It's not the mayor's erstwhile 'Fontana 8' voting bloc, but the group of seven who lunched in a restaurant backroom is now just as notorious, after the Ombudsman ripped their gathering as an illegal, secret meeting.

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Watchdogs and backrooms and butt-dials — oh, my.

After a months-long probe into the February lunch gathering of Mayor Joe Fontana and six city councillors, Ontario’s citizen watchdog unveiled a final report Tuesday that includes bizarre, even comical, details and a clear conclusion: That the sit-down was an illegal secret political meeting.

“The evidence all points to a deliberate attempt to conduct (political) business under the guise of (a) social gathering,” Marin told reporters as he released his 48-page report, In The Back Room. “This is exactly the kind of mischief that the law seeks to prevent.”

While Marin determined the gathering breached the Ontario laws governing municipal councils — they must meet in public, save for a few exceptions — perhaps more troubling are the “conflicting” accounts he says were given by the politicians who met at Billy T’s that Saturday.

“I find their evidence was confusing, contradictory — therefore unreliable and lacking credibility,” said Marin, whose report adds he believes they sought to stay hidden from public view while meeting. “It is both disappointing and deeply concerning that although they were in public at Billy T’s, they made deliberate and calculated attempts (individually and in concert) to conceal their behaviour from the public.”

Underscoring that finding?

The reaction, as recalled by Coun. Dale Henderson, once it was realized someone had contacted The Free Press with concerns the politicians were holding an illegal “secret” meeting.

They soon left and Coun. Stephen Orser, the last to leave, is quoted as saying he was shortly thereafter “cornered” in the parking lot by a Free Press reporter.

Phone records obtained by the investigators determined Orser then made seven phone calls within five minutes: to each of the council colleagues who’d been at Billy T’s once, and to Henderson twice.

There were also calls made in the hours before the gathering, the records show. One explanation from Coun. Bud Polhill, that a call to Fontana was a “butt-dial” after he sat on his phone, drew Marin’s scorn: “We may be from Toronto, but we didn’t just fall off the turnip wagon,” he told reporters. “It’s obvious there was no butt-calling there.”

The ombudsman has no power to punish, but his report makes a trio of relatively simple recommendations — all of which were tentatively accepted by city council hours after the report’s release Tuesday.

But the politicians present — the Fontana Ate, a play on the mayor’s erstwhile Fontana 8 voting bloc — reject Marin’s finding their gathering was anything close to illegal.

The seven politicians involved were Fontana and Councillors Henderson, Polhill, Orser, Paul Van Meerbergen, Joe Swan and Sandy White.

Lawyers representing them say Marin misunderstands what constitutes a formal “meeting” for municipal governments and takes “too broad” an interpretation of the law.

Media reports of the Billy T’s lunch sparked a record 60 citizen complaints to Marin’s office, which since 2008 has served as the closed-meeting investigator for London and about 200 other Ontario communities.

This was their most complex closed-meeting probe yet, Marin said, though he declined to say how much it cost to conduct.

patrick.maloney@sunmedia.ca

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REPORT HIGHLIGHTS

Andre Marin rules the Billy T’s gathering of Mayor Joe Fontana and six councillors — Bud Polhill, Stephen Orser, Joe Swan, Paul Van Meerbergen, Dale Henderson and Sandy White — was “an illegal closed meeting” in a private room. “This was a literal backroom, backdoor, closed-door meeting . . . ”

The group maintains it was a social gathering, but Marin writes: “the available evidence . . . indicates that this explanation also defies common sense and lacks credibility” and “the explanations provided by the council members are permeated with implausibility and lack credibility.”

The investigation relied heavily on the politicians’ phone records, which indicate a flurry of calls right before and right after the lunch. Coun. Bud Polhill also made six calls within 13 minutes the night before, to Fontana, Van Meerbergen, Henderson, ­Fontana again, Orser and White.

Orser made seven calls within minutes of leaving Billy T’s after he was “cornered” by a Free Press reporter who’d been tipped to the gathering (Orser called all his colleagues who’d been there, including Henderson twice).

Marin notes the gathering broke up as word spread a witness had contacted The Free Press. “As soon as there were any suggestion that The London Free Press was aware of this (gathering), they all quickly scattered - it was a ­reaction somewhat like lifting a rock and seeing all the insects kind of scatter,” Marin told reporters. “To me that shows consciousness of guilt.”

Almost one year earlier, the mayor and five politicians lunched at the Harmony Grand Buffet hours before a key budget vote. Marin investigated that sit-down, and while finding no wrongdoing warned council it was “ill-advised” and created bad optics. Five of the Harmony noshers (Fontana, Polhill, Henderson, Orser and Van Meerbergen) were also at Billy T’s. “It seems to me that these councillors have had a very hard time accepting the principle of open governments,” Marin said. “Some would say it’s reckless. It’s thumbing your nose at the law.”

Marin singled out Coun. Sandy White and her meeting (immediately after leaving Billy T’s) with the head of the London Multicultural Community Association, a group she’d later push to receive $25,000 in city funding. The timing “raises ­concerns” and Marin concludes that specific topic of discussion at the lunch is what pushed a nice little meal over the line into an illegal political meeting.

Two components are required, essentially, to create an illegal meeting: a voting majority of council or a committee must be together, and they must push forward an agenda item, or lay the groundwork to do so. A ­voting majority of council’s investment and economic ­prosperity committee was at Billy T’s and “engaged in conduct that — at minimum — laid the groundwork for council members to exercise their power and authority” on council, Marin wrote.

With no formal powers of punishment, Marin issued three recommendations to ­council: Its members need a clearer understanding of “open ­meeting requirements;” they should “refrain from using the pretext of social gatherings to conduct city business behind closed doors;” and they should be ­“vigilant” in following all ­Municipal Act rules.

- Patrick Maloney

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THE CONTRADICTIONS

So irked was Ombudsman Andre Marin during his probe, he put the seven politicians at the centre of the Billy T’s luncheon under oath during his investigative interviews — a rare step made necessary by what he called “confusing and conflicting accounts.” A few examples:

While Coun. Bud Polhill said he only called Coun. Paul Van Meerbergen to meet at Billy T’s to discuss cars, Polhill’s phone records show he called Van Meerbergen and five other councillors (all were at the next day’s controversial lunch) within 13 minutes. Polhill denied inviting Coun. Dale Henderson to Billy T’s during the call, but Henderson said he was invited by Polhill.

Polhill said he parked behind the eatery, saying the front lot was full, and entered via a rear fire door into the backroom. Phone records show he called Van Meerbergen, White and the mayor as he arrived. He said the call to the mayor was an accidental “butt call,” when he sat on his phone.

Coun. Sandy White said she was going to Billy T’s that Saturday to meet the London Multicultural Community Association chair. Once shown the Polhill phone records, she said he was actually returning a call from her — and she was seeking help with her car (Polhill’s a mechanic).

A witness told investigators White entered the eatery, then asked staff if there was a rear door. The report quotes her as having said, “I need to get to the back without going through the restaurant . . . do you have a back door?”

While Fontana told investigators “someone” suggested the group move to the backroom, phone records show he called Billy T’s that morning to make a reservation, but he denies booking the private space. The report cites an AM980 News report, during which a restaurant manager said Fontana “called in the morning, to see if they can use, I have a little banquet room in the back.”

Marin disputes any attendee who says they didn’t realize a large group of council colleagues would be present: “The significant phone activity the night before and the morning of the gathering, in conjunction with the admitted backdoor entries and exits . . . come together to support this conclusion.”

The report adds: “Explanations provided by the council members are permeated with implausibility and lack credibility.”

- Patrick Maloney

THE REACTION

The seven politicians

None is resisting Marin’s recommendations, but all reject his finding it was a secret meeting.

Their lawyers

The Toronto lawyers hired on the public’s dime say Marin’s findings are incorrect. One, Christopher J. Williams, said the report “can have a chilling effect on municipal governments across Ontario” and could sway people from running for office.

Coun. Joe Swan

Respects the Ombudsman’s role, but has little time for Andre Marin: “The office-holder has gone out of his way to twist (and) turn . . . the definition of the very law in order to reach the conclusions he’s made.”

Coun. Bud Polhill

As he has since February, maintains he wanted to meet with colleagues at Billy T’s that day to get help planning his 50th wedding anniversary bash. He says it’s unfair for Marin to make politicians tip-toe around socializing together: “That to me is a sad day.” Amid the Ombudsman’s probe, the irreverent Polhill invited Marin to his anniversary party.

Coun. Dale Henderson

Wouldn’t discuss the report Tuesday.

Coun. Paul Van Meerbergen

Declined comment, but then said: “I disagree with the conclusions, but the recommendations are fine.”

Coun. Stephen Orser

He was irked by Marin’s comment the politicians left Billy T’s like insects scurrying out from under a rock. He noted Marin didn’t disclose the cost of the probe: “He ducked and weaved and he hid under a rock like an insect instead of saying what the price is of this report.”

Coun. Joni Baechler

Said a “chasm” has been created by the report, which found the Fontana Ate met illegally, while the politicians themselves deny any wrongdoing. She asked to have staff study making fines or other sanctions mandatory in future such cases (it passed 8-5, with Van Meerbergen, Henderson, Polhill, Orser and Harold Usher opposed).

— Patrick Maloney

LONDON CHAMBER GM GERRY MACARTNEY

“We’re preoccupied with these things that suck up so much of our time that we fail to spend quality time on strategic priorities that affect all of our lives.”

URBAN LEAGUE CHAIR GREG THOMPSON

“If i was a councillor, I would say, ‘I accept the finding . . . I apologize to the citizens of London and my constituents and it won’t happen again,’ instead of going to war about it.”

— Patrick Maloney and Debora Van Brenk

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The following is Marin's 48-page report:

Ombudsman Report

Investigation into whether members of Council for the City of London held an improper

closed meeting on February 23, 2013

“In the Back Room”

André Marin

Ombudsman of Ontario

October 2013

Table of Contents

Introduction .................................................................................................................................... 5

Complaints ..................................................................................................................................... 5

Investigative Process ....................................................................................................................... 6

Preliminary Report .......................................................................................................................... 7

When is a Lunch Meeting a “Meeting”? ......................................................................................... 8

Interpretation of the Law ............................................................................................................. 8

Quorum: Power in Numbers ........................................................................................................ 9

So, We Can’t Talk to Each Other? ............................................................................................ 10

Who’s Who and Background ........................................................................................................ 11

Table 1 – London city committees with quorum at Billy T’s ........................................ 12

Summary of Facts and Evidence ................................................................................................... 12

Let’s Make a Plan: Friday, February 22 .................................................................................... 13

Mayor Fontana’s Sequential Meetings ............................................................................. 13

Councillors Polhill and Van Meerbergen .......................................................................... 13

Contradictions in Accounts ............................................................................................... 14

Councillor White and the LMCA Chair ............................................................................ 14

Meeting Day: Saturday, February 23 ........................................................................................ 15

Taking it to the Back Room .............................................................................................. 15

Diagram of Billy T’s Tap and Grill (not to scale) .......................................................... 16

Photos of Billy T’s Tap and Grill ................................................................................... 17

Let’s Give Them Something to Talk About ...................................................................... 19

Table 2: City-Related Topics of Discussion at Billy T’s, February 23, 2013 ................ 20

Conversation Topics in Context ........................................................................................ 21

Budget Strategy .................................................................................................................. 21

Trillium Foundation Grant/Multiculturalism ..................................................................... 21

Highway 401 Interchanges ................................................................................................ 23

McCormick Property ......................................................................................................... 23

The Getaway: Backdoor Exits, Phone Calls and Email .................................................... 24

Table 3 – Departure Information .................................................................................... 24

Table 4 – Phone Activity after Billy T’s ........................................................................ 25

Was the Lunch an Illegal Meeting? .............................................................................................. 26

Was it a Purposeful Gathering? ................................................................................................. 26

Backdoor Service .............................................................................................................. 27

The Reservation ................................................................................................................ 27

The Lunch was Purposed and Planned ............................................................................. 28

Groundwork Necessary to Exercise Power and Authority? ...................................................... 28

Arguments by Councillors’ Lawyers ......................................................................................... 30

Conclusion: A Clear Violation ...................................................................................................... 32

Recommendations ......................................................................................................................... 33

Report ........................................................................................................................................... 33

Appendix: Response from Councillors ......................................................................................... 35

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Introduction

1 The Municipal Act, 2001 requires that municipalities pass by-laws setting out the

rules of procedure for their meetings. The law requires public notice of meetings,

and that all meetings be open to the public except for those which qualify under the

exemptions in s. 239 of the Act. Before holding a meeting or part of a meeting that

is to be closed to the public, the municipality, local board, or committee must state

by resolution that the meeting is closed and the general nature of the matter to be

considered.

2 The Municipal Act also empowers citizens by giving them the right to request an

investigation into whether a municipality has properly closed a meeting to the

public. Municipalities have the option to appoint their own investigator or use the

services of the Ontario Ombudsman. The Act designates the Ombudsman as the

default investigator for municipalities that have not appointed their own. The City

of London chose to appoint the Ontario Ombudsman as its investigator effective

January 1, 2008.

3 As an investigator of closed meeting complaints, it is the duty of my Office to

consider whether the open meeting requirements of the Municipal Act and relevant

municipal by-laws have been followed.

Complaints

4 My Office received 60 complaints alleging that on Saturday, February 23, 2013 –

five days before a key budget vote – seven members of the Council for the City of

London gathered in a secluded backroom at Billy T’s Tap and Grill restaurant for

an improper closed meeting.

5 The seven council members named were: Mayor Joe Fontana and Councillors Dale

G. Henderson, Stephen Orser, Bud Polhill, Joe Swan, Paul Van Meerbergen, and

Sandy White.

6 Private gatherings of council members that take place outside of chambers and lack

the legally required procedural elements (i.e. public notice, agendas, and minutes)

understandably attract public scrutiny. As a closed meeting investigator, one of my

tasks is to ensure that city business meetings are not taking place in the guise of

social gatherings. I have investigated numerous other cases alleging breakfast,

lunch, dinner and other social get-togethers are illegal meetings. In a 2010

investigation, I concluded the Town of Mattawa council violated the open meeting

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rules when an improper in-camera discussion took place between council members

at the conclusion of a museum tour.1

Investigative Process

7 On February 25, 2013, my Office began receiving complaints related to a gathering

at Billy T’s. Two days later, on February 27, I assigned the Special Ombudsman

Response Team to conduct a preliminary review of the complaints.

8 On March 1, 2013, the team made an unannounced visit to Billy T’s and took photos

of the layout and reservations calendar. They also conducted interviews with

members of the public who were at the restaurant on the day of the gathering.

9 Based on this review, our assessment of the case was that it warranted in-depth

examination, and on March 7, 2013, I notified the City of London that I would be

investigating whether council and committee members had improperly held a closed

meeting. The investigation included interviews with staff and patrons of Billy T’s, as

well as the seven council members, who were issued summonses to give testimony

under oath, in interviews on March 20, 2013.2 Also, committee agendas, reports,

meeting minutes, and local media coverage surrounding the issues were monitored

and reviewed throughout the investigation.

10 Documentary evidence was provided by council members, including copies of cell

phone bills and emails. After investigators cross-referenced and reviewed that

material, council members were again issued summonses for a second round of

sworn interviews, held on June 19, 2013.

11 At the time of the second interviews, all seven council members involved in the Billy

T’s gathering were represented by two lawyers from a Toronto law firm. The

decision to provide this representation was made at a London council meeting on

June 11, 2013.3 To maintain the integrity of our investigation, witnesses and their

lawyers were not provided with copies of the transcripts from the first round of

interviews in advance of the second round. The witnesses were permitted, however,

to consult the transcripts during their interviews.

1 Ombudsman of Ontario, Investigation into whether the Town of Mattawa Council and its Ad Hoc Heritage Committee held

improperly closed meetings (December 2010), online:

http://www.ombudsman.on.ca/Files/Sitemedia/Documents/Resources/Reports/Municipal/mattawafinal.pdf.

2 Ombudsman Act, RSO 1990, c O.6 s 19(2).

3 City of London, City Council, Council Minutes, 11th Meeting (June 11, 2013), online: City of London Meetings

https://www.london.ca/d.aspx?s=/meetings/default/meetingpackages.htm.

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12 During my investigation, the lawyers representing the seven participants in the Billy

T’s gathering raised concerns that the publicity it had generated might interfere with

the overall integrity of the investigative process. Although my investigations are

conducted in private and subject to confidentiality provisions, it is in the public

interest that we work as transparently as possible. To that end, at times, I provide

information to the public about issues under investigation, as well as the progress of

investigations through their procedural stages.

Preliminary Report

13 In accordance with our procedures, all City of London council members – including

those who were not present at the Billy T’s gathering – were given an opportunity to

review a draft of this report containing preliminary investigative findings and

analysis, and to offer responses before the report was finalized. They were given the

option of receiving a copy of the preliminary report for review on the condition that

they signed an undertaking to keep it confidential, per the requirements of the

Ombudsman Act. The lawyers representing the seven council members who met at

Billy T’s were also provided with copies of the transcripts from their clients’

interviews to be returned with their response. In order to preserve the integrity of our

investigation, and protect witness confidentiality, evidentiary records relating to

other witnesses were not disclosed.

14 We received 10 confidentiality undertakings from councillors between September 13

and 16, 2013, and provided copies of the report accordingly.

15 On September 27, 2013, we received the response from the lawyers representing the

seven council members who met at Billy T’s. We did not receive any other

responses. I have considered the response from the lawyers in finalizing this report,

and have included a copy of it as an appendix.

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When is a Lunch Meeting a “Meeting”?

Interpretation of the Law

16 All of the participants at the Billy T’s gathering acknowledged that council and

committee meetings must comply with procedural by-laws and the open meeting

requirements of the Municipal Act, 2001. Their assertions throughout remained that

they did not participate in a “meeting” on February 23, 2013 at Billy T’s. Instead,

they claim the mayor-with-six-councillors gathering was a happenstance

convergence of councillors for social purposes.

17 The term “meeting” is defined in section 238 of the Municipal Act as “any regular,

special or other meeting of a council, of a local board or of a committee of either of

them.” Similarly, City of London Council Procedure By-law A-45 defines the term

as a “meeting of the Council, Committee of the Whole or a standing committee.”4

Both definitions are unfortunately circular, and neither gives precise criteria as to

what constitutes a “meeting.”

18 Recognizing a need for clarity, in my report Don’t Let the Sun Go Down on Me, on

my 2008 investigation into a closed meeting of council for the City of Greater

Sudbury (regarding access to tickets to an Elton John concert), I arrived at a more

practical definition. After a review of the relevant case law and principles of

openness, transparency, and accountability,5 I formulated a working definition. To

constitute a meeting covered by the Municipal Act:

Members of council (or a committee) must come together for the purpose

of exercising the power or authority of the council (or committee), or for

the purpose of doing the groundwork necessary to exercise that power or

authority.6

19 This definition remains consistent with leading interpretations of the open meetings

concept and upholds the public’s right to observe municipal government in process.7

4 City of London, By-law No A-45, Council Procedure By-law, (1 December 2012), s 1.1.

5 Ombudsman of Ontario, Don’t Let the Sun Go Down on Me: Opening the Door on the Elton John Ticket Scandal (April 25, 2008),

online: http://www.ombudsman.on.ca/Files/sitemedia/Documents/Resources/Reports/Municipal/SudburyReportEng2_2.pdf at paras.

42-92.

6 Ibid., paras. 54-60.

7 London (City) v. RSJ Holdings Inc., [2007] 2 S.C.R. 588, 2007 SCC 29 at para. 38; Southam Inc. v. Ottawa (City) (1991), 5 O.R. (3d)

726 (Ont. Div. Ct.) at paras. 12-18; Southam Inc. v. Hamilton-Wentworth Economic Development Committee (1988), 66 O.R. (2d)

213 (Ont. C.A.) at paras. 9-12; Jason Reynar, Transparent Municipal Governance: When Must a Meeting be Open? (2011) 88

M.P.L.R. (4th) 68.

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20 In their response to my preliminary report, the lawyers on behalf of the group that

gathered at Billy T’s submitted that my working definition of “meeting” is overly

broad and not supported by the established jurisprudence. They took the position

that in order to constitute a meeting, a matter must be “materially” advanced toward

a decision. They argued that I should apply the standard of material advancement in

assessing whether a meeting of the councillors took place at Billy T’s.

21 In Don’t Let the Sun Go Down on Me, I extensively reviewed the relevant court

cases, which have varied in their treatment of this issue. At the time, I considered

but rejected a number of approaches, including one requiring proof that matters have

“materially moved along.” As I wrote in that report:

In sum, it is clear that each of these approaches – the “arriving at a decision”

approach; the “materially moving matters along” approach; and the assessment

of whether the protagonists have come together for the purpose of working

towards the ultimate resolution of a matter that requires the exercise of their

power – derive from a purposive examination of the legislation. These are

examples of democratic bodies engaged at various stages in the exercise of the

very kinds of power that the voters have a legitimate expectation of having

input into, and where the appearance of integrity in the exercise of political

power can be affected. The first two approaches are under-inclusive, for the

principles can be engaged even without decisions being arrived at or

deliberations being productive. I have therefore used these cases as inspiration

given that they purport to embrace a principled approach, however imperfectly,

but have restyled their standards by examining the broader question of

whether the participants have come together for the purpose of exercising

the power or authority of the council or committee or for the purpose of

doing the groundwork necessary to exercise that power or authority.8

22 The approach I have adopted reflects the principles of transparency, openness and

accountability that underscore the open meeting requirements.

Quorum: Power in Numbers

23 When determining if a meeting has occurred, the concept of a legal quorum is an

important consideration. Alone, it is not conclusive, but having a quorum means a

sufficient number of members (a majority in this case) are present to legally transact

business. It is obvious that once a gathering constitutes a quorum for a council or

standing committee, the opportunity and risk of those individuals collectively

exercising their authority increases.

8 Ibid., footnote 7 at paragraph 85.

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24 In many jurisdictions, the open meeting rules are only applied if quorum exists. In

Ontario, legislators have not gone so far as to make a quorum necessary to satisfy the

definition of a meeting. As such, my interpretation is that the Legislature

contemplated, and left open, the possibility that a gathering short of a quorum can

still contravene the open meeting rules of the Municipal Act. This was my conclusion

in 2009 when I found that the Council of the Township of Nipissing engaged in serial

telephone meetings to improperly conduct business, despite a quorum never being

present when the individual calls occurred.9

So, We Can’t Talk to Each Other?

25 To be clear, the Municipal Act, 2001 does not create an absolute prohibition against

members of council discussing city business outside chambers. It is a healthy thing in

a democracy for government officials to share information informally before making

policy decisions. I agree that to expect council members never to talk to one another

outside of a public meeting is unrealistic and would have the effect of unnecessarily

chilling speech.10

26 What does threaten the heart of democracy is when a quorum of council or a standing

committee improperly gathers outside of council chambers, to the exclusion of the

public ear and eye. The problem becomes especially acute as such gatherings

progress along a continuum towards secrecy and seclusion, particularly on the eve of

influential or controversial council votes.

27 When council members come together informally, there is an increased danger that

they, intentionally or otherwise, may obtain information and enter into discussions

that lay the groundwork to exercise their power and authority. This type of conduct

should be avoided, as it violates the open meeting provisions of the Municipal Act.

28 Gatherings of this sort attract public distrust because they can easily drift into areas

of improper discussion without the proper transparency safeguards. The mere

appearance of this type of gathering is suspect and should be avoided. As I noted in

my 2012 report on my investigation of a closed breakfast meeting involving

members of Hamilton city council:

Unlike formal meetings, when minutes are kept, it is difficult to accurately

reconstruct the conversational record of informal gatherings. It is challenging

in these circumstances to assure the public that no improper discussions have

9 Ombudsman of Ontario, Investigation into Council of the Township of Nipissing Special Meeting of April 25, 2008 (February 6,

2009), online: http://www.ombudsman.on.ca/Files/Sitemedia/Documents/Resources/Reports/Municipal/nipissingfinaleng.pdf.

10 Supra note 7, paras. 81-83.

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taken place… [C]ouncillors should be cautious when meeting informally,

especially when they represent a quorum of a decision-making body, to ensure

that any discussions do not stray into areas that might constitute laying the

groundwork for future decision-making.11

Who’s Who and Background

29 This is not the first time my Office has investigated a controversial lunch meeting

involving members of London council. Almost exactly a year prior to the Billy T’s

incident, on February 21, 2012, five of these same council members – Mayor

Fontana and Councillors Henderson, Orser, Polhill and Van Meerbergen – sparked

complaints to my Office when they (and one other councillor, Denise Brown) met for

lunch at the Harmony Grand Buffet restaurant, prior to the final budget vote that

afternoon. Together with councillors Swan and White, these council members

became known in the media as the “Fontana Eight” because they tended to vote as a

majority bloc on council.12

30 Similar to this case, the Harmony Grand Buffet gathering attracted significant

controversy and media attention.

31 I issued my report on that investigation in August 2012. In it, I found there was

insufficient evidence to conclude that committee business was discussed, and

accordingly the lunch did not constitute a “meeting” violating the open meeting

requirements of the Municipal Act. I did caution, however, that the “lunch in a local

restaurant just before a critical and controversial vote on the budget was illconceived.”

13

32 The council of the City of London is made up of 14 councillors and the Mayor,

making the total number of voting seats 15. The City also has six standing and 12

advisory committees. One of the six standing committees, the Strategic Priorities and

Policy Committee (SPPC), is made up of all council members; the other five

committees are made up of subgroupings of five or six councillors each.

33 A summary of the composition of four of the six committees, listing which members

were present at Billy T’s on February 23, 2013, is set out in Table 1.

11 Ombudsman of Ontario, Investigation into whether the City of Hamilton’s NHL Proposal Sub-Committee held an improperly closed

meeting (February 2012), online: http://www.ombudsman.on.ca/Files/sitemedia/Images/Reports/HamiltonNHL-final-EN-forweb_

1.pdf at para. 24.

12 Patrick Maloney, “Eight-Member Council Bloc Runs City, Henderson Says”, London Free Press (12 December 2012) online:

<http://www.lfpress.com/2012/12/11/london-mayor-joe-fontana-survives-step-aside-vote-8-5>.

13 Ombudsman of Ontario, Investigation into whether Council for the City of London held an improper closed meeting at Harmony

Grand Buffet on February 21, 2012 (August 2012), online:

http://www.ombudsman.on.ca/Files/sitemedia/Documents/Resources/Reports/Municipal/LondonAugust2012-EN.pdf at para. 59.

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Table 1 – London city committees with quorum at Billy T’s

Committee14

Members at Billy T’s

on February 23

Members not at Billy T’s

on February 23

Civic Works Committee

Members: 6

Quorum: 4

1. Mayor Fontana 5. Councillor M. Brown

2. Councillor

Van Meerbergen 6. Councillor Usher

3. Councillor White

4. Councillor Orser

Corporate Services

Committee

Members: 5

Quorum: 3

1. Mayor Fontana 4. Councillor Branscombe

2. Councillor Polhill 5. Councillor Bryant

3. Councillor Swan

Investment and

Economic Prosperity

Committee

Members: 6

Quorum: 4

1. Mayor Fontana 6. Councillor M. Brown

2. Councillor Swan

3. Councillor Henderson

4. Councillor Orser

5. Councillor

Van Meerbergen

Planning and

Environment

Committee

Members: 6

Quorum: 4

1. Mayor Fontana 5. Councillor Branscombe

2. Councillor Polhill 6. Councillor Hubert

3. Councillor Henderson

4. Councillor White

34 Immediately obvious is that on February 23, 2013, the group of seven who gathered

at Billy T’s represented a legal quorum with the power and authority to conduct city

business in four of the six standing committees of council.15 The group was also one

member shy of the magic number eight – quorum for the entire city council.

35 Each council member who attended the gathering denied in our interviews that it was

a council or committee meeting. They insisted the gathering was purely social,

unplanned, and occurred by chance.

Summary of Facts and Evidence

36 Sworn accounts provided by the council members in two sets of interviews were

confusing and at times conflicted with one another. The following is a summary of

the evidence.

14 Who Does What: Standing and Advisory Committees, online: City of London

http://www.london.ca/d.aspx?s=/City_Council/standcom.htm.

15 City of London, By-law No A-45, Council Procedure By-law, (1 December 2012), Part 8.

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Let’s Make a Plan: Friday, February 22

Mayor Fontana’s Sequential Meetings

37 The Mayor testified that on February 22, 2013, the Friday before the gathering, he

made plans to meet at Billy T’s with Councillor Orser the next day at 11 a.m., and

Councillors Henderson and Swan at noon.16 He said he and Councillor Orser planned

to discuss two matters that included an area known as “the McCormick property” and

a personal matter. The topics for the noon meeting included layoffs at Diamond

Aircraft and general “ideas” relating to the Investment Economic and Prosperity

Committee. The Mayor stated in a media interview February 25 that he made it clear

they were not going to discuss the budget.17

Councillors Polhill and Van Meerbergen

38 Councillor Polhill testified that at 5:30 p.m. that Friday evening, he called and

arranged to meet Councillor Van Meerbergen for lunch – also at Billy T’s – to talk

about their shared interest in cars.18 We obtained Councillor Polhill’s phone records

after his first interview. They reveal that on that Friday, he made six calls over the

span of 13 minutes. (Note: In cell phone bills, calls lasting less than a minute are

rounded up to 1 minute; this can include attempted calls that are not answered and

calls that go to voicemail.) The calls were as follows:

1. 5:47 p.m. to Mayor Fontana (for 1 minute, 48 seconds)

2. 5:49 p.m. to Councillor Van Meerbergen (for 2 minutes, 21 seconds)

3. 5:55 p.m. to Councillor Henderson (for 1 minute, 15 seconds)

4. 5:56 p.m. to Mayor Fontana again (for 1 minute)

5. 5:58 p.m. to Councillor Orser (for 1 minute, 11 seconds); and

6. 6:00 p.m. to Councillor White (for 1 minute, 20 seconds).

16 Councillors Orser, Swan, Henderson, and Fontana represent quorum for the Investment & Economic Prosperity Committee (IEPC).

17 AM980 News (February 25, 2013), radio program: (London: CFPL FM AM980).

18 Councillor Polhill operates an auto repair shop and Councillor Van Meerbergen works in the auto parts industry.

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Contradictions in Accounts

39 In his first interview, Councillor Polhill told investigators he remembered telling the

Mayor on Friday, February 22 that he would be at Billy T’s the next day. He said the

Mayor responded he would show up there for lunch. The Mayor testified at first that

he did not recall having any discussions related to a meeting at Billy T’s with

Councillor Polhill. When confronted with phone records during his second interview,

he then said he recalled speaking with Councillor Polhill, but recalled it was “about

the Ford plant.” 19

40 Councillor Polhill testified that on the evening before the gathering, he invited

Councillor Van Meerbergen to lunch at Billy T’s the next day. He also said he spoke

to Councillors Orser and Henderson that evening. He said he did not invite them to

Billy T’s, but mentioned he would be there for lunch. Councillor Henderson,

however, told us Polhill asked him to drop by Billy T’s for coffee on Saturday at

around 10 or 11 a.m., and indicated the Mayor might be there. Councillor Van

Meerbergen’s account matched that of Councillor Polhill. Like Henderson, he said he

was also told the Mayor would be at Billy T’s.

Councillor White and the LMCA Chair

41 Councillor White testified she tentatively arranged to meet a friend – the chair of the

London Multicultural Community Association – at Billy T’s20 around noon on

Saturday, February 23, to discuss multicultural issues. During her second interview,

when confronted with cell phone records showing Councillor Polhill had called her

Friday at 6 p.m., she remembered calling Councillor Polhill on Friday, February 22

about fixing her car, and he had called her back. Councillor White recalled they

discussed her car repairs, a problem she had involving the London Transit

Commission, Summer Fest, and Councillor Polhill’s car group, which meets

regularly at Billy T’s. She said that Councillor Polhill was very supportive of her, as

she was distressed about the London Transit Commission issue.

42 Councillor White was adamant that Councillor Polhill did not invite her to lunch at

Billy T’s during their conversation of one minute and 20 seconds.

19 Phone records show that the Mayor called Councillor Polhill on the morning of Friday, February 22, and Councillor Polhill called the

Mayor twice, at 5:47 and 5:56 p.m.

20 Councillor White referred to the restaurant by its former name, Killaly’s.

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Meeting Day: Saturday, February 23

43 As the accompanying diagram shows (page 1?), upon entry through the front doors at

Billy T’s, there is a dining room on the left and a bar on the right. At the rear of the

bar area, there is a windowless meeting room. This back room has three points of

access. There is a main sliding door, which is reached via the bar area, and a second

door; both can be closed for privacy. The third access point is a fire exit door at the

back of the building that is typically locked from the inside. This is where the

councillors and the Mayor gathered privately on February 23, 2013. Five members of

the public who were in the restaurant that day told us that the backroom doors were

closed for most of the council members’ gathering.

Taking it to the Back Room

44 Mayor Fontana testified he called Billy T’s to make a reservation for 11 a.m. on

Saturday, February 23, 2013. He said he told the restaurant he would be meeting

Councillor Orser and a couple of other people. His phone records confirm he made a

two-minute call to Billy T’s at 9:02 a.m. that day.

45 The reservations calendar at Billy T’s for February 23, 2013 (photographed by

investigators) showed only one handwritten reservation entry. The time “11 o’clock”

is noted, along with the number 6, overwritten by a 7, and the words “people, BUD

High CHAIR.” One manager confirmed to us that he wrote the reservation, but later

told our investigators it was not for Mayor Fontana or Councillor Bud Polhill. He

was quoted on local radio as saying, “well, [Mayor Fontana] called in the morning, to

see if they can use, I have a little banquet room in the back.”21 The manager testified

to us that he was misquoted and had instead been referring to a reservation the Mayor

made a month earlier. Another manager at Billy T’s said the calendar entry referred

to a different “Bud,” as did Councillor Polhill.

46 The Mayor told us he arrived late to Billy T’s – around 11:40 a.m. – and entered

through the front door. He said he was surprised first to learn that Councillor White

was there, and again when informed Councillors Polhill and Van Meerbergen had

“popped in for their own lunch.” The Mayor testified that once five or six council

members had shown up to Billy T’s, someone suggested they move to the back room.

He told local media: “We started off with four, and then all of a sudden it was five or

six, and so they put us in the back room … it wasn’t planned … there was no

agenda.”22

21 AM980 News (February 26, 2013), radio program: (London: CFPL FM AM980).

22 Sean Meyer, “Fontana Denies ‘Secret’ Lunch Meeting with Councillors,” London Community News (February 26, 2013) online:

http://www.londoncommunitynews.com/mobile/news/article/2080199/.

16

Diagram of Billy T’s Tap and Grill (not to scale)

17

Photos of Billy T’s Tap and Grill

Clockwise from top left: Billy T’s front door; view into back room – sliding doors are at right,

second door (closed) at left; back room and fire exit; reservation calendar for Feb. 23.

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18

47 Councillor Orser told investigators he arrived at Billy T’s at 11 a.m. with his schoolage

daughter. He said a waitress told him the Mayor had not yet arrived but would be

sitting in the back room. Orser and his daughter then left and returned approximately

45 minutes later, at which time they joined Mayor Fontana in the back. Councillor

Polhill then arrived and told Councillor Orser that Councillor White was in the main

restaurant area, sitting with another patron. Councillor Orser left the back room and

asked Councillor White if she wanted to meet his daughter in the back room.

Councillor Orser said he was surprised to see the other councillors there, since he

expected to meet one-on-one with the Mayor that morning.

48 Councillor Polhill’s account differed. He testified that he arrived at the restaurant just

after noon and parked behind the building because the front parking lot was full. He

explained he is a regular at Billy T’s and sometimes enters through the back door –

the fire exit from the back room. He testified he knocked on the back door and was

let in by Councillor Orser. Councillor Van Meerbergen also testified he entered

through the back door at around 12:25-12:30 p.m., and Councillor Polhill may have

opened it for him. Phone records show that upon arrival at Billy T’s, Councillor

Polhill made calls to Councillors Van Meerbergen (at 12:08 p.m.), White (12:10

p.m.) and the Mayor (at 12:10 p.m. – when the Mayor was also at Billy T’s). Each

call lasted one minute or less.

49 When asked about these calls during his second interview, Councillor Polhill said he

called Councillor Van Meerbergen to tell him to park in the back parking lot because

the front lot was full. He could not recall why he called Councillor White, but

thought it could have been in connection with her car. He said the call to the Mayor

was an accidental “butt call” – that is, the phone in his pocket might have “dialled

itself.”

50 Councillor Swan testified he arrived at Billy T’s at around 11:45 a.m., entered

through the front door and he spent some time talking to patrons in the main

restaurant area. He then asked a Billy T’s employee if the Mayor was there and was

directed to the back room, where six other council members had already assembled.

He said he had only expected to see the Mayor.

51 Councillor White told us she arrived at Billy T’s at about 11:40 a.m. The chair of the

LMCA had called her to say he was running late. She entered Billy T’s through the

front and joined a table of other patrons. She testified Councillor Orser appeared and

invited her to join him and meet his daughter. She said she was surprised when she

entered the back room and saw five council members. Two other witnesses told us

that while Councillor White was in the bar area, she asked staff whether there was a

back door. One quoted her as saying: “I need to get to the back without going

through the restaurant… do you have a back door?” These witnesses said Councillor

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19

White later went into the back room through the bar. One witness said she remarked:

“Oh, forget it, I’m just going to go back there. Which way is it?”

52 The chair of the LMCA said he and Councillor White made arrangements on the

evening of Friday, February 22 to meet around noon the next day, but they did not

specify a venue. They both had meetings scheduled for that Saturday morning. At 10

a.m. on February 23, he called Councillor White and agreed to meet her in the

“Highbury and Huron area” – about 2 kilometres from Billy T’s.

53 He called her again later to say he was running late and offered to meet her at the

Fireside Restaurant on Commissioner’s Road East, approximately 9.5 kilometres

from Billy T’s. They finally met up between 12:45 p.m. and 1 p.m. He said

Councillor White told him then that she had already eaten, and that she had

unexpectedly run into other council members at Billy T’s. He told our investigators

that at his meeting with Councillor White, he discussed resigning as chair of the

LMCA.

Let’s Give Them Something to Talk About

54 Accounts of what was discussed at the backroom gathering vary. The participants

gave a series of confusing and conflicting accounts to our investigators, maintaining

that they carried out separate and parallel conversations on various topics, including

personal matters and city-related items, discussed only in a general way. All seven

denied discussing city business as a group.

55 The evidence relating to the city-related topics of discussion at Billy T’s on February

23, 2013 is summarized in Table 2, followed by an explanation of the context of

these topics.

Table

2:

City-­?Related

Topics

of

Discussion

at

Billy

T’s,

February

23,

2013

SOURCE TOPICS DISCUSSED BUDGET TALK? THINGS OVERHEARD

MAYOR

FONTANA

? Layoffs at Diamond Aircraft (Swan)*

? McCormick property (Orser)

? Reserve funds

? Trillium Foundation grant, multiculturalism (White)

? No formal discussion on budget

or other city business

? Reserve funds

? Renewable energy (Polhill, Van

Meerbergen)

? Ford Plant (Polhill, Van

Meerbergen)

? “Dale TV”**

HENDERSON

? Performing Arts Centre

? “Dale TV”

? IEPC “ideas”

? Ideas for achieving 0% tax

increase

? Mayor gave “pep talk” on how

“we want to get to zero”

? McCormick property (Orser)

? Someone said: “Oh, oh,

someone called the Free Press”

ORSER

? McCormick property (Mayor) ? Did not discuss council business

? Mayor warned group not to talk

about budget

? Chair of LMCA (White)

? “Dale TV” (Henderson)

POLHILL

? Ford plant (Van Meerbergen)

? Highway 401 interchange

? Trillium Foundation grant, multiculturalism (White)

? McCormick property (Orser)

? 1.2% tax increase ? “Dale TV” (Henderson)

SWAN

? Job loss and creation in his ward (Fontana)

? “Dale TV” (Henderson)

? Trillium Foundation grant, multiculturalism (White)

? Housing Committee (White)

VAN

MEERBERGEN

? Reserve funds in the budget (Fontana)

? Highway 401 interchange (Polhill)

? Reserve funds (Fontana)

? Need for 0% tax increase

(Polhill)

? Mayor reminded them not to

discuss city business

? “Dale TV” (Henderson)

? Someone suggested the

gathering might be construed as

an official meeting

WHITE

? Trillium Foundation grant and multiculturalism

(Mayor)

? “Dale TV” (Henderson)

? Didn’t pay attention to other

conversations.

*Names in parentheses indicate with whom the discussion occurred.

**“Dale TV” is a series of YouTube videos in which Councillor Henderson discusses various topics, including city-related issues.

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Conversation Topics in Context

Budget Strategy

56 The gathering at Billy T’s occurred five days before the final budget vote. Prior to

the gathering, the Strategic Priorities and Policy Committee (SPPC), comprised of all

15 council members, discussed budget items in a series of meetings in late January

and early February. The recommendations from this committee were slated for a vote

on February 28, 2013. As the budget vote approached, there was considerable debate

surrounding whether the Mayor would deliver a budget with a “zero percent” tax

increase and keep his 2010 campaign promise to freeze taxes.23 To achieve this, he

and supporting council members needed to find $11.5 million in new revenue

sources or spending cuts by the end of February.24

57 Seven of the 15 council members were present at Billy T’s – one short of legal

quorum. This predictably sparked public concern that their closed-door, backroom

gathering was a clandestine budget strategy session. The evidence, in fact, confirms

there was general conversation about at least one budget issue, and three of the

councillors admitted they talked about a zero percent tax increase.

58 After the Billy T’s gathering, the budget included a tax increase of 1.2%, not zero.25

Mayor Fontana argued that in place of a tax freeze, there should be a greater

emphasis on economic prosperity and job creation. This also played to his other key

campaign promise, to create 10,000 jobs over five years. The budget ultimately

adopted on February 28, 2013 included a 1.2% tax increase.26 Councillors

Henderson, Polhill, and Van Meerbergen voted against the tax increase.

Trillium Foundation Grant/Multiculturalism

59 Five of the council members at the gathering were either engaged in or overheard

discussions related to a Trillium Foundation grant, multicultural issues and/or the

chair of the London Multicultural Community Association (LMCA). Councillor

White had arranged to meet the chair of the LMCA that day, and ultimately did so

23 The “Fontana 8” had voted for a 0% tax increase in 2011 and 2012.

24 “London City Budget: Staff Table a Draft Budget Calling for a 2.5% Property Tax Hike. Now the Political Process Begins,” London

Free Press (4 December 2012) online: http://www.lfpress.com/2012/12/04/london-city-budget-staff-table-a-draft-budget-calling-fora-

25-property-tax-hike--now-the-political-process-begins.

25 Patrick Maloney, “London Mayor Joe Fontana Might not Deliver Third Straight Tax Freeze,” London Free Press (28 February 2013)

online: http://www.lfpress.com/2013/02/27/london-mayor-joe-fontana-might-not-deliver-third-straight-tax-freeze.

26 Patrick Maloney, “Fontana’s Tax Freeze Promise Crashes to a Halt,” London Free Press (28 February 2013) online:

http://www.lfpress.com/2013/02/28/fontanas-key-campaign-promise-crashes-to-a-halt.

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immediately after leaving Billy T’s. At the time, an LMCA request for additional

funding from the City was a live issue before the Investment and Economic

Prosperity Committee (IEPC). Quorum for IEPC was present at the gathering

(Fontana, Swan, Henderson, Orser, and Van Meerbergen); in fact, only one voting

member of this committee was absent.

60 Approximately two months prior to the Billy T’s gathering, the IEPC considered a

report assessing the strengths and limitations of a program to help immigrants start

their own businesses in London. The program was sponsored by the LMCA, but

lacked a feasibility study to show there was a sufficient market for the program. The

report said the LMCA had received a $25,000 grant for a feasibility study from the

Trillium Foundation – an Ontario government agency that awards grants to nonprofit,

charitable and community organizations involved in the arts, environment and

social service sectors. On January 31, 2013, the Chair of the LMCA wrote to the City

Treasurer, asking the city to match the funds provided by the Trillium Foundation to

complete the feasibility study.

61 Ten days before the Billy T’s gathering (February 13), the Strategic Priorities and

Policy Committee, comprised of all of council, voted to receive the LMCA’s letter.

Five days after Billy T’s, at the February 28 council meeting, Councillor White

introduced a motion that the city put aside $25,000 to cover any costs of the

feasibility study. The Mayor and Councillor Orser supported White’s motion.

Councillor Swan said it might be helpful for council to support the allocation of

$25,000 toward a business plan rather than a feasibility study. Still, there was

significant debate about whether council should approve this funding for the LMCA,

because a motion was passed earlier that same evening to cut funding to community

groups in general. In fact, Councillor Joni Baechler – in an unwittingly appropriate

choice of words – criticized Councillor White’s motion as a way of:

…coming in the back door, getting something this council has said no to at the

front door.27

A motion carried to refer the matter to staff and the issue was scheduled to return to

the IEPC on March 25, 2013.

62 On the morning of March 25, 2013, the IEPC received a communication from the

Directors of the LMCA, informing them that the chair (Councillor White’s friend)

had resigned, and as a result, the request for $25,000 was withdrawn.

27 City of London Open Meeting Minutes February 28, 2013. 6th Report of the Strategic Priorities & Policy Committee, IV. Items

for Direction # 6 – 03:09:50 – 03:40:00 http://sire.london.ca/agdocs.aspx?doctype=minutes&itemid=18456 at 03:30:50

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Highway 401 Interchanges

63 Three councillors recalled some discussion at Billy T’s about Highway 401

interchanges – a $100-million investment by the Ontario government towards the

creation and upgrade of interchanges in London. News of an agreement between the

city and the province on the project was public before the Billy T’s gathering. Mayor

Fontana was quoted in the media as predicting that all four interchanges would be

complete by 2016, bringing “tens of thousands of jobs” to the 10-kilometre stretch of

the freeway that crosses London.28 The project has been considered by council and a

number of committees, including the Civic Works Committee (CWC), Planning and

Environment Committee, and the IEPC.

64 On February 4, 2013, the CWC addressed a draft by-law approving the agreement

with the province, and it was passed by council on March 5, 2013. On May 6, 2013,

the CWC considered a transportation and environmental study relating to the

interchanges. On June 17, the same committee discussed land transfers between the

city and the Ontario Ministry of Transportation. On April 23, 2013, the Planning and

Environment Committee (PEC) considered the impact and heard from the public in

relation to the Highway 401 industrial growth strategy. Additionally, the Highway

401 and 402 corridor was one of the projects and programs that the IEPC directed

city staff to consider in the context of the city’s Community Improvement Program

on April 29, 2013.

McCormick Property

65 Four of the council members present at Billy T’s either took part in or overheard

others discussing “the McCormick property” – the site of an abandoned cookie and

candy factory in London. It was taken over by the city for tax arrears, but before the

property could be improved or sold, it was damaged by fire. Councillor Orser has

been a vocal and strong proponent for development of the property and commented

that his Billy T’s discussion “subject matter” was the potential for 200 jobs and the

need for a $50-million investment that could “resurrect it and get it going quick.”29

28 New Hwy. 401 underpass predicted to lead to development, jobs, growth By Chip Martin, The London Free Press Wednesday,

October 10, 2012 8:04:25 EDT PM http://www.lfpress.com/2012/10/10/hwy-401-interchanges-expected-to-bring-thousands-ofjobs

29 “Ombudsman investigating complaints over 'improper' London council meeting,” CTV News London March 8, 2013 10:31AM

EST http://london.ctvnews.ca/ombudsman-investigating-complaints-over-improper-london-council-meeting-1.1187520

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24

66 While the McCormick property was an issue in the fall before the Billy T’s

gathering, and had come before two of the committees that had quorum at the lunch,

neither of these committees has addressed the property since. The issue was,

however, back on the council agenda on April 30, and the city issued a request for

development proposals for the site that closed July 4, 2013.

The Getaway: Backdoor Exits, Phone Calls and Email

67 Councillors were asked what time and by which exit (back or front) they left Billy

T’s after lunch on February 23, 3013. Table 3 is a summary of their evidence.

Table 3 – Departure Information

TIME OF DEPARTURE EXIT CHOICE

MAYOR

FONTANA 12:50 p.m. Front door

HENDERSON Not sure Back door

ORSER Last to leave (after 1

p.m.) Front door

POLHILL 1 p.m. (approx.) Back door

SWAN 12:25 p.m. Back door

VAN

MEERBERGEN 12:55 p.m. Back door

WHITE 12:20 p.m.

Back door (then

re-entered at

front)

68 There were material inconsistencies in the accounts provided. Councillor White

recalled she was at Billy T’s until about 12:20 p.m. and in the back room for about

20 minutes. Councillor Polhill’s recollection differed and had him leaving along with

Councillor White through the back door, as they had parked out back. Councillor

White said she was the first to leave, left alone, and was not parked out back.

Councillor Swan also said he left first, not Councillor White. The Mayor testified

that before he left, Councillors White and Polhill left in succession, but he made no

mention of them leaving together as in Polhill’s account. Councillor Van Meerbergen

said he left at 12:55 p.m. and was second to leave, after Councillor Swan.

69 Councillor White said the back door was ajar and she left that way. Then she walked

around the restaurant, outside, and re-entered through the front door to look for the

patron she had been speaking to earlier. Unable to find him, she left again via the

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front and went to meet the LMCA Chair, who had called while she was at Billy T’s

and arranged to meet her elsewhere.

70 The gathering at Billy T’s broke up quickly after word spread that the London Free

Press had been contacted. Councillor Henderson recalled overhearing someone say,

“Oh, oh, someone called the Free Press,” about an hour into the gathering. He left by

the back door shortly afterwards. Councillor Orser, the last to leave Billy T’s, told us

he was “cornered” by a Free Press reporter in the parking lot as he left. Phone

records show that Councillor Orser then made seven phone calls shortly after the

meeting, between 1:49 p.m. and 2:54 p.m. He contacted every council member who

was present at the gathering (Henderson twice). Those calls and other councillor

phone activity is summarized in Table 4.

Table 4 – Phone Activity after Billy T’s

TIM

E

CALLE

R

RECIPIENT LENGTH

1:49 p.m. Orser to Mayor 1 min, 44 secs

1:55 p.m. Orser to Polhill 1 minute

2:00 p.m. Orser to Van Meerbergen 5 mins, 12 secs

2:10 p.m. Orser to Henderson 1 minute

2:10 p.m. Orser to White 1 minute

2:16 p.m. Orser to Henderson 1 min, 42 secs

2:54 p.m. Orser to Swan 1 minute

4:35 p.m. Mayor to Billy T’s 2 minutes

4:38 p.m. Mayor to Manager's Cell (Billy

T’s)

2 minutes

4:44 p.m. Polhill to Mayor 1 min, 24 secs

4:45 p.m. Polhill to Van Meerbergen 9 mins, 29 secs

5:57 p.m. Mayor to White 3 minutes

8:00 p.m. Orser to Henderson 1 minute

71 Mayor Fontana’s cell phone records show a two-minute call at 4:35 p.m. to Billy T’s,

and a two-minute call at 4:38 p.m. to the personal cell phone of a manager at the

restaurant. The Mayor recalled he received a call from Billy T’s management

because of the media and public attention the gathering was already causing, and he

returned the call to discuss it. The Billy T’s manager, however, gave a different story.

Initially, he said he likely missed the Mayor’s calls that afternoon. Later, when

confronted with records showing the length of the call to his private cell (2 minutes),

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he remembered they spoke on the phone, but said it was about a municipal zoning

issue relating to a property. The Mayor also called Councillor White at 5:57 p.m., to

inquire about her meeting with the LMCA chair that afternoon.

72 After the gathering, at 2:06 p.m., Councillor Henderson sent an email to Councillor

Van Meerbergen, copied to Mayor Fontana and Councillors Swan and Polhill. The

subject line read “0% POSSIBILITY AT THIS LATE DATE.” The email said:

“Have [the city treasurer] cancel any project more than 2 years old and put money

back into surplus and be required to re approve. I believe we can find at least $10

million.” Councillor Henderson explained that he raised this idea as a way of

achieving a zero percent tax increase in the budget. All of the recipients told us they

did not read the email.

Was the Lunch an Illegal Meeting?

73 It is not disputed that those who gathered were members of council. The issue I must

consider is whether they violated section 239 of the Municipal Act by improperly

gathering in a closed meeting for the purpose of exercising their power and authority

or for laying the ground work necessary to exercise that power or authority.

Was it a Purposeful Gathering?

74 For the following reasons, I do not accept the explanations that it was mere chance or

accident that brought seven members of London council – all well-publicized

members of the “Fontana Eight” – together in a backroom gathering at Billy T’s on

February 23, 2013, just five days before a key budget vote. On the totality of the

evidence, both direct and circumstantial, I find that it is more likely than not that the

gathering of the seven councillors in the backroom at Billy T’s on February 23, 2013

was both purposeful and planned.

75 It was admitted by witnesses that there were at least three pre-arranged meetings that

were to take place at Billy T’s that Saturday morning between six of the seven

council members:

1. Mayor Fontana to meet Councillor Orser;

2. Mayor Fontana to meet Councillors Henderson and Swan; and

3. Councillor Polhill to meet Councillor Van Meerbergen.

76 Councillor Polhill admitted that, armed with information that the Mayor might be at

Billy T’s, he contacted Councillors Henderson, Orser, and Van Meerbergen and

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passed that information along. Councillor White is the only one of the group who

was not involved in any of the admitted pre-arranged meetings with council

colleagues, but she did know Councillors Van Meerbergen and Polhill would be

having lunch at Billy T’s that morning, because Councillor Polhill had told her.

Although she said she was not officially invited to meet at Billy T’s, she nonetheless

arrived and was present at the same time as the other councillors.

77 Moreover, Councillor Polhill’s phone records show that just before 6 p.m. the night

before the gathering, he made two phone calls to Mayor Fontana, and one each to

Councillors Van Meerbergen, Henderson, Orser and White, in a span of 13 minutes.

The next morning, Councillor Polhill also made three calls in quick succession to

Councillors Van Meerbergen, White, and Mayor Fontana around the time he arrived

in the back lot of Billy T’s.

Backdoor Service

78 Evidence suggests that two of the seven councillors joined the backroom gathering

via the back door, and there is also evidence that Councillor White was overheard

asking how to access the back room without going through the restaurant, before

remarking, “Oh forget it, I’m just going to go back there.” In addition, bystander

witnesses recalled that the doors to the back room were shut most of the time.

The Reservation

79 The Mayor’s explanation was that once five or six council members had shown up at

Billy T’s, “someone” suggested that they move to the back room. Evidence shows

the Mayor made a two-minute call to Billy T’s at 9:02 a.m. on Saturday, February

23, to reserve a table. He denies specifically reserving the backroom, but his version

of events appears contradicted by other witnesses. One was aware by 10:30 a.m. that

the back room had been reserved for a noon meeting. Councillor Orser also advised

us that when he arrived at 11 a.m., staff told him the Mayor would be sitting in the

back room. In addition, one manager at Billy T’s testified that the Mayor asked to go

into the back room when he arrived at 11:40 a.m., while another said the Mayor was

initially alone in the back room, “sitting at a table by himself.”

80 A Billy T’s manager was also quoted on local radio as saying the Mayor “called in

the morning, to see if they can use, I have a little banquet room in the back. Which

it’s not the first time. Joe’s a good patron here of Billy T’s.”30 He later informed our

investigators that he was misquoted and that he had been referring to a previous

reservation a month earlier.

30 AM980 News (February 26, 2013), radio program: (London: CFPL FM AM980).

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The Lunch was Purposed and Planned

81 Between Mayor Fontana and Councillor Polhill, all of those involved in the

backroom gathering had been notified that there would be some form of get-together

involving council members at Billy T’s. In addition, the significant phone activity the

night before and the morning of the gathering, in conjunction with admitted backdoor

entries and exits, are all individual threads of evidence that, when interpreted as a

whole, come together to support this conclusion.

82 I am unable to accept Councillor Polhill’s explanation that three successive calls

made among different councillors at the time he arrived at Billy T’s were unrelated to

the gathering and instead were calls about parking, car repairs, or the result of

accidental “butt” dialing. A scenario that is more likely, and supported by the

evidence, is that Councillor Polhill had foreknowledge that the other councillors

would be at Billy T’s and wanted to confirm attendance, announce his arrival, and/or

have someone let him in through the locked back door.

83 I am also unable to accept the testimony surrounding the details of the reservation.

The manager’s assertion that he was misquoted by media about the reservation does

not ring true, lacks credibility, and defies common sense when considered amidst the

other evidence available. Furthermore, inconsistent witness accounts by the Mayor

and others in conjunction with all the phone records lead me to conclude that it is

more likely than not that a reservation was specifically made for the back room at

Billy T’s in preparation for the gathering on February 23, 2013.

84 The seven participants claim the gathering was not planned or intended to be a

council or committee meeting directed at furthering city business. They maintain that

coming together was a coincidence and the lunch was purely social. The available

evidence, however, indicates that this innocent explanation also defies common sense

and lacks credibility – especially given that upon arrival at Billy T’s, all seven chose

to congregate behind a closed door in the back room. This was a literal backroom,

backdoor, closed-door meeting of seven council members.

85 The explanations provided by the council members are permeated with implausibility

and lack credibility. It is both disappointing and deeply concerning that although they

were in public at Billy T’s, they made deliberate and calculated attempts

(individually and in concert) to conceal their behaviour from the public.

Groundwork Necessary to Exercise Power and Authority?

86 I accept that participants at the lunch discussed a variety of personal and business

topics, and their testimony that there was no express agenda or notice typical of a

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council meeting. However, overlapping and corroborated evidence of the topics

discussed (the Trillium Foundation grant, McCormick property, Highway 401

interchanges, zero percent tax increase, etc.) demonstrates the existence of an

informal agenda. Clearly, some past and future council and committee issues were

discussed. And according to the Mayor and two witnesses, the Mayor found it

necessary to remind the group not to talk about the budget or city business, as it was

a social gathering.

87 The timing of Councillor White’s meeting with the Chair of the London

Multicultural Community Association immediately after the Billy T’s gathering

raises concerns. There were various accounts, including her own, confirming she

discussed the Trillium Foundation funding issue at Billy T’s. There was also the

Mayor’s call to Councillor White after Billy T’s about her meeting with the LMCA

Chair, which was followed by attempts by Councillor White a few days later to

secure funding for the LMCA from council.

88 I therefore conclude, considering all the evidence, that discussions did occur on

February 23, 2013 at a closed lunch meeting at Billy T’s in relation to the Trillium

Fund grant and a request for additional city funding by the LMCA. In doing so, I find

members of the Investment and Economic Prosperity Committee (IEPC)

purposefully gathered and engaged in conduct that – at minimum – laid the

groundwork for council members to exercise their power and authority in

contravention of the open meeting requirements of the Municipal Act, 2001.

89 To conduct business, the IEPC must have a quorum of four members present. On

February 23, 2013 at Billy T’s, there were five. Three – Mayor Fontana and

Councillors Orser and Swan – recall discussion involving Councillor White about the

Trillium Fund grant, multiculturalism and/or the Chair of the LMCA. Once a quorum

of the committee was present, and a topic of committee business discussed, the

gathering was caught by the open meeting requirements of the Municipal Act. There

was an exchange of information that – at minimum – laid the groundwork for IEPC

members to exercise their power and authority in making decisions.

90 A determination of whether a meeting has occurred does not require polling of

attendees to assess whether they were paying attention while business was transacted.

It is also not necessary to determine that councillors who meet in improper closed

sessions actually exercise their power and authority at some later date. In this case,

however, there is evidence that links the Trillium Foundation grant issue with actions

actually taken by those at the Billy T’s gathering. This is precisely the sort of

mischief the open meeting requirements of the Municipal Act seek to prevent.

91 The Trillium Foundation grant and the quest to have the city match those funds for

the LMCA was an issue that was obviously on Councillor White’s agenda. I believe

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that she raised this topic at the lunch with members of the committee who could

ultimately influence how this matter was addressed in future meetings.

92 It is quite understandable, then, that this backroom meeting generated strong public

concern and 60 complaints to my Office – a record for a single closed meeting

complaint. The evidence as a whole is both clear and disturbing. To recap, it

includes:

• Seven individuals;

• In a sealable back room;

• All of whom are members of city council – five of whom were

previously reprimanded and advised by this Office to avoid similar

conduct;

• Representing 47% of the entire city council and quorum for four of its

six standing committees;

• With authority to conduct the business of those four committees;

• Punctuated by backdoor entries, backdoor exits, and significant phone

activity the day before and of the gathering;

• Conflicting and sometimes contradictory accounts; and

• Attempts to conceal the entirety of the truth.

These facts, taken together, paint a picture reminiscent not of democratic government

but of movie-like organized backroom dealing – except this was no movie.

93 Backroom, backdoor, closed-door meetings – organized by and participated in by

elected officials – are inimical to the democratic process. This is so not only because

they violate the law, but because the public perception of such behaviour by elected

officials is profoundly negative.

Arguments by Councillors’ Lawyers

94 Unsurprisingly, the lawyers for the seven council members disagree that the

gathering involved an improper meeting of the IEPC and have attempted to cast what

occurred in its most positive and innocent light. They take issue with the definition of

“meeting” I apply, and they raise the following points in support of their position

(attached in full as an appendix to this report):

• Councillor White was not invited to the alleged meeting;

• She is not a member of the IEPC;

• She was the one to raise the matter of the Trillium Foundation grant;

• Quorum of the IEPC is four councillors and councillor White only told

two of them about the grant;

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• There is no evidence how many members of the IEPC were actually

collectively present during the alleged discussion of the Trillium

Foundation grant;

• The IEPC never dealt with the grant – rather, it was council that later

decided on the matter, and there was no quorum of council at Billy

T’s.

95 The fact that Councillor White was not expressly invited to the gathering is not

determinative. While evidence of prior planning is one factor to consider in assessing

whether a meeting has been held in contravention of the open meeting requirements,

advance planning is not a conclusive feature. Impromptu gatherings involving a

spontaneous decision to deal with business are equally against the law. In this case,

three discussions amongst council members were prearranged. At a minimum,

councillor White took advantage of the opportunity presented by the gathering of

other council members to bring up a subject of particular interest to her.

96 Similarly, the fact that Councillor White is not a member of the IEPC is not relevant.

Five members of the IEPC were present at the gathering. Two members, Mayor

Fontana and Councillor Swan, recall discussing the Trillium Foundation Grant with

Councillor White. Councillor Orser recalled overhearing Councillor White

discussing the Chair of the London Multicultural Community Association, which had

received the grant. It would be virtually impossible to find positive proof that the

requisite number of council members constituting quorum were present at the exact

moment that councillor White raised the issue of the grant. As I have often observed

in connection with these informal private gatherings, there is no proper and complete

record kept of discussions, so much is left to speculation. However, given the

suspicious circumstances surrounding this gathering, and my assessment of witness

credibility, I believe it is not unreasonable to find that it is more likely than not that

councillor White raised this issue while there were at least four members of the IEPC

present.

97 In addition, the IEPC clearly had some interest in connection with the Trillium

Foundation grant issue. At a meeting on December 18, 2012, the IEPC addressed

issues relating to the London Multicultural Community Association. At a council

meeting on February 28, 2013, five days after the Billy T’s gathering, councillor

White introduced a motion to set aside $25,000 in connection with the Association’s

request for funds. The IEPC was scheduled to address this issue at its March 25,

2013 meeting, when at the last minute the request was withdrawn. The fact that the

IEPC never made a decision relating to the grant is irrelevant. In my view, the Billy

T’s discussion laid the groundwork for exercising the committee’s authority in

connection with this issue.

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98 Finally, the lawyers have taken issue with my findings of their clients’ credibility. I

am not persuaded to revisit my assessment of witness credibility, which is amply

substantiated by the totality of circumstantial and direct evidence in this case.

99 It is of great concern that these seven council members appear to have learned

nothing from last year’s investigation involving a similar set of facts.

Conclusion: A Clear Violation

100 I conclude that an illegal closed meeting occurred on February 23, 2013, in violation

of the Municipal Act, 2001.

101 This case is a cautionary tale for municipal governments, underscoring the risks of

so-called social gatherings that are really a shield for clandestine meetings to further

city business away from public scrutiny. The February 23, 2013 backroom lunch at

Billy T’s Tap and Grill was not a social gathering or happenstance coming together

of council members for a friendly lunch. It was a betrayal of public trust, and

diminished the credibility of the council participants in the eyes of London citizens,

other council colleagues and all Ontarians.

102 The City of London and council should take steps to ensure that the danger of illegal

informal meetings is minimized through adopting a clear policy and procedures to

discourage this conduct.

103 I am making the following recommendations, which I trust will help council

members meet their legal obligations with respect to closed meetings in future.

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Recommendations

Recommendation 1

The City of London should adopt a written policy and/or written guidelines and ensure that

council and committee members are educated on the open meeting requirements of the

Municipal Act, 2001. This should include a definition of what constitutes a “meeting” that

upholds the public’s right to observe municipal government in process, and an explanation of

how it applies to informal discussions of council and committee business.

Recommendation 2

All members of council for the City of London should refrain from using the pretext of social

gatherings to conduct city business behind closed doors.

Recommendation 3

All members of council for the City of London should be vigilant in adhering to their individual

and collective obligation to ensure that council complies with its statutory responsibilities under

the Municipal Act, 2001 as well as its own procedures and by-laws.

Report

104 My report should be shared with Council for the City of London and made available

to the public as soon as possible, and no later than the next council meeting.

__________________________

André Marin

Ombudsman of Ontario

35

Appendix: Response from Councillors

Letter from John Mascarin and Christopher J., Williams of Aird & Berlis,

lawyers representing Mayor Fontana and Councillors Henderson,

Orser, Polhill, Van Meerbergen and White

September 27, 2013