. 2006, c. 32, Sched. A, s. 102 (3). Outside municipality (3) The 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 (4) 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 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 (1). 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; (b) personal matters about an identifiable individual, including municipal or local board employees; SCHEDULE "A" to Agreement (c) a proposed or pending acquisition or disposition of land by the municipality or local board; (d) labour relations or employee negotiations; (e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board; (f) advice that is subject to solicitor - client privilege, including communications necessary for that purpose; (g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act. 2001, c. 25, s. 239 (2). Other criteria (3) A meeting shall be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information 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. 2001, c. 25, s. 239 (3). Educational or training sessions (3.1) A meeting of a council or local board or of a committee of either of them may be closed to the public if the following conditions are both satisfied: 1. The meeting is held for the purpose of educating or training the members. 2. At the meeting, no member discusses or otherwise deals with any matter in a way that materially advances the business or decision- making of the council, local board or committee. 2006, c. 32, Sched. A, s. 103 (1). Resolution (4) Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution, (a) the fact of the holding of the closed meeting and the general nature of the matter to be considered at the closed meeting; or (b) in the case of a meeting under subsection (3.1), the fact of the holding of the closed meeting, the general nature of its subject -matter and that it is to be closed under that subsection. 2001, c. 25, s. 239 (4); 2006, c. 32, Sched. A, s. 103 (2). Open meeting (5) Subject to subsection (6), a meeting shall not be closed to the public during the taking of a vote. 2001, c. 25, s. 239 (5). Exception (6) 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 public; and (b) the vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board. 2001, c. 25, s. 239 (6). Record of meeting (7) A municipality or local board or a committee of either of them shall record without note or comment all resolutions, decisions and other proceedings at a meeting of the body, whether it is closed to the public or not. 2006, c. 32, Sched. A, s. 103 (3). SCHEDULE "A" to Agreement Same (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 be disclosed (9) Clause 6 (1) (b) of the Municipal Freedom of Information and Protection of Privacy Act does not apply to a record of a meeting closed under subsection (3.1). 2006, c. 32, Sched. A, s.103(3). Investigation 239.2 A person may request that an investigation of whether a municipality or 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 be undertaken, (a) by an investigator referred to in subsection 239.2 (1); or (b) by the Ombudsman appointed under the Ombudsman Act, if the municipality has not appointed an investigator referred to in subsection 239.2 (1). 2006, c. 32, Sched. A, s.104. Investigator 239.2 (1) Without limiting sections 9, 10 and 11, those sections authorize the 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 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, Sched. 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 (3) 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. SCHEDULE "A" to Agreement Delegation (6) 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 (7) An investigator may continue to exercise the delegated powers and duties, despite the delegation. 2006, c. 32, Sched. A, s. 104. Status (8) 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 223.18 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 (10) 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 (11) 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. 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 an investigation 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. SCHEDULE "A" to Agreement Application of Ombudsman Act (3) 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 Actto "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 Freedom of Information and Protection of Privacy Act' and "this Act", respectively. 2006, c. 32, Sched. A, s. 98; 2006, c. 35, Sched. C, s. 134 (3). Duty of confidentiality 223.15 (1) Subject to subsection (2), the Ombudsman and every person acting under the instructions of the Ombudsman shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part. 2006, c. 32, Sched. A, s.98. Disclosure (2) The Ombudsman may disclose in any report made by him or her under this Part such matters as in the Ombudsman's opinion ought to be disclosed in order to establish grounds for his or her conclusions and recommendations. 2006, c. 32, Sched. A, s. 98. Section prevails (3) This section prevails over the Municipal Freedom of Information and Protection of Privacy Act. 2006, c. 32, Sched. A, s. 98. No review, etc. 223.16 No proceeding of the Ombudsman under this Part shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court. 2006, c. 32, Sched. A, s. 98. Testimony 223.17 (1) The Ombudsman and any person acting under the instructions of the Ombudsman shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Part. 2006, c. 32, Sched. A, s. 98. Same (2) Anything said or any information supplied or any document or thing produced by any person in the course of any investigation by or proceedings before the Ombudsman under this Part is privileged in the same manner as if the inquiry or proceedings were proceedings in a court. 2006, c. 32, Sched. A, s. 98. Effect on other rights, etc. 223.18 The rights, remedies, powers, duties and procedures established under sections 223.13 to 223.17 are in addition to the provisions of any other Act or rule of law under which any remedy or right of appeal or objection is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Part limits or affects any such remedy or right of appeal or objection or procedure. 2006, c. 32, Sched. A, s. 98. SCHEDULE "B" to Agreement AGREEMENT BETWEEN THE CORPORATION OF THE COUNTY OF SIMCOE AND JGM CONSULTING List of Participating Municipalities - Closed Meeting Investigator Services: To be completed pending confirmation from the member municipalities. 1) The Corporation of the Township of Adjala - Tosoronto 2) The Corporation of the Town of Bradford -West Gwillimbury 3) The Corporation of the Township of Clearview 4) The Corporation of the Town of Collingwood 5) The Corporation of the Township of Essa 6) The Corporation of the Town of Innisfil 7) The Corporation of the Township of New Tecumseth 8) The Corporation of the Township of Oro - Medonte 9) The Corporation of the Town of Penetanguishene 10) The Corporation of the Township of Ramara 11) The Corporation of the Township of Severn 12) The Corporation of the Township of Springwater 13) The Corporation of the Township of Tay 14) The Corporation of the Township of Tiny 15) The Corporation of the Town of Wasaga Beach