Sunday, May 16, 2010

Advice to new Trustees- the O'Malley case

On Saturday, I attended a "mixer" for new trustee candidates. It was hosted by ARTES  and was very well-attended. Trustee Catherine Ripley, Councillor Ben Henderson, former Leader of the NDP, former MLA and former EPSB Trustee Ray Martin, former MLA Weslyn Mather and a host of trustee candidates were in the room: Michael Janz (running in Ward F), Sarah Hoffman (running in Ward G), Heather MacKenzie (running in Ward G), Tina Jardine (running in Ward I), Sarah King (running in Ward E), Cheryl Johner (running in Ward A) Patricia Grell (running in the Catholic ward that includes Woodcroft) and a few others who are "thinking about it" including Laurie Simpson, who is considering running in Ward C (scroll down to comments and Laurie has a long post here on school closures).

Dale Hudjik gave a quick overview of the aims of ARTES and why they were hosting this gathering. He spoke a bit about governance and then turned the mic over to Ray Martin, who emphasized the importance of the Board of Trustees being distinct from its administration, rather than an extension of it. He spoke about his experience as a trustee with EPSB and fielded some questions. He emphasized that trustees are politicians.

It was a great evening, with lots of energy in the room and I enjoyed connecting with new trustee candidates: I have many coffee dates lined up to continue the conversation and provide some advice.

This article is quite helpful in understanding some of the duties and obligations of the trustee, to act in an ethical manner regarding confidentiality and conflict of interest:

http://www.cheadles.com/article/trustee-confidentiality-and-conflict-of-interest-164.asp

One piece of advice I would extend to new candidates is familiarize yourself with the O'Malley case (see #2 in above article- Conflict of Interest).  Mr. O'Malley was a trustee with the Calgary Separate Board who took the unusual step of initiating a lawsuit against his own Board and was subsequently removed from the Board. The case is of interest because of the court's ruling on the  fiduciary duty of a trustee.

To quote from the judge who ruled on the O'Malley case:
..Mr. O’Malley had a misguided understanding of to whom his fiduciary duties are owed...Mr. O’Malley wrongly believes that his duties are owed only to the people that voted for him...the fiduciary duties are owed to the corporate body (the Board) which is, in turn, accountable to the Catholic ownership.” [para 109 - 110]

Whenever I have seen this quote, the last 9 words have been deleted. Without the accountability phrase, you might assume that trustees' ONE and ONLY fiduciary duty is to the Board and that they therefore have NO  or LITTLE duty (accountability) to the public. The idea of a duty of care to the Board (and District) may at times appear to be in direct conflict with the wishes of one's electorate and if the idea of accountability to the public is not fully understood, new trustees, in particular, may be confused. I think when you read the entire phrase (and also understand the extreme measures that Mr. O'Malley took in trying to stop his Board from passing its budget, etc.), you arrive at a more well-rounded perspective.

In my view, there is nothing in the O'Malley case that would indicate that trustees should not (a) represent the views of their electorate (b) debate vigourously (c) disagree with their colleagues or offer different points of view and (d) consider themselves to be politicians. (Minister Hancock- please correct me if I'm wrong.)

In fact, this article  would seem to agree with me:
"However, do not assume from these cases that Trustees have no voice or right to object vigorously.



Courts have stated elected representatives can form views and opinions and declare themselves on issues of public interest. They have gone so far as to say:


“Elected officials are and should be entitled to maintain and forcefully to express their views without fear of disqualification or unwarranted interference by the courts. In this case, however, any reasonably well-informed person acquainted with the facts would inevitably conclude, as Justice McMahon did, that Mr. O’Malley, by attacking the validity of core governance policies through the courts, has a personal conflict of interest...that likely would preclude him from bringing an unbiased mind to the performance of his Board responsibilities.” (O’Malley decision, paragraph 104, page 23)

“Mr. O’Malley had a shared public duty to advance the work of the Board, which included deliberating on and passing a yearly budget. Yet he tried to halt the Board’s budget work, thus putting his private interest in conflict with his shared public duty to carry out the responsibilities and work of the Board...trustees collectively and individually owe a public duty to carry out their responsibilities and the work of the Board in good faith and with reasonable diligence. They are elected for that purpose. They need not be of like mind. They may hold strong conflicting views. They may debate with vigour, and occasionally with rancour. There is no rule requiring trustees to like each other. But they do have one overarching responsibility -- a shared public duty to advance the work of the Board to which they had the privilege of being elected. A trustee who chooses to personally engage his Board in litigation concerning the Board’s fundamental operations places a private interest ahead of a public duty...A trustee who cannot in good conscience continue to perform that duty has a choice. He can resign his position and regain the elector’s right to challenge the Board in court. What he cannot do is remain and abandon his public duty to advance his private interest. He is unable, in those circumstances, to bring an unbiased mind to the performance of his public duty.” (Emphasis added)

Perhaps you see it differently, but, as far as I'm concerned, there is nothing in the O'Malley case that should stop a trustee from representing their electorate in their decisions, while balancing the needs of the entire District and preserving public education as a public good.

I've highlighted the above passage about being "free to express their views without fear of  disqualification or unwarranted interference" because another case is also of note for new trustees: the instance where the Calgary Public Board was disbanded by the Minister of Education for being 'dysfunctional'. In this case, the in-fighting between board members seemed to be getting in the way of getting the job done. What exactly defines "dysfunction" is open to individual interpretation and without clear guidelines, it can breed a sense of discomfort about any sign of public disagreement. It can be used to justify conducting a great deal of work behind closed doors, in order to "smooth out any rough edges" before things appear in public. Perhaps the new School Act will articulate some clear expectations or guidelines in this area.  It would certainly help new trustees feel confident in their role, if they could understand what constitutes "dysfunction" and also how their fudiciary duty to the Board intersects with (or complements?) their duty to represent the public who have elected them.

1 comment:

Heather said...

Thank you Sue, for this helpful information. It was wonderful that you and Catherine were able to make it to the ARTES function!

Heather