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Electronic communications between councillors can pose as 'illegal meetings'

Posted May 20, 2016

A two hour "orientation update" for New Tecumseth council led by the Town's Integrity Commissioner (IG) yesterday afternoon, included warnings their practice of discussing municipal business via email and text chains involving at least a quorum of members, can be construed as an "improper closed meeting."

John Mascarin, Aird &Berlis LLP, reappointed New Tecumseth's IG through to March 2019, at an hourly rate of $645 when called on to investigate a complaint, told councillors that emails, texts, and telephone calls that advance council business, outside the public realm, are not permitted in Ontario.

Mr. Mascarin noted the provincial Ombudsman who said a "chain of telephone conversations, where councillor Biss calls councillor McIntyre, who then calls councillor Whiteside, who calls councillor Jebb and so on, could possibly constitute an electronic meeting, which is not permitted, so therefore it's an illegal meeting."

"I'm not sure I agree, but I see where he's going, it could be an illegal meeting. I don't think it can be a legal meeting. And a chain of emails, or some sort of get together on social media, which is not advertised as a council meeting, would be an improper closed meeting."

Ward 4 councillor Fran Sainsbury asked if council could simply make a provision for it in the procedural bylaw.

"It's very fact specific," he said. "A meeting in my view constitutes when they get together and talk. You can converse in other ways and that might constitute an illegal meeting. If you were to all get together and have a conference call tonight and start talking about council business, I think that's a real problem."

"What about email chain?" asked Ward 7 councillor Shira Harrison McIntyre.

"I think that's a problem as well. Again, you can probably tweak your fact situation slightly, I might say, that's not really that," explained Mr. Mascarin.

"One and one is very different. I've often said to council, you can't discuss that in closed session, and they'll say, 'but we have to discuss it in closed'. Well, I'm pleased to meet with you two, and I'll meet with you, and I'll meet with the mayor and deputy mayor. It's a little artificial, maybe a little bit of a sham, we have done that before. And that might be the way around it because it's not a quorum at any one time. But you could say, 'aren't you really skating the thin edge, because really, aren't you going to talk to the same thing about them,?' But it's not you deciding, it's not everybody together and councillor Sainsbury can't go and influence you Councillor McIntyre, if you and I are speaking later, or councillor Biss, can't councillor Beattie, and so on."

Yesterday's session, which was missing Ward 6 councillor Richard Norcross, and Ward 8 Chris Ross, also included refreshers on conflicts of interest, (which is the obligation of a councillor to declare), and the separation of council and municipal administration roles.

However, some key updates include the notion that communications by councillors via their own personal devices and accounts, can be shielded from freedom of information (FOI) requests, a situation Mr. Mascarin called "legal fiction for years" because municipal clerks or the "head" were not requesting private files.

The issue rose to prominence stemming from a case in Oshawa whereby that city's former mayor, now councillor, contacted the solicitor who was investigating claims against their auditor general, through her own account. He said her email surfaced as part of a closed meeting investigation, "which was sent by councillor Nancy Diamond, from her personal iPad, on her personal email account, to the solicitor." She had "voluntarily" turned it in.

"Yes, the councillor voluntarily turned up the record, yet the City took the position it wasn't in their control. Wonky reasoning, and logic. Well, she volunteered, and it was a reasonable expectation she (City Clerk) should have received it, so then municipality decided to release it."

"So, let's me say to you now, its become a little more problematic. If you send something from your text, something that's not an email, and don't think your email determinative, it can be a text, it could be some other digitized record, and it's done through something that you would not use here at the Town, it could possibly be ruled something that is still dealing with council business, and something that could be disclosed," he said. "Now, your head has no authority to go and search your records, but if it's appealed, the IPC (Information and Privacy Commissioner) may have that authority. So maybe your personal records may be searched. So very interesting kind of case law that may emerge from all this. Oshawa did not appeal the decision."

Also, the growing use of social media - Facebook, Twitter, et al - and "how does it affect you?"

"Social media policy does not apply to you (because it's not referenced directly in New Tecumseth council's Code of Conduct). "But look at your Code of Conduct, you have to be respectful of interactions with everyone, and that includes on social media. You have to be really careful, because you have obligations to be leaders in your community, to be respectful towards everyone. The mayor is the official spokesman, that is what your Code of Conduct says, so just be careful if you don't like something that's being propagated by your council, by your municipality, the mayor is your spokesman, remember that."

The social media discussion also turned to defamation - which combines both libel (written) and slander (spoken), and of particular the line of questioning sparked by Ward 1 councillor Marc Biss.

Mr. Mascarin said current legal situations involve tests as to whether an alleged defamatory comment "It being up on a blog, or web site, or somewhere constitute a fresh defamation everyday, as opposed to one where it was published oh, six weeks ago in the Toronto Star, 'the person defamed me.' But if it's on a web site, there's a question, I'm dealing with that very situation now for a municipality with my litigation partner who does defamation."

"Does that also include Facebook?" asked Councillor Biss.

"Yes, it includes Facebook, Twitter and..." added Mr. Mascarin.

"So every time it gets shared, that's another act of defamation, is that correct?" continued councillor Biss.

"It could be," the reply.

"And everyone who 'Likes' it could also be included as defamatory, or is it just an instance where the more people see it so there's more people who defamed?"

"I don't think just because someone chimes in and says "Like" they are the person who is defaming, even though I can see sometimes the context is you "Like" that, well then you're supporting it right. That's different than making the statement. And I'm sorry, again, I'm not a defamation lawyer, so I can't really technically speak to that."

"Do you have the name of a good defamation lawyer that I may contact?" asked Councillor Biss.

"I certainly do," replied Mr. Mascarin,

"Maybe we will talk after," said councillor Biss. "I'd certainly like to speak to him."

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All stories, unless otherwise noted,
by Tony Veltri
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