School Board Update
Important Regulatory Amendments Impact School Board Member Codes of Conduct
Date: August 6, 2024
New regulations under the Education Act provide express obligations and prohibitions that must be included in a school board’s code of conduct for its board members. The regulations also set out new requirements around integrity commissioners. This article explains these new requirements and what a school board will need to do now to bring itself into compliance.
New Code of Conduct Requirements
O. Reg. 312/24 codifies express obligations and prohibitions that must be included in a school board’s code of conduct for its members. It also requires that a board make its code of conduct accessible to the public and mandates timelines for code of conduct review. As discussed in further detail below, a school board has until August 28, 2024 to conduct a review of its code of conduct to ensure compliance with these new requirements. Any necessary changes must be implemented by August 31, 2024.
Board Member Obligations
The code of conduct must require a board member to:
- comply with the board’s code of conduct and any applicable board by-law, resolution, policy or procedure
- conduct themselves in a manner that does not discredit or compromise the board’s integrity when they are acting, or holding themselves out, as a board member
- treat all persons equally and without discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability when they are acting, or holding themselves out, as a board member
Prohibited Conduct
The code of conduct must contain prohibitions against a board member:
- using or permitting the use of board resources for any purpose other than the business of the board
- disclosing confidential information obtained or made available to them in their role as a board member except as authorized by law or by the board
- using confidential information in a manner that would be detrimental to the interests of the board or for the purpose of personal gain or for the gain of the member’s parent, spouse or child
- subject to certain prescribed exemptions, accepting a gift from any person, group or entity that has dealings with the board, if a reasonable person might conclude that the gift could influence the member when performing their duties
- acting as a spokesperson to the public on behalf of the board unless authorized to do so under the express provisions of the Education Act
In addition, there are two prohibitions not currently required to be included in a code of conduct but will become mandatory when related amendments to sections 218.2 and 218.3 of the Education Act come into force. These prohibit a board member from:
- giving notice of an alleged breach of the code of conduct that is frivolous, vexatious or brought forward in bad faith
- engaging in reprisal (or threatening reprisal) against a person who gives notice of an alleged breach of the code of conduct or provides information about an alleged breach to an integrity commissioner appointed to investigate
A board may include additional provisions in its code of conduct, provided they do not conflict with these mandatory requirements.
Mandatory Timelines for Review
A board is required to periodically review its code of conduct, including to ensure compliance with this regulation. Specifically, a board must:
- review the code of conduct within 30 days of O. Reg. 312/24 coming into force (i.e.,August 28, 2024)
- complete a second review by no later than May 15, 2027
- complete subsequent reviews in the fourth year following the previous review and by no later than May 15 of that year
Any changes are to be set out in a board resolution and must be implemented by no later than August 31 of the review year.
Public Accessibility
A board must:
- make their code of conduct publicly available on their website
- indicate the effective date of any changes
- maintain a publicly accessible archive of all previous versions that indicates the period during which each version applied
Procedural Requirements for an Alleged Breach of a Code of Conduct
O. Reg. 306/24, a second regulation filed at the same time as O. Reg. 312/24, outlines the process for how a board must address an alleged breach of its code of conduct and establishes guidelines for the appointment of an integrity commissioner by a school board, where necessary, to resolve a code of conduct complaint.
This regulation is not yet in force and will come into effect when related amendments to sections 218.2 and 218.3 of the Education Act come into force. However, some of these provisions may be useful for a board to be aware of now if reviewing its code of conduct for compliance with O. Reg. 312/24.
O. Reg. 306/24 codifies the following specific requirements that a board must adhere to when there is an alleged breach of its code of conduct.
Notification of an Alleged Breach of the Code of Conduct
Where a board member alleges that another board member has breached the code of conduct, notification of the breach must be provided to the chair of the board unless it relates to the chair’s conduct, in which case the vice-chair must be notified. If the alleged breach relates to the conduct of the chair and vice-chair, notification must be provided to another member who is not the complainant or the subject of the complaint.
The board member who provides notification of an alleged breach must also provide a copy of the notification to the director of education.
Any notification of an alleged breach of the code of conduct must include:
- the name and contact information of the member alleging the breach and the member(s) whose conduct is at issue
- the date of the alleged breach
- a description of the alleged breach
- the provision of the code of conduct alleged to have been breached
Referral to an Integrity Commissioner
If a matter is not resolved within 20 business days after the member who is alleged to have breached the code of conduct is notified, it must be referred to an integrity commissioner, who has the authority to define the scope of the investigation into the breach.
The yet-to-be-proclaimed-in-force provisions of the Education Act outline the process through which an integrity commissioner may be appointed, as well as their investigatory and sanction powers. O. Reg. 306/24 establishes specific qualifications for integrity commissioners, confirms that a board is responsible for paying all fees charged by appointed integrity commissioners and provides the procedural timelines and details related to the appeal of a decision of an integrity commissioner.
For assistance in reviewing your school board members’ code of conduct or for any additional information about these important regulatory changes, please contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
