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On 21 March 2016, the Carleton University Board of Governors purported to have passed new bylaws. However, drafts of the complete bylaws were not provided to all governors until 21 March 2016, at which time all board members finally received the two appendices to the proposed bylaws. I objected to this at the open session on 21 March 2016, but my objection was over-ruled by the board chair. On 22 March 2016, I sent an e-mail to the board chair, board vice-chair, and university secretary with essentially the arguments laid out in this post. That e-mail not only asserted that the five-day notice requirement was breached, but cited bylaw article 11.4.(a) and Robert’s Rules of Order articles 21 and 47. I never received a reply nor even an acknowledgment of receipt of my e-mail point of order dated 22 March 2016 [but see addendum].

Appendix A and Appendix B were substantial and integral new parts of the proposed new Carleton University Board of Governors bylaws considered as special resolutions at the 21 March 2016 open session of the board. Appendix A and B supposedly were last updated on 11 February 2016, but were never distributed to governors until the meeting to approve the bylaws on 21 March 2016, a fact conceded by the chair of the board’s governance committee. Because these important open session documents have never been distributed, I am posting scanned copies here for Appendix A and Appendix B. Both appendices were intended to be integral parts of the bylaw changes.

When I raised a point of order at the open session on 21 March 2016 that the five-day notice requirement was not met for all of the proposed bylaws and that therefore the board should defer voting on the proposed new bylaws, the board chair ruled against me and cut off all discussion of my point of order, despite there being no factual dispute about the breach of the five-day notice requirement for the two appendices.

Appendix B (“Rules of procedure at meetings”) constitutes a substantial change to Carleton’s bylaws insofar as this appendix provides a skeletal and inferior replacement to Robert’s Rules of Order that the Carleton University Board of Governors had been using until 30 June 2016. While not stated explicitly in the bylaws, the governance committee minutes of 7 October 2014 and 10 March 2015 document that Carleton’s board had maintained a tradition of adhering to and invoking Robert’s Rules of Order. Furthermore, Appendix B only addresses rules of procedure at meetings, but is curiously silent on rules of procedure outside of meetings. Thus, this very point of order about five-day notice would not be covered by the new bylaws that include Appendix B because this point of order is being made outside of a meeting.

With the board’s current bylaws, it requires a special resolution to waive the five-day notice requirement per bylaw article 11.4.(a), but there was never a motion introduced nor a vote taken to waive the five-day notice requirement for the bylaw changes. Thus, once again, the board has attempted to change bylaws by violating its own bylaws.

References

Board bylaw article 11.4.(a):

Notice in writing of the date, time and place of each meeting shall be sent to each Governor, addressed to such Governor at his or her address as it appears in the records of the Board at least five days before the day appointed for holding such meeting. Such notice shall be in the form of an agenda and shall specify in reasonable detail the matters, other than those of a routine nature, which are to be dealt with at such meeting, including in particular matters which, by these Bylaws or the Act, require a Special Resolution.

Robert’s Rules of Order article 47 (in relevant part):

No motion is in order that conflicts with…the assembly’s constitution or by-laws, and if such a motion is adopted, even by a unanimous vote, it is null and void.

Robert’s Rules of Order article 21 (in relevant part):

The question of order must be raised at the time the breach of order occurs, so that after a motion has been discussed it is too late to raise the question as to whether it was in order, or for the chair to rule the motion out of order. The only exception is where the motion is in violation of the laws, or the constitution, by-laws, or standing rules of the organization, or of fundamental parliamentary principles, so that if adopted it would be null and void. In such cases it is never too late to raise a point of order against the motion.

Addendum – posted the same day

Forty (40) minutes after posting the above blog, the chair of the board replied to my point of order, again over-ruling it. In his reply, the chair stated that, “copies of the Appendices were provided [at the 21 March 2016 open session] as a courtesy and that the intent of the Governance Committee was to present them at the April meeting of the Board.” Thus, even though the appendices are integral parts of the bylaws, the board’s executive kept them away from the full board’s discussion, debate, and voting on the bylaws changes on 21 March 2016.

 

The Carleton University Board of Governors has called for a complete re-write of their bylaws to be approved on 21 March 2016. However, there are seemingly many problems with the proposed bylaws put forward by the Board’s governance and executive committees (here). I therefore raise the following point of order and propose the following 33 amendments to the proposed bylaws.

Point of Order

The proposed new bylaws repeatedly reference and rely on Appendix A and Appendix B. Neither appendix was distributed with the proposed bylaws nor was posted online at the Board’s website (here). The appendices are integral parts of the bylaws and are new. Therefore the Board has not been given five-day notice per bylaw article 11.4.(a) of the entire special resolution encompassing bylaw changes, hence discussion, debate and voting on the bylaws must await a future meeting of the Board.

Proposed Amendments

1. Add a new sentence to section 2.02 (“rights of members”) stating, “Individual Governors and Members are free and encouraged to discuss any matters from the open sessions.”

Rationale: Except for the phrase “and encouraged”, this sentence is taken directly from the Board’s press release of 26 January 2016 that was used to justify to the public that the new Code of Conduct was not quashing rights of individual governors.

2. Delete section 7.02.(c), which states, “The Chair shall be the spokesperson for the Board and shall be the only individual entitled to speak on behalf of the Board unless otherwise determined by Ordinary Resolution of the Board.”

Rationale: This contradicts Article 4.1.(c) in the CUASA collective agreement (“Employees are entitled, therefore, to…freedom from institutional censorship.”).

3. Delete section 4.03.(b) in its entirety.

Rationale: Mandating that all governors sign the Code of Conduct contravenes the collective agreement of academic staff for the same reason section 7.02.(c) contravenes Article 4.1.(c) of the collective agreement.

4. Amend section 4.01.(i) to reduce the number of at-large governors (those not elected) from 18 to 8.

Rationale: This will equalize the number of external governors (8 at-large + 2 alumni) and internal governors (4 student + 2 faculty + 2 senate + 2 non-academic staff), thereby making the board more collegial. This will reduce the size of the board, which some have commented is currently too big to be manageable and collegial.

5. Amend sections 4.01.(e), (f), and (g) to stipulate that only academic staff, administrative staff, and senators who are members of bargaining units are eligible to serve as governors.

Rationale: A primary job of any board is to oversee the chief executive officer (CEO, president). Members of the management team, such as deans, cannot independently conduct such oversight because of an inherent conflict of interest and dual agency.

6. Amend section 1.01.(w) to stipulate that only teaching staff who are members of the bargaining unit are eligible to serve as governors.

7. Add a new section 1.01.(x) [and renumber the current 1.01.(x) to 1.01.(y)] stating that non-academic staff serving as governors must be members of relevant bargaining units.

8. In section 6.06, replace the phrase “Committee meetings are held in camera and the discussion and material shall be kept in confidence as required by section 6.07” with “All committee meetings must be held in open session for the minutes to be presented at the open session of the Board. The default option for all Board committees will be open sessions, unless particular reasons are given to justify moving to an in camera session.”

Rationale: This is undue secrecy, more so than even the Parliament of Canada or US Congress imposes. Committees can still go into closed session, but the default should be open sessions, with non-confidential documents. A recent Freedom of Information request for the Board’s executive committee minutes showed how outrageous this secrecy is, with almost no materials redacted therein.

9. From section 4.01 paragraphs (c)-(g) delete the words “conducted by the University Secretary”.

Rationale: Elections of student and staff members as Governors should be overseen by those constituencies, not by the university secretary. The university secretary acts too much like a gatekeeper, wielding too much power to determine eligibility of potential governors. Furthermore, this power is redundant, already vested in the full Board who supposedly must approve all new Governors and re-appointment of Governors. There is also inequity in section 4.01 as currently written, where potential students and staff governors have their elections overseen by the University Secretary, but the alumni governors do not per section 4.01.(h). Granting the power to conduct their own open elections allows constituency groups to productively contribute to university governance and recognizes them as important and legitimate stakeholder groups, as has been the case for years. Elections by these groups can be run by open and transparent processes similar to Senate elections, and having constituency groups run elections should not affect eligibility requirements set by the Bylaws. Deliberately removing these organizations from running their own elections sends a message of exclusion and distrust to these groups and their members.

Under university-run elections, the university has full authority over determining eligibility, campaigning guidelines, voting procedures, and disqualifications, and participants are not given the ability to appeal any decision, unlike the elections run through their own constituent bodies. The GSA already runs the elections for student representatives to other bodies, including Senate and Graduate Faculty Board, and there is no reason that Board elections should be run differently.

10. Add the following new sentence to section 6.04, “Open sessions of Governors are open to the entire Carleton University community.”

11. In section 6.06, delete the sentence, “When possible the open session of the meeting will be streamed to a convenient location” and replace it with, “The open session of the meeting will be open to observers from the public, pending space constraints. Open sessions will also be streamed to a convenient and accessible location on campus to accommodate members of the public who cannot attend in person due to space restrictions.”

Rationale: This re-wording prioritizes public access and accessibility. Without this revision, the term ‘open session’ is a misnomer.

12. Delete the existing section 3.07 and replace it with the following, “The only persons entitled to attend a Members’ meeting are the Members, the Officers, the Executive Officers, the auditors of the University and others who are entitled or required under any provision of the Act or the By-laws to be present at the meeting. However, any other person should be admitted to a Members’ meeting subject to space constraints in the meeting room. All non-Members attending the Members’ meeting shall not interfere with the ability of the Members to conduct meetings without disruption or intimidation.”

Rationale: Automatic closing of members meetings is unnecessary and does not provide for transparent governance. The responsibilities of Members are duties that were formerly carried out at open sessions of the Board. There are also no confidentiality requirements for documents distributed at Members’ meeting. Therefore there is no need to effectively close a Members’ meeting.

13. In part, section 3.02 states, “Any vote may be held entirely by means of a telephonic, an electronic or other communication facility.” Add to this the clause that, “Only governors who were present in-person or via telephone will be allowed to vote electronically.”

Rationale: Without this addition, governors who have not participated in nor even heard discussion and debate of motions will still be allowed to vote. Without revision, this proposed bylaw will provide incentive for governors to be in absentia and remove incentive to discuss and debate motions.

14. Amend section 7.02.(b) to further qualify powers of the president and vice-chancellor. The second paragraph of that section should be amended to read as follows, with new text in bold:
“Except as may otherwise be provided by By-law, law, collective agreement, or Senate resolution, the President has full authority to hear and determine all complaints, petitions or appeals relating to the terms and conditions of employment of those employees of the University whom the President has authority to employ and dismiss, and there shall be no appeal from the decisions of the President in these respects.”

Rationale: Without amendment, this provision gives the president too much power, allowing them to contravene decisions by the Senate or stipulations enshrined by collective agreement.

15. Section 7.03.(e), which now reads, “The President shall be appointed by the Board for such term and on such terms and conditions as the Board may determine” will be replaced with, “The President shall be appointed by the Board for a five-year term on such terms and conditions as the Board may determine.”

Rationale: Without amendment, the president could be appointed for life (or even beyond). This is absurd and, for nations, only seems to apply to dictators.

16. In section 6.02 (“notice of meeting”), delete the sentence, “A Board of Governors meeting may be held without notice immediately before or following the annual meeting of Members.”

Rationale: Without revision, this bylaw seems like a way to spring unpalatable actions on unsuspecting governors.

17. Delete section 6.10 (titled “Conduct of meetings and decorum”) in its entirety.

Rationale: Section 6.10 is titled “Conduct of meetings and decorum” and reads in its entirety:
“The Chair shall preserve order and decorum at all meetings of the Board. Any Governor or person admitted to a meeting of the Board who, in the opinion of the Chair, misconducts himself or herself must withdraw from the meeting at the order of the chair; provided that, for greater certainty, such order shall be considered to be a ruling by the chair on a point of order and may be challenged in the manner contemplated by the Rules of Procedure. In the event that such a person refuses to withdraw, the chair has the power to declare a short recess or to adjourn the meeting and may declare that the continuation of the recessed or adjourned meeting shall be in camera.”
Yet, there is nothing in this paragraph about “conduct of meetings and decorum”, but only police powers for enforcing unspecified violations of conduct and decorum. The above paragraph is the antithesis of collegiality, vesting the chair with far more power than any of the supposedly other equal governors.

18. Delete section 8.01.(c).(i) in its entirety. [paragraph number corrected]

Rationale: This section is one of the curbs on executive committee power, specifying that the executive committee cannot act to, “submit to the members any question or matter requiring the approval of the members”. The problem is that the bylaws never specify who decides whether a question requires approval of all governors.

19. Delete section 8.01.(c).(vii) in its entirety. [paragraph number corrected]

Rationale: This section is another of the curbs on executive committee power, specifying that the executive committee cannot act to, “establish contributions to be made, or dues to be paid, by members.” This implies that governors can, in fact, be charged dues for sitting on the board, akin to a poll tax. This would provide strong disincentives for students to serve on the board and probably also disincentives for staff to serve on the board, especially compared with millionaire at-large governors.

20. Replace section 8.02.(f) with the following: “The chair and vice-chair of any of the standing committees of the Board established pursuant to this subsection this By-law will be elected by the full Board to such positions for not more than two (2) consecutive one (1) year terms.”

Rationale: Without revision, this paragraph reads, “The chair and vice-chair of any of the standing committees of the Board established pursuant to this subsection this By-law, may be elected to such positions for not more than two (2) consecutive one (1) year terms”. The phrase ‘may be elected’ implies (1) that these individuals need not be elected and (2) that appointed (vice elected) chairs can serve more than two consecutive terms. Furthermore, (3) the proposed bylaws fail to specify who gets to elect these chairs and vice-chairs. Given that the board chair has complete discretion on who sits on which committees, the full board, not just committee members, should elect committee chairs and vice chairs in order to maintain a semblance of collegiality.

21. Delete the words “error or” from the start of section 11.03.

Rationale: Without revision, section 11.03 reads, “No error or accidental omission in giving notice of any Board meeting or any Members’ meeting shall invalidate the meeting or make void any proceedings taken at the meeting other corporate matters.” This obviates section 11.01 on “Method of Giving Notice”, i.e. renders meaningless any notice requirement, including for intentional errors.

22. Amend section 4.02 to only apply to at-large governors (new text in bold): “Every election of at-large Governors per section 4.01.(i) shall be carried out with reference to the report of the nominating committee and shall be in conformity with the requirements as to Board composition set forth in section 4.01.

Rationale: Without revision, student, staff, and alumni governors have to endure too many gatekeepers to become new governors. First, the university secretary gets to establish whether students and staff running for election are in fact eligible to serve. Second, these candidates have to win an election of their peers. Third, the board’s nominating committee must approve these people. Fourth, the full board must approve these new governors. This is a ridiculous level of scrutiny.

23. Amend section 1.01.(d) to exclude current students and staff from serving as alumni governors.

24. In section 1.01.(v) and in all subsequent relevant references in the bylaws, replace “Student” with “Student Governor” and/or “Student Member”.

Rationale: As currently written, these bylaws take the Orwellian stand of using the term “student” to only refer to the four “student governors” and “student members”, and not to the 28,000 other students on campus.

25. Delete the words “sole proprietorship, partnership, unincorporated association, body corporate” from section 1.02.(b)

Rationale: There is no obvious reason why sole proprietorships, partnerships, unincorporated associations, and body corporates should be considered ‘persons’. Furthermore, without this deletion, the university president, board chair, governors and members need to not be natural persons, but could be corporations. Thus, as currently written, the university president could be the Minto Group, Nortel, or the Conservative Party of Canada.

26. Amend the second sentence of section 5.01 to read (new text in bold): “Notwithstanding any vacancies on the Board, the Board may exercise its powers so long as there are at least twelve (12) Governors on the Board, with at least one governor who was elected by the academic staff and one governor who is elected by students.”

Rationale: Most or all constituencies should have a seat at the table. I might be amenable to further amending this to also include non-academic staff and alumni if someone wishes to propose such an amendment, but have been reluctant to do so because of small sample sizes.

27. In section 7.01, delete the sentence that reads, “A Governor may be appointed or elected to any office of the University.”

Rationale: This sentence is absurd when applied to the chancellor and vice-chancellor who are ex officio governors. Furthermore, it would be incestuous to name an at-large governor as chancellor or vice-chancellor, although this is allowed by section 7.01.

28. Add to section 8.01.(a) that the Executive Committee will always include at least one student and one academic staff.

Rationale: Democratic governance and collegial governance requires some modicum of representation by all constituencies.

29. Add the following paragraph, as a new paragraph 8.0.1.(d) [re-numbering the existing 8.01.(d) as 8.01.(e)]:
“Any time the Executive Committee assumes any and all powers of the Board for urgent action, an explanation must be presented at the next full Board meeting for ratification. This explanation must be recorded in the minutes as the first paragraph of the agenda item in question. Only once ratified by the full Board will the action be considered a full Board decision. Matters referred by the full Board to the Executive Committee can be exempted from the requirements in this paragraph.”

Rationale: Without this new provision, there is almost no good reason for the full Board of Governors to ever convene beyond the minimum necessary meetings. The ability to assume the powers of the full Board are important and necessary, but should be used as sparingly as possible to encourage matters to be brought before the Board when possible. The existing Board procedures already reflect a similar restriction in sections V-1 to V-3.

30. Delete sections 2.03.(b) and (d) (“termination of membership”).

Rationale: These sections allow the board to remove members for violating the Code of Conduct.

31. Delete sections 4.06(b), (c), and (d) (“resignation and termination”).

32. Add a new section 8.01.(vii) stating “removal of members and/or governors”.

Rationale: Removal of members and governors should be up to the full board.

33. BE IT RESOLVED that the Board’s Governance Committee be directed to compile a list of descriptions of possible membership structures permitted under the Ontario Not-for-Profit Corporations Act (ONCA) with a consideration to promoting inclusiveness and stakeholder engagement, to be presented to the full Board at the first Board meeting of the 2016/2017 academic year, i.e. in September or October of 2016.

Rationale: The membership structure laid out in Section II fulfills only the legal minimum required under the ONCA, and is in some ways even more limited than the current Board structure, preventing even the two Members of the Corporation to continue serving and necessitating the change of Past President from observer to officer of the Board. Implementing this form of membership could damage the reputation of the university, as it results in the perception of a closed club, reduced transparency and accountability and reduced stakeholder participation.

The ONCA allows for many other membership structures, such as a semi-open membership of members admitted according to conditions set by the Bylaws, Hybrid membership structures with different classes of voting members, or Single-Member structures that treat organizations as a single voting member which could include incorporated campus groups such as student or faculty unions. See here for the (pros and) cons of ‘self-perpetuating membership’ vis-à-vis ONCA.