MODULE 17 is composed of 1 video and a written module in which TRUSTEES WILL EXPLORE:
- The benefits of a code of conduct
- The legal context related to a code of conduct
- The components of an effective code of conduct
- Processes in dealing with an alleged breach of a code of conduct
Before reviewing the video, please note these changes:
- In April 2018, the Minister of Education made Ontario Regulation 246/18: Members of School Boards – Code of Conduct under the Education Act.
- Every school board is now required to:
- have a code of conduct for trustees
- make it available to the public
- review it by May 15, 2023 and by May 15 every fourth year thereafter
- after each review, pass a resolution to adopt the code, either as it exists or as amended
School board trustees are leaders of their school boards and advocates for a strong education system. A clear understanding of a school board trustee’s role and responsibilities is fundamental to good governance. A trustee is a member of a board, not a member of a parliament, and it is important for both trustees and the general public to understand that school board trustees hold no individual authority. Unlike provincial and federal parliaments, school board members do not vote according to an official political “affiliation” nor are there “governing” trustees and “opposition” trustees.
For decisions of a board of trustees to be binding on a school board, they must be made at a legally constituted public board meeting where the board of trustees considers and passes a formal motion that receives a majority (or other applicable voting threshold) of the votes cast by its members. It is vital that trustees understand the requirements for an effective board meeting (See Module 12 — Running Effective Meetings) including the Rules of Order applicable to those meetings. An effective trustee understands their role within the board’s governance model and how decisions are made by the board.
In carrying out their role, trustees have the very real challenge of balancing their responsibilities and allegiances as representatives of their communities with their role as education leaders within the decision-making body of the board as a whole. Trustees are committed, and are required under the Education Act, to bring forward to the board the concerns of parents, students, and supporters of the board; yet as members of a governing body they must work collaboratively with fellow board members and make policy decisions that are beneficial to the entire school board community. This focus can mean, at times, that the ultimate decisions made are at variance with the specific interests of a particular geographical constituency or interest group.
A trustee’s mandate is to maintain a focus on student achievement and well-being and to participate in making decisions that benefit the entire board community while representing the interests of their constituents. Trustees must also be able to explain the decisions of their board when they report back to their constituents. As noted in Module 3 — Right from the Start: Roles and Responsibilities, the interface between a trustee and his or her constituents can be both rewarding and demanding. It is important that trustees are aware of the support and advice available from the director of education and senior staff and are familiar with board policies that may apply to issues under discussion between a trustee and a constituent.
Under the Education Act (s. 218.1) duties of the individual trustee include:
- carry out his or her responsibilities in a manner that assists the board in fulfilling its duties under the Education Act, including the board’s duties under section 169.1, and under regulations and guidelines under the Act;
- attend and participate in meetings of the board, including meetings of board committees of which he or she is a member;
- consult with parents, students and supporters of the board on the board’s multi-year plan;
- bring concerns of parents, students and supporters of the board to the attention of the board;
- uphold the implementation of any board resolution after it is passed by the board
- entrust the day to day management of the board to its staff through the board’s director of education;
- maintain focus on student achievement and well-being;
- comply with the board’s code of conduct.
THE BOARD – WORKING TOGETHER
Boards of trustees provide policy direction to their schools to ensure opportunity, excellence and accountability in the education system. By modeling collaboration and cooperation, they promote public confidence in the board and in the public school system.
A board of trustees is a group of individual members who can only be effective when they are working together as a cohesive whole. The personality, values, beliefs, strengths and weaknesses of each individual influence how the board works. Just as it is important for individual trustees to be clear about their own values, strengths and limitations, it is equally vital to the effectiveness of the board for the members to understand these characteristics in each other. This makes it possible to build a collective board where there is strong mutual respect and shared understanding of the role of an individual trustee, of the board as a whole, and of the director of education and their staff. This is what enables effective decision-making that works for the whole board and for the entire school system.
The board of trustees as a whole has to take responsibility to resolve potentially dysfunctional situations and strive to build dynamics that demonstrate a commitment to:
- Collaborative decision-making
- Doing the work required and sharing responsibility
- Contributing to public meetings in a way that earns public confidence in the work of the board
- Putting the good of the school system before individual political agendas
- Focusing on assessing the value of initiatives and controlling costs
- Being open-minded to the views of fellow board members
School board trustees are individuals who have been elected to represent their constituents. At the same time, however, they are members of a board of trustees that must collectively make decisions based on the mission, vision and values of the board. It takes a willingness of board members to explore the very best governing practices available, to examine their own ways of doing business and, as necessary, to adopt practices that will make them more effective governors.
One overall indicator of success is public confidence in the system. A crucial factor in this regard is how well a board governs itself. One of the key tools the board has at its disposal is an effective code of conduct.
CODES OF CONDUCT
Boards are required in Ontario Regulation 246/18: Members of School Boards – Code of Conduct to adopt a code of conduct that applies to the members of the board. The code of conduct is designed for trustees by trustees. It is a policy that demonstrates how trustees have determined to regulate themselves.
Student trustees are not required by law to have a code of conduct. However, it is expected that in their capacity as recognized leaders contributing to the effective governance of a board, student trustees abide by their board’s code of conduct.
A code of conduct serves to define acceptable and respectful behaviours, clarify the rules of civil engagement, promote high standards of practice, and provide a framework for professional conduct and responsibilities. A code of conduct contributes to confidence in public education and respect for the integrity of trustees in the community.
It is suggested that a board’s By-Law require that a code of conduct policy be established and include the parameters for doing so. Module 7 — Exercising Authentic Governance: The School Board’s Role as Policymaker provides advice and guidelines with respect to the development and review of policies such as the code of conduct. Boards should also be aware of the requirement for the review of trustee codes of conduct by May 15, 2023 and on or before May 15th every four years thereafter under Ontario Regulation 246/18: Members of School Boards – Code of Conduct.
Boards should consider using an informal procedure first and foremost when investigating a breach of the code of conduct and discuss remediation that may positively correct inappropriate behaviour.
Code of conduct policies contribute to confidence in public education and respect within the community for the integrity trustees bring to their role. For this reason, the formal complaint procedure should be reserved for only those egregious and repetitive behaviours that disrupt the ability of a board of trustees to conduct its business.
STEPS FOR CREATING AND MAINTAINING A CODE OF CONDUCT
- Create a committee to draft the code of conduct.
- Review the current legislation and expectations of the Ministry of Education.
- Consider effective examples of codes of conduct in use in school boards.
- Draft the code of conduct. The Ontario Public School Boards’ Association has created a Trustee Code of Conduct and Enforcement policy template which provides guidance in drafting a document that addresses key components of an effective code of conduct.
- Present the draft code of conduct and enforcement procedures to the board of trustees for amendments or additions.
- Allow time for adequate review and discussion.
- Pass a resolution approving the code of conduct and enforcement procedures by the board of trustees and add it to the board’s Policy Handbook.
- Review the code of conduct annually. (Under Ontario Regulation 246/18, the board must review its code of conduct by May 15, 2023 and every four years thereafter.)
- Make the code of conduct publicly available.
NOTE: It is advisable to consult legal counsel regarding the draft code of conduct and enforcement procedures.
ENFORCEMENT OF THE CODE OF CONDUCT
The enforcement provisions relating to a trustee code of conduct are set out in the Education Act [s.218.3]. A trustee who has reasonable grounds to believe that another trustee, who is a member of their board, has breached the board’s code of conduct may bring the alleged breach to the attention of the board of trustees.
If an alleged breach of the code of conduct is brought to the attention of the board of trustees, then the board shall make inquiries into the matter and determine whether a member has breached the board’s code of conduct.
If the board of trustees determines that a trustee has breached the board’s code of conduct, the board of trustees may impose one or more of the following sanctions:
- Bar the trustee from attending all or part of a meeting of the board, or a meeting of a committee of the board, or
- Bar the trustee from sitting on one or more committees of the board, for the period of time specified by the board
SAMPLE PROCESS - ENFORCEMENT OF CODE OF CONDUCT
Note: what follows is a sample enforcement process adapted from the Ontario Public School Boards’ Association’s Trustee Code of Conduct and Enforcement Policy Template. This sample process is presented in “plain language” and builds on the code of conduct enforcement requirements found in the Education Act [s.218.3].
Identifying a Breach of the Code
An allegation of a breach of the code of conduct must be brought forward to the board of trustees no later than six weeks after it becomes known to the trustee reporting the breach. (This is normally done through the chair of the board or committee of the board. If the chair is the subject of the allegation, it would be reported to the vice-chair.) It shall be investigated following the Informal or Formal Complaint Procedure. Whenever possible, the Informal Complaint Procedure should be used.
Informal Complaint Procedure
The chair/committee may meet informally with the trustee who is alleged to have breached the code of conduct to bring the allegation to the trustee’s attention and to discuss measures to correct the offending behaviour, e.g., an apology or a commitment to successfully complete professional development. The Informal Complaint Procedure is conducted in private. If it cannot be resolved informally, a formal complaint can then be brought against the trustee.
Formal Complaint Procedure
The allegation of a breach of the code of conduct must be a written signed complaint brought to the attention of the board of trustees. It must include the name of the trustee alleged to have breached the code of conduct, information on when the breach became known, grounds for believing a breach to have occurred, contact information for any witnesses or people who have relevant information about the alleged breach. Once a written complaint is received, it must be investigated unless the complainant withdraws it. The chair/committee shall provide all trustees with a confidential copy of the complaint within ten days of receiving it. Information related to the complaint remains confidential until it comes before the board for a decision as to whether a trustee has breached the code of conduct. There are restrictions on bringing forward a complaint in the period leading up to an election.
Refusal to Conduct Formal Inquiry
If the chair/vice-chair/committee consider the complaint out of time, trivial, frivolous, vexatious or not in good faith, or that there are insufficient grounds for a formal inquiry, an informal inquiry will not take place and the trustees of the board will receive a confidential report on the reasons for not pursuing an inquiry. However, if the chair and vice-chair cannot agree, a formal inquiry will take place. If the alleged breach deals with non-compliance with a board policy which has its own complaint procedure, it will be dealt with under that specific procedure.
Steps of a Formal Inquiry
The formal inquiry is undertaken by the chair and vice-chair (or committee or outside consultant or other body determined by the board). The Statutory Powers Procedure Act does not apply. The inquiry is governed by procedural fairness and is conducted in private. It may involve both written and oral statements. The trustee alleged to have breached the code of conduct has an opportunity to respond to the allegations verbally in a private inquiry meeting and in writing. This written response must be provided within ten days of receiving written allegations. This deadline may be extended by the investigators. If the trustee refuses to participate in the formal inquiry, it will continue in their absence. The final investigation report is provided to the whole board of trustees who then determine whether or not the code of conduct has been breached as alleged. If the chair and vice-chair conduct the formal inquiry and cannot agree on the final finding of facts, it shall be completed by an outside investigator.
Suspension of Formal Inquiry
A formal inquiry will be suspended if it is found that the subject matter is being investigated by the police, a charge has been laid, or the matter is being dealt with under another Act. The suspension continues until the separate process has been disposed of. The suspension shall be reported to the board of trustees.
The final report shall be delivered to the board of trustees to make a decision on whether or not the code of conduct has been breached and any sanction to be imposed. This will take place as soon as practical. In voting on a decision, trustees will only consider the findings in the final report. If the board of trustees determines there was no breach, or that a contravention was trivial or made through inadvertence, or an error was made in good faith, no sanction will be imposed.
The decision of a breach of code of conduct and the imposition of a sanction must be done by resolution of the board at a meeting of the board. Both resolutions shall be decided by a vote of at least 2/3 of the trustees of the board present and voting. The vote on the resolution shall be open to the public and resolutions and reasons for the decision shall be recorded in the minutes. The part of the meeting where an alleged breach is considered can, however, be closed to the public if it involves matters covered in s. 207(2) (a) to (e) of the Education Act (i.e., security of property, personal or financial information of an individual, acquisition/disposal of school sites, decisions on employee negotiations, litigation.) The trustee who brought the allegations may vote. The trustee who is alleged to have breached the code of conduct may be present during deliberations but shall not participate in those deliberations and shall not vote on the resolutions. The trustee shall not influence the vote on the decision regarding the breach or sanction after the final report is completed, except as permitted under provisions for Reconsideration (see below).
Permissible sanctions include one or more of: (a) censure of the trustee; (b) barring the trustee from attending all or part of a meeting of the board or of a committee of the board; (c) barring the trustee from sitting on one or more committees of the board for a specified period of time.
More onerous sanctions cannot be imposed but a less onerous sanction such as a warning or a requirement to engage in professional development may be imposed. The board cannot declare the trustee’s seat vacant. A trustee who is barred from a meeting is not entitled to receive any materials related to the meeting that are not available to the public. Barring a trustee from a meeting is deemed to be authorization for the trustee to be absent and not a violation of the provision regarding absences in the Education Act.
The board, after it has determined that a trustee has breached the code of conduct, will notify the trustee, within 14 days, of the determination, reasons for the decision, any sanction imposed, and inform the trustee of the right to make a written submission in respect of this. The board shall consider any submissions and confirm or revoke its decision(s) within another fourteen days after receiving the submissions.
If the determination is revoked, the sanction is revoked. If the determination is confirmed, the sanction may be confirmed, varied or revoked. If a sanction is varied or revoked, that decision will be deemed to be effective as of the date of the original determination. The decision must be made as a resolution of the board and the vote will be open to the public. The minutes will record the resolutions and reasons for the decision. The trustee alleged to have breached the code of conduct cannot participate in the deliberations or vote on the decision. The trustee who brought the complaint may vote. The original sanction may be stayed pending the reconsideration process.
Boards can seek legal counsel when taking steps in the enforcement process, including conducting inquiries into alleged breaches of the code of conduct and making decisions regarding sanctions, to ensure that such steps are conducted in accordance with the Education Act and observe the principles of procedural fairness.
The code of conduct should contain well-articulated guidelines for appropriate interaction, participation and respectful communication. Trustees may ask the question: “Is our board behaviour a model for how the children in our district should behave now and in the future?” An effective board is a cohesive, collaborative decision-making body that sets high standards for itself. That is what the public expects and a code of conduct helps boards to meet those expectations.