SUDBURY—Manitoulin Rainbow District School Board (RDSB) trustee Larry Killens is concerned that a motion before the board to disallow the taking of notes during closed meetings has pitted Mr. Killens against the board chair.
The bylaw in question is Bylaw 10.2: “With the exception of the executive secretary or designate, any and all recording and/or note taking of in-camera meetings is expressly prohibited.”
Mr. Killens’ position is that he needs to be able to take notes in order to be able to keep track of details in complex discussions during in camera meetings, but Ms. Dewar maintains that Mr. Killens had earlier indicated that he wanted to have his notes “for later.”
“No, we can’t use them afterwards,” said Ms. Dewar. “Closed meetings are kept confidential, that is why they are closed.”
In an email outlining his position, Mr. Killens listed a long list of items that are subject to closed meetings, including disciplinary matters, expulsions, and litigation to name a few, adding the note that “one should take note that any or all such meetings and topics above could last in excess of an hour or more to complete. I say the above statement, as at the end of all meeting decisions must be made and an hour’s worth of discussion without referencing material, ie pros and cons for a decision, I suggest, is not good business practice.”
Should trustees be called upon to justify their decision after the fact, recalling the details of the factors leading to the decision would be difficult, if not impossible, to recall.
Ms. Dewar suggested that the incidents of long and involved meetings of such nature are actually quite rare and do not overbear the need for maintaining strict confidentiality.
Mr. Killens also objected to a recent meeting in which little notice was provided of the agenda prior to the business being discussed. One of the items was the notice of motion of bylaw expressly outlawing the taking of notes during in camera meetings.
“The posting of the agenda items usually takes place several days before the meeting,” agreed Ms. Dewar, but in this instance the employee responsible had overlooked it. “It is a practice, not a policy,” she pointed out of the posting of agenda items on the board website. “The employee was quite upset and apologized repeatedly,” she added. “That employee does very good work,” maintained the chair, adding that she did not think pillaring the employee in public was an appropriate course of action.
Mr. Killens had asked that the items under discussion, which included a number of tenders for Rainbow schools as well as the notice of motion regarding note taking, but the agenda went forward as presented.
“The agenda item on the in camera note taking was only a notice of motion, with no discussion,” noted Ms. Dewar. “That motion will be presented at the July 5 meeting, so there is plenty of time as it goes out to the public for another month and a half.” As to the other items on the agenda, Ms. Dewar went on to assert that there was no real issue with the other items being of enough significant interest to the public to delay moving forward with the agenda.
“Bylaws are your ‘rules of the road’,” quoted Mr. Killens from a recent presentation on board regulations. “(They are) a public document describing the process by which you make what are binding decisions for your organization. The law says you must have them, common sense says you should know how to use them, and good practice says your stakeholders should be able to understand how you are applying them.”
He goes on to point out that “for your board’s decisions to have legitimacy, the process by which you arrived at those decisions must be able to withstand the scrutiny of trustees who may disagree with the outcome, of staff who have to implement what you’ve decided and of the public.”
Mr. Killens said that “this begs the question, if you are asked by a judicial process, for instance a freedom of information request or a civil court of justice, to justify how you arrived at your decision after an hour or more expulsion hearing, a termination of a staff member, a million-dollar expenditure, a school closure and so on, just how does one do that without making notes to reference an event from possibly months, years previous an event that somehow finds its way into the courts?”
Mr. Killens goes on to note that he, as a trustee, has been accused of Code of Conduct violations, “and I certainly hope that the trustees hearing the matter kept notes as to what they based their decision on. Decisions made by the current board are now up for appeal with the Ombudsman’s office and will need to be explained to them.”
“It has been suggested by one colleague, the name of that colleague does not matter, that considering my past vocation as a police officer, I should know that anyone including the police, the F.O.I. Commission can access any notes from an in camera meeting and find what discussions were done,” said Mr. Killens. “That comment/suggestion scares me, as it suggests that we have something to hide of an unlawful or inappropriate means. One must consider, while true, that the notes are not protected from disclosure, they are heavily protected. If access is requested through the Municipal Freedom of Information a requestor must prove, a) they have the right to access b) a reason why the information should be shared c) and that the requestor personally has an interest in the topic.”
“Once permission, if granted, is given to the requestor(s) the institution, in our case, Rainbow Board wishes, they can “black out” or refuse to disclose any part of the documents requested, they choose,” he continued. “If the police wish to access in camera notes they must go through a very involved judicial process and satisfy a court of justice official, the information being sought is on reasonable and probable grounds, to believe the documents form a criminal offence that has occurred or the information in said documents constitute evidence. I was a police officer for 30 years and can say with authority, I never have been aware of such circumstance.”
In contrast I can say that in one case the Rainbow District School Board served up documents to the police on their own, without being requested by anyone involving a criminal offence,” Mr. Killens said. “That action by the board placed the police service in sharp criticism by the courts for not obtaining the documents by warrant. The evidence involved was not allowed/admitted to be part of the evidence to convict the offender.”
“As well and in addition,” continued Mr. Killens, “a trustee taking office having been elected to that office takes an oath, before a judge to swear to confidentiality of matters in confidence.”
Mr. Killens noted that the added provisions of the oath and regulatory obligations of elected officials also provide strong protections.
“In an earlier meeting of the board where this motion was discussed,” recalled Mr. Killens, “I suggested the proposed wording require that any notes taken by a trustee be kept in the care, control, and custody of the board on file pending any legal requirement that they be disclosed. I suggested this would possibly satisfy the movers’ concern of some rogue trustee releasing information.”
In that meeting, Mr. Killens said he “urged that good note taking would serve to accurate accounting and having the back of colleagues who are challenged on what they did or did not say. A time span before destruction/purging of personal notes could be arrived at.”
In Mr. Killens’ view, to “prohibit note taking and even more so using the explanation/concern that they could be accessed legally, the reasoning being that, if there were no notes, the information could not be accessed at all, is, in my personal opinion, breaching ethics and good business practice at a very high level. I consider note taking as insurance to establishing credibility.”
The motion is due to be debated at the July 5 meeting of the RDSB.
