CITY OF GREATER SUDBURY - “Don’t Let the Sun Go Down on Me: Opening the Door on the Elton John Ticket Scandal”

Investigation into City of Greater Sudbury Council Closed Meeting of February 20, 2008

André Marin

Ombudsman of Ontario

Date: 2008-04-25

The Ombudsman warned Sudbury councillors that their closed-door meeting regarding the city’s Elton John concert ticket scandal was close to the legal line.

1Ontario entered a brave new world on New Year’s Day, 2008. As of that date, citizens have the right to request an investigation into whether a municipality has improperly closed its meeting room doors. Under section 239 of the Municipal Act, 2001, municipalities are required to open their council and committee meetings to the public unless they fall within prescribed exceptions. This has been the law for years, but this year marks the debut of the public complaints and investigation process.

2New amendments to the Act designate my Office as the investigator of such complaints for all Ontario municipalities, unless they appoint their own investigator for this task. On November 14, 2007, the City of Greater Sudbury chose, through a council vote, to use my Office as its investigator for public complaints about closed meetings. At present, my Office is the investigator for some 200 municipalities across Ontario.

3Open meeting legislation is intended to ensure that the exercise of political power is exposed to the light of day. In the U.S., where similar statutes are commonplace, they are called “sunshine laws.” The term is particularly apt for this closed meeting complaint, since it arises from the ticket scandal surrounding Sudbury’s Elton John concert on March 2, 2008. Elton John, after all, famously sang Don’t Let the Sun Go Down On Me, and that is the very complaint here – that councillors closed the door and left the rest of us in the dark about what they had discussed.

THE COMPLAINT AND BACKGROUND FACTS

4Sudbury is not a normal concert tour stop for megastars. Yet it snagged an Elton John concert, and this generated the kind of excitement one might expect. The Sudbury Community Arena would be packed to the rafters, and still there would be many fans who could not get in. On February 1, 2008, just over 6,000 concert tickets went on sale to the public. The public was advised to buy tickets online rather than line up at the box office in the dead of winter, but many still did just that – some 200 people, all but 50 of whom would walk away disappointed. Their hopes of securing tickets were dashed not only by the speed of electronic commerce, but also by the fact that a considerable number of tickets were held back by the promoter and the arena manager. More than 200 were designated for use by arena staff and the 13 members of City Council, with elected officials having first dibs on 120 of them.

5To be clear, this privilege was not initiated by the politicians. The concert promoter explained to our investigators that setting aside tickets for arena staff and local politicians was standard practice, just as it was standard practice to reserve some for media and entertainment industry representatives and others of the promoter’s choice. In the case of elected officials, the promoter explained that such arrangements were made not with them directly, but with the arena manager, a municipal bureaucrat who ordinarily distributed them. In this case, a more senior bureaucrat – one of the city’s general managers – co-ordinated distribution of the tickets to councillors. This unusual step was taken, we were told, because of the high volume of anticipated requests. Still, it was the Mayor who decided how many tickets each councillor would be entitled to purchase – a maximum of eight each. The Mayor had chosen this number because it was his understanding that each member of the public would also be entitled to purchase eight tickets, and another Ontario city on this same Elton John tour – Kitchener – had allowed its councillors that number (including one freebie). Ultimately, though, Sudbury council members stretched their limit somewhat – 120 tickets for 13 councillors actually works out to 9.23 tickets each, indicating that some clearly obtained more than their allotment of eight.

6It should be stressed that these tickets were not gifts. Sudbury officials paid for them with their own money. However, that did not excuse them in the minds of the public. The tickets were made available to municipal politicians by virtue of their offices, while members of the public had to line up, either in Internet queues or outside an arena, and risk ending up empty-handed.

7It is always worrisome when elected officials appear to be gaining personally from their positions, or when they appear to prefer their own self-interest to that of the people they serve. Municipal councillors hold positions of trust. They are elected to wield significant power and it is expected by the public that they will use their positions in the public interest, not to benefit themselves. This expectation applies not just to such blatant things as contract kickbacks or expensive gifts from suppliers – any perk derived from elected office may be viewed with suspicion. The dollar amount at stake may be small, but the concern is not. That is why, when the Mayor confirmed to the local newspaper – the Sudbury Star – that council members had indeed scooped up priority concert tickets, it was a “stop the presses” moment. It became a hot topic of media and water-cooler conversation. As the controversy grew, so did the public backlash against councillors. Several of them told us they faced a barrage of angry calls, letters and public catcalls in the wake of this revelation.

8By February 13, 2008, the matter had become an issue for council. At that night’s council meeting, the Mayor requested permission to address the public. He apologized for the ticket controversy and stated that the purchase of the tickets by council members was in keeping with “long-standing” practice, but he vowed to have this practice reviewed and a formal policy adopted by council.

9This promise did not stop the story’s momentum. On February 16, 2008, the Sudbury Star reported that the concert could be in jeopardy as a result of the ticket scandal. This notion was denied outright by the promoter in a subsequent article. Yet four days later, evidently concerned about the public outcry, the promoter contacted the arena manager and asked for 60-70 tickets to be returned so they could be made available to the public in a lottery. The arena manager pushed the matter up to the Mayor’s office. As a result of discussing the situation with the promoter, the Mayor undertook to obtain the tickets and assigned the General Manager (the same one who had distributed them) the task of administering their return. The Mayor then spoke to several of the councillors individually, and then met with as many as six of them informally in his office. He told them he was returning his 11 tickets and they would have to return some of theirs as soon as possible.

10This about-face no doubt proved embarrassing for those councillors who would have to try to take back tickets they had obtained for others. It also presented logistical concerns: How many tickets would each councillor have to give back? How would they be refunded? What if they had paid by credit card? And so on. Evidently there was work to be done in administering the Mayor’s request.

11On February 20, 2008, the councillors attended a scheduled meeting of the Priorities Committee – a so-called “committee of the whole” which comprises the full membership of council. As is customary, several of them shared a supper in the council lounge beforehand and at least a few discussed the issue of the concert tickets and how many could be retrieved from friends and family. After the Priorities Committee meeting ended, 10 councillors retired to the lounge in preparation for their departure, and a discussion surrounding the tickets began in earnest.

12The councillors in attendance were: Jacques Barbeau, Claude Berthiaume, Frances Caldarelli, Joe Cimino, Doug Craig, Ron Dupuis, Evelyn Dutrisac, Janet Gasparini, Joscelyne Landry-Altmann, and Russ Thompson. Although there was some evidence that an 11^th councillor, André Rivest, was in the lounge for a very brief period, he was adamant that he did not take part in the ticket discussion, and I accept his account. Mayor John Rodriguez did not attend, nor did Councillor Ted Callaghan, who was on vacation, nor Chief Administrative Officer Mark Mieto. Municipal staff who had remained behind to clean up the lounge were asked to leave because, we were told, the councillors were concerned about recent leaks of information to the media. Catherine Matheson, General Manager of Community Development, was summoned to the lounge to answer councillors’ questions. According to our interviews, the meeting lasted for about 10 minutes and the discussion focused on calculating how many tickets each councillor could return, as well as questions about how those who used various credit cards to pay for their tickets would be reimbursed. Ms. Matheson explained to them how this could be done.

13City administrators later proceeded to obtain legal and communications advice from external contractors on how to deal with media Freedom of Information requests and public opinion. We were told this was done in part because some regular staff were away, and because of a need for specialized advice. In any event, this decision was an administrative one, well within the bailiwick of city staff.

14In the end, council members returned 71 tickets. The promoter added these tickets to some that he had placed on hold and, on February 24, 2008, made them available to the public through a lottery.

15That proved not to be the end of what the local paper called “Ticketgate,” but rather the beginning. Rumours concerning the councillors’ closed-door meeting then began to circulate in the community, culminating in the complaint to my Office on February 26, 2008. After conducting preliminary inquiries and making efforts to contact a few witnesses who were temporarily unavailable, I launched an official investigation on March 26, 2008.

INVESTIGATIVE PROCESS

16A four-member investigative team interviewed 17 individuals, including all 13 members of the City of Greater Sudbury Council, as well as various municipal staff. Documents obtained from the municipality were reviewed, including agendas and minutes for 2008 City Council and Priorities Committee meetings, emails, memoranda and councillors’ personal notes. The investigation also involved extensive legal research, covering case law on open meetings in Ontario and other jurisdictions.

17Prior to January 2008, Ontarians who wanted to challenge a closed municipal meeting would have had no recourse but to go to court. Today, they can complain to my Office or their municipality’s designated investigator, under a brand-new system of enforcement through investigation. It is so new, in fact, that this is only the second such full investigation my Office has conducted, and understandably few municipal officials or members of the public have had a chance to become familiar with the process. Under the circumstances, I have chosen to include an Appendix to this report that analyses legal issues concerning open meetings in considerable detail. I trust that this will provide guidance to municipal officials in the future with regard to their open-meeting obligations.

“MEETING” THE LEGAL TEST

18When I investigate a complaint about a closed municipal meeting, I must consider whether the municipality has complied with the requirements of section 239 of the Municipal Act, 2001, as well as the procedure bylaw the municipality is required to pass under subsection 238(2) of the Act.

19The Act provides a list of exceptions permitting municipalities to hold closed meetings if they are dealing with certain limited subjects, such as personnel matters or litigation. The subject of concert tickets for councillors clearly does not fall within these exceptions. Therefore, the critical issue in this case is whether the February 20, 2008 meeting in the Sudbury council lounge was a “meeting” as defined under the Act.

20The Municipal Act, 2001 defines a “meeting” as “any regular, special or other meeting of a council, of a local board or of a committee of either of them.” This definition, which has also essentially been adopted by the City of Greater Sudbury in its procedure bylaw, is not particularly illuminating. In fact, it is infuriatingly circular: A meeting is a meeting is a meeting.

21The question here is whether what happened in the council lounge on February 20, 2008 was a “meeting” subject to the open meeting requirements – or was it an informal discussion falling outside of the Act?

22Certainly, those in attendance did not think it was a “meeting” subject to the Act. The General Manager told us:

Personally, I don’t think it was a meeting at all. It was an informal discussion and a normal process that happens after Council and people leaving get their coats. So, was there a decision made? No. Was there an explanation to a few politicians about how to return their tickets? Yes.

23One councillor described it this way:

The decision [to return tickets] was not recorded, as it was not something that we voted on. In my mind, it was never a council decision. This was not city taxpayers’ money. This wasn’t a policy issue. This had nothing to do with the business of council, really. It had to do with us taking advantage of what had been a long-standing practice, which now needs a policy.

24At the risk of sounding legalistic, not all meetings are “meetings” for the purposes of this law. While any gathering of individuals having a discussion might be considered a meeting in the colloquial sense of the word, in order to constitute a “meeting” subject to the Act, something more is needed.

25The Supreme Court of Canada has recently noted that Ontario’s open meeting legislation was “intended to increase public confidence in the integrity of local government by ensuring the open and transparent exercise of municipal power.” It serves two important purposes: The pursuit of effective democracy, and the preservation of the appearance of integrity in the exercise of political power.

26The political power held by councils and committees is, in the main, a policy-making power. Mayors and municipal councillors represent the public by holding delegated authority to pass bylaws and determine broad questions of policy, including the allocation of municipal programs and services. They also establish and oversee administrative policies, practices and programs that are required to implement the decisions of council.

27By contrast, councillors are not given the power to do the hands-on administration of a municipality; it is the officers and employees of the municipality who implement or administer council’s policies and program choices and carry out the duties assigned by a municipality. Naturally, politicians interact with administrators on behalf of their constituents, or to ensure that existing policies are properly implemented, but when doing so they are not exercising power in a way that requires “sunshine laws.” They are managing existing policies or otherwise engaged in administration. It would not be feasible or desirable to require every such get-together to be held openly and with notice.

28The Greater Sudbury Council’s procedure bylaw reflects this, and attempts to distinguish between the role of council and the administration, noting in its Schedule C that “one of the principal distinctions of a council as opposed to the administration is council’s mandate to establish the policies of the organization.”

29Taking into consideration the court decisions on open meeting requirements (referred to in detail in the Appendix to this report), I have concluded that the legal definition of when a meeting is a “meeting” under the Act should be interpreted as follows:

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.

WHEN IS A MEETING NOT A “MEETING”?

30So, was the meeting in the Sudbury council lounge a “meeting” that should have been open to the public, according to the law?

31Looking at the first part of the above definition, the answer is yes, council members clearly “came together,” even though it was after the formal meeting of the Priorities Committee had been adjourned. Ten members of a powerful political body convened – albeit without the usual formal trappings of a council meeting – to discuss and settle matters on a topic of common concern. They summoned the General Manager. They had quorum and therefore the legal authority to make decisions. This was a meeting of the council, period.

32However – and this is where it gets tricky – that does not necessarily mean the open meeting obligations of the Act apply. It ultimately depends on what the council was doing and why. The “coming together” must be for the purpose of exercising the power or authority of the council or for the purpose of doing the groundwork necessary to exercise that power or authority. And here, based on my review of all the evidence, the answer is no, the 10 councillors were not meeting for this purpose.

33They came together to determine who should give tickets back, how many, and to learn about the mechanics of doing so. They were engaged in the face-saving surrender of tickets. This was not a policy matter that invoked council’s political power. It related to the administration of the ticket returns. Those present did not deliberate on any matter that would involve the use of council’s political authority. They were not equipping themselves for a later political decision. They just wanted to sort out what to do with the tickets.

NOT A “MEETING,” BUT …

34Now here comes the “but.” There was a policy matter lurking beneath the surface. Indeed, it was precisely the kind of policy matter that the public would be interested in, and the type of thing that open meeting legislation is all about – namely, the question of whether councillors should have ticket priority over their constituents. Certainly, when perks come from the city budget, they are matters that are dealt with in open council meetings, with good reason. The Toronto news media recently buzzed over the decision by councillors in that city – made and debated in public – to maintain their free taxi rides and passes for city golf courses, the zoo and public transit. The public is entitled to know that these kinds of self-serving benefits are being claimed by elected officials, not only because it is public money, but because it says something relevant about the use of power.

35Mercifully, Sudbury’s Elton John ticket scandal did not involve public funds, but it did involve benefits coming to elected officials by virtue of their office. While the preferential ticket acquisition practice had never in the past been treated as a matter for council, the fallout turned it into one. The Mayor used a council meeting to make a public statement about the scandal, and then, on April 2, 2008, at Priorities Committee, a new policy was proposed and discussed to cover the advance sale and distribution of tickets for events at the Sudbury Community Arena. Staff recommended that council members and the city’s arena staff be given the opportunity to purchase a maximum of two tickets each before they become publicly available. But council was split on whether to endorse any priority ticket plan. The vote at that meeting was tied 6-6, so no decision was reached until April 9, 2008, when the Mayor cast the deciding vote. Council ultimately decided 7-6 to adopt a policy eliminating the “long-standing practice” that had sparked so much trouble: City councillors and employees can no longer obtain tickets to events at the Sudbury Community Arena in advance of the general public.

36It is worth noting that, had the conversations and discussions between councillors in that crucial 10 minutes behind closed doors on February 20, 2008 been only marginally different, section 239 would have kicked in. Had there been a discussion where councillors agreed, as a matter of policy, that they deserved ticket priority over their constituents, it could have been deemed an illegal meeting. If they had talked about making the issue the subject of a formal policy at council, or if the General Manager had been directed to look into the question of whether this should have happened, section 239 would have applied.

37I am satisfied from their evidence, however, that councillors did not engage in these kinds of discussions, and therefore their lounge meeting was in compliance with the law – but only barely so. This case perfectly illustrates the principle that open meetings engender public trust, while closed meetings breed suspicion. Municipal councillors, in the heat of a scandal in which they were believed to have used their positions as public officials to gain an advantage over the citizens they represent, waited for the public to clear out of a public meeting, asked staff to leave, and closed the door to talk about the very tickets that had sparked the controversy. No wonder there was so much backlash against them in the community – and enough distrust to inspire a complaint to my Office.

38As one Ontario judge cautioned in an open-meeting case, the actions of public officials “must not only be above board, but should appear to be above board.” What took place on February 20, 2008 did not appear to be above board. All that saves council’s actions from censure in this case is that the meeting did not involve the exercise of municipal power.

39If Sudbury council is getting off the legal hook here, it is not because it acted wisely or respected the important principle of the appearance of acting above board. It is because of the kind of reasons that tend to resonate with lawyers: Contrary to common sense, sometimes a meeting is not a “meeting.”

OPINION

40This is not a case where vindication should be claimed. It is a case where councillors should reflect on their actions from the vantage point of the ordinary constituent, and ask themselves whether, in the throes of a controversy such as this one, they should have closed the door.

41It is not my place to comment on the fairness, reasonableness or even the wisdom of councillors receiving preference over their constituents by virtue of their office. The public outcry in this case has admirably filled that role. It is, however, my job to comment on the issue of municipal officials holding closed meetings, and in this I am in agreement with the Ontario judge who remarked a few years ago: “Given the legislative prohibition contained in the Municipal Act, [holding closed meetings] is a highly dangerous practice.” In other words, even in matters that do not formally fall within the requirements of section 239, local politicians should think long and hard before closing the doors and letting the sun go down.