Brock: Mr. Cafferky's Questions for the December OECTA PE Meeting!

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:

1. 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?
2. 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”?
3. 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”?
4. 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:

1. 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?
2. 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?
3. 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?
4. 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:

1. 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?
2. 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?
3. 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.)
4. How can OECTA break its contract with me, Richard Brock or any other member without first obtaining our consent?
5. 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:

1. Did they know that the meeting had been called without the necessary authorization from the PE in direct violation of the bylaws?
2.  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?
3. 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:

1. 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?
2. 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?
3. 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?
4. 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?
5. 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?
6. 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?
7. 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?
8. 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?
9. 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?
10. 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

 

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