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Module 17: Developing a Code of Conduct for Trustees

IN THIS MODULE, 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 Code of Conduct

People who invest their energy and passion in a difficult issue have a need to achieve clarity and resolution. And when they do, an amazing sense of accomplishment and commitment results.

  • Patrick Lencioni

Introduction

Trustees are the 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 school 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 the 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 district 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 district while representing the interests of his or her constituents. Trustees must also be able to explain the decisions of the elected board when they report back to their constituents. As noted in the 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 responsibilities 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, and under related regulations and guidelines;
  • 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

School boards provide 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.

An elected board 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 his/her staff. This is what enables effective decision-making that works for the whole board and for the entire school system.

The board 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 homework and sharing responsibility
  • Contributing to public meetings in a way that earns public confidence in the work of the board
  • Put the good of the school system before individual political agendas
  • Focus at least as much on assessing the value of initiatives as in controlling costs
  • Be 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.

The significant impact of school board governance on student achievement and well-being is borne out by recent research: excellence in governance at the board table leads to excellence in the classroom. It is critical that school boards govern well because it makes a real difference in the results for students and for schools.

The most fundamental leadership role of the elected board is to set the conditions for a high-performing organization. This role is proactive and strategic – it is focused on the present and it is linked to an improved future. A critical job of the elected board is to develop a concise and clearly stated focus for the district that reflects the core priorities and is aligned with the provincial mandate.

One overall indicator of success is public confidence in the public school system. A crucial factor in this regard is how well the board governs itself. One of the key tools the board has at its disposal is an effective Code of Conduct.

Codes Of Conduct

The Education Act (s. 218.2(1)) permits a board to adopt a Code of Conduct that will apply 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.

It is noted that First Nation trustees appointed to a school board under Ontario Regulation 462/97, First Nations Representation on Boards, are deemed to be elected members of the board. While this means that a trustee Code of Conduct and the Enforcement provisions would apply equally to First Nation trustees, school boards should have regard for the unique role First Nation trustees have in representing the interests of the First Nation pupils attending board schools under Education Services agreements when they are developing their specific Code of Conduct policy and its enforcement provisions.

Student trustees are not required by law to have a Code of Conduct. However, the Ministry of Education has indicated that they expect student trustees to respect the provisions in their board’s trustee 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 policy contributes to confidence in public education and respect for the integrity of trustees in the community. Although many boards currently have a Code of Conduct, the Ministry of Education has considered a draft regulation intended to prescribe matters to be addressed by trustee Codes of Conduct and require boards to adopt such a code. Such a regulation would also contemplate that a school board have the flexibility to include additional requirements in its Code of Conduct.

Currently the draft regulation prescribes the following six components:

  • Integrity and dignity of office
  • Avoidance of personal advantage and conflict of interest
  • Compliance with legislation
  • Civil behaviour
  • Respect for confidentiality
  • Upholding decisions

These components have been further developed within the school board sector and are set out as follows:

1. Integrity and Dignity of Office

  • Trustees of the board shall discharge their duties loyally, faithfully, impartially and in a manner that will inspire public confidence in the abilities and integrity of the board.
  • Trustees of the board shall recognize that the expenditure of school board funds is a public trust and endeavour to see that the funds are expended efficiently, in the best interests of the students.
  • Trustees, as leaders of the board, must uphold the dignity of the office and conduct themselves in a professional manner, especially when attending board events, or while on board property.
  • Trustees shall ensure that their comments are issue-based and not personal, demeaning or disparaging with regard to board staff or fellow board members.
  • Trustees shall endeavour to participate in trustee development opportunities to enhance their ability to fulfill their obligations.

2. Avoidance of personal advantage and conflict of interest

  • No trustee shall accept a gift from any person or entity that has dealings with the board if a reasonable person might conclude that the gift could influence the trustee when performing his or her duties to the board. However, this does not, for example, preclude a trustee from accepting a free ticket or admission to a charitable event or professional development event. [If a board has a policy regarding trustees receiving gifts, it can be referenced here]
  • A trustee shall not use his or her office to advance the trustee’s interests or the interests of any family member or person or organization with whom or with which the trustee is related or associated.
  • No trustee shall use his or her office to obtain employment with the board for the trustee or a family member. (Greater detail on conflict of interest can be found in Module # 11)

3. Compliance with Legislation

  • A trustee of the board shall discharge his or her duties in accordance with the Education Act and any regulations, directives or guidelines thereunder and comply with the Municipal Freedom of Information and Protection of Privacy Act, and any other relevant legislation. [N.B. The Ministry of Education’s proposed draft provisions for inclusion in a Regulation includes “and comply with the Municipal Conflict of Interest Act.” Consideration needs to be given to deleting the reference to the Municipal Conflict of Interest Act for the following reason. If compliance with the Municipal Conflict of Interest Act remains as part of a Trustee Code of Conduct, and an allegation is made that a trustee has breached that Act, then it would require a board to make a legal determination and finding as to whether or not a trustee has breached that Act. This finding could seriously prejudice a trustee in a subsequent court application brought by a ratepayer pursuant to that Act. Because the Municipal Conflict of Interest Act has an enforcement procedure, any allegation of a breach of that Act should be dealt with only under that Act.]
  • Every trustee of the board shall uphold the letter and spirit of this Code of Conduct.
  • Every trustee shall respect and understand the roles and duties of the individual trustees, board of trustees, the director of education and the chair of the board.

4. Civil Behaviour

  • No trustee shall engage in conduct during meetings of the board or committees of the board, and at all other times that would discredit or compromise the integrity of the board.
  • A trustee of the board shall not advance allegations of misconduct and/or a breach of this Code of Conduct that are trivial, frivolous, vexatious, made in bad faith or vindictive in nature against another trustee of the board.
  • When expressing individual views, trustees shall respect the differing points of view of other trustees of the board, staff, students and the public.
  • Trustees shall at all times act with decorum and shall be respectful of other trustees of the board, staff, students and the public.
  • All trustees of the board shall endeavour to work with other trustees of the board and staff of the board in a spirit of respect, openness, courtesy, and co-operation.

5. Respect for Confidentiality

  • Every trustee shall keep confidential any information disclosed or discussed at a meeting of the board or committee of the board, or part of a meeting of the board or committee of the board, that was closed to the public, and keep confidential the substance of deliberations of a meeting closed to the public, unless required to divulge such information by law or authorized by the board to do so.
  • No trustee shall use confidential information for either personal gain or to the detriment of the board.
  • Trustees shall not divulge confidential information, including personal information about an identifiable individual or information subject to solicitor-client privilege that a trustee becomes aware of because of his or her position, except when required by law or authorized by the board to do so.

6. Upholding decisions

  • All trustees of the board shall accept that authority rests with the board, and that a trustee has no individual authority other than that delegated by the board.
  • Each trustee shall uphold the implementation of any board resolution after it is passed by the board. A proper motion for reconsideration or rescission, if permitted by the board’s Rules of Order, can be brought by a trustee.
  • A trustee should be able to explain the rationale for a resolution passed by the board. A trustee may respectfully state his or her position on a resolution provided it does not in any way undermine the implementation of the resolution.
  • Each trustee shall comply with board policies, procedures, By-Laws, and Rules of Order.
  • The chair of the board is the spokesperson to the public on behalf of the board, unless otherwise determined by the board. No other trustee shall speak on behalf of the board unless expressly authorized by the chair of the board or board to do so. When individual trustees express their opinions in public, they must make it clear that they are not speaking on behalf of the board.

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 Effective 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 consider using an informal procedure first and foremost when investigating a breach of the Code of Conduct and discuss remedial measures 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 A CODE OF CONDUCT
  1. Create a committee to work on the draft of the Code of Conduct.
  2. Review the most current expectations and legislation from the Ministry of Education.
  3. Consider effective examples of Codes of Conduct in use in school boards.
  4. A Template Trustee Code of Code and Enforcement which provides guidance in drafting a code that includes and addresses all of the essential components can be viewed in the resources for Module 17 at: http://modules.ontarioschooltrustees.org/en/resources/
  5. Present the draft Code of Conduct and Enforcement to the board of trustees for amendments or additions.
  6. Allow time for adequate review and discussion.
  7. Upon the approval of the Code of Conduct and Enforcement by the board of trustees, put it into effect and add it to the board’s Policy Handbook.
  8. Review the Code of Conduct annually.

NOTE: It is always 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 his or her board, has breached the board’s Code of Conduct may bring the alleged breach to the attention of the board of trustees.

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:

  • Censure
  • 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.

The Education Act requires that if an alleged breach of the Code of Conduct is brought to the attention of the board, then the board shall make inquiries into the matter and determine whether a member has breached the board’s Code of Conduct. The inquiry must be conducted in a manner that ensures procedural fairness.

The following steps are recommended:

  • Identifying a breach of the Code
  • Informal Complaint Procedure
  • Formal Complaint Procedure
  • Refusal to Conduct Formal Inquiry
  • Steps of Formal Inquiry
  • Suspension of Formal Inquiry
  • Decision
  • Sanctions
  • Reconsideration

Sample Process
The descriptions for a sample process offered below are “plain language” adaptations from a policy template. For full details, consult the template in Module 17 Resources at: http://modules.ontarioschooltrustees.org/en/resources/

Identifying a Breach of the Code
An allegation of a breach of the Code of Conduct must be brought forward to the chair of the board no later than six weeks after it becomes known to the trustee reporting the breach. (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 may meet informally with the trustee who is alleged to have breached the Code 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. It must include the name of the trustee alleged to have breached the Code, 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 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. There are restrictions on bringing forward a complaint in the period leading up to an election.

Refusal to Conduct Formal Inquiry
If the chair and vice-chair 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 his/her absence. The final investigation report is provided to the whole board of trustees who then determine whether or not the Code 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.

Decision
The final report shall be delivered to the board of trustees to make a decision on whether or not the Code 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 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).

Sanctions
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.

Reconsideration
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 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.

Conclusion

Although the Education Act sets out Enforcement provisions for a Code of Conduct, it does not currently mandate boards to have a Code of Conduct. If a board has a Code of Conduct for trustees, then the Enforcement sections of the Education Act must be followed. Based on research on board effectiveness, boards are strongly encouraged to develop a Code of Conduct and Enforcement, and review it annually.

The Code of Conduct should contain well-articulated guidelines for appropriate interaction, participation and respectful communication. 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.

References

Education Act, Part VI, 207.2, 218.1, 218.2, 218.3

Bill 177, The Student Achievement and School Board Governance Act, 2009

Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities, p. 28 and p.39

Code of Conduct Policy Template: http://modules.ontarioschooltrustees.org/en/resources/