Disenfranchisement vs. good governance (8 May 2015)

The 28 April 2015 open session of the Carleton University Board of Governors highlighted four major due process issues that need to be handled by the Board’s Governance Committee. I have not seen the agenda for the governance committee’s forthcoming meeting and, even if I had, would not be allowed to divulge its contents. This post is my attempt to enlighten readers about the workings of the Board and to insure that these matters are explicitly addressed by the relevant board committee, i.e. by the governance committee. All four matters herein regard disenfranchisement of either the public or board members.

What constitutes an open session of the Board of Governors?

The 28 April 2015 open session of the board was not open. All visitors except those invited by the university’s upper administration were physically excluded from the boardroom by multiple layers of campus security. See the Charlatan’s coverage from the following day for details. In its place, the so-called open session was live-streamed to a room in a distant building. To my eyes, this does not constitute an open session for reasons any reporter will tell you are essential. In order to gauge veracity and sincerity, it is necessary to shift your focus and sometimes intently focus on specific people, especially those speaking. Facial features and gesticulations provide crucial cues, but those can only be readily gleaned by constantly changing your vantage point. Live-streaming from a fixed camera can never do that.

While I think that the several layers of exclusion by police officers do not constitute an open meeting, the board’s bylaws and other procedures are silent on what counts as open. This needs to be remedied with a bylaw change that attempts to define ‘open’ at least in somewhat general terms. The governance committee and subsequently the full Board need to add this to their agendas. This has also been a problem at open sessions of Carleton’s Senate, where the provost recently showed slides but would not release those slides to the public, playing a wishy-washy game of what constitutes confidentiality and whether he himself willfully broke it (see here).

While I did not agree with the multi-layered exclusion by the police, if the public including the press was genuinely excluded from the open session of the Board of Governors, then this did not constitute a public meeting. Therefore there existed an a priori assumption of privacy and confidentiality of those participating in the meeting. This legally should require consent by all people being digitally recorded for the live-stream. However, consent was not obtained from many (any?) board members, including me, for this recording. Furthermore, there was not even an announcement made that such a recording was occurring until I specifically broached the matter of this not being a real open session during the last minute of the open session. Broadcasting a non-public board meeting without the consent of board members seems like a violation of the “Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest”. The Board’s executive committee and the university president are complicit in this breach of general duties by not obtaining consent, which unfortunately makes these rules virtually unenforceable. This provides another reason to stipulate what constitutes an open session.

While live-streaming was used on 28 April 2015 as a totalitarian strong-arm tactic, some good can come of this. Live-streaming implies digital recording. The Board of Governors therefore should post a link to this live-stream recording so that the public and press can see and review the Board’s activities, i.e. archive the so-called open session recording. This is sometimes known as public accountability. The governance committee should approve a motion to promulgate digital recordings of all open sessions, albeit as a supplement to, not a surrogate for, genuine open sessions that are open to the public and press.

Excluding university union officers from serving on the Board of Governors

Since at least February 2014, i.e. for well over a year, the Board of Governors has been considering a bylaw change to prohibit officers of Carleton’s unions from sitting as board members. This initiative probably came about because my predecessor on the board was simultaneously the president of the faculty union (CUASA; Angelo Mingarelli), but may also have something to do with the president of the staff union (CUPE 2424; Pam Griffin-Hody) currently serving on the board. The purported motivation for this proposed bylaw change is that union officers would be in too much conflict of interest to render meaningful unbiased decisions. This is a bogus argument insofar as ratification of collective agreements are done exclusively by the Board’s executive committee from which all internal members of the board are excluded.

This disenfranchising motion to alter the bylaws has had a byzantine procedural history, repeatedly bouncing back and forth between the Board’s governance committee, executive committee, and the full board. This proposed (or hinted at) bylaw change has been on and off the open session agenda enough times to be laughable. I believe that this purported bylaw change has recently gone undercover, being delegated to the executive committee in lieu of the governance committee. I say ‘undercover’ because the minutes of the executive committee are never made public, although I will have more to say about that below. As mentioned in my previous post, “The governance committee clearly has cognizance over this matter of whether union officers are in sufficient conflict of interest to be a priori prohibited from serving on the Board. The governance committee’s terms of reference state, in part, ‘Develop, recommend to the Board and monitor the application of statements of Conflict of Commitment and Conflict of Interest for Board members.’ Circumventing the governance committee would constitute abrogation of due process, or abrogation of what the ‘Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest’ refers to as the duty to ‘observe the parliamentary and Board procedures’ ”.

Any bylaw change to prohibit union officers needs to be referred to the governance committee or, alternatively and less satisfactorily, the governance committee’s terms of reference need to be drastically changed. All members of the governance committee need to study the purported legal opinion on this matter long before rendering a decision. Board committee proceedings are in camera. Therefore we should trust board members to honour their promises of confidentiality. And if anything leaks, then only take whatever action is supposed to occur for those who violate the “Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest”. Presumption of guilt, which such a bylaw change would entail, is very un-Canadian.

I have two other comments about excluding union officers from the Board. First, if the Board does not trust me, then defer this matter until the next academic year, at which time I will almost certainly be removed from the governance committee. Second, even if this bylaw change is passed, it would not exclude people like me from serving on the Board. That is, this proposed bylaw change will not fix any problems, but will create dreadful publicity for Carleton University, as was the case back in October 2014 (here, here, and CAUT Bulletin 61(8)).

Bifurcating executive committee meetings and minutes

In my previous post, I wrote that, “because of disruptions to the 30 March 2015 meeting of the board of governors, the executive committee was assigned the role of rendering decisions on matters that the full board did not get to. This is perfectly legitimate. Most of the open session of 30 March was disrupted and there was no longer quorum before a closed session was convened. I therefore asked that minutes of the executive committee be bifurcated into open and closed parts so that a public record could be established for matters that should have been decided during open session. A decision on my request is pending.” The issue here is that minutes of the Board’s executive committee have traditionally not been public documents. It seems wrong to take matters that are slated for discussion and votes at an open session and instead shunt them to an executive committee that cannot be held publicly accountable. Therefore the governance committee needs to recommend general guidelines to the full Board of Governors about which parts of executive committee minutes are public and which parts are private.

Conflict between bylaws 11.3.(b) and 11.4.(b) regarding six governors calling a meeting

In my 13 April 2015 post, I wrote that:

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.

This conflict in bylaws needs to be resolved by the governance committee and then resolved by the entire Board. Bylaw 11.4.(b) should be waived or modified to cover the case of six or more governors summoning a meeting. While far less palatable, an alternative would be to entirely eliminate from bylaw 11.3.(b) the provision that six governors are allowed to summon a meeting. In principle, the Board’s executive committee effectively neutered that provision in its ruling of 10 April 2015, but was not decent enough to memorialize that policy shift. Bylaws and constitutions are typically promulgated to protect rights, but in this instance were used as an excuse to quash dissent.

Concluding remarks

Only allowing board members and invited guests of the upper administration to open sessions of Board of Governors meetings disenfranchises the public and the press, including interested students, i.e. disenfranchises the community at-large sensu lato. Hiding open session agenda items in minutes of confidential executive committee minutes has the same effect. Excluding union officers from the Board of Governors disenfranchises some of the most interested, active, and engaged members of Carleton’s academic and non-academic staff from meaningfully participating in university governance. Not allowing members of the Board to summon a special session has the same effect. The Carleton University Board of Governors, especially by and through its governance committee, has a lot of work ahead of it to reverse this dangerous and seemingly unethical disenfranchisement. This post serves as a wake-up call for the Board of Governors to not shirk these vital responsibilities and as a reminder to everyone of why due process genuinely matters.

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2 comments
  1. Phil said:

    Thanks for this Root. Not everyone will agree with decisions of the Board, but the campus community and broader public deserve to know that the highest decision making body at Carleton follows its own rules (or at least pretends to follow its own rules??). I hope an aspiring theatrical writer reads your posts and incorporates them into a satirical masterpiece on institutional governance.

  2. Colin Cordner said:

    Thanks for this entry, Prof. Gorelick. After a few years of interaction with the Senate and its committees, and stories of the goings on at the BoG, I would have to say that there is an endemic lack of respect for rules of order or democratic governance in certain circles. I made a very public issue of this at the last meeting of Senate, raising a Point of Order, and pointing out that the Senate Executive Committee hasn’t merely been twisting bylaws in order to bury Motions that would embarrass or obstruct the Administration, but actively breaking them both in letter and in spirit.

    Unless though members of the University take a more active interest in the formalities which protect the substance of collegiality, learn the rules, and begin actively using their own vested powers to keep such folks in check, I don’t foresee the situation improving: the tail will continue to wag the dog, and pretend to being the head.

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