Summary

  • The issue before the Board of Governors centres on the improper conduct of one Governor who also refuses to sign a Statement of Duties – it has nothing to do with academic freedom or freedom of speech.
  • The Statement has been signed by 31 of 32 Board members; it is noteworthy that three of the four faculty Governors who serve on the Board signed the Statement.
  • Through his blog, the Board member has made public, personal attacks on other members and staff, which he has admitted and improperly commented on Board decisions. This is unacceptable. Discussing matters on social media in advance or after a meeting is not in keeping with the Board member’s duties to act honestly, in good faith and out of loyalty to the university. Carleton is unaware of any Canadian university that permits Governors to blog on Board matters.
  • The December 16, 2015 edition of the Ottawa Citizen quotes Richard Leblanc, associate professor in law, governance and ethics at York University on the issue. Leblanc stated, “The role of a director is to debate the issues in one session and not on social media. It puts everyone in an awkward position and isn’t fair to other members.” He added, “The employee — in this case the professor — may be of the view that he is on the board to represent the union. He is not. You are there to represent the best interests of the organization and you are obligated to take decisions that may be adverse to your constituency.” (Source: http://ottawacitizen.com/news/local-news/carleton-spat-with-faculty-damaging-universitys-reputation-says-governance-expert)


Statement to Media

Monday, Dec. 14, 2015

As is the case at virtually all universities, Board members are required to sign a Statement that reflects the legal and fiduciary obligations of Board members.

All universities and institutions require their Board members to comply with fiduciary and confidentiality obligations. Carleton University is no different and the obligations and responsibilities expected of Governors at Carleton are the same as in every other University.

It is important to understand that the Board, its responsibilities and those of its members are set out in the Carleton University Act, the Ontario Corporations Act and the common law. The Statement that Governors are required to sign reflect the duties set out in the statutes and common law.

The Statement has to be read in conjunction with the bylaws, the Board Procedures which address open and closed sessions, the Carleton University Act, the Ontario Corporations Act and the common law. For example, the Board Procedures at page 5 (and appendix A) states what matters are generally to be considered in closed session and thus are treated confidentially. Matters in open session are not confidential. All Board members understand the distinction. Generally speaking, confidential matters include issues such as personnel and labour relations issues, litigation and legal advice and confidential negotiations.

The Board of Governors has always been and remains committed to openness and transparency in university governance. Open and fulsome discussion of matters is the norm at Carleton and the Board. The Statement does not interfere with any academic freedom issues or collegial governance, which are enshrined at Carleton through bicameral governance.

The issue is that the member’s blog posts have been problematic. Inaccurate and false statements have been made about Board members, meetings, discussions and decisions of the Board are neither appropriate nor legal, according to advice obtained by the Board. The conduct is inconsistent with the fiduciary duty owed by a Board member, which requires all member’s to act honestly, in good faith, loyally and in the best interests of Carleton University.

Personal blogs that attack fellow Governors and university staff and dissent on matters the Board has decided are simply inconsistent with the role and legal obligations of a Governor.

The Board, composed of a mix of volunteer community members and members drawn from within the university, such as Prof. Gorelick, are legally mandated to act in the best interests of the university as a whole and not as a representative of any group, stakeholder or particular interest. The Board members are not elected representatives of a constituency nor do they report to a constituency. The Board is not a democratically elected body such as a legislature. Boards are not representative bodies in that sense. Board members are fiduciaries, not politicians. They are required to always act in the best long-term interests of the institution.

The law requires that all members of the Board set aside their professional or personal interests, relationships, allegiances or beliefs and act only in the best interests of the University. A Board member who favours or acts as a representative of one or more individuals or groups of stakeholders in the University is in violation of their fiduciary duty.

It is at the Board’s discretion to determine what the next steps will be.

All Governors except for Prof. Gorelick, including other faculty, have signed the Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest.

For further information, visit the Board of Governor’s website at: http://carleton.ca/secretariat/boardofgovernors/regulations/.

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Second letter to the Canadian Association of University Teachers

Tuesday, Dec. 8, 2015

Mr. David Robinson
Executive Director
Canadian Association of University Teachers
2705 Queensview Drive
Ottawa ON K2B 8K2

Dear Mr. Robinson,

I am writing in response to your letter of November 30, 2015. I appreciate the opportunity to provide the CAUT with further clarification.

I am pleased to see that CAUT fully agrees that all Governors, including faculty members, have a duty to protect confidential information, avoid conflicts of interest and owe a duty of honesty, good faith and loyalty to the University. Therefore, we agree on the fiduciary obligations owed by Governors.

Regrettably, CAUT appears to have misunderstood the scope of the confidentiality provisions set out in the Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest (“the Statement”). Contrary to your assertion, the Statement does not require that all matters discussed at the Board to remain “secret unless disclosure is authorized by legal proceedings (Part II s.8)”.

The provision in both the current Statement and the prior Statement (which was signed by the faculty member) states as follows:

6. Maintain the confidentiality of all discussions, materials, reports, data and other documentation submitted to the Governor during the course of her or his duties as a Governor, except when disclosure is authorized, or required by law, regulation or legal proceedings. (emphasis added)

7. The duty of confidentiality referred to in paragraph II-6 above survives the end of the term of office of a member of the Board, and continues without limitation as to time.

The provision is the same in the current Statement:

8. Maintain the confidentiality of all discussions, materials, reports, data and other documentation submitted to the Governor during the course of her or his duties as a Governor, except when disclosure is authorized, or required by law, regulation or legal proceedings. (emphasis added)

9. The duty of confidentiality referred to in paragraph II-6 above survives the end of the term of office of a member of the Board, and continues without limitation as to time.

As seen above, “except when disclosure is authorized or” needs to read before “required by law, regulation, or legal proceedings”. As previously advised, open sessions are not confidential and neither is the material contained in those sessions. The distinction has been and is well understood by all members of the Board of Governors. The Statement does not and never has required all material to be held in confidence. The provision only applies to those materials that are confidential, not to all material provided to the Board as you suggest.

It is also important to understand that the Statement does not exist in a vacuum at the University. The Statement has to be read in conjunction with the Bylaws, the Board Procedures which address open and closed sessions, the Carleton University Act, the Ontario Corporations Act and the common law.

For example, the Board Procedures at p. 5 (and appendix A) states what matters are generally to be considered in closed session and thus are treated confidentially. Generally speaking, those matters include issues such as personnel and labour relations issues, litigation and legal advice and confidential negotiations. The University also complies with the Freedom of Information and Protection of Privacy Act.

It is a legal requirement that confidentiality survive a Board member’s tenure. It would apply to any fiduciary in any University or institution. Confidentiality obligations do not cease at the end of a Board member’s tenure. Matters remain confidential until such time as confidence is no longer necessary and for certain issues, such as legal advice, confidence, generally speaking, always remains in place.

As mentioned previously, the Statement, as with all operating and governance documents are reviewed periodically. The Board will take your comments under consideration as they conduct their review. If the Board determines that the Statement requires clarification, the Board can add additional language further clarifying that material provided in open session is not considered confidential.

We trust that with the above provided clarification that the concern you have raised is addressed satisfactorily.

Sincerely yours,

Roseann O’Reilly Runte
President and Vice-Chancellor

Click here to view the original document.

Response from CAUT dated November 30, 2015 to Letter from President Runte [PDF]

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Note to Carleton community about Ottawa Sun article

Tuesday, Dec. 1, 2015

Faculty and staff are advised that late on Tuesday, Dec. 1, 2015, the Ottawa Sun posted an article on its website about the Board of Governors issue.

At no time did the Ottawa Sun reporter contact Carleton for a comment, although officials representing CUASA and CAUT were interviewed.  The article contained numerous factual errors.

The university immediately contacted Ottawa Sun management to express its concerns about the number of errors and requested that the story be immediately corrected. The Sun confirmed that their article wasn’t up to ‘accepted standards.’

To assist the Sun to create a more balanced article, the university sent a copy of its publicly released statement issued on Nov. 30, 2015, along with the letter that it previously forwarded to CAUT on the same issue.

In the Sun article published in print on Dec. 2, 2015, Michael Wernick, chair of the Board’s Governance Committee, stated: “Personal blogs that attack fellow Governors and university staff and dissent on matters the Board has decided are simply not consistent with the role of a Governor.”

Carleton University is no different than any other institution and the obligations and responsibilities expected of Governors at Carleton are the same as those of every other university. The Board of Governors has always been -and remains – committed to openness and transparency in university governance.  Open and fulsome discussion of matters is the norm at Carleton and the Board.

Carleton issued an initial related statement on Monday, Nov. 30, 2015, regarding a similar article in the Ottawa Citizen. That statement can be found here: http://newsroom.carleton.ca/2015/11/30/35248/.

For full transparency, a link to Carleton’s letter sent earlier to CAUT can be found here: http://newsroom.carleton.ca/2015/11/30/presidents-letter-to-the-caut/.

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Board member Michael Wernick’s letter to the Ottawa Citizen

Monday, Nov. 30, 2015

Editor:

I am writing to respond to errors in a recent article concerning the Carleton University Board of Governors. The Board, composed of a mix of volunteer community members like myself, and members drawn from within the university, such as Professor Gorelick, is legally mandated to always act in the best interests of the university.

Like many other universities, Carleton has for many years set out the roles and responsibilities of members of the Board in a Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest. All Carleton Governors since 2008 have signed this statement and conducted themselves accordingly, with one disappointing exception.

The role of a Governor includes a responsibility to actively participate in debate and discussion of Board and Board committee business and then, once decisions have been taken, to respect them. The Carleton Board strives for transparency, conducting most of its business in open session, with campus media present, and has begun streaming meetings to venues where interested members of the university community can participate.

Personal blogs that attack fellow Governors and university staff and dissent on matters the Board has decided are simply not consistent with the role of a Governor. All members of the Board recently expressed their support for the Statement and their expectation that fellow Governors conduct themselves appropriately.

Respectfully,

Michael Wernick
Chair of the Governance Committee
Carleton University Board of Governors

Click here to view the original document.

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Note to Carleton community about Ottawa Citizen article

Monday, Nov. 30, 2015

Carleton faculty and staff are advised that the Ottawa Citizen published an online article on Saturday, Nov. 28, 2015 and in their print edition on Monday, Nov. 30, 2015 that contained a number of inaccuracies about the Board of Governors.

At the request of the Citizen, the university provided a statement about their story. Only a portion of that statement was included in their story. Another communiqué was subsequently forwarded by the university to the paper outlining the errors contained in their story. The Citizen updated its story, but used only a portion of the second communiqué and failed to correct the errors. Contrary to what is stated in the article, the communiques did address the allegations made by the Canadian Association of University Teachers (CAUT) and the Carleton University Academic Staff Association (CUASA).

It is important to keep the Carleton community informed about this issue and to share accurate information and context. For full transparency, a copy of the letter to the CAUT can be found here.

The Citizen article incorrectly states that the Board adopted a new policy about discussing Board business publicly. The Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest (“the Statement”) is a code of conduct adopted by the Board of Governors that has been in place at Carleton since 2008. The Statement outlines not only the fiduciary duties of the Governors but their responsibilities as Governors and their obligation to avoid conflicts of interest. The Statement also includes the obligation of members to appropriately maintain confidentiality. As with all governance documents, the Statement is reviewed periodically. The Statement was amended and again approved by the Board in 2015. The obligation to maintain in confidence matters or documents discussed in closed session is neither new nor controversial. All universities and institutions require their Board members to comply with similar confidentiality obligations.

The Board has not banned faculty or student union representatives, although the matter of removing union and association executives from eligibility was considered in the past. There was never any discussion to change the composition of the Board, which consists of community members, alumni, faculty, staff and students.

The Statement has been signed by every Governor since 2008 including, for the two prior years, by the Board member referenced in the Citizen article. In fact, 32 out of the 33 current members, including the faculty, staff, alumni, students and community-at-large members have signed the Statement. The Statement does not interfere with any academic freedom issues or collegial governance, which are enshrined at Carleton through bicameral governance.

Every Board meeting consists of an open session accessible by the public and a closed session in which confidential matters are discussed. Every Board in the country handles sensitive matters dealing with issues such as personnel, legal and contracts through closed sessions. No Board of Governors allows members to speak publicly about in-camera closed sessions. This has been the university’s consistent policy and was recently reaffirmed by board members.

The open session of Board meetings are publicly streamed and accessible by all members of the public at a location on the campus. In addition, a limited number of individuals from the public who have sought permission are able to attend the open session of the meeting in person. For example, the November meeting was attended by journalists from the Charlatan. The September meeting was attended by journalists and student association and union representatives.

As for the issue of commentary, once the Board has made a decision, the minutes become the record of the meeting. Proper governance requires fulsome, candid discussion and debate by Board members at meetings, without fear of being misquoted or maligned following the meeting. Blog posts by the member referenced in the article making inaccurate statements about members, meetings, discussions and decisions of the Board are neither appropriate nor legal, according to advice obtained by the Board. Indeed, such posts stifle the freedom of speech of all other members of the Board. While faculty members are free to express themselves, once a faculty member becomes a governor, he or she is required to adhere to the same duties and responsibilities as all governors with respect to board business. Carleton regrets that this sole governor does not want to abide by the Statement that has been previously respected by all other faculty members.

Currently, all the bylaws in the university, including conflict-of-interest issues, are being studied by the Governance Committee of the Board to ensure their conformity with the Ontario Not for Profit legislation. The bylaws will be discussed by the full Board in the future.

Carleton issued a second related statement on Wednesday, Dec. 2, 2015, regarding a similar article in the Ottawa Sun.

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Letter from President Runte to the Canadian Association of University Teachers

Monday, Nov. 30, 2015

This letter is referenced in a faculty and staff note sent out on Monday, Nov. 30, 2015 regarding Carleton’s Board of Governors.

Mr. David Robinson
Executive Director
Canadian Association of University Teachers
2705 Queensview Drive
Ottawa ON K2B 8K2

Dear Mr. Robinson

I am writing in reply to your letter of November 20, 2015. I welcome the opportunity to address the concerns you have raised and to provide you with the necessary context.

The Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest (“the Statement”) is a code of conduct adopted by the Board of Governors that has been in place at Carleton since 2008. The Statement outlines not only the fiduciary duties of the Governors but their responsibilities as Governors and their obligation to avoid conflicts of interest. It has been signed by every Governor since 2008, including for the prior year by the Board member referenced in your letter. In fact, thirty-two out of the thirty-three current members, including faculty, staff, students and community at large members have signed the Statement and acknowledged their commitment to respect their obligations and duties.

The requirement to maintain confidentiality of information and material shared in confidence while a current Governor and following their term is not controversial. Confidentiality obligations on the part of a fiduciary, such as a Governor, have long been part and parcel of the fiduciary duty recognized at law. Members and former members on any Board of Directors would have the same obligation to maintain confidentiality.

Please be assured that Carleton University has always been and remains committed to openness and transparency in University governance. Open and fulsome discussion of matters is the norm at Carleton and as such there has been no “demand for secrecy.” As is the case in every University across Canada and most institutions for that matter, meetings of the Board of Governors are conducted both in open and closed in-camera sessions. The confidentiality obligations you refer to relate to material and discussions that occur in closed sessions and are thus subject to confidence. There is nothing unusual in requiring Board members to maintain the confidentiality of material and discussions that occur in closed sessions during and after their Board membership. Rather it is proper and a normal part of governance which all Governors have recognized and understood.

As for the issue of commentary, it has been recognized at law that, generally speaking, once a Board has made a decision, members are to respect the integrity of and support such decisions. Fulsome candid discussion and debate by Board members is to be conducted during meetings, not retrospectively following a meeting in an online forum. The provision needs to be read in that context and with eye to the circumstances in which the Board member to whom you have referred has chosen unfortunately to use posts to inaccurately describe members, meetings, discussions and decisions made by the Board. It is for this reason that virtually all Boards have adopted the practice of Minuiting meetings in order to ensure that there is an accurate public record of discussion and decisions taken at meetings.

A faculty member who decides to serve on the Board of Governors, is subject to the same duties and responsibilities as any other Governor. A Governor, whether they are a staff, faculty, student, or a community at large member are subject to the same process, rights, obligations and entitlements while exercising their duties and status as a Governor. A Board member’s status as faculty member does not alter their status, rights, or entitlements as a Governor. The law has expressly recognized that as a fiduciary, a Governor is required to act in the best interests of the University as a whole and not as a representative of any group, stakeholder, or particular interest as you seem to suggest. The faculty collective agreement at Carleton University recognizes that Governors who are elected by the Senate are not part of the bargaining unit. A faculty member is considered no different than other member when acting as a Governor and the Statement does not interfere with any academic freedom issues, or collegial governance which are enshrined at Carleton through bicameral governance. A Board member who is also faculty does not have unique privileges as a Board member. A Governor’s fiduciary duty and responsibilities are separate and independent from any status as a faculty member.

As with all operating and governance documents, the Statement is periodically reviewed and amended to ensure that it continues to reflect best practices and legal requirements. Rest assured that at an appropriate time the Statement will be again reviewed by the Governors and that they will decide how best to acknowledge their responsibilities and fiduciary obligations. As with any Board, the Board of Governors remains free at any time discuss its rules, code of conduct and the comportment of its members.

I trust that with the above clarification this matter has been addressed satisfactorily.

Sincerely yours,

Roseann O’Reilly Runte
President and Vice-Chancellor

Original Letter from CAUT dated November 20, 2015 [PDF]

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Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest

The two links below reflect the copies of the Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest that were in effect prior to and following August 24, 2015.

Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest (2008)

Statement of General Duties, Fiduciary Responsibilities and Conflict of Interest (2015)

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Frequently Asked Questions

Click here for questions and answers about the duties of Board of Governors members.

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