EDUCATION MATTERS ALERT
Better Schools and Student Outcomes Act, 2023 (Bill 98)
Let’s Look at the Trustee Governance Changes
Bill 98 changes many parts of the Education Act, but this Alert focuses on the specifics of the Trustee codes of conduct and governance amendments. So why is Ontario focused on codes of conduct in a Bill on Better Schools and Students? What are the present requirements and procedures Boards of Education that will likely be changing if Bill 98 becomes law?
Bill 98 has received First Reading and is, therefore, just starting initial changes but certainly looks like one that the government of the day is intent on making law.
I. Present Education Act Code of Conduct
Boards presently are required to have codes of conduct for trustees (also known known as members) though no specific provisions for the contents of what must be in the Code exists. Enforcement of Codes for Trustees presently by complaint by a fellow trustee, with the board of trustees deciding whether there has been a breach, and what the sanction will be using a shopping list of three possibilities: censure, barring from attending meetings, or barring sitting on committees of the Board. The process to be followed by the Board is set out in section 218.3 and is fairly detailed. Often Boards passed procedures to flesh out the steps and notices to be given when and to whom.
So why the change away from this known method of dealing with recalcitrant trustees? Minister Lecce expressed the governments concerns about trustees:
“So if we can improve the governance training of those individuals, we can ensure that the local school boards are much more effective, because there are too many examples in Ontario ... where they’re not, I think, at the standards
when it comes to governance.”
Minister Lecce referenced Peel DSB as an example where government improvements of officials and school boards were needed, referencing the takeover by a government supervisor of Peel for several years due to systemic racism and personnel issues not being addressed by the trustees. Although not noted by the Minister, the Toronto Catholic DSB / Del Grande Code of Conduct imbroglio may have influenced the drafting of the legislation. Briefly, Del Grande was a trustee who objected to gender identity and expression becoming enumerated grounds in the Board Code of Conduct, and in the public debate suggested fetish behaviours (pedophilia, gerontophilia, bestiality, vampirism etc.) should also then go into the Code. He proposed these amendments but was ruled out of order as some could breach the Human Rights Code. The Trustees then decided whether the comments of Trustee Del Grande in and of themselves breached the Trustee Code of Conduct. Initially, the trustees found he did not breach the Code as the necessary two/thirds vote to find breach as required by their procedures was not met. When great hew and cry came out by this failure, the Trustees reconsidered their decision and then found Del Grande in breach. This decision then went to Court and was upheld by Divisional Court. Presumably the significant time, resources and cost of the processes may have effected the Bill 98 provisions.
II. Changes to Trustee Code of Conduct and Process of Enforcement
Rather than leaving the decision-making on whether a Trustee has breached the Trustee Code of Conduct to meetings and decisions by fellow trustees, Boards of Education will, once Bill 98 becomes law, move to having this decided by Integrity Commissioners. Municipalities have had this process in place for several years as the means of patrolling and enforcing municipal Council members, and a similar system will on implementation of Bill 98 police Trustee conduct. As an aside, several southern Ontario school boards have tried having Integrity Commissioners assist the Board despite having no legislative base for investigations and decisions by them. One can look to Peel, Halton and other boards as examples of that. How did it go? Not so well as with no statutory authority, but only by-law authorization, Integrity Commissioners found they were attacked by the Board appointing them if the decision made wasn’t popular with a majority of the trustees. Integrity Commissioners employment would be threatened, claims of bias or even racism advanced, resulting from efforts of the Commissioners to remain neutral and reach correct decisions. These problems would be minimized under the proposed amendments:
- Integrity Commissioners qualifications and processes for creating a roster of acceptable Integrity Commissioners would be created by the Minister of Education,
- Integrity Commissioners would be selected by the school board from a roster of Integrity Commissioners if a complaint against a Trustee was made;
- Reviews of how long an Integrity Commissioner could remain on the roster, and reviews of the persons on it would be done by the Minister.
Integrity Commissioners would then conduct investigations into claimed breaches of Codes of Conduct, within specific time periods (start with 14 days of appointment). They would have to provide the Trustee with a chance to respond to the allegations, as well as a right of reply where appropriate. Power to short circuit an investigation would rest with the Integrity Commissioner if the complaint is late (made more than 60 days after the breach happened or it was discovered - the later of the two), or the Integrity Commissioner determines the complaint was made in bad faith, or is frivolous or vexatious. These determinations would be final.
Powers are given to the Integrity Commissioners (which they didn’t have under the informal process some Board’s had set up before which hamstrung investigations) to require production, examination and copying of documents. Significantly, powers to require officers of the Board or “any other person” to appear and give evidence on oath of affirmation would exist. To give this power teeth, section 33 of the Public Inquiries Act would apply to Integrity Commissioner investigations, which gives powers to summons witnesses, papers or production of documents, with the right to make a stated case to Divisional court for a determination of contempt.
Decisions must be given within 90 days of the investigation starting, unless a extension notification is given with reasons for the same.
Decisions on Breach and Sanctions
It is the Integrity Commissioner that decides if there is a breach of the Code, and what sanction would be imposed on the recalcitrant Trustee. Rather than the limited sanctions Boards can impose now, the Integrity Commissioners may:
- Reduce a Trustees honorarium (including returning amounts already paid to the Trustee);
- Bar attendance at Board or committee meetings for up to 90 days (and prevent receipt of materials that relate to that meeting unless available to the public);
- Bar sitting on committees, again up to 90 days;
- Interestingly, barring the Trustee from becoming Chair or Vice-Chair of the Board or a committee, or removing them from those positions;
- Barring the Trustee from acting as board representative, exercising the privileges of a trustee or removing from a position held as a Board representative;
- A catch all, any sanction that is reasonable and appropriate in the circumstances;
- Any sanction that would promote compliance with the Code of Conduct. Decisions on whether a breach has occurred, and the sanction imposed, with reasons for both must be given in writing to the Trustee complained of, and the Board. A right of appeal from the decision is to be included with the notice.
Appeals within 14 days after receipt of the decision by either the complained of Trustee or the Board can be made, and they are the parties to the appeal. A panel of three Integrity Commissioners, with the process for the appeal being created by the Minister.
A Board must publish information on its website about a matter referred to an Integrity Commissioner, any decision made and appeals (limits on publication would exist for in camera meetings information).
Take Aways from the Proposed Integrity Commissioner Process
As often is the case, the Bill 98 provisions for enforcing Trustee Codes of Conduct may not be of much use to many Boards that already have Codes that are followed by Trustees, or have complaints determined efficiently. For those Boards in the throws of animosity between trustee groups, or where there are conflicting political visions for where their school board is going, these new processes provide an independent investigator and decision maker to act as referee in contentious situations.
It is interesting the right to make a complaint is given to other trustees, not to administrators or members of the school community. Whether the Integrity Commissioner regime makes for better Board governance will have to wait, but providing a reasonable, quick process to keep governance focussed and accountable will be seen with the passing of Bill 98.
Author: Rachael M. Paquette. J.D.