26 January 2016

Within minutes of the end of the 26 January 2016 board meeting, the chair of the board, by and through the department of university communications, released the following edict in a pre-authorized press release, “individual Governors are free to discuss matters from the open session”. This echoes fiduciary duty #9 in the new Code of Conduct, which states, “material provided for discussion at open session is not subject to confidence”. While this statement from the new Code of Conduct is not as far reaching as the statement in the press release, together these two documents effectively authorize me to continue blogging about open sessions of the Carleton University Board of Governors, so long as I restrict attention to open sessions and associated documents therein, which is all I have ever discussed in this blog.

New Conduct of Conduct for Board of Governors

The board passed a new “Code of Conduct”, which is meant to replace the old “Statement of General Duties, Fiduciary Responsibilities, and Conflicts of Interest” that the board’s executive committee instituted on 28 August 2015. There was only one previous version of this Statement, drafted and implemented in Fall 2008.

The new Code of Conduct is an improvement over its immediate predecessor, but, in my eyes, is not nearly enough of an improvement. For instance, the new Code of Conduct requires a lifetime of confidentiality only for matters broached in closed and in camera sessions, not in open sessions. This is a fabulous change excluding open session materials. But the problem remains that committee meetings are still all held in camera, that minutes of executive committee meetings are all considered confidential, and several items are over-classified. I will have more to say about over-classification, below. And a lifetime ban on disclosure seems needlessly long.

The most pernicious problem with the new Code of Conduct is that all governors are required to support any decision reached by a majority, even if that person does not agree with the result.

10. Support all actions taken by the Board of Governors even when in a minority position on such actions. Respect the principle of Board collegiality, meaning an issue may be debated vigorously, but once a decision is made it is the decision of the entire Board, and is to be supported.

Let me report four legal claims made at the open session regarding this provision, claims that I do not agree with. First, several members of the board’s executive committee stated that this provision is a requirement arising from case law on fiduciary duty. Second, one member of the executive committee stated explicitly for the record that academic freedom does not apply to the board nor to any of its governors. Third, several board members stated that the only recourse for disagreeing with this new policy is resignation from the board. Fourth, one of these people compared our board with a government cabinet or politburo, which I have thoroughly argued are not fair comparisons (here and here). Naturalized citizens of Canada are allowed to disavow their oath to the queen (here), but members of Carleton’s Board of Governors are not allowed to disavow their approval of board motions. I find the above new policy not just a quashing of free speech and/or academic freedom, but something far worse, namely compelling of speech with which one disagrees. Compelled speech seems to be a violation of Charter rights, Charter values, and/or academic freedom and is quite an unsavory business for universities to be in. Any university, let alone a public university, should be deeply embarrassed by the above new provision that effectively involuntarily vanishes all dissenting views. The board directive compelling speech contributed to the Canadian Association of University Teacher’s condemnation of Carleton University and threat of censure (here), not to mention a litany of scorn by the media (e.g. here and here). Therefore, on 26 January 2016, I proposed an amendment to have provision #10 regarding compelled speech stricken from the new Code of Conduct, but my motion was soundly defeated. What makes this so ironic is that the very next provision in the board’s new Code of Conduct states:

11. Refrain from taking any action that is damaging to the reputation of the University.

Too bad we cannot laugh more freely at this Orwellian juxtaposition of two completely contradictory provisions of the new Code of Conduct.

By posting this blog, I am engaging in civil disobedience by defying the above just passed provision number 10 that mandates my support for all passed motions. I suppose the good news is that I have not signed the new Code of Conduct nor the previous version of the Statement of Duties promulgated by the executive committee on 24 August 2015. Moreover, mandating that “once a decision is made it is the decision of the entire Board, and is to be supported” is completely contrary to the 26 January 2016 press release about that Code of Conduct, titled “Carleton Board of Governors Adopts Clearer Transparency Rules”, which stated that, “individual Governors are free to discuss matters from the open session”.

The section of the new Code of Conduct on fiduciary duties contains a remarkable paragraph that states in its entirety, with my emphasis added:

The President, the Chair of the Board and the University Secretary are the official spokespersons for the University, relating to public statements concerning matters coming before the Board, and all decisions of the Board or one of its committees. The Chair may designate or authorize another member of the Board or the University’s administration to act as a spokesperson. The approved minutes of a meeting of the Board are the only official recording of its decisions. Governors are not permitted to photograph, record, broadcast, tweet, post on social media or film meetings, or any parts thereof, during Board or Committee meetings, without prior permission of the Board.

This fiduciary provision makes a totally mockery of what it means for an open session to be open. This fiduciary provision prohibits all governors from taking notes (“Governors are not permitted to…record”), even though the university secretary provides each governor with a small note-pad and pencil at the start of each meeting. In order to be an effective governor, most governors must take notes, either on paper or electronically, which virtually all governors do. Unless most governors are removed from the board for taking notes, I assume that this provision will only be enforced in a biased fashion. All board meetings are now live-streamed, which means they are electronically recorded, but individual governors for some bizarre reason are not allowed to do likewise. Given the minimalism of official minutes and the lack of archiving of the live-stream feed, the only effective way to communicate information from board meetings by governors is social media. The above fiduciary provision constitutes another prohibition on free speech and/or academic freedom. I therefore object to this provision of the new Code of Conduct, a code that I will not sign so long as this fiduciary provision remains.

The aforementioned fiduciary provision precludes governors from communicating anything about board meeting, even to themselves. However, as briefly alluded to above, fiduciary provision 9 of the new Code of Conduct provides that open sessions are not subject to confidence (emphasis added):

9. Maintain the confidentiality of all discussions, materials, reports, data and other documentation submitted to the Governor in confidence (material provided for discussion at Open session is not subject to confidence).

There is no logical way to reconcile these two completely contradictory provisions of the new Code of Conduct.

Two of the thirty-two governors on the board are elected by the university senate from the ranks of the senate. For many years, a regular item on senate’s agenda was a report from the board. With the new Code of Conduct, the two governors from the senate are not allowed to report on board activities back to the senate. The new Code of Conduct therefore sacrifices collegial bicameral governance.

The words from the board’s pre-planned press release that was issued minutes after the board meeting ended on 26 January 2016 need to be included verbatim, without qualification, as a vital preamble to any Code of Conduct and possibly to any upcoming bylaw changes, namely that “individual Governors are free to discuss matters from the open session”.

In the event of breach of conduct, the new Code of Conduct specifies that the board can either remove the governor per the bylaws or “issue a motion of censure”. I understand what it means to pass a motion of censure or to censure somebody, but have no idea how to interpret the tortured phrase “issue a motion of censure”. You either issue a censure or pass a motion, but not some weird amalgam of the two. Furthermore, what does it mean to censure a governor? Will a censured governor be removed from committees? That is a penalty I have already suffered even without official censure, being on only one, not the standard two committees this year. Will a censured governor not be invited to or funded to attend meetings, such as the annual Council of Ontario University conference for board members in early November? Will a censured governor be banned from applying for external funding or for bidding on contracts with the university? Will a censured governor be compelled to wear a scarlet letter, much like Hester Prynne, especially given that the new Code of Conduct already compels speech? This censuring provision of the new Code of Conduct is sufficiently ambiguous that it needs to be spelled out with particularity or, alternatively, simply deleted.

The new Code of Conduct and its predecessor Statement of Duties seem to be bills of attainder. While not definitive, history seems to show that promulgation of these board documents were punitive in nature, targeting one or at most a few individuals who irked the university president and the board’s executive. It appears that the original Statement of Duties was promulgated in fall 2008 after internal members of the Board of Governors publicly supported the strike by non-academic staff in CUPE 2424, with the nascent Statement of Duties meant to serve as a loyalty oath. The first revision of this Statement of Duties occurred in August 2015, apparently in response to my 25 June 2015 critiques of the board’s executive trying to change bylaws in a manner that itself violated the bylaws (Part 1, Part 2, Part 3, Part 4, Part 5). While my claim about the Code of Conduct and Statement of Duties constituting bills of attainder are not definitive, bills of attainder are frowned upon by the Parliament of Canada, even if disguised to look like general policy statements.

Seating for the public and press

I have long advocated for the board to move open sessions to a different space so that more audience members and the press can observe proceedings (here and here). While the current boardroom contains one large board table, all the seats at the table have recently been occupied by administrative underlings, many of whom never say a word. That leaves eight chairs along the long row of windows for guests to observe open sessions. Eight is not enough slots for the community. But today’s meeting was far worse because five of those eight seats were occupied by people intentionally brought in by the administration, i.e. not audience observers from the community nor the press. At the start of the open session, the chair of the board mentioned that these five people were undergraduate students who would be presenting material at the subsequent closed session (it turns out that one of these five people was not a student, but was supposed to present along with the students). This raises two serious ethical questions. First, why were these five seats occupied during both the open and closed session? Instead, these five individuals could have been ushered in when required for the closed session. Second and much more damning, what were undergraduate students going to present to the board that required the confidentiality of closed session? The board’s press release from 26 January 2016 stated:

Closed sessions are the exception and typically involve potential tendering of contracts, personnel cases, performance reviews, legal advice and labour relations.

Which of those topics could any undergraduate address or be allowed to hear? I have previously complained about board matters being over-classified as confidential, such as all minutes of the board’s executive committee being confidential (e.g. here), but this abuse of undergraduate students takes the cake. Were these five individuals parked there merely to displace community observers and the press, who instead had to endure the much less insightful setting of live-streamed coverage on the opposite side of campus?

Open Forum

At question period, I asked why the board did not have an open forum this year, which has previously been an annual event where anybody from the community can raise concerns they may have with the board (see here and here). I love the idea of a ten-minute time slot for people in the community to have the ear of the board on whatever topic they think matters. Typically only a subset of the board attends the annual open forum, but that is still a good start. I expected the board chair to answer my question about the lack of open forum, which I had submitted in writing several days before. Instead, the chair deferred to the university president, who only should have had cognizance over this if there is complete and utter regulatory capture. One of the primary jobs of any board is to appoint and oversee the CEO, aka university president. What occurred at question period today shows that instead the board’s executive demurely defers to the president. The president said there was no need for an open forum this year because the university already had many open forums, such as requests for inputs for hiring and reappointment of deans and a new vice-president of finance, inputs on the university master plan, and inputs on service awards and health awards. That blew my mind for three reasons. First most of those events have to happen anyway and have never previously been an excuse to cancel a board open forum. Second, many of those events do not fall under auspices of the Board of Governors, but instead fall under the auspices of Senate. Third and most importantly, this excuse of other forums amounted to the university president controlling the agenda, not the community setting the agenda for themselves for one short board event per year. This and the undergraduates presenting at the closed session are amazing examples of the perverted state of what it means to be open versus closed for this university president and the executive committee of Carleton’s Board of Governors. I do not understand this extreme resistance to any form of democratization of university governance. Why is the board and/or university president so afraid to hear what concerns the Carleton community, the very people we are supposed to serve?

Closing remarks

As always, this blog post only reflects my opinions and observations from the so-called ‘open session’ of Carleton’s Board of Governors. 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. As always, I truly welcome your comments. Special thanks to the hundreds of people who have openly supported this blog. Your endorsement and kind words have been inspiring.

1 comment
  1. Melissa said:

    This must be the only university board in the current era which would claim that it wants to act like a politburo? Somebody really said that?

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