After six months, the final report into a controversial lunch meeting between the mayor and six councillors in February has been made public.
And the findings aren’t good.
The 48 page Ombudsman report concludes that the meeting, dubbed “Burger-gate,” was a “clear violation” of the Municipal Act, and that the February 23rd get together was not “a social gathering, or happenstance coming together of council members for a friendly lunch,” but was instead a purposefully planned meeting.
Marin had harsh words for those involved, saying the meeting not only betrayed public trust but “diminished the credibility of the council participants in the eyes of London citizens, other council colleagues and all Ontarians.”
The report, titled “In The Back Room” outlines everything from what they talked about during the meeting, what times the councillors departed the restaurant, and the number of and duration of phone calls made following the meeting, between those who attended.
Andre Marin, Ontario’s Ombudsman, polices illegal meetings across the province, and before 2008, was only delegated to provincial matters. A similar meeting at the Harmony Buffet in 2012 was investigated by Marin, but was found not to violate the Municipal Act. At the time, Marin offered warnings to those involved, saying it was “ill-advised.” Five of those at Harmony, wound up at Billy T’s.
The Ombudsman is viewed more unfavourably by politicians, and has faced a slew of criticism from members of council involved in the Billy T’s lunch, with Councillor Orser telling the Free Press in March “we’ve got a culture of fear created by the Ombudsman [..] It’s detrimental to the public’s ability to meet with us and talk to us.”
In an op-ed Monday, Marin noted that some on council had been belligerent to him, suggesting to him that they don’t believe the rule of law applies to them.
In relation to the Billy T’s meeting, Marin’s office received a record 60 complaints from the public. With the meeting taking place only 5 days before a final budget vote, something found unsavoury, as a legal quorum [a majority of members (of a committee) present to legally transact business] for the Investment and Economic Prosperity committee was in attendance at Billy T’s.
In fact, it was determined that a four of six standing committees (Civic Works, Corporate Services, Investment and Economic Prosperity, and Planning and Environment) were found to have legal quorum at the meeting.
The meeting was only one member shy of a full quorum for the entire city council.
Since the meeting, those involved have stated publicly that the meeting was nothing more than a happened-to-be lunch, which then found additional council members show up unexpectedly.
According to Marin’s report however, he found these claims to be unfounded, saying the available evidence shows that reasoning “defies common sense and lacks credibility” given that all seven chose to meet in a back room of the restaurant.
“This was a literal backroom, backdoor, closed-door meeting of seven council members.”
The meeting was initially a get together between Mayor Fontana and Councillor Orser. Fontana made plans the day before to meet with Orser at Billy T’s. Time: 11am. The topic? The McCormick property, and another personal matter.
The report shows Fontana called the restaurant 2 hours before the set meeting time, telling the restaurant he would be meeting with Orser and “a couple of other people.”
The mayor arrived late to the planned get together, around 11:40 am, and found Councillor White was at the restaurant. Soon after, Fontana told investigators, Councillors Polhill and Van Meerbergen had also arrived, but for a coincidental lunch.
Polhill and Meerbergen told investigators they had planned to meet for lunch to talk about their “shared interest in cars.”
Orser says he arrived at 11 with his school-aged daughter, but left when he found out Fontana had not yet arrived. He returned later, shortly after Fontana, around 11:45, and said he was surprised to see other councillors there. Councillors White and Swan (Fontana was planning on meeting Swan and Henderson at the restaurant at noon) both said they were surprised to enter the back room and see other councillors.
White says she entered the front entrance, joined a table of other patrons, and was invited to the back by Councillor Orser after he “appeared.” Two witnesses at the restaurant said White was in the “bar area” and asked staff if there was a back door, with one staff member quoting her as saying “I need to get to the back without going through the restaurant… do you have a back door?”
She then went into the back through the bar. “Oh, forget it, I’m just going to go back there. Which way is it?” one witness recalled her saying.
Was it reserved and planned?
The Mayor told investigators that “someone” suggested the back room after 5-6 council members arrived at the restaurant. Though Fontana made a reservation 2 hours before his planned 11am meeting, he says he didn’t reserve the back room.
Others give different and contradicting stories.
Orser says when he arrived at 11am, staff said the Mayor would be in the back room.
A Billy T’s manager said the Mayor asked to go to the backroom when he arrived at 11:40.
Another manager meanwhile, told a radio station the Mayor called earlier in the morning. “[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.”
The manager says he was misquoted, and was referencing a previous reservation made a month before. Marin doesn’t believe this, saying it “lacks credibility, and defies common sense.”
Marin concludes it’s likely a reservation was made for the backroom, in preparation of the meeting.
But what did they talk about?
Marin said accounts given to Ombudsman investigators were “confusing and conflicting,” with councillors maintaining “that they carried out separate and parallel conversations on various topics.”
All council members denied having group-discussions about city business.
The final report (item 56-66) outlines the multiple topics discussed at the meeting, the most prominent of them being budget strategy (at least one budget issue was brought up, and three councillors said they talked about the issue of a zero percent tax increase — the final budget saw a 1.2% tax increase) The Trillium Foundation Grant/Multiculturalism issues, Highway 401 interchanges, and the McCormicks property in East London.
The Trillium and multicultural issues related to the London Multicultural Community Association (LMCA). Councillor White says she made plans the night before to meet with the Association’s chair at noon, at Billy T’s (the chair disputes this, saying they didn’t specify a venue. He later added they agreed around 10am to meet in the ‘Highbury and Huron’ area. They finally met at the Fireside Restaurant, 9.5km from Billy T’s, around 12:45pm.)
Five people at the meeting were either talking about, or overheard talking about, things related to a Trillium Grant, multicultural issues, and/or the Chair of the LMCA.
At the time of the meeting, LMCA was requesting more funding from the city, and the issue was a current item being dealt with by the Investment and Economic Prosperity Committee (IEPC), which had quorum at Billy T’s that day.
The Trillium Foundation had given the LMCA $25,000, about 2 months before the meeting, to partake in a feasibility study for a program aimed at helping immigrants start their own local businesses. The LMCA was looking to the city to match the amount given by Trillium to help finish the study.
Councillor White met with the LMCA chair following the meeting, as had been planned prior. Mayor Fontana called White after Billy T’s to talk about her meeting with the LMCA Chair.
On the 28th, five days after the Billy T’s meeting, council heard a motion introduced by Councillor White to have the city put aside $25,000, the same amount as Trillium, to cover any costs from the feasibility study.
Although Mayor Fontana, and Councillor Orser supported the motion, there was “significant” debate about whether or not to approve the funding; council had slashed funding to community groups in general earlier in council. The issue was pushed to city staff, and was to return to the IEPC March 25th.
On March 25th, the IEPC discovered, through the associations Directors, that the chair of the LMCA had resigned, and the request for the $25,000 was withdrawn.
This topic, brought up in a lunch gathering, where a quorum of the committee dealing with the issue was in attendance, is believed to have constituted an illegal meeting.
“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,” read the report.
There were discrepancies as to when they left, according to the report. Councillor White stated she was only in the back room for 20 minutes and left the restaurant alone and, though she hadn’t parked there, left through the “ajar” back door.
White returned through the front soon after, looking for someone she was speaking to earlier, but couldn’t find them.
Councillor Polhill meanwhile said he left with White, through the back, saying the two of them had parked in the rear.
Mayor Fontana said the two left “in succession” but mentioned nothing about them leaving together.
In the report, Marin says the meeting quickly dissolved once word had gotten around that a reporter from the London Free Press was on their way to the restaurant. Henderson told investigators he recalled overhearing someone say “Oh, oh, someone called the Free Press,” an hour into the meeting.
Meanwhile, as he was leaving, Councillor Orser said he was “cornered” by someone from the Free Press in the restaurant parking lot.
There were discrepancies into their phone calls, with “significant phone activity” taking place the day of and before the meeting.
The day before the meeting, Councillor Polhill, who testified he came to Billy T’s for a planned lunch with Councillor Van Meerbergen, made 6 calls in 13 minutes, to Mayor Fontana (twice), and to Councillors Van Meerbergen, Henderson, Orser, and White.
(Pictured above: Councillor Polhill’s phone activity the day before the meeting)
Councillor Polhill was found to have called Councillor Van Meerbergen, White, and Mayor Fontana as he arrived at the rear of the restaurant. Polhill says the call to Meerbergen was to tell him the front lot was full, and to park in the back. The call to White he thought “could have been in connection with her car.” (White says a phone conversation with Polhill regarding her car took place the day before.) The phone call to the mayor was a mistake. A “butt call.”
In the report, the Ombudsman says it’s likely, and supported with evidence, that he had foreknowledge about other councillors at the restaurant, and called to confirm attendance, announce himself, or for someone to let him in through the locked, rear entrance.
Soon after his run in with the reporter, Orser called every council member who was present at the meeting in the span of an hour and 5 minutes. Henderson twice.
Records also show Fontana made two calls to Billy T’s shortly after 4:30 that afternoon, one at 4:35 and one at 4:38.
Fontana says he made a return call, as the restaurant’s management phoned him regarding the increasing media and public attention at the restaurant.
The manager says the calls were about a municipal zoning issue.
Marin says the significant phone activity, admitted backdoor entries and exits, the fact that the meeting was in a sealable back room, and the conflicting and sometimes contradictory accounts, painted a picture not that of a democratic government, but “of movie-like organized backroom dealing.”
In the report Marin says he found it disappointing that, while they were in public, they made “deliberate and calculated attempts” both individually and in concert, to conceal their behaviour from the public.
“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 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.”
Concluding the report, Marin stated the meeting and subsequent revelations were a cautionary tale for municipal governments, “underscoring the risks” behind “so-called social gatherings” which is nothing more than a shield to partake in city business behind closed doors, away from the scrutiny of the public.
Three recommendations have been put forward by the Ombudsman:
- That the City adopt a written policy and/or written guidelines, and ensure council and committee members be educated on the open meeting requirements of the Municipal Act, 2001. (Including a definition of what constitutes a “meeting”)
- That all members of council should refrain from using the pretext of social gatherings to conduct city business behind closed doors
- That all members of council should be vigilant in adhering to their individual and collective obligation to make sure council complies with its statutory responsibilities under the Municipal Act, as well as its own procedures and by-laws.
The Strategic Priorities and Policy Committee voted unanimously Oct 22nd, 13-0, to support all 3 Ombudsman recommendations. Also passed were two amendments
- d) a possible fine or sanction to be linked to the Council Members’ Code of Conduct relative to infractions identified by the Ombudsman; and
- e) the disclosure of the full cost of outside legal counsel provided to Members of Council.
Amendment d) passed 8-5, and e) passed 13-0. The recommendations and amendments still have to be passed through full council.
Lawyers representing the 7 council members at the centre of the report, “fundamentally disagree” with the final conclusion, saying no violation of the Municipal Act occurred, taking issue with his broad definition of “meeting.” They say White, who isn’t a member of the IEPC (which was handling the LMCA funding) wasn’t invited to the meeting, and was the person who raised the topic of the Trillium Grant.
Citing Fontana’s interview transcript, they say White mentioned the Trillium Grant in regards to her meeting with the chair of the LMCA, and nothing further, and only to Fontana. Though Polhill says he recalled White telling him she received the Trillium Grant, but didn’t say what the funding was about.
They say only two members of the IEPC were told of the grant by White, and that “there was no quorum of Council when mention of the Trillium Foundation Grant occurred.”
They also take issue with parts of the report calling on the council member’s lack of credibility, saying the language is “simply not appropriate.” The langauge (“permeated with implausibility and lack credibility” is one example), they believe, was only used to elicit strong visceral reactions against members of council.
“Indeed it defies common sense that councillors, in seeking to hold a supposedly secret closed-door meeting, would convene at a busy public restaurant over lunch on a Saturday morning and afternoon in view of restaurant patrons and staff.”
Ultimately, the council representation concludes that it was a social gathering, nothing more, and that no illegal meetings took place.
The Ombudsman’s report, however, says differently.
Matthew Trevithick, XFM News
Full document here