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:
- 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?
- 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:
Grafton/Cox THAT THE PROVINCIAL EXECUTIVE ACCEPT THE LATE REPORT AND RECOMMENDATIONS FOUND ON F 1:3.
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?
- 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?
- 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 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?
- 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?