Part 3. Excluding union officers from the Board (25 June 2015)

Two of the proposed bylaw changes that are being voted upon electronically in a manner that contravenes the Board’s bylaws and contravenes Robert’s Rules of Order would, if passed, prohibit officers of employee unions and student unions from serving on the Carleton University Board of Governors. In this posting, I will discuss a mélange of process and substantive issues regarding these proposed bylaw changes.

For the past year, board members have been told that legal opinions exist that allow for exclusion of union officers from the Board of Governors, but the Board’s executive has never shown these legal opinions to Board members. I sit on the Board’s governance committee, but have never seen a legal opinion. When I asked about this at the so-called open session of the Board on 25 June 2015, an advisor to the Board claimed that his spoken words that evening constituted the university’s legal opinion. That is a poor way to run a board, especially when the Board is trying to make major policy changes that have been debated on-and-off by Carleton’s Board of Governors for almost two years. However, for the sake of argument, let’s analyze the verbal legal opinion herein of that advisor to the Board.

The advisor to the Board stated that it is very highly unusual for a board to have members that are either employees or customers. He then uttered, as part of his legal opinion, that the university considers students to be customers. While cringe-worthy, I shall ignore that insult. Several members of the Board then chimed in that having faculty, staff, and students on Boards of Governors is fairly common in Canadian universities. Therefore, in my opinion, the argument by the advisor to the Board was based on looking at the wrong population of boards. This reflects one of my major gripes about Carleton’s Board of Governors, that many at-large members think they are on a corporate board, seeming to forget that there is a different context to university boards, where academic freedom and intellectual debate actually might matter (this is probably one reason that the Board’s executive tries to intimidate me into not blogging).

The advisor to the Board’s only other remaining argument was much more fascinating, emphasizing the importance of conflict of interest, especially with regards to fiduciary responsibilities. I fully agree with him that this matters. But from that point on, his legal opinion and mine diverge. He explicitly claimed that fiduciary conflict of interest is so important on Carleton’s Board that recusal from specific matters is not sufficient. Therefore, he stated that only prohibition from the Board will suffice if there is even any perceived fiduciary conflict of interest. He further said that it was his opinion that such a bylaw would not violate either Charter Rights nor the [Ontario] Labour Relations Act, but he gave absolutely no basis for this latter opinion. The open session in which this was said was recorded for live-streaming, hence the advisor to the Board’s principle rational for the proposed bylaw changes – recusal being insufficient for removing fiduciary conflict of interest – can be verified.

If I extend the logic in the verbal legal opinion presented by the advisor to the Board, then any Board member involved in development, construction, or architecture would thereby be banned from serving on Carleton University’s Board of Governors. In the past year, two external members of the Board, who I think are both great Board members, have rightfully and voluntarily recused themselves from Board decisions in which their companies had clear financial interests. Yet the proposed Board bylaws only target fiduciary conflict of interest of faculty, staff, and students, not of at-large (external) Board members. If unequal treatment of internal versus external board members is deemed inappropriate, then I believe that the Board is left with no valid legal opinion on which to vote upon bylaw changes.

Compounding matters, even if the proposed bylaw changes are only uniformly applied to Carleton employees and students, this would still necessitate that the university president be removed from the Board! She has as much of a role in university finances as anybody on the Board. She also deals with grievances, which the bylaws changes, if implemented, also say prohibits someone from being a Board member. And, yes, Carleton’s president is a voting Board member, as she probably should be.

We also need to examine specific language of the proposed bylaw changes. The proposed bylaw change affecting employees would specifically prohibit Board members who “(i) negotiate with the Board, on behalf of their constituency group; or (ii) adjudicate disputes regarding their constituency group.” The downright peculiar aspect of this wording is that employee unions negotiate with Carleton’s upper management, not with the Board. The Board never negotiates with unions; they only ratify collective agreements agreed to by unions and the university president. Therefore the first clause of this proposed bylaw change is utterly vacuous.

This got me asking about the origins of the wording of the proposed bylaws. It turns out that Carleton apparently simply lifted this wording from a 2012 amendment to the University Act of British Columbia of 1996. For the precise wording, see 50 § 23(1) at the following website for the 2012 amendment to 47 University Act, R.S.B.C. 1996, c. 468. This BC law is unique in Canada, not shared by any of the other provinces or territories. Therefore the BC University Act says nothing about whether Carleton’s proposed bylaw change would contravene the Ontario Labour Relations Act. Furthermore, universities and colleges in BC mounted a Charter of Rights and Freedoms challenge to the 2012 amendment, a challenge that is currently in abeyance. So it is still completely equivocal whether Carleton’s almost identical wording in the proposed bylaw changes would violate the Charter. I believe that the information in this paragraph should have been in any legal opinion provided to Carleton University’s Board of Governors, and that this omission should justify reconsideration or rejection of any bylaw changes regarding eligibility to serve on the Board.

I would be remiss to not briefly mention other arguments for allowing union officers to serve on the Board. For instance, union officers are often the most engaged and knowledgeable people at the university. For another instance, the proposed bylaw change would preclude many students from serving on the Board despite having no substantial financial stake in Board decisions. Yet Board bylaws do not prohibit such blatant conflicts of interest as sexual relationships between Board members and members of the university’s upper management. Other people can or have made these other arguments far better than me, so I should largely stick to due process, as I have done through almost all the other paragraphs in this post. The bottom line is that there has been no good reason given to preclude officers of student unions and employee unions from serving on Carleton University’s Board of Governors.

As always, this blog posting only reflects my opinions and observations from the so-called ‘open session’ of the Board. For a more official story, please see the official minutes of the meeting once they are approved. This posting does not include any material from the so-called closed session nor from any material from confidential sources. I will cover other matters from the Board’s so-called open session in Part 4 of this posting. And as always, I truly welcome your comments.

Note added 14 August 2015: I would like to retract the statements that appeared in my blog post on 25 June 2015 regarding Carleton University’s general counsel, Steven Levitt. The statements were not made with any malicious intent to lie or defame Steven Levitt or any other member of the Board of Governors. I completely retract the false information and apologize for the mistake.

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