Tuesday, November 17, 2009

Bluewater update No. 14

So soon after posting the last update, Maria Canton at the Sun Times posted a story late Monday that should make every trustee in the province take a second look at how their boards handle in-camera discussions regarding their employees. An Ontario Provincial Police investigation has been launched into the Bluewater District School Board over allegations trustees illegally met behind closed doors and discussed subject matter that should have been considered in an open, public meeting.
The Ontario Education Act permits confidential meetings when they might disclose "intimate, personal or financial information in respect to a member of the board or committee, an employee or prospective employee of the board or a pupil or his or her parents or guardians . . ."
(Peter) Ferguson argues that the board wrongly held all meetings regarding the superintendents involved in the plagiarism case behind closed doors because "the plagiarism activities of the subject employees are part of their professional lives and concern only their conduct while in the employ of the trustees."
What they fail to realize is the board could have also considered the discussions over the superintendents in question to have been negotiations with employees, which are also permitted in-camera. Canton also notes Ferguson is the person who took the plagiarism concerns all the way to the Ontario College of Teachers and was cut off by the board chair at a meeting earlier this fall where he started to speak about what he thought should be done with the superintendents in question.
This is a grey area, despite how black and white the text of the Act appears. When a board deals with disciplining its employees -- particularly given only one employee reports to it directly, the director of education -- there is enough legal space in the act and, I would suspect case law, to say these discussions qualify as "personal" information. While the alleged behaviour may be related to a person's public conduct as an official of the board, the censure as potentially meted out by trustees -- or rather, as board direction to the director of education for implementation -- isn't necessarily so. Most boards treat director of education reviews and evaluations as in-camera items, as these discussions and reviews deal with personal information.
I'm not a lawyer, but I've spent a lot of time this year looking into municipal in-camera meetings (whose rules aren't that different than what's in the Education Act in terms of appropriate subject matter) and there could be enough space here for the investigation to come up empty.
Or, as Ferguson alleges, the board could have gone too far-- and therefor should have done what to my knowledge would be the first board to ever publicly discuss and then censure its own employees. I'll be following the coverage here very closely as I've come to question my own public board's bylaw that allows a closed-door "caucus" meeting to be held at the call of the chair. Despite my routine coverage and ranting every time the board chose to hold these meetings, it garnered no public reaction and created no appetite for change.

7 comments:

RetDir said...

Fascinating in a number of respects - although one has to suspect it was the only way the South Bruce OPP thought they might get Mr. Ferguson off their collective back.

My experience with school boards is that, in spite of the attraction of holding meetings in closed, most are extremely careful about what does end up there, and are very conscious of what can and cannot be dealt with in that venue. The reasons for this are simple. First, they are frequently accused of making decisions behind closed doors during accommodation reviews, so become very familiar with and sensitive to the rules. Second, it is also a common practice (don't know if it's a universal one) for the board's lawyer to brief the board on the Ed Act, their roles as trustees and as a board, and their legal responsibilities, at the start of its term, and this would include the issue of when they are allowed to discuss items in closed.

In my experience, both with school boards and other boards, personnel matters involving potential discipline are never held in open, although the results of the discipline are, as things passed by the board as a committee of the whole in closed have to be confirmed in open session by the board. However, the open motion never mentions the person's name. Viewing this practice as a contravention of the Ed Act would affect all boards, and would raise interesting questions relative to FOIPOP legislation (people with complaints about boards tend to focus on the FOI part of the legislation, and forget about the Protection of Privacy part).

I also wonder how a board gets charged with a criminal offense that doesn't involve finances. Individual trustees can be held accountable for intentional actions of the board that result in financial problems, but holding meetings in closed on a personnel matter would not have financial implications. I suppose the Minister could use it as grounds to put the board under supervision.

So it does raise the question of who (or what) gets charged if in fact the police come to the conclusion that the board has broken the Ed Act? And if a judge agrees, what would be the potential penalty?

In terms of your local board, ER, it is more typical that a board only goes into closed by a vote of the board on a motion from any trustee (although usually the chair), not at the call of the chair. I have experienced those motions fail from time to time.

Education Reporter said...

RetDir:
The board actually has a bylaw where the chair can call a closed-door "caucus" meeting. These would be the board-bylaw equivalent of 'education' sessions local councils are now allowed to hold in-camera. I despise these and have consistently complained and rallied against them-- to no avail, as some trustees would prefer to insult each other in public rather than "air the family dirty laundry" on the clothesline where we can all see it.

Hugo

RetDir said...

I assume you mean in private...much more entertaining in public! I had noticed the fact that municipalities are allowed to hold education sessions in private - I also am surprised at that, and don't understand how it is justified.
The Bluewater survey is now available: http://www.bwdsb.on.ca/bwdsb_webnews/Satisfaction_survey.pdf

Anonymous said...

could one or both of you define "education session" and why it would be necessary to go in-camera for those? Is it a briefing or something like those wild weekend retreats?

RetDir said...

No idea, since it seems to be a municipal construct....

Education Reporter said...

Anon 17 Nov. 21:22
I hate to cross promote, but use the link on the right of the main page to head over to my municipal politics blog and check out the "Open your doors, Oxford" page-- I think there's a reasonable enough explanation of what 'education sessions' are there.

Hugo

Education Reporter said...

The comment above isn't the easiest way to get to a description of education sessions.... check out this link for as long as it remains active.

Hugo