The following letter from OECTA President James Ryan was sent to the Council of President [local presidents] on September 18, 2013. It's in regards to the Discipline Panel Decision to dismiss former Halton Elementary President Richard Brock. Many questions are addressed which have also been asked, debated and discussed here on my teachers blog. Take a look below + read it for yourself:
There has been much interest in the recent decision of the OECTA Discipline Panel, its implications, legalities and the role of the provincial executive in the process. The provincial executive has discussed all of these issues with the advice of legal counsel. The following is a summary of the salient points in this discussion.
Role of the Provincial Executive in the OECTA Discipline Process
The following bylaws relate to the provincial executive’s role in the Association’s discipline process:
2.51 The duties of the provincial executive shall be to administer the affairs of the Association between annual general meetings in accordance with the constitution, bylaws, policies, procedures and directives of the annual general meeting. The duties include:
2.51.15 to appoint the chairpersons and members of all the Association standing committees, networks, work groups, project teams, task forces and the discipline board, save and except the audit, personnel and program and structures committees;
2.51.16 to receive reports and recommendations from the chairpersons of standing committees, networks, work groups, project teams and task forces and to direct action as deemed necessary and receive recommendations from the discipline board;
2.193 There shall be a discipline board comprised of six members who shall be appointed by the provincial executive for a term of no less than three years.
2.194 To be eligible for appointment to the discipline board, a member shall: 2.194.1 no longer hold elective office in the Association; or
2.194.2 be a retired member.
2.195 The term of office of the chairperson of the discipline board shall be as determined by the provincial executive.
The following bylaws and procedures relate to the general secretary’s role in the Association’s discipline process:
2.57.10 to receive written complaints of a breach of Association constitution, by-laws, policies or procedures;
2.57.12 to direct the publication of the official publication of the Association;
September 18, 2013
Unit Presidents, OTBU Presidents
The following procedures relate to the general secretary’s role in the Association’s discipline process:
4.138 The decision of the general secretary with respect to the question of jurisdiction shall be final.
4.140.2 shall provide to both the accused executive and the general secretary a statement of complaint which shall detail the exact nature of the complaint and shall be supported by copies of any documentation or evidence to be relied upon.
4.141 Upon receipt of such written complaint the general secretary or designate shall conduct or cause to be conducted an investigation into the complaint such that the general secretary can determine:
4.141.1 if the complaint is vexatious, frivolous or insubstantial; and
4.141.2 whether a settlement of the complaint can be effected.
4.142 Failing a settlement, the general secretary shall forward the complaint to the chairperson of the discipline board.
4.144 Upon receipt of this advice the general secretary shall serve the complainant(s) and the respondent(s) with a notice of hearing containing:
4.144.1 the date, time and place of the hearing;
4.144.2 a statement that the parties are entitled to appear in person and/or be represented by a member of the secretariat or an agent (who is not legal counsel);
4.144.3 a statement that if the parties do not appear at the time scheduled for the hearing, the discipline panel will consider the matter in their absence without any further notice; and
4.144.4 a statement that the Association will pay reasonable travel and accommodation costs incurred by the parties and their agent at the hearing.
4.149 The panel shall provide a copy of its decision, a statement of the reasons for it and the penalty to be imposed, if any, on the respondent to the respondent(s), the complainant(s) and the general secretary.
4.150 The panel shall decide at its discretion whether its decision shall be published and, where it so decides, shall provide to the general secretary direction to publish some or all of its decisions.
4.151 The general secretary shall:
4.151.1 be responsible for the imposition and enforcement of the penalty and shall use whatever means or agencies necessary to achieve this end;
4.151.2 publish in the official publication of the Association all or part, as directed by the panel, of the decision.
Publications
2.198 The official publication of the Association shall be made available to all members.
As you can see from the handbook the provincial executive has essentially two functions with respect to the Association’s disciplinary process. First it is responsible for the appointment of the discipline board and second it is responsible for the appointment of the chairperson of the discipline board. The provincial executive does not have the authority to hear an appeal of any decision of a discipline panel nor does it have the authority to alter, amend, suspend or stay any decision of any discipline panel. At one time there was an internal appeal of disciplinary decisions to the Council of Presidents; the AGM removed this authority from the Council of Presidents in 1994. This stands in contrast to the Safe Workplace and Member conduct Policy whose appeal mechanisms are outlined by policies 3.186 to 3.192.3. With this removal, the only body which may now hear appeals of OECTA discipline panel decisions is a court.
If members are unhappy with the Association’s Discipline process, the place to change that process is the Annual General Meeting which as we know is the Association’s highest authority.
Questions with regard to the Appointment of the Discipline Board and its Chairperson
A number of members have raised the concern that the OECTA Discipline Board was never appointed by the provincial executive, nor was its chairperson and that the discipline board was therefore unable to select a chairperson to hear the discipline matter of August 22, 2013.
In the minutes of the February 12,13, 2013 provincial executive meeting the following two motions were carried:
Grafton/Cox THAT THE PROVINCIAL EXECUTIVE ACCEPT THE LATE REPORT AND RECOMMENDATIONS FOUND ON F 1:3.
Ryan/Karuhanga THAT THE PROVINCIAL EXECUTIVE APPROVE THE APPOINTMENT OF JOE RYAN AS THE CHAIR OF THE DISCIPLINE BOARD. (PE-12/13-1368)
A motion was therefore passed by the provincial executive appointing the chairperson of the Discipline Board. This then leads of course back to the question: did the provincial executive ever appoint the Discipline Board itself?
In the first of these two motions the provincial executive accepted a late report. That late report
(see appendix 1) was the “MINUTES OF THE DISCIPLINE BOARD MEETING ON WEDNESDAY,
FEBRUARY 6, 2013, AT THE PROVINCIAL OFFICE, 65 ST. CLAIR AVENUE EAST, TORONTO,
ONTARIO”. These minutes recorded that the following individuals were present at the meeting: Bill Brazeau, Kathleen Gardiner, Donna Marie Kennedy, Kathy McVean, Joe Ryan, Gary Tomcko, Joe Pece, Marshall Jarvis, Jerry Raso.
While there is no provincial executive motion appointing any of these individuals to the Discipline Board, it is the belief of legal counsel that in view of the contents of the discussion regarding the late report, by accepting this late report and then by acting upon the Discipline Board’s recommendation to appoint its chairperson, the provincial executive consented to appointment of the OECTA Discipline Board.
While the Discipline Board is not a committee, it is also instructive to look at how the provincial executive appoints committees. As highlighted earlier one of the duties of the provincial executive is:
2.51.15 to appoint the chairpersons and members of all the Association standing committees, networks, work groups, project teams, task forces and the discipline board, save and except the audit, personnel and program and structures committees;
A review of provincial executive minutes over the past number of years clearly indicates that occasionally there are motions appointing OECTA standing committees, work groups, project teams and task forces and chairpersons for those committees. There is however no consistent practice for all of our committees with regard to the passing of motions appointing committees. It should be pointed out however that all standing committee and network members and their chairpersons are in fact selected by the provincial executive elect (normally at a June meeting, chaired by the President or President-Elect).
The Role of the General Secretary in the OECTA Disciplinary Process
There has been some discussion of the role and actions of the General Secretary in matters related to the Disciplinary Decision of August 22, 2013.
On August 22, 2013, the Discipline Panel consisting of Joe Ryan, Kathy McVean, and Gary Tomcko gave the following directives to the General Secretary:
3. That the General Secretary facilitate a full time replacement for Richard Brock with the Halton Catholic District School Board as soon as possible for the 2013-2014 and 2014-2015 school years.
4. That the Association,through the General Secretary, issue a letter of reprimand to the 2012-2013 Executive of the Halton Elementary Unit.
5. That the decisions of the Discipline Panel shall be published in the next official OECTA publication.
6. That the General Secretary is instructed to immediately communicate the decisions of the Discipline Panel to the members of Halton Elementary Unit.
7. That the General Secretary is directed by the panel to provide a copy of the panel’s decision, a statement of the reasons for it and the penalty to be imposed to the respondents and the complainants.
In each case the General Secretary was directed to carry out actions by the Discipline Panel. Some members have expressed concern over the fact that a special @OECTA containing the decision was created and sent to every member of the Association. It became apparent very quickly that decision of the panel was available to the general public through at least one media source. Some members expressed a concern that they were reading about the decision from a non-OECTA source. Because the panel did not authorize a selective emailing to bargaining unit presidents but only that the decision be “published in the next official OECTA publication”, the only means possible for the general secretary to release this decision to bargaining unit presidents was through a special edition of @OECTA.
There have been other comments made that express concerns over the methods by which the actions of the Discipline Committee were executed. Again all of the steps taken were directed by the Discipline Panel. The handbook is very proscriptive toward the General Secretary when it states the General Secretary shall:
4.151.2 publish in the official publication of the Association all or part, as directed by the panel, of the decision.
And that the General Secretary shall:
4.151.1 be responsible for the imposition and enforcement of the penalty and shall use whatever means or agencies necessary to achieve this end;
I hope this provides some clarity with regard to the role of both the Provincial Executive and the General Secretary in this matter.
JR/jmb
An Appendum was attached containing a photocopy of a document entitled Late Addendum of Action. It was dated February 11+12 2013 and contains what appears to be the minutes from a Feb 6 2013 Discipline Board meeting, as referenced in the letter above.
COMMENTS?