FOI Access To Windsor Policing Proposal Denied

Mayor DiCarlo advised me the OPP and Windsor responses would be made public after the consultant and steering committee reviewed the responses and council received the reports.

However, as mentioned in this post, Town Clerk Paula Parker advised I would have to request it from Windsor Police Services directly. On June 11, the Windsor Police Privacy Coordinator advised I must make an access request, pursuant to the Municipal Freedom of Information Act.

The Windsor Police Service has denied access to the proposal in its entirety, citing the following exemptions:

Law enforcement

8 (1) A head may refuse to disclose a record if the disclosure could reasonably be expected to, 

(c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;

(e) endanger the life or physical safety of a law enforcement officer or any other person;

(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons;

(l) facilitate the commission of an unlawful act or hamper the control of crime.

Third party information

10 (1) A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,

(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;

Economic and other interests

11 A head may refuse to disclose a record that contains,

(c) information whose disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution;

(f) plans relating to the management of personnel or the administration of an institution that have not yet been put into operation or made public;

(g) information including the proposed plans, policies or projects of an institution if the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a person;

Application of Act

52

(3) Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.

2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.

3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.

Town Business Should Be Transparent

The River Town Times article on the recent Ombudsman Report mentioned Mayor Aldo DiCarlo said in the three-and-a-half years this council has been in office, it is only the second time that an Ombudsman’s report has found contraventions.

Letter to the editor RTT

Re: Ombudsman finds contravention in how JPAC, council handled meetings.

The article noted Mayor DiCarlo’s comment that during this council’s term, this is only the second contravention found by the Ombudsman.

Mayor DiCarlo referred to the early contravention and how town clerk Paula Parker’s absence resulted in uncertainty about in camera reasons. However, the Ombudsman noted the Chief Administrative Officer and the acting Clerk were present at the meeting.

In its first contravention, the Ombudsman concluded this Council was not permitted to discuss bank signing authorities in closed session at the meeting, and in doing so violated the Act.

The second contravention was of the Municipal Act, 2001 and the municipality’s procedure by-law when this council approved accounts payable over email in December 2014 and January 2015.

The third contravention, and current Ombudsman Report, noted council violated the Municipal Act in closing a meeting under the security of the property and the JPAC failed to comply with its terms of reference in closing several meetings using the security of the property exception.

Mayor DiCarlo made comparisons to the previous council’s violations.

The Ombudsman website lists ten Reports on Amherstburg: of the six during the previous council’s term, three were negative and of the four on this council, three were negative.

Experienced staff and council members should have known the meeting exceptions and in camera criteria, especially if previous Ombudsman recommendations were implemented.

How disappointing that transparency and accountability has to be legislated but can so easily be set aside to conduct business on behalf of ratepayers while excluding them.

Linda Saxon

CAO Miceli’s Court Absence Explained

In The Windsor Star article, Judge in Angela Berry fraud trial threatens to issue arrest warrant for Amherstburg CAO Miceli, Berry’s lawyer, Linda McCurdy, referenced a post from Miceli’s Facebook page that showed him and six other men piled into a vehicle under the caption, “On a road trip with my boys.”

The Windsor Star has since reported on Miceli’s July 9 court appearance with his lawyer, Andrew Bradie, and the explanation that he was busy with town business.

“When Mr. Miceli saw the article in the Windsor Star, he was concerned for the bad publicity which he received, and for the fact that the continuation of the trial date had been set in direct conflict with a pre-paid vacation that he had scheduled with his family.”

Given Miceli was concerned about negative publicity, did he take whatever action he could to avoid it? Did he prioritize his court appearance by arranging his schedule so there was no conflict with town business? Was he unable to delegate the town business to other town staff? Did he notify the Crown Attorney of his inability to attend court as per the subpoena?

Lack Of Transparency Part 1 – Police Advisor Updated

The Lack Of Transparency Part 1 – Police Advisor has been updated to reflect the fact that in addition to Midland, The Town Of Hanover And Municipality Of West Grey Also Issued A Request For Proposal – Study And Analysis Of The Feasibility Of The Amalgamation Of The Hanover And West Grey Police Services.

Michael Mitchell of MPM Consulting was the successful respondent and undertook the project beginning on March 21, 2016.

Lack Of Transparency Part 1 – Police Advisor

Ratepayers expect promises of accountability and transparency to be fulfilled. A series of posts will examine the lack of transparency when this council was to examine and compare policing costs.

A committee was established to review all the options and naturally, one would expect such committee members to possess the necessary expertise to advise council.

CAO Miceli initially informed Council the Joint Police Advisory Committee (JPAC) should be formed as a first step to ensure an open and transparent process for the review of policing options. Mayor DiCarlo stated, “we realized we need to get the committee in place and look at all the options.”

CAO Miceli’s recommendation to form a committee was based on the Ontario Association of Chiefs of Police (OACP) A Process Guidebook for the Review of Policing Options 2012′ he relied on.

If the committee requested assistance, Ministry Police Advisors were referred to and their role was explained in the Guidebook on page 6:

During any consideration of policing options, the initial responsibility of the advisor is to outline for the Board and Council their options and responsibilities under the Act and the potential implications of each. During a review of Policing Options, the advisor is available upon request to provide information and advice to participants in the process. Their advice is based on the legislation contained in the PSA, its regulations, and Ministry guidelines, as well as best practices that arise from other similar restructuring experiences.

Miceli would not confirm if any Ministry Advisors were involved in the police costing process here in Amherstburg.

Mike Mitchell, MPM Consulting, attended the inaugural July 2016 JPAC meeting wherein policing options were discussed: the OPP, Windsor and LaSalle.

MPM Consulting was to provide its proposal for consulting services through Miceli; Mitchell’s July 2016 Proposal was received at the January 16, 2017 JPAC meeting.

Council received Miceli’s report an the JPAC recommendation and agreed to hire MPM Consulting at its January 23, 2017 meeting.

The Town of Midland issued an RFP FOR THE PROVISION OF THE STUDY AND ANALYSIS OF POLICING SERVICES – MIDLAND POLICE SERVICE AND OPP.

The OPP commenced policing of Midland on February 8, 2018.

Edited: The Town Of Hanover And Municipality Of West Grey Also Issued A Request For Proposal – Study And Analysis Of The Feasibility Of The Amalgamation Of The Hanover And West Grey Police Services.

Michael Mitchell of MPM Consulting was the successful respondent and undertook the project beginning on March 21, 2016.

Ombudsman Reports Of Councils Compared

Mayor Aldo DiCarlo commented on the current council’s record in the Windsor Star article, Amherstburg contravened Municipal Act with closed meetings on policing.

The Ombudsman issued five Reports on the previous council; three were negative: council improperly voted twice and repeatedly contravened the Municipal Act and its own procedure by-law.

The Ombudsman issued five Reports during the current council’s term; one was for the previous council, three were negative: it violated the Municipal Act, contravened the Municipal Act and its procedure by-law and council violated the Municipal Act in closing a meeting under the security of the property exception. Additionally, the Joint Police Advisory Committee’s discussions about the police costing RFP on June 1, June 22, July 6, and December 7, 2017 did not fit within the “security of the property” closed meeting exception.

I don’t know how anyone could conclude this council is doing much better.

Shameful Lack Of Transparency – Amherstburg Police Costing

Shame on council and the Joint Police Advisory Committee (JPAC) for indicating a commitment to an open and transparent process but instead meeting in camera.

As the Ombudsman concluded, there was no exception that would have allowed council or the JPAC to hold these discussions in closed session.

CAO Miceli initially informed Council the JPAC should be formed as a first step to ensure an open and transparent process for the review of policing options. (emphasis added)

Miceli presented to council the OACP Process Guidebook – Critical Success Factors flow chart indicating public consultation prior to issuing an RFP. The JPAC discussed public consultation for determination of preferred services, bringing the results of the public consultation back to Council for consideration and direction on the development of the RFP.

The RTT reported Miceli said he wanted to solicit information from the public before an RFP is issued, “That, to me, is the critical driver.”

CAO Miceli would not confirm if any Ministry Advisors, as mentioned in the OACP Guidebook, were involved in the police costing process. If a consultant was to be hired, an RFP for Consulting services should have been issued. MPM Consulting attended the inaugural JPAC meeting and was subsequently hired.

The MPM Consulting Proposal to the JPAC noted, “the Committee has determined that the first phase of the project must begin with the community consultations identified in section 6.4 of the mandate.”

Section 6.4: “To conduct community consultations to solicit feedback,             identifying community needs & expectations and to inform Council of the identified needs and expectations as collected during the process”

MPM Consulting also advised the JPAC he would like to prepare a rough draft of the RFP to present to the committee before public consultation.

Instead of adhering to the OACP Guidebook and soliciting public consultation, the JPAC and Council excluded the public to discuss the RFP in camera.

Mayor Aldo DiCarlo’s three July 10, 2017 letters to the Minister, Windsor and LaSalle, attached to the RFP, stated a commitment “to ensure the process we follow is fair, transparent, and comprehensive.” (emphasis added)

Ultimately, public consultation was held after the decision that the Windsor Proposal was viable. Residents were limited to subjective and emotional input because, to this day, the Windsor Proposal has not been disclosed as promised.

Mayor DiCarlo advised me the OPP and Windsor responses would be made public after the consultant and steering committee reviewed the responses and council received the reports.

However, Paula Parker, Town Clerk advised it was not posted publicly as it contained a confidentiality clause. But, as the Ombudsman noted, there was no closed meeting exception that generally allowed a municipality to proceed in camera to protect the confidential information of a third party.

CAO Miceli Absent From Court

The Windsor Star reported, Judge in Angela Berry fraud trial threatens to issue arrest warrant for Amherstburg CAO Miceli.

“I have information that Mr. Miceli may be out of town on vacation,” Berry’s lawyer, Linda McCurdy, told the court. McCurdy was referencing a post from Miceli’s Facebook page that showed him and six other men piled into a vehicle under the caption, “On a road trip with my boys.”

Superior Court Justice Bruce Thomas was not amused.

“I find it unfortunate that Mr. Miceli would take the steps of leaving the jurisdiction for a vacation knowing that he was under subpoena,” Thomas said, aggrieved at how Miceli “may have prioritized things in his own mind.”

Ombudsman: Council And Joint Police Advisory Committee Wrong To Discuss RFP In Camera

The Ombudsman has issued its Report into complaints about meetings of council and the Joint Police Advisory Committee for the Town of Amherstburg in 2017 and 2018.

The Ombudsman’s opinion included:

At the time of these meetings, there was no exception that would have allowed council or the JPAC to hold these discussions in closed session.

The JPAC violated the town’s Local Boards/Committees – Terms of Reference when it discussed the police costing RFP in closed session on June 1, June 22, July 6 and December 7, 2017. Failing to comply with these terms of reference was wrong under s. 21(1)(d) of the Ombudsman Act. The discussion about the request for proposals did not fit within the “security of the property” exception or any of the exceptions provided in the Local Boards/Committees – Terms of Reference.

Council for the Town of Amherstburg contravened the Municipal Act when it discussed the police costing RFP in closed session on July 10, 2017. 

Severance Arrangements For Amherstburg Police

Media reports indicated no severances were to be negotiated since no officers would lose employment.

CAO Miceli even noted in his Report to Council, “In the Proposal severance is not payable as all staff will be assumed by the WPS.”

The severance issue is well established in practice – compensation is provided for job loss so should not be applicable here.

Do our elected officials feel Amherstburg Police officers deserve compensation for maintaining employment?

Councillor Rick Fryer’s media comment should serve as a reminder, “We do have fiduciary responsibilities as a council.”

Councillor Meloche Responds To Questions About OPP Costing

Councillor Meloche’s response:

Given that you directed an inquiry to all Council members, I will comment.
I concur with the Mayor’s comments in his response to you.

In my discussion with residents, the OPP costing model was of concern because it was difficult to quantify the level of policing they would provide. A member of the Essex Town Council even told me directly that we should not expect the same level of policing with the OPP. In the end, their model did not fit our requirements as set out in our RFP and therefore made the decision to decline our RFP. Windsor Police on the other hand were accommodating to the level of service we were seeking.

I trust you have received satisfactory responses to your questions.

Editor’s Note: Then- candidate Meloche never answered any of the burgwatch questions from residents during the 2014 campaign regarding the OPP costing. Actually, the decision to decline the RFP was based on a Ministry approved protocol. Would it not have been more prudent for an elected representative to meet with the OPP to dispel myths instead of being influenced by opinion?

Mayor DiCarlo Responds To Questions About OPP Costing

Mayor DiCarlo copied my questions and responded below each of them.

why did council not provide the OPP with an opportunity to schedule an information session?

The OPP were given the opportunity to provide a costing under Council’s agreed upon process of an RFP to ensure equivalent service levels.  An information session that did not meet Council’s direction of an RFP would not have been appropriate.

Editor’s Note: An information session should have been deemed appropriate in response to council’s motions to obtain an OPP costing, work with the OPP and Mayor DiCarlo’s statement to the Ministry: “I will be pleased to provide any additional information that your Ministry may require. We look forward to working collaboratively with OPP staff members and representatives from nearby municipalities to ensure the process we follow is fair, transparent, and comprehensive.” Instead of relying on hearsay from other municipalities, the OPP would have provided factual information and clarification if anyone was uninformed.

why was the September 14, 2017 letter from the OPP to Mayor Aldo DiCarlo not presented to council until five months later at its February 26, 2018 meeting?

The meeting of February 26th was when the letter was made public to the residents.  Council was aware of the OPP’s position prior to that date.

Editor’s Note: my FOI request to the town, because the mayor would not respond re my request for the letter, was for “the town council meeting agenda and minutes wherein the letter was presented and discussed.” How did council become aware of the OPP’s position before the February 26, 2018 meeting if it was not presented or discussed at any other meeting? Was there an in-camera meeting I was not advised of?

and why did council not submit a resolution to the OPP by the September 30, 2017 deadline?

As stated above, the OPP were given a resolution from council that requested a costing based on the Town’s RFP model.  There was no need or direction to provide any other resolutions.

Editor’s Note: council’s motions to obtain an OPP costing and work with the OPP were never rescinded to the best of my knowledge. CAO Miceli never answered my question about it.

DiCarlo: To be clear, to date, I have only heard from 2 residents that I recall on the preference to consider the OPP costing model.  Perhaps the other members of council have heard from more, that is for them to share.  The majority of the residents of Amherstburg that I’ve heard from have made it clear that they were not interested in the OPP’s model of policing.  Should that change, the issue can always be revisited.  In the meanwhile, I believe a reasonable amount of time has been spent in answering the questions you posed, but there is a considerable amount of other business that also needs attention.

Editor’s Note: I did not ask about any residents’ preferences however, the original motion to obtain an OPP costing in December 2014 was the result of an election issue, which Mayor DiCarlo addressed during the campaign when he stated, in part, RE OPP costing, “What I can say, what I know, is that the current board didn’t do their due diligence in acquiring the information for us to make an educated decision on what would be best for the town…information that would have been ‘free’. I would definitely acquire this information, if given the chance, and then work with the appropriate parties to achieve what’s best for the Town, or more importantly, what the Town feels is best for them.”

The majority of residents expressed an interest to maintain the Amherstburg Police Service, but Mayor DiCarlo voted in favour of Windsor’s proposal.

Responding to media requests is part of the position and time commitment Mayor DiCarlo campaigned for: that’s what accountability and transparency is.

Update: Shortly after Council’s 2014 motion to obtain an OPP costing, the Windsor Star reported, “We’ve had plenty of residents say, why don’t we have OPP? And in the long run, the answer might be, well here’s why and we’re not going to.” DiCarlo said. “But up to now, because no one’s asked for the costing, (we haven’t) been able to say the difference between these two.”

February 2016, the RTT reported, Mayor Aldo DiCarlo said they are working on bringing a representative of the OPP to council to explain the process. Lavigne added they hope to bring police services board representatives from OPP jurisdictions to Amherstburg to speak to council on their experiences.