Chilly Willy's, the new mayor and some secret stuff

A full understanding of the East End Library/ Chilly Willy’s debacle begins with a look back to 1950s Saturday-morning cartoons.   

One weird thing about the original Chilly Willy cartoon character: he went 12 years as a star of television and theatrical shorts without ever uttering a word.

Throughout the 1950s, 60s and early 70s, Chilly Willy was a very cute anthropomorphic Alaskan penguin created for the Walter Lantz studio.

Okay, that was weird too, because penguins aren’t native to Alaska: they live in the southern hemisphere.

No problem, though. When it comes to cartoon characters like Chilly Willy, truth is beside the point.

The little penguin actually talked in his very first animated short in 1953, but for just one episode. 

After that, Chilly Willy went mute until 1965, through 12 of the 19 years he was on the air.

All those dozen years he clammed up, the little guy became increasingly popular, almost as popular as Woody Woodpecker, another Walter Lantz character.

Here in Sault Ste. Marie, there was precious little clamming up about the possible closure of the wings-and-pizza joint that bears Chilly Willy’s name and likeness.

Just about everyone had an opinion.

The East End Library had been in Churchill Plaza for 48 years.

Its proposed move to the Chilly Willy’s site in the city-owned John Rhodes Centre was one of the most controversial local issues of 2014.

The August 11 closed-door meeting at which city councillors and staff cooked up the deal became an election issue, as well as the broader question of whether the Sault has too many closed meetings. 

Just as truth is elusive in Saturday-morning cartoons, it’s also hard to get at in the Chilly Willy’s fiasco, which is cloaked in layers of Civic Centre secrecy and political rhetoric.

On Monday, we elected a new mayor, Christian Provenzano, who was highly critical of city council’s handling of the issue in closed session, promising to make accountability a priority 

What really happened behind those closed doors in the dog days of summer?

Does the City of Sault Ste. Marie use closed meetings wrongfully to disenfranchise voters and avoid public scrutiny of contentious issues?

Does it hold closed meetings illegally?

“The most recent issue with respect to the East End Library was not a justifiable in-camera decision and shouldn't have been made in-camera,” said Provenzano at the televised Chamber of Commerce/ Algoma University election debate earlier this month. 

“That's not accountable. So one of my priorities will be an accountability priority,” Provenzano said.

The Latin term “in camera” used by Provenzano has nothing to do with cameras as we know them.

It signifies “in a chamber.” As in private chamber.

“I think council has to limit closed-door, in-camera sessions to only when it's essential to do so. That's if you're dealing with a contractual issue, or a private human resource issue,” Provenzano said.

But incumbent Debbie Amaroso wasn’t buying Provenzano’s accusations of excessive secrecy.

“My friend to the right would have you believe that there are a number of closed-door meetings that happen at City Hall and I can assure you that that does not happen,” Amaroso said.

On that point, Amaroso clearly misspoke, because in her next breath, she acknowledged the August 11 closed meeting at which the East End Library and Chilly Willy’s were discussed.

Records compiled by the city clerk’s office show that, this year alone, Sault Ste. Marie City Council held closed meetings on January 20, February 3, June 9, August 11 and September 8.

Ontario’s Municipal Act authorizes closed meetings for nine different reasons, and in each of the above cases, relevant sections of the act were cited.

Chief Administrative Officer Joe Fratesi says the city uses closed meetings only when necessary and only when authorized by law.

“We’ve had far fewer in-camera meetings in the last couple of years, than in previous years,” Fratesi says.

When he started in local government in 1977, there were closed meetings almost as often as there were public meetings.

The law on closed meetings has been tightened a lot since then.

So is the current city council’s record on closed meetings pure as the driven snow?

Hardly.

Three times during most recent term of office, the Ontario ombudsman has caught city councillors and staff holding illegal committee meetings.  

It didn’t take long at all for the irregularities to begin.

In fact, the first one was on December 7, 2011 - just one day after Mayor Amaroso and her 2011-2014 councillors were sworn in.   

It was a meeting of the agenda-setting review committee, called to decide what matters would be brought before city council at its next meeting on December 13.

It’s not a committee that attracts a lot of interest among members of the public.

In fact, in many communities, agenda-setting is considered a strictly administrative function, carried out by municipal staff.

But Mark Brown, an unsuccessful Ward 5 candidate in the 2010 municipal election, had been rebuffed trying to get one of his initiatives before city council, so he was seeking access to the gatekeeper – the agenda committee.

That committee’s gatherings, closed to the public, have traditionally been held on Tuesdays preceding the twice-monthly council meetings.

They were attended by the mayor, chief administrative officer (CAO), and city clerk, as well as by two of the 12 city councillors, each serving on a rotating basis. 

Brown unsuccessfully tried to get council to change that arrangement. 

He was okay with the city clerk and CAO sitting in on agenda meetings, but wanted only the mayor and two councillors to vote.

In e-mails to councillors, Brown pitched this as a way to rein in CAO Fratesi.

“You can do something good by limiting CAO Fratesi’s political power,” Brown ventured. “You can do something very good as a group and as a first act of this council, by showing the community that the CAO does not control you.” 

Unable to get his idea onto a council agenda, Brown complained to the Ontario ombudsman, who advised the city that because at least half of the agenda committee’s members were also on city council, it must comply with open-meeting requirements of the Municipal Act.

Two years later, Citizen Brown was at it again, this time going after the procedure bylaw review committee, which among other things, determines which city meetings are open to the public and which are not.

Again, the Ontario ombudsman agreed with Brown that meetings on November 1, 2012 and January 28, 2013 had been illegally held behind closed doors with no advance notice to the public.

This violated the Municipal Act because half the individuals named to sit on the procedure bylaw review committee also sat on city council.

The committee’s members, as determined by a city council resolution, consisted of Mayor Amaroso, Councillors Paul Christian and Brian Watkins, CAO Fratesi, City Clerk Malcolm White and City Solicitor Nuala Kenny.   

The city tried to argue that it was all a mistake, that council had also intended to name Deputy City Clerk Rachel Tyczinski to the procedure committee but somehow her name was omitted from the official resolution and council never corrected the mistake.  

Tyczinski had actually attended the meetings in question. 

Had she been there officially, everything would have been legal, because staff would have outnumbered the politicians.

But the ombudsman said no cigar – ruling that the two meetings were illegal, violating both the Municipal Act and the city’s existing procedural bylaw. 

One year ago, in October 2013, Brown complained a third time to the ombudsman about closed meetings of the agenda review committee.

This time, the ombudsman ruled that the city had finally gotten it right.

Membership of the agenda review committee had been changed so it now consisted only of the mayor, CAO and city clerk – one member of council and two staff members.

With staff members outnumbering politicians, the ombudsman found the agenda committee was now entitled to do its business lawfully behind closed doors. 

Was it really necessary to move the East End Library?

Although it finally caved to public pressure, the local library board was initially excited about the prospect of moving the Churchill Plaza branch to the Rhodes Centre.

First, there was the issue of money.

The lease at Churchill Plaza came due earlier this year and rent was expected to increase significantly.

Rent and common-area charges there were expected to cost taxpayers at least $107,310 next year, compared to $96,587 this year. 

Within five years, that figure was projected to rise to $117,640 and that didn’t include any hikes in common-area charges, which are essentially unpredictable. 

But another advantage seen in moving to the Rhodes Centre was a 33 percent increase in available space.

The current thinking among library designers is that size matters.

This is because libraries are not what they used to be.

“Libraries today still loan books, answer questions and provide space for people to read, just as they did 100 years ago, and 150 years ago as the Mechanics’ Institute – the forerunner to public libraries,” said Cindy Weir, then director of libraries, in a report to city council on August 31.

“The difference is some libraries also loan fishing rods and cake pans, DVDs, downloadable books, music and magazines, partner in the community with social services and service clubs, participate in local festival events, provide online resources free that would otherwise be very expensive to the average resident, and so much more.

“Some libraries include art galleries to display local artisans’ work, or a maker-space where people may discover based on hands-on learning and fabrication. This space is filled with 3D printers, green screens and video equipment, large-sized scanners and printers, clay, soldering tools, etc…. Today’s libraries are different,” Weir said

Libraries of less than 5,000 square feet are no longer considered adequate for these new activities, she said, adding that standalone libraries have given way to multi-use buildings where people can do more in the same space. 

As for Chilly Willy’s, its lease is also due for renewal.

The city wants more revenue from the 6,000 square feet there.

But Chilly Willy’s operator Jody Wilson wants his rent lowered, not raised.

There just aren’t as many spectators around the Rhodes Centre as there used to be.

Few minor hockey games are played there any more - the ice is now mostly used for practices. 

As for high school football, a lot of the games that used to happen at Rocky DiPietro field are now played on the artificial turf at Superior Heights Collegiate and Vocational School and it’s looking like the new St. Mary’s College will also have an artificial turf field.

Under his current lease, Wilson pays the city $400 a month in rent, plus municipal taxes on the space, plus a five percent cut of his sales.

Nick Apostle, the city’s commissioner of community services, points out that Chilly Willy’s sales have dropped 30 percent over the past three years and further decreases are expected over the next three to five years.

“Of further concern is that alcohol and beer sales, as a percentage of sales, are increasing, leading us to conclude that the facility is becoming more a bar than a restaurant,” Apostle said in a report to council.

So was city council within its rights to discuss the library/ restaurant issue behind closed doors?

That question can be divided into two parts.

First, was the subject matter appropriate for a closed meeting?

Second, was it appropriate for council members to vote there?

Minutes of the closed meeting of August 11 show that three items were discussed: the library/ Chilly Willy’s situation, the pending retirement of Fire Chief Marcel Provenzano, and a matter about the audit compliance committee involving personal information about an identifiable individual.

CAO Fratesi says that the portion of the meeting dealing with the Chilly Willy’s lease was legitimately closed under subsection 239(2)(c) of the Municipal Act, which deals with acquisitions and dispositions of land.  

Is a lease of upstairs space in the Rhodes Centre really a land deal?

Yes, says Local Authority Services Ltd. (LAS), which offers a closed-meeting investigation service on behalf of the Association of Municipalities of Ontario 

“Land in this instance includes land, buildings and fixtures. Conveyances include lease, license, easement or outright sale,” LAS says in its manual, What You Need To Know About Closed Meetings.

As for the question of voting in closed session, everyone SooToday.com talked to denies that votes are taken at closed meetings.

Yet Commissioner Apostle says clearly that “council, in caucus, authorized staff to proceed with the relocation of the Churchill Branch Library to the second-floor restaurant in the John Rhodes Community Centre, and to strike a steering committee for the project.”

Perhaps a formal vote wasn’t taken, but it’s clear that by some means (winks, nudges, mental telepathy?) a consensus was achieved and staff was given direction.  

Interestingly, the Ontario ombudsman has ruled in other cases that informal voting on substantive issues through straw polls or a show of hands is not permissible at a closed meeting. 

Although voting is generally not allowed at closed meetings, there are exceptions.

A vote may be taken for a purely procedural matter or for giving directions to staff.

CAO Fratesi says the latter is what happened at the August 11 meeting.

In matters like lease negotiations, confidentiality is lawful and necessary to serve the public interest, Fratesi says.

“It makes sense that a council or local board may meet in closed session to direct staff, a lawyer or agent respecting the acquisition of disposition of real property,” says the LAS manual on closed meetings, adding: “It would be patently unreasonable for a council or local board to give instructions in public to someone negotiating on behalf of the municipality or local board.”

“This exception does not include the decision to authorize the acquisition or disposition of lands,” LAS says. “A municipality may only acquire or dispose of land by bylaw, which must be enacted at an open meeting of council.” 

Another option, mentioned by unsuccessful Ward 3 candidate David Poluck, would have been to sever the decision to close the Churchill branch library from the lease negotiations at the Rhodes Centre, dealing first with the Chilly Willy’s lease, then with the library decision. 

“I believe that the people of Sault Ste. Marie want more accountability and more openness from city hall,” said unsuccessful Ward 2 candidate John Duke at a candidates debate.

“I believe that we need more consultation between city hall and the residents of Sault Ste. Marie. Lately, we've seen back-pedaling from council on a number of matters - specifically the library move, the potential for closure of municipal daycares. I think a lot of these problems could have been mitigated by some more open consultation. That would have removed some of the ill will that residents may feel toward council and city hall,” Duke said.

Interestingly, at this month’s mayoral debate, incumbent Debbie Amaroso  used an entirely different argument to justify dealing with the Chilly Willy’s issue behind closed doors.

“The East End Library was brought into caucus because there was sensitive business information that was damaging, or could have been damaging, to the owner of the establishment in that facility. So it absolutely, justifiably went into caucus,” Amaroso said.

In any case, Amaroso has been voted out, and Christian Provenzano is  mayor-elect.

And after public pressure forced the library board to reconsider the Chilly Willy’s location, city councillors voted on September 29 to extend Chilly Willy’s lease until May 1, 2015.

After that date, the city is expected to call for expressions of interest from established restaurant owners. 

Mayor-elect Provenzano, meanwhile, promises to crack the whip on unnecessary closed meetings.

“We won’t have an in-camera meeting unless it’s necessary,” he told SooToday.com immediately after his post-election speech thanking supporters at his campaign headquarters.

“There are specific times when in-camera meetings are necessary. But if it’s not necessary we won’t have one. I don’t think that it was necessary to have an in-camera meeting to decide that the East End library would move to the John Rhodes Centre.”

“There might have been some other issues that were entangled with that. But those issues could have been dealt with in-camera and then that decision could have been made.”

“If there isn’t a specific legal or human resource or other contractual commercial reason why something should be in-camera, it won’t be.”

“Anything that doesn’t have to go in-camera simply shouldn’t. Period,” Provenzano said.

EDITOR’S NOTE: David Helwig was the founding news director of SooToday.com. He has testified at legislative review committees on illegal use of secret meetings in Ontario municipalities. His reporting and pro-transparency activism has been recognized with awards and citations from the Canadian Association of Journalists, Canadian Association of Broadcasters, U.S. Free Press Association, New York Festival of Radio, Radio Television News Directors Association of Canada, Canadian Community Newspapers Association and the Governor-General of Canada’s Michener Awards committee.