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Letter to Minister of Education re Code of ConductOffice of the Chair of the Board 133 GREENBANK ROAD, OTTAWA, ONTARIO K2H 6L3 Tel: (613) 721-1820 Fax: (613) 820-6968 24-Hour Automated Information Line (613) 596-8222 Web Site: www.ocdsb.ca Sent by email: stephen.lecce@pc.ola.org 3 July 2020 The Honourable Stephen Lecce Minister of Education 438 University Ave, 5th Floor Toronto, Ontario M7A 1N3 RE: Board Member Code of Conduct Dear Minister Lecce, As you are no doubt aware, the Ottawa-Carleton District School Board (OCDSB) has been grappling for three months to address public allegations of improper conduct by a board member arising from an incident on 27 March 2020 and to deal with a formal code of conduct complaint in regard to that incident. At present, it would appear that a school board’s authority to address issues of board member misconduct, other than misconduct to which other legislation applies, is legally defined only by the provisions of Section 218 of the Education Act and the associated regulation O. Reg. 246/18. The OCDSB approved its policy P.073.GOV Board Member Code of Conduct on 10 May 1999, and subsequently revised it to reflect the provisions of Section 218 of the Education Act on 26 April 2016. The policy includes expectations for board member conduct and a process for addressing breaches of those expectations. It is compliant with existing legislation and reflects the principles of natural justice and procedural fairness. Unfortunately, when behaviour and allegations become the subject of public attention through social media and news media, neither the legislation nor our policy provides guidance for navigating the inevitable conflict between public expectations for transparency and swift action, and board members’ fiduciary responsibilities with regard to procedural fairness. Members of the public have called for tougher sanctions for board members who are found to have breached the code of conduct, especially where the misconduct has be en public and is seen as especially egregious. They point to sanctions such as suspension of pay, a sanction that is available to municipal councils under the Municipal Act of 2001, but not available to school boards under the Education Act. They wonder why there is no provision, under any circumstances, to suspend the subject of the complaint, with or without pay, pending the outcome of the investigation. Members of the public have also expressed concern and frustration at the length of time required to conduct a formal review and investigation of a board member’s alleged misconduct. With confidentiality a key component of a fair review, there is little clarity about the extent to which school boards can keep the public informed of progress towards addressing the initial complaint. Board members find the process necessary, but also frustrating, in part because expectations for procedural fairness require a significant degree of confidentiality until any investigation has been completed, and in part because of the need to ensure adequate time for the investigation and responses from the parties most directly involved in the process. They are required to refrain from public responses to community outrage at the very time when the public most needs reassurance that a reported issue of trustee misconduct is being taken seriously. At the same time, the subject of a complaint is expected to remain silent even against unjustified allegations. Surely there is a way to introduce a fairer, more balanced and tran sparent process. Only three forms of sanction are available to us under Section 218 of the Education Act, comprising censure, barring from a single meeting of the Board or a committee of the Board, and barring from sitting on one or more committees of the Board. All of the sanctions referenced in Section 218 are punitive in nature, and the legislation does not give boards explicit authority to impose sanctions of a restorative or remedial kind. While there are other forms of sanction that would be fair, proportionate to the misconduct and more likely to be effective at preventing the individual from engaging in future behaviours in breach of the code of conduct, the legislation gives no explicit authority to school boards to impose such sanctions, some of which could be viewed as equally onerous relative to the sanctions permitted in Section 218. A school board can only encourage, not compel, a trustee who has breached the code to apologize, engage in mediation, take counselling or successfully complete courses on topics relevant to the issue. Even for situations of the most egregious misconduct or repeated serious misconduct that has continued uncorrected despite previous sanctions, Section 218 contains no mechanism leading to removal from office, comparable to the provisions under The Municipal Conflict of Interest Act, for example. Within the legislative framework, the OCDSB is not the only school board to have experienced difficulties balancing its response to a strong public interest with its fiducia ry responsibilities under its board member code of conduct policy. In our current situation, finding the right balance has been made more difficult by the growing public outrage over injustices and systemic racism now recognized in institutions and govern ance systems at home and abroad, while our efforts to expedite our process for dealing with an alleged breach of the board member code of conduct have been somewhat curtailed by the restrictions arising from the COVID-19 pandemic. Minister Lecce, we respectfully request that, on an urgent basis, you review Section 218 of the Education Act, together with O. Reg. 246/18, with collaboration and in -depth consultation with Ontario school boards, with a view to introducing changes that would strengthen boar ds’ ability to administer their board member code of conduct policies in a fair and transparent way, and to apply progressive discipline so as not only to punish board members for breaches but also to take remedial and restorative actions designed to deter and prevent future misconduct. Sincerely, Lynn Scott Chair, Board of Trustees cc: The Honourable Doug Ford, Premier of Ontario Nancy Naylor, Deputy Minister of Education Cathy Abraham, President, OPSBA W. R. (Rusty) Hick, Executive Director, OPSBA Trustees, Ottawa-Carleton District School Board Senior Staff, Ottawa-Carleton District School Board Corporate Records