Lack of Due Process and Abrogation of the Rule of Law (13 April 2015)

In an earlier blog post regarding the 30 March 2015 meeting of the Carleton University Board Governors, I extolled the student protestors who (except for a snowball or two, which I condemned) staged a beautiful example of peaceful free speech and civil disobedience. I also extolled the university for showing amazing restraint in not removing, not silencing, and not arresting any protestors. I still fully stand by those accolades. However, in that earlier posting, I alluded to – but did not elaborate on – several due process foibles, which will be the subject of today’s post. These due process foibles on the part of the Board of Governors’ executive committee included (1) failure to follow Robert’s Rules of Order when conducting votes, even when a relevant point of order was raised in a timely fashion, (2) failure to abide by the Board’s own bylaws when a properly called special session of the Board was summoned, and (3) baseless and unwarranted defamation of student protestors.

The student protests concerned the “Task Force on the Affordability of the Tuition Fee Framework” (hereafter ‘Task Force’), which was a Board approved undertaking. As soon as this agenda item arose at the 30 March 2015 open session, seven students who were attending as visitors/observers at the meeting stood and provided short cogent unsolicited statements via megaphone. Immediately afterwards, the student protestors in the boardroom began chanting protest slogans through the megaphone. During that maelstrom, the chair of the Board opted to sneak in a vote, supposedly a vote on whether to approve the Task Force report. I say ‘supposedly’ because many members of the Board, including me, could not hear the motion. Nonetheless, there was apparently a mover, a seconder, and a very hasty call for votes in favour of the motion, whatever that motion actually was. Six or seven people at the boardroom table voted for the motion by raising their hands. I have no idea how the three Board members on the phone voted.

There were several due process problems with that vote on 30 March 2015. First, the question was called without any discussion or debate. Second, the question was inaudible. Third, less than half the Board members in attendance (combined in-person and over phone) voted in favour of the motion. Per Board bylaws, this means that the motion did not pass. Fourth, there was never a call for dissenting or abstaining votes. This is particularly troubling insofar as I have repeatedly complained about the current Board chair only calling for votes in favour of motions. Fifth, a few minutes after the vote, I raised a formal point of order, complaining about lack of call for dissenting votes. The chair of the Board never addressed this crucial point of order nor did the executive committee in their meeting of 7 April 2015 to address these matters. Sixth, the day after the vote, i.e. 31 March, the acting University Secretary polled several Board members for their votes, but failed to do this for all Board members and failed to include the motion – the previously inaudible motion – when polling the subset of members.

The Board is supposed to be a collegial deliberative body. Yet lack of debate and lack of call for dissenting votes deviated from that essential tradition. Board members need to hear and/or read and understand any motion before voting on it. The motion was inaudible at the meeting and non-existent in the follow-up e-mail from the acting University Secretary. The Board is supposed to follow Robert’s Rules of Order, but never addressed an essential point of order. The Board’s bylaws require that a majority of attendees vote in favour of a motion for it to carry, but did not garner that many affirmative votes with the inaudible motion that supposedly was to approve the Task Force report. Board members need to be treated equally and all asked for their votes. Due process matters, especially for an institution that can make its own rules.

Several members of the Board, including me, recommended a special meeting to resolve the issue of the Task Force recommendation and lack of due process, a request that was eventually spurned by the Board’s executive committee on 7 April 2015. Therefore several Board members, including me, summoned a special session of the Board of Governors. The Board’s bylaws state, “The chair of the Board, or any six Governors, may summon a meeting of the Board.” However, the Board’s executive made a sham of that bylaw by invoking another conflicting bylaw. On 10 April 2014, the acting University Secretary wrote in an e-mail (that was not labeled as being confidential) that “notices of Board meetings can only be sent by the University Secretary” and that “Individual Board members are not empowered to set the notice, timing and agenda for a meeting.” While there is a conflict between bylaws 11.3 and 11.4, any reasonable reading of the bylaws – which the Board drafts by itself and approves for itself – would indicate that any six Governors can call a session without approval of the University Secretary, who is a pawn of the Board chair and university president. Formal executive dissolution of a special session summoned by six Governors makes a mockery of the “rule of law”, a legal and philosophical framework that has been generally accepted in Canada at least since Roncarelli v. Duplessis [1959] S.C.R. 121.

The Board of Governors’ executive committee has agreed to conduct a discussion and debate about the Task Force report at the full Board’s next regularly scheduled open session on 28 April 2015. What has not been offered is a proper vote on this matter at the 28 April meeting. It would be Orwellian if all discussion and debate occurred without a subsequent vote, but that is what is currently being proposed. Full discussion and debate should always come before a final vote. Carleton University should be embarrassed by this further abrogation of the rule of law.

A member of the Board’s executive committee defamed the student protestors. Several other board members piled on by being publicly supportive of this defamation. In particular, the Backgrounder reported that Michael Wernick likened the peaceful student protestors to “Brownshirts and Maoists”. Yet there was nothing violent about the protest, except for the snowball or two lobbed at the boardroom window that absolutely appalled me. Otherwise, this was an utterly peaceful protest, fitting for people standing in the shadows of a statute of Gandhi. The protesters certainly did not act like the paramilitary contingent of Hitler’s Nazi Party, as suggested by Michael Wernick’s brownshirt hyperbole. Michael Wernick and several of his supporters on the Board claim that they were concerned for their own physical safety, which is absurd. There were no threats of violence. As far as I can tell, there were no reports filed with Carleton’s safety office about threats to personal safety arising from the student protest. Martin Luther King Jr. would have been proud of the student protestors in the boardroom. Peaceful protest does not have to be quiet and passive. As a matter of fact, effective peaceful protest is almost never quiet or passive. If Michael Wernick and his supporters truly cared about safety, maybe they would provide more funding for Carleton’s sexual assault support centre, insure gender-neutral washrooms are installed in all buildings to support our trans students and staff, and eliminate our injury-prone injury-causing men’s-only football team.

I have publicly argued against calls for Michael Wernick’s removal from the Board of Governors, believing that he is as entitled to free speech as are student protestors. However, I still need to mention that Michael Wernick is deputy clerk of the Privy Council. The Privy Council is supposed to be the non-partisan branch of the Prime Minister’s office. Hurling pejoratives at peaceful student protestors and falsely conflating their actions with violent protests, as might occur at other universities, is as partisan as one can get. Michael Wernick is chair of the Board’s governance committee, which makes his lack of due process and naked rejection of the rule of law even more appalling. He should be entitled to his opinions at both the Carleton Board of Governors and the Privy Council, but I am scared by the mixing of power with disdain for due process and disdain for the rule of law.

Ironically, a vote on the Task Force recommendation would almost certainly pass because students hold only a small minority of seats on the Board of Governors. Ceteris paribus, before the Board’s 30 March 2015 meeting, based on the documentation, I would have approved the Task Force report. Furthermore, protests should probably be directed at the provincial government because the province approves a range of tuition hikes, knowing that every university will go for the maximum allowed tuition increase. It should have been easy for the Board to save face at a special session dedicated solely to the Task Force report. Let all Board members thoroughly present their ideas, possibly with slides in the same fashion that our esteemed vice president finance does, then take a clean and proper vote. If the meeting was again disrupted, then simply move to closed session. That would have been taking the high road. Instead, the Board’s executive committee in conjunction with the university’s upper administration is taking the low road, abandoning due process, abrogating the rule of law, and needlessly insulting well-meaning peaceful student protestors. Various at-large Board members have repeatedly reminded me that a major duty for all members of the Board of Governors is to uphold the reputation of Carleton University. The blatant irony of what I just described thus perversely makes me laugh, but also make me sad. Collectively and individually, we can do better. It is time to remember that Carleton University is here for the students, especially the engaged students.

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