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Thursday, September 17, 2009

Analysis: City Hall fails secrecy test

Council goes in camera for no reason most of the time

Posted By on Thu, Sep 17, 2009 at 5:46 PM

Halifax council is needlessly secret, stretches the justifications for holding secret meetings and uses secret meetings to resolve political issues that should rightly be discussed in public.

That's the result of an analysis of the 30 secret council meetings held in 2008. In those meetings, 71 issues were discussed; my analysis finds that 23 of those discussions---33 percent of the total---were improperly secret.

Moreover, 21 of the issues council discussed in secret in 2008---30 percent of the total---were partially improper; there was something wrong with the public notification, or information that should have been released publicly was not.

Just 26 of council's secret 2008 discussions---37 percent of the total---were held properly.

I chose the year 2008 because it was before council started dealing with the PR disaster of the sewage plant failure of January 14, 2009, which was used by city legal staff to justify an entirely new set of problematic secret meetings in 2009; 2008's meetings, therefore, serve as a baseline, a look at how council deals with the normal issues of governance.

In camera (secret) meetings for 2008 are agendized alongside regular public council agendas, on the city's website, and any actions taken are listed on the individual agendas as "in Camera Recommendations."

I gave each of those 71 agendized issues some degree of scrutiny using the information provided on the agendas, information I've been able to piece together from other public sources and my background knowledge. I'm the first to say the rating is subjective---but I've laid the analysis out in a spreadsheet for all to see, and it can serve as a basis for further discussion. If you don't agree with my assessment, at least I've provided you with the information to make your own.

Each issue earned a score from the following rating system:
1- Discussions that were appropriately held in secret, and which were handled properly in terms of public notice, etc..
2- Discussions which fell in some sort of middle ground---there was some justification for secrecy, but some part of the issue should have been held in public, or public information was needlessly held back.
3- Discussions that failed the secrecy test.

The discussions that failed the secrecy test (the "3"s) generally dealt with political issues that should rightly be held in public.

Appointment to Boards and Commissions

Ten of the 23 discussions that failed the secrecy test involved council appointments to boards and commissions. Council justified these secret discussions by labelling them "personnel" matters, but such appointments are categorically different than hiring a civil servant into a bureaucratic position, which is rightly not a public issue because it involves assessment of someone's professional capabilities in a defined task that is determined by the politicians. In contrast, members of boards and commissions themselves make political decisions, and serve a political role. Appointing them in secret keeps the public out of the political discussion.

A couple of examples illustrate the point. At its October 28 meeting, council appointed former city councillor Harry McInroy to the Water Commission. McInroy was arguably one of the worst city councillors in the history of HRM---his repeated absenteeism at council meetings became something of a running joke, and when he did attend he was ill-prepared. But, many councillors feel McInroy represents a business constituency, and so maybe his presence on the Water Commission serves to placate that community. That's OK---I don't agree with the reasoning, but it's council's decision to make. What we don't know, however, is who else applied for the position---was there an environmentalist on the list? Another person from the business community with a better work ethic? Or was this simply a council retirement plan, giving an out-going councillor a resume-filler as courtesy? We simply don't know, and we should.

There also seems to have been something screwy going on with the Police Commission. At its February 19 meeting, council rejected a candidate for the Police Commission, and left the position open until March 25. Council certainly has the right to reject candidates, but there must have been some underlying political issue at work here, and that political issue involves governance of the police department, which is of great concern to the public.

As councillor Gloria McCluskey pointed out at a recent council meeting, the former cities of Halifax and Dartmouth made appointments to boards and commissions in public. "People applied, and we discussed it, and let the chips fall where they will."

There's no reason why someone applying to take part in the governance of the city and to make managerial decisions should expect that application to be handled in secret. Through my entire career in the United States, I never worked in a jurisdiction that made such appointments in secret, and my media colleagues tell me it's not the norm in Canada, either.

No one has ever explained why HRM should be the exception.

Other political issues

Some of the other improper discussion are clearly, unambiguously public policy issues that should be held in public. At its January 8 and March 4 meetings, for example, council decided to weigh in on the Utility and Review Board's "Demand Side Management" hearings regulating Nova Scotia Power; it's great that councillors have opinions on this important issue, but there's no reason at all that those opinions can't be discussed in public. It's kind of ridiculous that they were in any event, because council's submission was posted on the UARB web page.

At its February 5, council decided to contest, presumably as too low, the "in-lieu" payment the federal government made for the Citadel Hill federal park (such payments are made because the federal park relies on municipal services but doesn't pay property tax). Determining the appropriate size of the payment is a fascinating debate, involving all sorts of calculations, but the debate is between two layers of government, both financed by the taxpayer. It's utterly absurd that the discussion is held in secret. Moreover, however the issue is decided by the courts, is how it's decided. The secrecy doesn't serve any real purpose, except possibly to protect councillors from charges of needlessly going to court.

Other improperly secret discussion demonstrate the reflexive, unthinking desire on council's part to make things secret. The cat bylaw fiasco was as public as any issue, and you'd almost have to work at it to not know that council had entered into a contract with the animal shelter, then backed out of it. And yet, that discussion was held in secret. Likewise, the August 5 discussion around funding agreements get to the heart of how council makes budgeting decisions. Councillors may not like public scrutiny of that decision-making process, but that's what democracy is all about.

Similarly, other issues were unnecessarily secret, including the discussion of surplus properties, the deteriorating condition of CN's bridges and what to pay non-unionized employees working in arenas.

Incomplete information

In those grey areas, the 2s in my analysis, the problem is mostly incomplete reporting.

Most of the secretly discussed issues in this category involve lawsuits against the city. I have no problem with council discussing legal strategy in secret, but then they are reported to the public in an uneven fashion. In some instances, council will publicly state the dollar amount being paid out to a claimant, in some instances, not. Never is the name of the claimant released.

I'd argue that every penny of taxpayer money should be accounted for, so the public has the right to know who is receiving payment from the city. In other places I've worked, I made a regular habit of monthly visiting City Hall and reviewing the city's cheque register, where I found all the payments made to claimants. That's not allowed in Halifax, because evidently this city will collapse or something if information that is readily available in other places becomes available here.

I don't like it, but I understand that I will not soon win the battle to gain disclosure of claimants' names. But that aside, why is the dollar amount of some claim payments made public, while others not?

I put that question to the city clerk, Cathy Mellet. (Mellet has been extremely helpful with this analysis, and patient with me generally. I thank her for her help, and underscore that she has nothing to do with deciding which issues are secret or not.) Mellet researched the matter and got back to me. The reason there is no consistency in disclosure of claimant payments, Mellet says, is because there is no administrative policy covering how disclosure should be made. Rather, how much information is disclosed to the public is entirely dependent upon the assessment of the staffer who wrote the report for council's consideration. Some staffers put the dollar amount in as a matter of habit, some leave it out.

Think about this. The city is making what should be an extraordinary decision---keeping council's discussions from the public---and yet there is no policy as to how to go about it. Deciding exactly how much information should be kept from the public is done on the fly, depending on the arbitrary whim of this person or that. If a report is written by Staff Person A, the public finds out the dollar amount; if the report is written by Staff Person B, the public doesn't get the dollar amount.

Beyond the clear need for a consistent policy of disclosure, the lack of public disclosure for payments to claimants leads to an inherently un-democratic situation: a big part of the city budget-- looks like about a million dollars in 2008---is completely off the books, so far as the public is concerned. Such "black budgets" can lead to all sorts of corruption, precisely because there is no public oversight.

De-classifying information

In terms of the 1s in my analysis---the secret council discussions I find appropriately handled---I made a huge assumption: for the sake of the analysis, I assumed that the secret reports to council would be made public when they were supposed to be.

These reports usually have to do with property purchases. A staffer writes an analysis of a proposed purchase, presumably including negotiating strategies. I don't have a problem with that report being held in secret, because making it public before the sale is completed would tip the seller off, and lead to a higher price for the public. But, after the sale is complete, the reports should be made public, and indeed, the council typically votes to make the reports public, after the sale is finalized.

But in fact de-classified reports are not as a matter of course placed live on the city's web site. If you want to see them, you have to ask specifically for them. Apparently, no one has ever asked before, because when I asked to see the dozens of reports from 2008, Mellet didn't immediately know how to handle the request. (In typical fashion, she very quickly researched the issue and found out. Again, this is not a criticism of Mellet---far from it.)

I put the request in Thursday afternoon, and Mellet said she'd ask the respective report writers what can be made public, and what not. I have no idea how long that process will take, or if it will end in my satisfaction. But for the sake of this analysis, I assume that it will. Still, I shouldn't have to go through it at all---the reports should become public as a matter of course.

New policies

It's clear that there should be at least two policy initiatives regarding secret meetings:
1. An administrative policy should govern what information is released to the public, so there is consistency across departments. This policy should specifically address the disclosure of payment amounts discussed in secret meetings.
2. Rather than relying on a request from the public, staff reports discussed in secret council meetings should automatically be made public, on the city's website, as soon as the condition for their release is met.

From there, we can argue about what should be secret, or what shouldn't be secret. I hope I've provided enough information to start that debate.

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