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Legal Opinion from Don Cranston, QC re: Possible Conflict of Interest

March 1, 2017

As a democratically elected official for Ward 71 I feel I owe my constituents an explanation for my comments and actions at the January 27, 2017 public Board meeting at which the Board was voting on renewing the contract of Superintendent Joan Carr.  When I first commented at the January 27, 2017 public Board meeting that I thought Trustee Kowalczyk could be in a conflict of interest, I did so after having spoken to the Ethics Commissioner.  The Ethics Commissioner told me the previous day that according to the ECSD Bylaw 11 (bylaws0001)  Trustee Kowalczyk could be in a conflict of interest.  When the media attempted to verify what I heard from the EC, the EC refused to comment.  I therefore asked for a legal opinion from donald-cranston-legal.  If you read through Counsel Cranston’s opinion you will see that he comes to the same conclusions as the Ethics Commissioner.  No, Trustee Kowalczyk did not break any laws according to the School Act but he possibly could have been in a conflict of interest according to the Board’s Bylaws. The Board’s Bylaws are attempting to protect the Board from any non – pecuniary conflicts of interest that are not covered by the School Act.  These Bylaws are not contrary to the School Act but supplementary.  ECSD Counsel Karbonik at the Jan. 27, 2017 public board meeting stated that our Bylaws were contrary to the School Act so she dismissed them.  Our Bylaws reiterate the School Act in regards to pecuniary conflicts of interest and supplement the School Act by addressing non-pecuniary conflicts of interest.  I can understand that it might be difficult to make a legal ruling on your boss’s contract ( organizational-chart ) so that is why I asked the Board in the in camera portion of the Jan. 27, 2017 public board meeting to seek a second opinion.  The Board chose not to do so. This afternoon I was confronted with a reprimand at the public Board meeting (thiberts-reprimand) by our Board Chair stating that I was in breach of our policies.  I would suggest that Chair Thibert’s public reprimand this afternoon was ironically in breach of our policies.  According to our Bylaws, if “A Trustee who has reasonable grounds to believe that a fellow Trustee is in violation of the above duty must respect the principle of `first contact`, which means that the Trustee who has the concern has a responsibility to express the concern to the Trustee believed to be in violation.” (cf. sanctions-and-censure-bylaws ).  I did not receive a call or an email from the Chair prior to today’s meeting stating that she had concerns around my behaviour.  I inadvertently learned on Saturday, Feb. 25th that she had concerns around my behaviour after the Jan. 27th meeting only because I contacted her.  I did not know what her specific concerns were until today.  The Board does not have a Bylaw that suggests that if a trustee has a problem with another trustee’s conduct they are to reprimand them at a public board meeting.  So I find it quite ironic that in the Chair’s statement she speaks of addressing breaches to our policies.  Perhaps the Board should look at it’s own breach of its Bylaw 11 and then proceed to Bylaw 13.

I think Paula Simons should have the last word in this case as she had the last time when I was called out for acting according to my conscience.

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