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Elected officials can’t unelect other officials, says Greater Victoria trustee’s lawyer

Two SD61 trustees seek reinstatement through civil suit
Lawyers on opposing sides of a civil suit against the SD61 board had differing views of legislative authority and whether that could allow school board trustees to suspend their fellow elected officials. (Black Press Media file photo)

Day two of a civil suit reviewing the suspension of two Greater Victoria school board trustees saw one of their lawyers dig into the process the board took leading up to its decision.

Trustees Diane McNally and Rob Paynter are looking to be reinstated after the Greater Victoria School District board passed a resolution to suspend them in February over harassment and bullying complaints.

McNally’s lawyer, Eric Pedersen, on Thursday tried to show that the board decided it was done dealing with the two trustees’ transgressions and worked backwards from there to find justifications for the discipline it handed down.

While McNally knew the board, at a Jan. 25 meeting, would discuss the results of a third-party report into her conduct, Pedersen said the board failed to give her the proper opportunity to respond by hiding the full scope of the case being made against her.

He said the suspension should be squashed on this basis due to the board failing to provide procedural fairness.

“She didn’t have notice of the case she had to meet and it ends right there.”

In refuting that, the lawyer for SD61 claimed the board did give McNally and Paynter all the points being made against them before the resolution.

McNally was censured by the board in 2020 after a 2019 investigation found that some trustees had been noting their perceived failings of the district by publicly humiliating staff. Pedersen said that McNally wasn’t given any notice prior to Jan. 25 that this would be included in the board’s suspension consideration.

READ: Civil suit over Greater Victoria school trustees’ suspensions gets underway

Other considerations Pederson claimed his client had no knowledge of before the meeting included how her actions could impact the board’s reputation and her alleged refusal to apologize for criticizing a district superintendent.

“It says you have refused to apologize for this conduct, there’s no evidence that an apology was ever requested,” he said.

While Pedersen claimed the board chose the “nuclear option,” he said it didn’t have the democratic or legislative authority to remove trustees in the first place.

“Elected officials do not get to unelect other elected officials.”

With their suspensions lasting until next October, when board elections will be held, the two trustees claim they’re effectively being removed from office. They contend the board does not have those powers and even if it did, such punishments are disproportionate and unreasonable responses to their conduct.

Also on this topic, lawyers for McNally and SD61 had differing interpretations of workplace obligations and the powers stemming from those. Pedersen said the trustees being elected officials means they’re not subject to the same discipline and termination regulations as general staff.

In countering that, SD61’s lawyer said legislation does make way for boards to take action as it did. He said there is a statutory standard for the board to act as an employer and therefore must take all reasonable steps it can to protect workers from bullying and harassment. Follow us on Instagram. Like us on Facebook and follow us on Twitter.

Jake Romphf

About the Author: Jake Romphf

In early 2021, I made the move from the Great Lakes to Greater Victoria with the aim of experiencing more of the country I report on.
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