HomeMy WebLinkAbout7.1 Report 23-056 Determination of Possible BreachSPECIAL BOARD (PUBLIC)September 11, 2023
Report 23-056
Determination of Possible Breach
Key Contact: Michele Giroux, Executive Officer, Corporate Services, (613) 596-8211
ext. 8310
PURPOSE:
1. To provide to the Board for consideration and determination, a matter involving
an alleged breach of the Board Member Code of Conduct.
CONTEXT:
2. The Ottawa-Carleton District School Board has a Board Member Code of
Conduct policy which establishes standards of practice and behavior for the
Board of Trustees. In February 2023, a formal complaint was filed alleging
Trustee Kaplan-Myrth had failed to uphold sections 3.17 and 3.18 of the Policy.
Chair Lyra Evans and Vice-Chair Bell reviewed the complaint and determined
that a formal review of the complaint should be undertaken using a third party
investigator. ADR Chambers, one of several integrity advisors selected by the
Board through a competitive procurement process in 2021, was engaged. The
matter was assigned to one of their principals, Michael Maynard to investigate,
within the parameters established within the policy.
KEY CONSIDERATIONS:
3.Submission of Code Complaint
A formal complaint was submitted to the Chair pursuant to Policy P.073.GOV. The
complaint alleged that text messages sent by Trustee Kaplan-Myrth to Trustee
Donna Dickson leading up to and during a meeting in November 2022 breached
paragraphs 3.17 and 3.18 of the Code of Conduct. A copy of the complaint,
including the text messages, was distributed to trustees in accordance with
section 4.19 of the policy (P.073.GOV) and is attached as Appendix A. In
accordance with the Policy, the matter has remained confidential pending
determination by the Board as to whether a breach has occurred.
4.Relevant Policy P.073.GOV
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The Board Member Code of Conduct is set out in Policy P.073.GOV,which
includes the process for enforcing the code and addressing complaints that the
code has been breached.It should be noted that the policy was revised in May
2023,however,for purposes of this complaint,the previous version,dated June
1999 and last revised April 26,2016,which was in place at the time the
complaint was submitted and will hereafter be referred to as “the applicable
policy”,continues to govern this matter.A copy of the applicable policy is
provided at Appendix B.
5.Third Party Investigation
Michael Maynard,ADR Chambers,an experienced Integrity Commissioner in
Ontario,was retained to investigate the complaint within the parameters
established by the applicable policy.The investigator was provided with a copy
of the Board Member Code of Conduct policy,the complaint,the minutes of the
Board and Committee of the Whole meetings from November 2022 and the
relevant text message exchanges.Under section 4.24 of the applicable policy,
the investigation shall be undertaken using the following steps:
a.Procedural fairness and the rules of natural justice shall govern the
formal review.The formal review will be conducted in private and,
to the extent possible,protecting the confidentiality of the parties
involved.
b.The formal review may involve both written and oral statements by
any witnesses,the trustee bringing the complaint and the trustee
who is alleged to have breached the Code of Conduct.
c.The trustee who is alleged to have breached the Code of Conduct
shall receive details of the allegation and have an opportunity to
respond to the allegations both in a private meeting with the
person(s)undertaking the formal review and in writing.
d.It is expected that the formal review will be conducted within a
reasonable period of time which will depend on the circumstances
of the case.The trustee who is alleged to have breached the Code
of Conduct shall provide a written response to the allegations within
10 days of receiving the written allegation,or such extended period
of time as the investigators deem appropriate in the circumstance.
e.If the trustee who is alleged to have breached the Code of Conduct
refuses to participate in the formal review,the formal review will
continue in his/her (sic)absence.
6.Investigator ’s Report
The investigation was undertaken between the end of February and the middle of
May,2023.The policy requires the investigator to provide a confidential draft
copy of the report to the trustee who filed the complaint and the trustee who is
alleged to have breached the Code.Both Trustees Dickson and Kaplan-Myrth
received the draft report and had an opportunity to provide comments to the
investigator.
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The investigator's final report was shared with the Board on August 29,2023.A
copy of the investigator ’s report is included in the September 11,2023 Special
Board Meeting agenda.In accordance with section 4.26 of the applicable policy,
the final report of the investigator is a finding of facts and does not contain a
recommendation or opinion as to whether the Code of Conduct has been
breached.A copy of the final report is attached here as Appendix C.
7.Process for Determining a Breach
The Board is required to review the investigator ’s report and the finding of facts
set out therein to make a determination as to whether the Code has been
breached.
The decision whether there has been a breach of the code of conduct must be
made by way of resolution of the Board at a public meeting of the Board.Staff
and legal counsel will be in attendance at the meeting to assist the Board in
understanding its administrative and legislative responsibilities in this regard.
In order to ensure clarity in decision-making,any motion put forward regarding a
breach should be structured as follows:
Upon review of the facts as documented in the investigator ’s final report
dated (insert date)regarding a Code of Conduct complaint filed by (insert
name)in relation to (insert name),the Board finds:
THAT Trustee (insert name)has breached Sections 3.17 and 3.18 of
Policy P.073,Board Member Code of Conduct,dated April 26,2016 (the
applicable policy),in relation to text messages sent by her in November
2023.
This structure ensures clarity of decision-making whether the motion is carried or
fails.If a motion of this nature fails,the Code of Conduct complaint process is
complete.If a motion carries,then the Board would move forward with
consideration of sanctions.
8.Participation in Decision-making
In terms of participation in the process,all parties to the complaint had equal
opportunity to provide facts to the investigator.In addition,both the complainant
and the respondent trustees had the opportunity to review and comment on the
investigator ’s report before the final report was prepared and submitted.
The applicable policy,section 4.33,provides the following restrictions on
participation in the decision-making:
“The trustee who is alleged to have breached the Code of Conduct:
a)may be present during the deliberations;
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b)shall not participate in the deliberations;
c)shall not be required to answer any questions at that meeting;and
d)shall not vote on a resolution to determine whether or not there is a
breach or the imposition of a sanction.”
The trustee who is alleged to have breached the Code shall not,in any
way,after the final report is completed,influence the vote on the decision
of breach or sanction,except to appeal after the decisions have been
made.”
All members of the Board,with the exception of the trustee who is alleged to
have contravened the Code,may vote on decisions regarding the code of
conduct matter under consideration.The trustee who filed the complaint is
entitled to vote.
Decisions made under the Code of Conduct policy require a vote of at least 2/3
of the Trustees of the Board elected or appointed.At the OCDSB this means that
of the twelve (12)members voting or eligible to vote,eight (8)members must
vote in favour in order for a motion to be carried.This is not adjusted for
absences -meaning that if only seven (7)members were present,no motion
could be carried.Similarly,if all twelve (12)members eligible to vote were
present,and three (3)members abstained from voting,no motion could be
carried.
9.Factors to Consider in Determination of a Breach
It is up to the Board to determine whether a breach of the Code of Conduct policy
has occurred.In making this decision,the Board is required to consider the
particular complaint and the investigator ’s report as the statement of facts.
Section 4.30 of the applicable policy provides that “The Board shall consider only
the findings in the final report when voting on the decision and sanction.No
trustee shall undertake his/her own investigation of the matter.”
This means the Board should not consider any other facts than those set out in
the report authored by ADR Chambers in determining whether there has been a
breach of the code,as alleged in the complaint.Board members may consider
the 3rd party opinion prepared by Aird &Berliss,although it is not determinative
or binding.
In the event the Board makes a determination that the Code has been breached,
it must then determine what sanctions,if any,shall be imposed.That is a
separate decision making process which is detailed in Report 23-057.
11.Notice and Appeal Mechanisms
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Should a member be deemed to have breached the Code,the member is entitled
to notice and there is an established appeal process set out in the applicable
policy.
If a Board determines that a Board member has breached this Code of Conduct,
the Board shall:
a.give the Board member written notice of the determination and of
any sanction imposed by the Board;
b.the notice shall inform the Board member that he or she may make
written submissions to the Board in respect of the determination or
sanction by the date specified in the notice that is at least 14 days
after the notice has been received by the Board member;and
c.consider any submissions made by the Board member and shall
confirm or revoke the determination within 14 days after the
submissions are received from the Board member.
COMMUNICATION/CONSULTATION ISSUES:
10.There are no communication or consultation issues related to the determination
of a breach of the Code of Conduct.As in other matters,the Chair will act as
spokesperson on behalf of the Board,as required.
RESOURCE IMPLICATIONS:
11.There are three primary areas of cost associated with the Code of Conduct
complaint;professional and legal fees,investigation costs and staff time.The
investigation costs and professional and legal fees are funded through the legal
services budget and are estimated at $20,000.In terms of staff time,it is
estimated that the administration of this complaint involved approximately 20
hours of work.
It should be noted that there is an appeal mechanism under the policy and an
appeal or any type of legal action will generate additional costs to the
organization.
SUMMARY:
12.The Board must consider the finding of facts and make decisions based on the
following questions:
●With respect to the Code of Conduct complaint dated February 23,2023,
and based on the final report of the investigator,did Trustee Kaplan-Myrth
contravene the Code of Conduct?
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SAMPLE LANGUAGE FOR MAKING DECISION ON A BREACH:
Upon review of the facts as documented in the investigator ’s final report
dated (insert date)regarding a Code of Conduct complaint filed by (insert
name)in relation to (insert name),the Board finds:
THAT Trustee (insert name)has breached Sections 3.17 and 3.18 of
Policy P.073,Board Member Code of Conduct,dated April 26,2016 (the
applicable policy),in relation to (describe).
______________________________________________________
Michele Giroux Dr.Pino Buffone
Executive Officer (Corporate )Director of Education and
Secretary of the Board
Attachments:
Appendix A:Code of Conduct Complaint
Appendix B:Policy P.073.GOV Board Member Code of Conduct dated April 26,2016
Appendix C:Formal Review Report -Findings,dated May 29,2023
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