Behind Closed Doors

Back in the 70's Charlie Rich sang "no one knows what goes on behind closed doors". What, you may ask, does that have to do with me, you and the town of Qualicum Beach? Well, the answer may be found within the agendas and minutes of the town council meetings.

A recent search of the minutes of council meetings revealed that from the first meeting of 2024 (January11th) to the last before the summer break (July24th) council conducted 10 meetings that were closed to the public. In plain language, behind closed doors.

The Community Charter (the "Charter") is a provincial law. With the exception of the City of Vancouver, it provides the statutory framework for municipalities in the province. Among other matters, it sets out requirements for holding meetings of municipal councils.

Section 89 of the Charter states that meetings of local councils must be open to the public. However subsections 90(1) and 90(2) of the Charter provide exceptions whereby meetings may or must be closed to the public. Under subsection 90(1), a meeting may be closed to the public if the subject matter being considered relates to one or more of the items set forth in that subsection. These include:

90(1)a	Personal information about an identifiable individual holding or being considered for a position as an officer, employee or agent of the town.
90(1)b	Personal information about an identifiable individual being considered for a municipal award or honour.
90(1)c	Labour relations.
90(1)e	The acquisition or disposition of land or improvements.
90(1)i	The receipt of advice that is subject to solicitor-client privilege.
90(1)k	Discussions regarding the proposed provision of municipal services.

Subsection 90(2) goes further, stating that a meeting must be closed if the subject matter relates to one or more of the items set forth in that subsection. These include:

90(2)a	Requests under the Freedom of Information Act.
90(2)b	Negotiations between the town and provincial or federal governments.

Before holding a closed meeting, council must state, by resolution, the fact that the meeting is closed and the particular subsection on which council is relying for closing the meeting. Unfortunately, there is no requirement to disclose to the public the general substance of the matter being discussed. As a result, the public has no idea of what is taking place at the closed meeting.

Certain matters should be discussed by council in private. For example, detailed discussions regarding the disposition of town owned land. The town would hardly be in a good bargaining position if potential purchasers knew the price the town was prepared to accept for the property. On the other hand, a general discussion on the need to sell town owned land should be made in open meeting. Another example of when a closed meeting is appropriate would be discussions relating to a citizen of the year award which could reveal skeletons that are best kept in the closet.

Typically, a matter may only need to be kept confidential for a limited period of time. Once the town property has been sold or the citizen of the year has been determined the matter under discussion at a closed meeting may be disclosed to the public. This is usually done at a subsequent open meeting. The BC Ombudsman stated in a 2011 report that "as much information as possible should be released in order to achieve the goal of openness, transparency and accountability without compromising the interests of local government, the public or a third party".

Ideally, the public should be told the date of the meeting, a general description of the subject matter being discussed and the particular subsection of the Charter relied upon for closing the meeting. In this way, the public's right to openness, transparency and accountability can be satisfied.

A review of the agendas for the closed meetings held by Council from January to July of this year reveals the subsections on which council relied upon for holding closed meetings. Despite the number of meetings held and the matters discussed, it appears council utilized only a few of the exceptions available under section 90 as a basis for closing the meetings (in particular subsections 1a,1c,1e,1i,1k,1l and 2b).There is no description, generic or otherwise, of the subject matter under consideration at the closed meeting.

A particular example of the use of a closed meeting process and the subsequent disclosure may be educational. At the June 26 2024 regular council meeting, council authorized the release of information from a previously held closed meeting. The disclosure revealed that town council had directed staff, as stated in the disclosure, "to provide a letter of support for Island Hopper Air Training ("IHAT") to operate a flight school from the Qualicum Beach airport."

There is no indication in the June 26th disclosure as to the date of the IHAT closed meeting or the particular subsection relied upon for conducting the meeting behind closed doors.

In disclosing the IHAT matter at the June 26th meeting, it was explained to Council and the small number of members of the public in attendance, that closed meetings are held for matters to land, labour or law. While this may generally describe the subject matter of closed meetings, it is not the determining factor as to why a meeting may or must be closed. This is determined by subsection 90 of the Charter. Closed meetings are only permitted if they fit within the parameters of section 90. In Local Government under the community charter 4th ed., William Buholzer proposes that the use of certain provisions of the charter requires local governments to "first make an express determination (by resolution) that such discussion would be harmful, and then adopt a resolution to deal with the matter in the absence of the public." It was further explained at the meeting that the airport lands were granted for the sole purpose of operating a public airport with associated uses, that flight schools are a permitted use and that council lacks the authority to restrict airport operations. Presumably, it was on that basis that the letter of support was provided. However, in my opinion, this does not explain why the matter was conducted in a closed meeting.

A subsequent Google search revealed that an application to Transport Canada for the operation of a flight school requires the applicant to provide written permission from the local airport authority (ie.,the town) confirming access to the airport or, in the event such permission cannot be obtained, other information that demonstrates access to the airport. If the information provided at the June 26th meeting was correct, namely, that the town has no authority over IHAT's ability to operate a flight school at the airport, then a "letter of support" would appear to be superfluous. All that would be required was a letter from the Town confirming permission to use the airport. Providing a letter of support would appear to be going above and beyond the actual requirements of the application and begs the question of why the matter was conducted in a closed meeting.

Given the number of closed meetings held by council, my inability to match up dates of the closed meetings with the disclosures, and my review of the IHAT matter, I can only wonder whether all of the business conducted at those closed meetings met the requirements of the Charter.

Breaking news: The agenda for the first council meeting in September (a special council meeting set for Sept 4th) arrived by email. And yes, the special council meeting is a closed meeting!

Jim Noel

September 2 2024

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