Wednesday, 31 October 2018
Board Work is Hard - Part 10 of 10: When All Else Fails
The focus of the previous posts in this series has largely been on prevention – practices and procedures that boards can employ to reduce the likelihood of board disharmony. Unfortunately, despite the best of efforts, sometimes board members just can’t get along. This final post in the series explores what to do when all else fails.
First, some important caveats are required. The following is not legal advice. While there are some steps a school board can take to deal with individual trustees who refuse to work within the rules, these options vary from province to province. I strongly urge any board considering sanctioning a board member to seek advice from their provincial association and legal counsel before proceeding. Second, you need to give careful thought to the potential consequences of acting, or not acting, against an individual trustee. How will it hurt or enhance public trust in the board? Are you prepared for a protracted public and possibly legal battle? Will the sanctions actually make a difference or will you be engaging in a fight that the individual welcomes? Not easy questions to answer - and sometimes things get to the point that a board has no option but to act – but doing so should not be done hastily or in anger.
The board needs to differentiate between behaviour that is just annoying versus actions that clearly compromise the board’s ability to fulfilits mandate. Differences in views, domineering behaviour, or surly attitudes may be frustrating, but may not by themselves justify limiting an elected trustee’s rights. On the other hand, individual trustees cannot do whatever they want. They have a fiduciary duty to act in good faith and maintain the integrity of the office and the board as a whole. Behaviours that clearly break the rules or threaten the responsibility of the board should not be ignored. Sharing confidential information, conflicts of interest, bullying and harassment, refusing to respect the will of the majority of the board, or acting outside of the authority of the corporate board need to be addressed early.
That said, the following is a listof escalating steps a board may consider when faced with such behaviours. It is important to first try the softer approaches before considering more serious sanctions.
Reason and Reasonability
The first step on the ladder is trying to change the behaviour through reason and understanding. Some basic aspects of natural justice need to be considered. Is the individual aware of the problem? Do they understand why the behaviour is an issue for the board? Have they been given an opportunity to express their reasons for their behaviour? Have they been given sufficient time to make corrections? Are there things that the board itself is doing that is making the situation worse? Are there accommodations the board could make to satisfy some of the trustee’s concerns? In all likelihood,you have already taken these steps, but it is important that they aretried and documented before considering sanctions. It is important to remember that as an elected representative, individual trustees have the right to strong opinions and to debate them vigorously. There is also no rule that trustees need to like each other. However, all board members have a shared and greater responsibility to support the corporate board in meeting its duty to the public and its responsibilities under the School Act.
For some of the less egregious behaviours that may be annoying but don’t directly threaten the rights of the board or staff, a board should seek ways to contain the behaviour, particularly if it is occurring during board meetings. As discussed in Part Four of this series, boards that have established good meeting procedures reduce the chances that individuals can dominate or frustrate the meeting. School boards have the power by resolution to control the conduct of their meetings. This includesadopting a set of meeting rules – often based on Robert’s Rules of Order – and skilfulchairing. More relaxed procedures and informal board table discussions may feel more comfortable, but there is greater chance that meetings will stay orderly when procedures are well-establishedand consistently applied. That said, it is also possible to further tighten meeting rules if necessary. With the approval of the board, more stringent rules can be adopted to limit how often all members may speak on any particular motion and for how long. The board Chair also has the ability and responsibility to remind board members about appropriate language and tone.
A problem can arise, however, if an individual trustee refuses to abide by the meeting rules or follow the direction of the Chair. This is where you need to get advice on what your province’s School Act says on the matter. Most, if not all, provinces empower the Chair to eject a member of the public who is disrupting a meeting, but not necessarily an elected board member. However, if the meeting is getting out of hand the Chair can temporarily recess or adjourn the meeting. This, of course, is not a long-term solution but may be necessarily in the interest of safety and to give the board time to consider its options.
Censure and Exclusion
The school board has the authority to control the conduct of its meetings. If a member exhibits misconduct the board may, by majority vote, decide to censure a trustee. It is important to understand though that this is largely a declaration of disapproval by the other board members and has limited real consequences for the censored individual. That is not to suggest that censor has no value, but it also doesnot have the power that some boards may be looking for.
The decision to censure a fellow trustee should not be taken lightly or quickly. A board should determine that all other reasonable attempts to change the behaviour have been taken. The motion to censure is normally debated in a closed meeting of the board and if successful, may remain private or be reported out (but not debated) at a public meeting. The trustee in question should be given advanced notice of the motion to censure along with the reasons behind it, and be given an opportunity to speak to the motion.
In its mildest form,a censure is merely the board officially stating its disapproval of the individual’s conduct. This peer pressure may be sufficient to modify the behaviour. If the board decides to make the censure known publicly it ups the stakes for both the individual and the board. A public censure will undoubtedly be of interest to local media, which could help to curtail or embolden the behaviour, depending on the perception of who is right. Regardless, the board should ensure that the reasons and process for the censure are fair and can be defended.
Depending on the circumstances a board may include limited exclusions for the censured trustee. For example, if the issue was a sharing of confidential information from a closed meeting the trustee could be excluded from future closed meetings on that matter for a period of time. A trustee may also be removed from related committees or other responsibilities previously assigned by the board. In most provinces, however, the offending trustee may not be excluded from public meetings while they are still an elected trustee. The provincial government can only remove a trustee from office for very limited reasons – and not gettingalong with others is not one of them. Once again, I want to stress that public censure and exclusion from some duties are serious actions and should not be considered without legal advice.
The intent of this ten-part series has been to explore the reasons why and remedies for school board disharmony. Happily, trustee in-fighting is infrequent and usually transitory. However, given the significant importance of the role of school trustee,it is incumbent on those who hold that public office to do so collaboratively. Much of this series has been devoted to the preventative measures that should be taken very early in a board’s term. These include a comprehensive orientation to the trustee role to understand its responsibilities and limits; the development and exercise of a robust code of conduct; clearly communicated and enforced procedures for conducting board business; and understanding of the roles of trustees and senior staff in achieving the board’s goals. The nurturing of the right attitudes and understanding of the political and personality side of board work is also essential. Finally, when all else fails, boards need to know the tools at their disposal to deal with disharmonyand have the wisdom to know when to use them.
It is my fundamental belief that school boards are critically important, not only for the essential task of governing the delivery of public educationbut also because school boards and the trustees who comprise them are fulfilling an essential democratic function. Along with their municipal/regional counterparts,they are the closest democratically elected representative of the citizens in their community – closer than any other level of government. Although often unrecognisedand under-appreciated, school trustees are what the name implies - individuals who have been entrusted by their fellow citizens to envision, shape and monitor the success of the public education system – a task important not just to the parents of school-aged children, but to the whole community and all society. What happens in the schools of today shapes the world of tomorrow.