My Teacher + Union Acronym Guide is Here!
It's the countdown to Christmas holidays! Most teachers can hardly wait! But first we have an interesting OECTA week ahead. More below!
On November 25, OECTA member + frequent guest blogger Mr. John Cafferky submitted the following letter to the Provincial Executive [PE]. It regards the controversial dismissal of OECTA Halton President + anti MOU'er Mr. Richard Brock. John has requested a response to his questions in full by writing, from the PE or the associations lawyers. He asks that his letter be brought to the provincial executive table at the December monthly meeting. The meeting has been rescheduled to this Monday and Tuesday after quorum was lost when it met earlier this month.
Members are also looking forward to learning the results of the third party legal investigation into Mr. Brock's dismissal by the OECTA Discipline Panel. The confirmation of a permanent appointment to the Collective Bargaining + Contract Services secretariat position is also pending at the PE meeting. A Council of Presidents is scheduled for later in the week. It looks like a very interesting week ahead! Here is John's letter:
Non-confidential Letter of Concern over
the dismissal of Richard Brock
To the President and members of the
Provincial Executive
Ladies and Gentlemen,
I am deeply troubled by the process the
Association has employed to remove the membership privileges of Richard Brock. My
concerns encompass doubts about the disproportionate punishment; the possible
illegality of no appeal or review for such extreme punishments; whether you
(through both the so-called discipline board and the panel struck from that entity)
afforded Mr. Brock due process; whether the process you have accepted from the
discipline panel met the standards of fairness demanded in cases of
administrative justice; whether you as the directors of the Association have
made any effort (let alone every effort) to ensure that justice would not only
be done, but would be seen to be done; whether you as directors of the
Association have strictly enforced the rules of our Association codified in
what we refer to as the “Handbook” and to which we loosely refer to as the
bylaws; whether you have scrupulously held those bylaws inviolate as your
contractual obligation to me and all other members of the Association demands;
whether you as the directors and highest management of the Association are
permitting rule-breaking that in essence subverts the chain of authority
enshrined in the Handbook and the Canada Corporation Act.
I understand that you have directed the
General Secretary to instruct a second law firm that is intimately associated
with OECTA to investigate the dismissal of Richard Brock. Regrettably, the instructions
to that lawyer are not available to members at large so I do not know the scope
and parameters of that investigation. On that account I address my concerns to
you, the members of the Provincial Executive (PE), but I am happy if you direct
the investigating lawyer to respond to my questions. I hope that you will reply
fully in writing to my concerns.
The PE is the board of directors of our
Association and as such has both the legal authority and duty to manage the affairs of the
Association. Staff must report to the PE and must never act or presume to act
in such a manner that subordinates the PE to the secretariat at large or any
member of the secretariat. Our bylaws legally describe our Association;
determine how it is governed; how it operates.
Under article 2.51 the PE is legally
required to act in accordance with the handbook; therefore, once you discover
that actions, measures or procedures have taken place in opposition or in
violation to the bylaws you must take immediate corrective measures to restore
the Association to governance according to our bylaws. Bylaws are a contract
among the members of the organization and they must be followed. I maintain
that this has not happened in the Brock case and that this failure is a breach
of contract on your part, a contract that you accepted with your election to
the PE. By now you have received a copy of the petition that I helped organize.
The petition’s importance rests in the clear message that at least four hundred
members of this Association are deeply unhappy and concerned with the process
in the Brock dismissal; hence, they are unhappy with the manner in which the
contract (OECTA’s bylaws) has been upheld.
Let me begin: I find the harshness of
the “sentence” meted out to Richard Brock grossly disproportionate to the
alleged offence. The PE asserts that they have no control over the discipline
process. Question:
Is it legal to have a discipline process in an
Association without any review or appeal when that discipline process has the
power to strip a member of their privileges, effectively undo a valid election
and dismiss that person from employment in the Association?
Regarding the conduct of the trial I ask
the following questions:
- Ms. McVean wrote an article in favour of the MoU. Did the writing of that article
impinge on her ability to be at arm’s length while judging Mr. Brock, an
outspoken critic of the MoU?
- Mr. Tomcko was present at the July COP which
voted on the MoU. In law, does a witness/participant in an event meet the
standard of an “at arm’s length” judge in matters arising from that event?
Furthermore, given that Mr. Tomcko was the immediate past president of a
unit that strongly favoured
the MoU, can he meet the standard of; a) being “at arm’s length”; and b)
being perceived to be “at arm’s length”?
- Mr. Ryan is a past president of Durham. His old
unit lodged one of the complaints against
Richard Brock and it strongly favoured the MoU. Does Mr. Ryan meet the
standard of an “at arm’s length” judge of Mr. Brock and does he meet the
standard of being perceived to be “at arm’s length”?
- Given the individual concerns expressed in 1,2
and 3 above and given that the three panelists who judged Mr. Brock are
perceived to be supporters of the MoU and that no panelist was perceived
to be against the MoU, can the panel as a whole meet the standards of
fairness and impartiality that the law requires in these situations? Can
justice be not only done, but be seen to be done?
Questions on the conduct of the trial:
- Robert’s Rules allow the accused to produce
witnesses, to cross examine witnesses, yet Mr. Brock was denied that
right. By what authority did the panelists deny Mr. Brock the right to
call his witnesses?
- Mr. Brock was not allowed to conduct his defence
and was reduced to a witness in his own case. By what authority did the
panelists deny Mr. Brock the right to speak?
- Mr. Brock and Mr. Boyle twice asked in writing
for the manual being followed by the discipline panel. They did not
receive that manual. Can one conduct a fair process without disclosing to
the accused the rules of procedure, especially when asked twice to make
that disclosure?
- Concerning the manual used by the discipline
board and given article 1.10 of our
constitution:
1.10: The rules
contained in the latest edition of Robert’s Rules of Order, where they are not
inconsistent with this constitution or any special rules of order the
Association may adopt, shall govern the Association.
Chapter XX in Robert’s Rules lays out the procedures
for disciplining members; therefore they are our Association’s procedures when
our Handbook is silent. I ask the following questions:
·
What authority
does the manual of the discipline board have in our Association?
·
What higher
authority in OECTA approved the discipline board manual? And when did that authority
approve?
·
If the AGM has
not passed “any special rules of order” for discipline, Robert’s Rules
outweighs in authority and priority any unpublished manual of the discipline
board so where or by whom did the discipline board manual derive its authority?
·
Can unpublished
and virtually secret rules of procedure have any validity in a democratic
Association such as ours?
I think we may all agree that these are
the easy questions (almost trivial) and I fully expect to receive a
comprehensive reply to them. I now want to take up the vexed and troubling
question of the discipline board’s validity, which I do not think trivial.
There is no ambiguity in the OECTA bylaws pertaining
to the discipline board. Bylaws always supersede procedures such that the
absence of adherence to the bylaws renders any procedure taken that is mandated
by the bylaws invalid. To contradict this statement one must argue that in
OECTA staff and members can implement procedures and processes without receiving
the legal authority to do so. Under the bylaws of OECTA there is no board that
has the power to dismiss any member without the strictest adherence to articles
1.1, 2.5 1.15, 2.193, and 2.51, in the Handbook. In law, where there exists an
obligation to constitute authority, this requirement must be met before any
authority can be assumed or transferred. In the case of Richard Brock, OECTA
did not constitute the discipline board; therefore, that board or that party
purporting to be the board had no authority to meet. Without the enabling
motion from the provincial executive, the party that purports to be the
discipline board had no authority to act because it does not exist. At least
that is the common sense view of the affair.
It would appear that OECTA dissents from
what I refer to as the common sense view of things. The following is extracted
from the letter James Ryan sent to the Council of Presidents on September 18,
2013.
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. …
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. (Please note that
the bolding and underlining originates with the present author and not James
Ryan)
In admitting that there was no PE motion appointing
the members of the discipline board, James Ryan inadvertently admits that unauthorized
person(s) called the February meeting, selected the participants and set the
agenda. Question:
- Does the PE have the authority to delegate their
duties under articles 1.1, 2.5 1.15, 2.193, and 2.51, of the Handbook
either before or after the fact when the Handbook provides no authority to
do so?
- By what authority in OECTA did the so-called
discipline board first meet?
- Who called the meeting, who set the agenda and
who chaired the meeting?
However, that is only the beginning of the questions. Only
the AGM can alter the rules of the Association as they are codified in the Handbook.
The PE is mandated to follow those rules. If the PE agrees with their lawyers
"belief", it means that OECTA has adopted the corporate position that
a staff person can call a meeting in direct opposition to the bylaws and it
could after the fact be sanctioned by the provincial executive. The question
then arises:
- Does this acceptance of their lawyer’s “belief”
in the legality of the subsequent sanction make the PE in its capacity as
the Board of Directors of OECTA subordinate to the employees or staff of
OECTA in apparent contradiction to the structure of authority enshrined in
the Handbook?
At the September meeting of the PE Grafton moved and
Cox seconded the motion:
THAT THE
PROVINCIAL EXECUTIVE ACCEPT THE LATE REPORT AND RECOMMENDATIONS FOUND ON F 1:3.
My question to the PE and its lawyers
is:
- Can the PE
accept a report and a recommendation from a body that has not yet been
duly constituted given that according to our bylaws that body does not
exist?
- If the
answer is yes, which articles in the Handbook permit such acceptance and
how do they do so?
The argument that past practice
justifies the violation of the bylaws raises many questions:
- At the time
of receiving the lawyers “belief”, did the members of the PE know that
some previous General Secretaries had appointed members to the discipline
board?
- If members
of the PE and the members at large did not know of the past practice, does
such a secret past practice have any standing in law as past practice?
- If the past
practice involves violating the bylaws, does it not therefore represent a
breach of contract? Can this practice continue once it is discovered and a
member objects? (I formally object to any suggestion that the General
Secretary may violate the bylaws.)
- How can
OECTA break its contract with me, Richard Brock or any other member
without first obtaining our consent?
- Is there in
law such a thing as a legally valid one-sided breaking of contract that
would apply to this situation?
It seems to me that the lawyers’ “belief” cited above provides
the all-important fig leaf for the PE to avoid addressing whether the
discipline board was duly constituted; however, it forces upon every member far
more serious questions. Staff fall under the authority of the PE and staff may
never act contrary to the Handbook. Staff must always follow the procedures of
our Association, but staff are always constrained to first obtain the
prerequisite higher authority before executing or following procedures. The
chain of authority prescribes that staff can never implement a procedure
without being authorized by a higher authority in the organization.
Our Constitution encompasses Robert’s
Rules of Order. Robert’s always rules out of order any motion that conflicts with
laws (federal, state, or local), or with bylaws, constitution, or rules of the
organization; Robert’s also rules out of order any motion which propose
actions beyond the scope of the
organization's bylaws. Under both of these
provisions the motion to accept the recommendation from the so-called
discipline board and the motion to appoint Joe Ryan chairperson of the
discipline board were automatically out of order.
It is at this precise juncture that the
lawyer’s “belief” cited above creates problems. The lawyers tell us that if the
PE acts on a motion that is out of order, that action legitimizes the motion in
so far as it transfers to the motion all the authority of the PE, whether the
PE intended that or not. I know of at least one member of the PE that received
the late report who denies any intent to either approve of the discipline board
or appoint its members when they accepted the late report. Therefore, following
the lawyer’s “belief” the tabling of a
motion that the PE at the time does not know is out of order is a grave matter
in the governance of our Association because it transfers the authority of the
PE to the circumstances relating to that motion whether the PE intended that
transfer of authority or not. The lawyer’s “belief” clearly dismisses the need
for the PE to intend to appoint the discipline board members; therefore, the
intent is not germane to any motion the PE accepts.
The
problem is that three staff members (Joe
Pece, Marshall Jarvis, Jerry Raso) sat with this so-called discipline
board and the minutes state that they reviewed all of the relevant sections to
the discipline board in the Handbook. Therefore, these three individuals read the
stipulations of our bylaws regarding the appointing of discipline board members—there
is no appeal to honest oversight when you have just read the bylaws; therefore,
they have serious questions to answer:
- Did they know that the meeting had been called
without the necessary authorization from the PE in direct violation of the
bylaws?
- Furthermore,
did they know that when the so-called discipline board reported and
recommended Joe Ryan as chairperson, that board did so without the necessary
authority to either report or recommend to the PE?
- Was there any attempt by one or more of these
staff members to connive at the non-lawful meeting and reporting out of
the so-called discipline board?
The
more egregious problem is not whether the staff connived at rule-breaking (and
that is a serious matter in its own right) but that they may have enabled an
out of order motion to go before their superiors, the Provincial Executive,
through their personal decision not to inform.
The withholding of relevant, important or germane information from one’s
superiors is always intolerable and must always be formally censured.
Unfortunately for OECTA, the lawyer’s “belief” amplifies the offense of
withholding information from one’s superiors because informed by that legal
opinion we now have to consider whether staff’s personal decision not to inform
their superiors might amount to deliberate subversion of authority. Furthermore, when the PE accepted the late
report there were other staff members present. Thus we have the situation that
at least four members of staff were silent when the PE accepted a report that
would always be out of order, an action which led our PE to violate the
Handbook and pass a motion that was at the time of the recommendation always
out of order. Furthermore, the silence of staff led the PE to take actions with
unintended consequences—The PE never intended by their motions to appoint the
discipline board. This is a far more grave matter than anything Richard Brock is
alleged to have done and given the severity of the punishment meted out to
Richard Brock, I shudder to think what might be meted out to any guilty staff
member. Questions:
- Does the PE acknowledge that staff has a manifest
duty always to disclose and inform when staff has relevant and pertinent
information to the deliberations and decisions of the PE?
- Did any of the three members present at the
meeting of the so-called discipline board inform the PE that a) the
meeting had taken place without the required motion of the PE; b) the
report and recommendation they submitted was out of order?
- Did those staff members present at the executive
meeting when the PE accepted the late report inform their superiors that
the motion to accept the report was out of order because the report
emanated from a non-constituted discipline board and by our Handbook a
body that did not exist?
- Did the staff present at the PE meeting have a
duty to inform their superiors that the report and recommendation from the
so-called discipline board was out of order?
- Did the staff present at the PE meeting know that
the so-called discipline board was not duly constituted and hence did not
legally exist?
- Depending on their degree of guilt, are there any
consequences for any (or all) of the staff
for not informing their superiors that the discipline board was not
duly constituted and that the report submitted was out of order?
- Richard Brock has launched a civil suit against
OECTA. Given the irregular method staff used to get the discipline board
appointed and given the troubling decisions of that board, who bears the
costs should Mr. Brock prevail in court?
- Why should the members at large be put at
financial risk in the Brock case when the bylaws of our association were
not strictly followed by the employees of the Association?
- Why should I and my colleagues have to pay
anything when the staff of our Association make personal decisions not to
inform their superiors of relevant details and information?
- Will the PE investigate the conduct of staff? If
they find them guilty of withholding information from the PE, will they
remove the “corporate shield” from the guilty staff so that the
Association can recoup any costs that accrue in the Brock case?
I
find these questions troubling but necessary. The PE has a duty to defend and
uphold the bylaws of our Association, and I, a member, ask you collectively to
do your duty by the Association and all its members.
Sincerely,
John
Cafferky, member of OECTA
COMMENTS:
