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HomeMy WebLinkAbout2000-1203.Schoular.02-07-18 Decision1 ~M~ om~o EMPLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1203/00, 1531/00 UNION # 00B379, 01B052 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between. OntarIO PublIc ServIce Employees Umon (Schoular) Union - and - The Crown In RIght of OntarIO (MInIstry of EducatIOn) Employer Before. Owen V Gray Vice-Chair For the Union George RIchards GrIevance Officer OntarIO PublIc ServIce Employees Umon For the Employer- Kelly Burke Counsel Legal ServIces Branch Management Board SecretarIat Hearing. March 22, June 25 and 28, October 10 and 11, and November 28 and 29,2001 and February 6, 2002 2 Decision [1] In the fall of 2000, DavId Schoular decIded to seek re-electIOn as a Trustee of the Upper Canada DIstnct School Board (hereafter, "UCDSB") He was then employed m the Ottawa DIstnct Office of the MmIstry of EducatIOn as a Fmance Officer m the branch of the MmIstry that deals wIth applIcatIOns by school boards for fundmg He mformed the Deputy MmIster of hIS decIsIOn to run agam. The Deputy MmIster responded that Mr Schoular's holdmg the office of school board Trustee would mterfere wIth the performance of the dutIes of hIS employment and conflIct WIth the mterests of the Crown wIthm the meamng of sectIOns 28 4 and 28 7 of the Pubhc Sermce Act, R S 0 1990, c. P 47, as amended ("the PSA") The Deputy MmIster told Mr Schoular that he could seek electIOn as Trustee only If he took a leave of absence wIthout pay pursuant to subsectIOn 28 4(3) of the PSA and that, If elected, he would have to resIgn hIS employment m accordance wIth subsectIOn 28 7(2) of the PSA [2] Mr Schoular had tWIce before been elected and served as a school board Trustee whIle employed by the MmIstry, wIthout obJectIOn by the then Deputy MmIsters He had been elected m 1997 as Trustee of the UCDSB, and m 1994 as Trustee of one of ItS predecessor school boards Before he ran agam m 1997, he had been advIsed by then AssIstant Deputy MmIster that It would not be a conflIct for hIm to accept another term as Trustee as long as he met certam condItIons Mr Schoular felt that he that had met those condItIons, and that nothmg had happened smce 1997 to gIve nse to a conflIct between hIS servmg as Trustee and hIS employment wIth the MmIstry It appeared to hIm that the change m the MmIstry's posItIOn was due to a complamt made by another UCDSB Trustee whom he regarded as a polItIcal adversary [3] The gnevor applIed for and took a leave of absence wIthout pay under protest, and gneved the ImposItIOn on hIm of that reqUIrement He was re- elected as Trustee on November 13, 2000, but dId not then resIgn hIS 3 employment. On November 16, 2000 the MmIstry deemed hIm to have resIgned, and treated hIS employment as at an end. He then filed the second of the two gnevances before me, allegmg dIsmIssal wIthout Just cause The Grievor's Employment Duties [4] When hIS employment was termmated, the gnevor was one of several Fmance Officers employed m the Transfer Payments and FmancIaI Reportmg Branch of the MmIstry of EducatIOn. He and the other Fmance Officers m that Branch reported to the Manager, Transfer Payments Umt, who m turn reported to the DIrector of the Branch. [5] The Transfer Payments and FmancIaI Reportmg Branch admmIsters and enforces the rules under whIch the MmIstry provIdes fundmg to elementary and secondary schools Other branches of the MmIstry concerned wIth the fundmg of pubhc schools are the EducatIOn Fmance Branch and the Busmess ServIces Branch. The Busmess ServIces Branch deals wIth the capItal fundmg of educatIOn facIhtIes The EducatIOn Fmance Branch develops pohcy wIth respect to fundmg and fundmg rules, engages m forecastmg of fundmg reqUIrements and provIdes mformatIOn serVIces [6] Pnor to 1998, school boards had two sources of fundmg. property tax revenue and fundmg from the MmIstry The level of MmIstry fundmg vaned from school board to school board. Some large school boards m metropohtan areas receIved no MmIstry fundmg at all. MmIstry fundmg formed a substantIal portIOn of the total fundmg for other school boards, perhaps as much as 90 per cent for some smaller, rural school boards ThIs dual source fundmg changed wIth the enactment of the Educatwn Quahty ImprovenLent Act, 1997, S 0 1997, c.31 ("the EQIA") [7] As a result of the EQIA, school boards could no longer raIse any portIOn of theIr operatmg funds through mumcIpal property taxes School boards' only fundmg was to come from the MmIstry, m accordance wIth a fundmg model prescnbed by regulatIOn. The mItIal fundmg model was announced m March 4 1998, and was applIed for the first tIme to the 1998-99 school year Changes and refinements were made to the fundmg model from tIme to tIme thereafter [8] Under the new fundmg regulatIOns, the MmIstry allocates fundmg on the basIs of formulae that take mto account student enrolment, class SIzes, the numbers of teachers and where they are on the compensatIOn grId, and other factors VarIous "envelope" condItIons are attached to the fundmg provIded The portIOn of the fundmg that IS allocated to classroom mstructIOn, for example, must be spent only on classroom mstructIOn - It cannot be spent on admmIstratIve or other non-classroom expendItures There are sImIlar envelopes for specIal educatIOn and capItal expendItures A school board cannot spend more on admmIstratIOn and governance than has been allocated to that Item, although momes m that envelope can be spent m other areas [9] Fmance Officers m the Transfer Payments and FmancIaI Reportmg Branch have several maJor responsibIlItIes Each Fmance Officer IS assIgned a group of school boards as a clIent group A Fmance Officer IS responsible for advIsmg the school boards m hIS or her clIent group concermng the fundmg rules and the school boards' preparatIOn of the financIal estImates and financIal statements that they must submIt m support of theIr applIcatIOns for mItIal and final fundmg A Fmance Officer also reVIews, analyses and verIfies filmgs receIved from each school board m hIs/her clIent group, and recommends to the Branch the mItIal and final amounts to whIch m each case s/he determmes that a clIent school board IS entItled under the fundmg model. [10] One of the Important dutIes of Fmance Officers IS to gather "field mtellIgence" wIth respect to the operatIOn and outcomes of the fundmg formulae - to report on what school boards are domg and saymg wIth respect to matters of fundmg [11] The MmIstry may audIt one or more of the several aspects of a school board's operatIOns that are relevant to ItS fundmg entItlements Semor management determmes whIch school boards wIll be audIted, and m what 5 respects Fmance Officers conduct the audIts The school boards to be audIted by a Fmance Officer may be outsIde hIs/her own chent group All of the Fmance Officers wIll know whIch school boards are to be audIted before the school boards themselves do When school board filmgs or audIts reveal non-comphance wIth the regulatIOns, semor management determmes what consequences wIll be Imposed Semor management also determmes a level of tolerance for non comphance - that IS, the extent of non-comphance for whIch adverse consequences wIll not be Imposed Fmance officers are told what the tolerance levels are School boards are not [12] The current Job deSCrIptIOn for Fmance Officers states that they may "Conduct specIal assIgnments such as partIcIpatmg on commIttees, provIde trammg (professIOnal development) and dIrectIOn to chent groups, carry out financIal mvestIgatIOns and analysIs, and make recommendatIOns for Improvement to financIal management systems and procedures" Fmance Officers also assIst m mamtammg a computer database of school board financIal data, by entermg data receIved from theIr chent school boards [13] The Transfer Payments and FmancIaI Reportmg Branch provIdes mformatIOn that the EducatIOn Fmance Branch uses to mform and vahdate the budget process, to IdentIfy varIances between actual and forecast budget reqUIrements and to IdentIfy comphance Issues and needs for techmcal amendments m the fundmg regulatIOns All three branches become mvolved m the formulatIOn of pohcy at some pomt m that process, and they all advIse the Deputy MmIster wIth respect to the proposals of those who lobby the MmIstry [14] Fmance Officers contribute to the pohcy formulatIon process by IdentIfymg to semor management the Issues of mterpretatIOn, apphcatIOn, consIstency and comphance that they encounter m revIewmg budgets and admmIstermg the MmIstry's fundmg pohcIes and regulatIOns Fmance Officers may be consulted about a varIance between proJected and actual outcomes, man effort to find an explanatIOn for It Fmance Officers have been brIefed, and occasIOnally consulted, on changes to pohcIes and regulatIOns that are under 6 consIderatIOn, and they have been mformed of decIded upon changes before those changes are announced. [15] A good deal of the mformatIOn to whIch Fmance Officers have access concermng the fundmg model IS publIc mformatIOn. It IS part of theIr Job to provIde that mformatIOn to school boards Fmance Officers also have access to mformatIOn that IS not publIc, however In some cases It IS mformatIOn that wIll become publIc at a later date, as m the case of decIded upon changes to regulatIOns and polIcIes, or decIsIOns about whIch school boards wIll be audIted In some cases the mformatIOn to whIch they have access wIll never be revealed to school boards, such as the tolerance levels for non-complIance [16] The gnevor worked out of the Ottawa office He was the only Fmance Officer m that office HIS clIent group consIsted of a number of Eastern OntarIO publIc and separate school boards The area served by the UCDSB IS the south east corner of the provmce The gnevor's clIent group would ordmanly have mcluded the UCDSB, but It was assIgned to a Fmance Officer m Toronto because the gnevor was one of ItS trustees HIS clIent group mcluded the publIc and separate school boards m the areas adJommg the UCDSB's, as well as the separate school board that served the same geographIc area. The Conflict of Interest Alleged [17] The MmIstry's eVIdence about the dutIes of Fmance Officers and the context m whIch they are performed was gIven by four wItnesses Nancy Naylor, Peggy McCormIck, Paul Babm and Ross Peebles Ms Naylor served as DIrector of the EducatIOn Fmance Branch from May 1998 untIl January 2001, when she was seconded to another posItIOn. Ms McCormIck began servmg as ProJect Manager of FmancIaI AccountabIlIty m June 2000, reportmg to Mr Babm. She had prevIOusly served as Actmg Manager m the Busmess ServIce Branch for about a year From July 1996 to mId 1999 she was the Actmg Manager of what was then called the AccountabIlIty and FIeld ServIces Umt Durmg that tIme she was the gnevor's ImmedIate supervIsor Pnor to that she was a Fmance Officer 7 herself. Mr Babm was the Manager of Transfer Payments Umt to whom the gnevor and other FmancIaI Officers reported from June 2000 on. Mr Peebles was AssIstant Deputy MmIster from 1998 to the sprmg of 2001 The human resources and legal functIOns of the MmIstry reported to hIm. He was responsible for formulatmg the Deputy MmIster's response to the gnevor's sItuatIOn. [18] MmIstry wItnesses were concerned that If a school board trustee has access to the confidentIal mformatIOn avaIlable to FmancIaI Officers It gIves that trustee and the trustee's school board an advantage, real or perceIved, over other trustees and school boards They were also concerned that a Fmance Officer's servmg as a school board trustee would mterfere wIth the performance of hIS Job functIOns because It would cause those wIth whom he must mteract, both wIthm the MmIstry and at clIent school boards, to be retIcent m theIr dealmgs wIth hIm. [19] Nancy Naylor testIfied that Fmance Officers would be aware of the vanance between actual and forecast fundmg reqUIrements That mformatIOn IS Important to assessmg the lIkelIhood that the government wIll enhance fundmg In mId year Fmance Officers also have advance knowledge of fundmg announcements The eVIdence of the MmIstry wItnesses was that these are matters about whIch school boards seek out and appear to value havmg mformatIOn. [20] WIth reference to the gathermg of field mtellIgence, Ms Naylor testIfied that school boards sometImes complam that although they are m complIance, theIr neIghbourmg school boards are not The ImplIcatIOn was that a Fmance Officer would be less able to gather such mtellIgence If he or she IS a trustee of a neIghbourmg school board about whIch such a complamt mIght be made Ms Naylor also spoke about the level of conflIct between school boards and the government. She noted that the OntarIO School Board Trustees' ASSOCIatIOn was or had been engaged m lItIgatIOn wIth the government over the constItutIOnalIty of the government's fundmg scheme She observed that the trustees of mdIvIdual 8 school boards regularly lobby for changes m the fundmg model that Fmance Officers are oblIged to work wIthm. She and other management wItnesses expressed concern about and dIscomfort wIth the prospect of a Fmance Officer/trustee's lobbymg MmIstry officIals m that or other respects [21] Peggy McCormIck testIfied that Fmance Officers would know whether the MmIstry has decIded not to make adJustments for non-complIance m certam areas because of vagueness m the polIcy m those areas She saId that school boards want to know what changes are under consIderatIOn, what has been put to cabmet but not adopted, and what the MmIstry IS focused on m terms of complIance She had dIfficulty provIdmg an example of how a school board could gam a financIal advantage by knowmg these thmgs m advance of publIc announcements One she offered was that a school board's knowmg that the MmIstry planned to mcrease fundmg to cover mcreases m fuel costs mIght have mfluenced how It would contract wIth supplIers of school bus serVIces Ms McCormIck also expressed concern that a parent callmg the MmIstry's Ottawa DIstnct Office to speak to the MmIstry about the actIOns of the UCDSB - concermng the closmg of a school, for example - could find herself speakmg wIth a UCDSB Trustee [22] Mr Babm testIfied that If a school board knew whether, when and m what respects It would be audIted, that could mfluence the school board's planmng A school board that knew m advance what aspect of ItS operatIOns would be audIted mIght allocate resources to the targeted area at the possible expense of non-complIance m areas the school board knows wIll not be audIted. He also testIfied If a school board were aware of the tolerance levels for non complIance, as Fmance Officers are, It could plan to satIsfy the tolerance levels rather than the prescribed lImIts He IdentIfied classroom SIze as one area m whIch a school board mIght do thIS - mcreasmg average class SIze up to but not beyond the tolerance level. [23] Mr Babm felt that the sharmg of mformatIOn at meetmgs of Fmance Officers and other MmIstry employees and officIals mIght be mhibIted If one of 9 the partIcIpants IS also a school board trustee He observed that the mformatIOn shared wIth Fmance Officers m meetmgs and VIa documents on the Mmlstry's computer network mcludes polIcy dIrectIOns under study, regulatIOns bemg drafted, polIcy gaps, and loopholes or madequacles that had been dIscovered m the gUIdelmes He thought that the fact that a trustee of a partIcular school board has access to thIS mformatIOn could lead to perceptIOn of dIsadvantage by other school boards He also referred to the possibIlIty of awkwardness If a Fmance Officer were mvolved m lobbymg on behalf of a school board m meetmgs wIth semor management [24] Mr Babm observed that school boards have described themselves as bemg m competItIOn wIth one another for students, and also that school boards are encouraged to enter mto partnershIps wIth one another m areas m whIch they have common mterests He thought there was potentIal for conflIct and concern If, as Fmance Officer, Mr Schoular were audItIng one of UCDSB's nelghbourmg school boards He saId that there was as least one school board m the gnevor's clIent group that had preferred to deal wIth the Toronto office rather than the gnevor, and that he had heard mdlrectly that thIS was because of Mr Schoular's bemg a trustee of the UCDSB [25] Ms Naylor acknowledged that some of the pomts of conflIct that she felt eXIsted between the Fmance Office and Trustee roles after the enactment of the EQIA were perhaps present before It was enacted m the case of school boards that were gettmg a large percentage of theIr fundmg from Mmlstry She felt that the conflIct m those respects had been heIghtened followmg enactment of the EQIA as a result of changes to school board's busmess practIces, changes to the fundmg model, the greater degree of publIc debate and the mcreased responsibIlIty of both Fmance Officers and Trustees [26] In addItIon to the four wItnesses from the CIVIl serVIce, the Mmlstry mtroduced the testImony of two trustees of the UCDSB 10 [27] Art Buckland was Chmr of the UCDSB durmg the 1997 2000 term, when Mr Schoular was Vice-ChaIr of the Board. He testIfied that he could not take Mr Schoular wIth hIm to meetmgs wIth the Mmlstry to "hammer" them concermng areas they felt were unfaIr because Mr Schoular had, m Mr Buckland's words, "a professIOnal responsibIlIty to hIS employer" Mr Buckland saId there was a perceptIOn of double loyalty on Mr Schoular's part When a lawyer retamed by the school board made a dlsparagmg remark about the Mmlstry at a meetmg of the board, Mr Schoular saId, "If you don't cntIclze the Mmlstry, I won't cntIclze Toronto lawyers" The lawyer had been retamed to advIse the board about payment of employees for overtIme m CIrcumstances m whIch such payment mIght have put the school board m contraventIOn of Mmlstry gUIdelmes Mr Buckland testIfied that when Mr Schoular was not present, the lawyer expressed concern about how he was to deal wIth Mr Schoular, gIven the nature of hIS employment wIth the Mmlstry [28] Mana Thompson was a UCDSB Trustee durmg the 1997 2000 term who was re-elected m 2000 She had prevIOusly served as trustee m a predecessor board other than the one on whIch the gnevor had served m the 1994-97 perIOd She wrote to the Mmlster of EducatIOn m January 2000 to complam about what she described as Mr Schoular's "moral conflIct of mterest " [29] In her letter, Ms Thompson expressed three concerns One was that as a result of Mr Schoular's electIOn as ItS Vlce-Chmr, the school board had a Mmlstry employee m an "executIve" posItIOn. Another was that Mr Schoular had partIcIpated m revlewmg a posItIOn paper provIded m confidence by the OntarIO PublIc School Boards ASSOCIatIOn concermng strategIes that school boards could or should take collectIvely wIth other partIes, mcl udmg the Mmlstry, concermng collectIve bargammg Issues Her concern was that there was an expectatIOn that the contents of the document would be kept confidentIal from the Mmlstry, that thIS would have faced Mr Schoular wIth a dIlemma and that she was not sure to whIch group hIS allegIance would ultImately be owed m that regard. Her thIrd concern was wIth Mr Schoular's partIcIpatIOn m the 11 hIrmg of the board's Supermtendent of Busmess, a concern apparently based m part on the belIef that the board's Supermtendent of Busmess would have been dealmg wIth Mr Schoular on behalf of the MmIstry but for the RegIOnal Office's havmg "found a way for our admmIstratIOn to do an end run around Mr Schoular " [30] Mr Peebles testIfied that the specIfic Issues raIsed m Ms Thompson's letter were matters of concern for the school board rather than for the MmIstry He referred Ms Thompson's letter to the audIt branch for mvestIgatIOn, however, and recalls that theIr prelImmary VIew was that "there was a conflIct" When he left the MmIstry for another posItIOn m the CIVIl serVIce m the sprmg of 2001 he had not yet seen a final report from them on the matter It IS not apparent whether the audIt branch expressed ItS prelImmary VIew before or after Mr Schoular's employment was treated as at an end, what conflIct It IdentIfied or what ratIOnale It offered for ItS prelImmary VIew The Historical Context [31] GIven the umon's posItIOn that nothmg had happened to warrant a change m the MmIstry's earlIer posItIOn on whether Mr Schoular could serve as a school board trustee whIle remammg employed as a Fmance Officer, a good deal of the partIes' eVIdence focused on changes saId to have taken place m the Fmance Officer's role over the years, Mr Schoular's employment hIstory whIle servmg as Trustee and the evolutIOn of the MmIstry's attItude toward hIS domg so [32] There IS no eVIdence before me about the approval of the gnevor's runmng for and servmg hIS first term as Trustee for the predecessor school board for the 1994 - 1997 term. [33] In July 1997 Garth Jackson, Mr Peebles' predecessor as AssIstant Deputy MmIster wIth responsibIlIty for such matters, responded m wntmg to a letter from Mr Schoular concermng hIS desIre to seek re-electIOn as Trustee for the 12 amalgamated school board, the UCDSB, for the 1997 2000 term. Mr Jackson wrote that after weIghmg the advIce of audIt and legal serVIces staff: I have concluded that It would not be a conflIct for you to accept another term as a Pubhc School Board Trustee as long as you meet the followmg con chtlOn s . You cannot partIcIpate m any dIrect assIgnment affectmg the Board that you serve on. . You must specIfy m any agreement between yourself and the Board you serve on that you are not provIdmg your servIces wIthm the scope of your employment wIth the Ontano government. . You are under a contmumg obhgatIOn to chsclose should there be a change m the CIrcumstances that you have set out 1.e any change m Job dutIes and/or responsIbIhtIes If, at some pomt m the future you are reqUIred to take on assIgnments affectmg the Board that you serve on, we would have to reassess the sItuatIOn. It IS Important for you to recogmze now that should such CIrcumstances anse you may have to make a decIsIOn between your role wIth the mImstrv and your role wIth the Board. [34] Ross Peebles became AssIstant Deputy MmIster m the MmIstry m 1998 The legal and human resources staff reported to hIm. Matters of conflIct of mterest fell wIthm the scope of hIS responsIbIlIty He recalls that m early 1999 someone on the legal staff brought Mr Schoular's sItuatIOn to hIS attentIOn, and suggested that the EQIA had "changed thmgs" smce the earlIer approval. [35] In May 1999, the MmIstry learned that Mr Schoular had partIcIpated m a radIO mtervIew m whIch he had commented on the platform of a provmcIaI party m matters relatmg to educatIOn fundmg Mr Peebles approved a letter that was sent to Mr Schoular over the Deputy MmIster's sIgnature The letter warned Mr Schoular that hIS makmg those comments was contrary to the PSA (under whIch such comments could be made by a CIVIl servant only whIle on leave of absence for polItIcal actIvIty purposes) and that further conduct of that sort could lead to dIscIplme Of mterest for purposes of these grIevances IS the way Mr Schoular was mtrod uced by the mtervIewer- DavId Schoular wears two hats m the educatIon world. One IS as a trustee for the Upper Canada Board. The other IS as an employee of the Mimstrv of EducatIOn. Schoular says thIs Isn t a COnflICt of mterest The former NDP government made It legal for CIVIl servants to run for pubhc office 13 ThIs was followed by the two questIOns of and answers by the gnevor that led to the dIscIplmary letter It IS unclear how the fact of the gnevor's two hats or the questIOn whether that was a conflIct of mterest had ansen between the mtervIewer and the gnevor, but Mr Schoular does not dIspute that It dId [36] Mr Peebles testIfied that when he dealt wIth the May 1999 mCIdent he concluded that Mr Schoular was m a conflIct of mterest servmg as a school board trustee whIle employed by the MmIstry as a FmancIaI Officer He was not sure that the conclusIOn expressed m hIS predecessor's letter of July 1997 was correct even m the CIrcumstances as they then eXIsted In any event, he felt that the relatIOnshIp between the MmIstry and school boards had changed dramatIcally followmg the enactment of the EQIA, and that that change made the gnevor's conflIct clear He recogmzed that there would be a dIsruptIOn for Mr Schoular If he were reqUIred to resIgn one or other of hIS posItIOns at that pomt m tIme He says he belIeved that Mr Schoular would recogmze the conflIct hImself and choose not to run agam at the end of hIS term, and that the MmIstry could lIve wIth the sItuatIOn m the meantIme, relymg on Mr Schoular's good Judgment to aVOId or remove hImself from any sItuatIOn m whIch an actual conflIct of mterest mIght anse [37] The warmng letter that was sent to the gnevor concermng the radIO mtervIew dId not mclude any suggestIOn that the gnevor had a conflIct of mterest, however, nor was Mr Peebles' conclusIOn to that effect commumcated to Mr Schoular by any other means pnor to October 2000 [38] The MmIstry's posItIOn was that there had been real changes m the Fmance Officer's Job smce 1997, as well as changes m the roles of school boards and m theIr relatIOnshIp and mteractIOn wIth the MmIstry [39] UntIl 1996 each dIstnct office had a Supermtendent who checked the work of the Fmance Officers m that office before the results were passed on to head office m Toronto The Supermtendent posItIOn was elImmated m 1996 The Fmance Officer posItIOn was at the FO 4 level at that tIme Pnor to 1996, the 14 Fmance Officers' audIt functIOn had been largely focused on the verIficatIOn of enrolment levels The audIt functIOn was suspended entIrely m 1996, and the Mmlstry dId not resume audItIng untIl 2000 Durmg that perIOd Fmance Officers were focused on mformmg and advlsmg school boards and on gathermg field mtellIgence They were also encouraged to take on specIal proJect work. [40] The Fmance Officer functIOn was reclassIfied to the F05 level at the end of December 1999 The reclassIficatIOn was effectIve as of AprIl 1, 1999, when a Mmlstry restructurmg had resulted m the creatIOn of the Transfer Payments and FmancIaI Reportmg Branch. Ms McCormIck understood that the reclassIficatIOn was due to the Fmance Officer Job's mcreased responsibIlIty and access to sensItIve mformatIOn followmg the legIslatIve changes descrIbed earlIer The Branch "geared up agam" for audItIng startmg m 1999, but dId not perform any audIts untIl 2000 [41] Addressmg the Issue of change over tIme, Ms McCormIck saId that there had been a lot more checks and balances on the Fmance Officer's work m the past, and that there were now more pomts of conflIct WIth the publIc and arguments over responsibIlIty as between the Mmlstry and school boards Ms Naylor acknowledged that m the case of school boards that receIved a large percentage of fundmg from Mmlstry, there mIght have been some of the foundatIOn for an appearance of conflIct between the Fmance Office and trustee roles even before the enactment of the EQIA, but felt thIS had been heIghtened followmg that enactment by changes to school boards' busmess practIces, changes to the fundmg model, the degree of publIc debate about fundmg of educatIOn and the mcreased responsibIlIty of both Fmance Officers and school board trustees [42] For two to three days a week between June 1998 and March 1999, Mr Schoular was mvolved m a specIal proJect concermng the fundmg of school books for the new currIculum. In about January of 1999 he also partIcIpated m a specIal proJect mvolvmg the fundmg of expenses mcurred by school boards m Eastern OntarIo as a result of the Ice storm that occurred m January 1998 He 15 testIfied that thIS mvolved asslstmg school boards to maXImIze the funds they obtamed from the federal government's dIsaster relIef program. He saId that from March 1999 to June 2000 he partIcIpated full tIme m a proJect concerned wIth the fundmg of expendItures ansmg out of the "Y2K" computer Issue In each case he was admmlstermg the prOVISIOns of a fundmg plan that he testIfied had been formulated before he became mvolved. Ms McCormIck testIfied that It would have been dIfficult for hIm to extend preferentIal treatment to hIS own or any other school board m those assIgnments [43] The gnevor was not lImIted to hIS clIent group m these specIal assIgnments, and the UCDSB was one of the boards whose applIcatIOns for fundmg he processed m the course of them. He dId not seek or obtam the Deputy Mmlster's approval of hIS partIclpatmg m those assIgnments In answer to the suggestIOn that thIS was a vIOlatIOn of the express condItIons of the Jackson letter, the gnevor saId that hIS ImmedIate superIOrs were aware of the Jackson letter and dId not raIse any Issue WIth hIm when they approved hIS partIcIpatIOn m those assIgnments [44] The thrust of the gnevor's case was that m the two terms durmg whIch he was permItted to serve as Trustee whIle employed wIth the Mmlstry, the Trustee role and hIS employment dutIes mvolved many of the same elements now relIed upon by the Mmlstry as gIvmg nse to a conflIct of mterest, and If those matters dId not create a conflIct then, they dId not do so (or cannot be relIed upon by the employer as havmg done so) m the fall of 2000 [45] The gnevor testIfied that the school board on whIch he served pnor to the 1997 electIOns had receIved a very substantIal portIOn of ItS fundmg from the Mmlstry - about 90 percent, he belIeved - pnor to enactment of the EQIA The former abIlIty to tax was not a cash cow, he saId, because there was sIgmficant local pressure to mmlmlze ItS use He testIfied that he and other Fmance Officers had conducted audIts - enrolment audIts, transportatIOn audIts and specIal educatIOn audIts - pnor to enactment of the EQIA. Gathermg field mtellIgence had always been part of the Fmance Officer's Job School boards had 16 lobbIed the Mmlstry throughout hIS tIme there, and the OntarIO PublIc School Boards ASSOCIatIOn had always lobbIed on behalf of school boards The gnevor emphaslsed that he had not been personally mvolved m lobbymg the Mmlstry on behalf of the UCDSB He regarded that and other mteractIOns wIth the Mmlstry as the functIOn of the school board's staff. He saId that he had not met wIth trustees of other school boards m hIS capacIty as FIeld Officer - he had dealt wIth school board staff. [46] In partIculars delIvered on hIS behalf m advance of the hearmg, the gnevor acknowledged that m 2000 hIS branch of the Mmlstry had begun sharmg wIth Fmance Officers mformatIOn that had prevIOusly been dIscussed only at more semor levels m advance of ItS release to the publIc, but noted that he was mmdful of the oath of secrecy he had taken under sectIOn 10 of the PSA In hIS testImony he reJected the notIOn that a trustee would act on mformatIOn about changes the Mmlstry or Cabmet was consldermg or mIght make m advance of theIr actually commlttmg to and announcmg such changes, because untIl then the posItIOn mIght change A school board would not take advantage of tolerance levels by mcreasmg average class SIze, he saId, because parents would complam. He testIfied that he could not Imagme how he could favour hIS own board m the course of hIS dutIes as Fmance Officer, and noted that Fmance Officers are reqUIred to be even handed [47] As for the 1999 reclassIficatIOn of the Fmance Officer posItIOn, Mr Schoular noted that he was seconded to the Y2K proJect full tIme from March 1999 to June 2000, so hIS expenence of any effect of the reclassIficatIOn on the regular dutIes of hIS posItIOn was lImIted to the perIOd between June 2000 and October 12, 2000 He saId It dId not seem to hIm durmg that perIOd that there had been any dIfference m the Job's decIsIOn makmg role Analysis [48] Part III of the PSA IS entItled "PolItIcal ACtIVIty RIghts" That Part mcl udes the followmg. 17 28 4 (1) A Crown employee who does not belong to the restrIcted category descrIbed m subsectIOn 28 '3('3) IS entItled to engage m pohtIcal actIvIty wIthout restrIctIOn subject only to sectIOn 28 1 and to the followmg exceptIOns 1 A Crown employee may be a canchdate seek to be nommated as a canchdate or campaIgn on behalf of a candIdate m a mumcIpal electIOn wIthout takmg leave of absence and may hold mumcIpal office but only If the actIVIty or office would not mterfere wIth the performance of the employee s dutIes and would not conflIct WIth the mterests of the Crown. 4. A CIVIl servant may comment pubhcly and outSIde the scope of the dutIes of hIS or her posItIon on matters that are chrectly related to those dutIes and that are dealt wIth m the posItIons or pohcIes of a federal or provmcIal pohtIcal party or m the posItIons pubhcly expressed by a canchdate m a federal or provmcIal electIon only whIle on leave of absence granted under subsectIOn (4) 287 (2) A Crown employee who IS elected m a mumcIpal electIOn to an office that would mterfere wIth the performance of the employee s dutIes or would conflIct WIth the mterests of the Crown shall Immechately resIgn hIS or her posItIon as a Crown employee 28 8 A Crown employee who contravenes sectIOn 28 1 subsectIOn 28 '3(2) or 284(1) IS subject to the full range of aVaIlable chscIplmary penaltIes mcludmg suspenSIOn and chsmIssal. 28 9 (1) A Crown employee has the grIevance rIghts set out m subsectIOn (2) 1f he or she (a) IS chscIplmed for a contraventIOn of sectIOn 28 1 subsectIOn 28 '3(2) or 28 4(1) (b) suffers adverse consequences m the context of hIS or her employment as a result of engagmg m or declmmg to engage m pohtIcal actIVIty that thIs Act permIts or (c) IS threatened wIth an actIOn desCrIbed m clause (a) or (b) (2) A Crown employee to whom subsectIOn (1) apphes (a) IS entItled to have the matter dealt WIth by final and bmdmg arbItratIOn under a collectIve agreement 1f any' [49] The partIes dIsagree about how the termmatIon of the , gnevor s employment should be charactenzed The employer describes It as a deemed reSIgnatIOn. The umon says It was a dIsmIssal. [50] SubsectIOn 28 7(2) of the PSA reqUIres that a CIVIl servant reSIgn hIS or her employment under certam CIrcumstances The PSA restncts certam lImIted 18 re-employment nghts to those who resIgn m accordance wIth sectIOn 28 7, but does not otherwIse prescribe an employment consequence for faIlure to resIgn. In partIcular, It does not gIve the employer authonty to deem an employee to have resIgned from employment If the employee has not actually resIgned. In CIrcumstances m whIch sectIOn 28 7 reqUIres resIgnatIOn, however, a CIVIl servant who falls to resIgn as the sectIOn reqUIres would thereafter be m breach of subsectIOn 28 4(1) The employer IS entItled under sectIOn 288 to take dlsclplmary actIOn m response to a breach of subsectIOn 28 4(1) It IS clear from sectIOn 28 7 that the dlsclplmary response to a breach of that prOVISIOn can and should be such as to brmg the conflIct to an end. [51] The gnevor dId not resIgn. He cannot be deemed to have resIgned. The employer's havmg treated hIS employment as at an end therefore constItuted dIsmIssal from employment [52] Havmg regard to subsectIOns 284(1) and 28 7(2) and sectIOn 288 of the PSA, the central Issue m both of the gnevances before me IS whether the employer was correct m concludmg that the gnevor's servmg as Trustee of the Upper Canada Dlstnct School Board followmg the 2000 electIOns "would mterfere wIth the performance of the employee's dutIes or would conflIct WIth the mterests of the Crown." [53] Several decIsIOn mvolvmg alleged "conflIct of mterest" were referred to m argument Re Regwnal MU1UC[pahty of Hanulton- Wentworth and Canadwn Unwn of Pubhc Employees, Local 167 (1978), 18 L.AC (2d) 46 (Kennedy), Hallborg and Muustry of Revenue, GSB 79/21 (June 7, 1979, Weathenll), Van der Lutden and Muustry of Industry and Tounsm (February 4, 1981, Swmton), Re Windsor Star and Windsor Newspaper Gu[ld (1992), 26 L.AC (4th) 129 (McLaren), OPSEU (Edwards) and Mirustry of Health, GSB 2216/94, (January 9, 1996, Fmley), E Degre[t[s and Mimstry of the Enmronment and Energy, PSGB P/0007/94 (May 28, 1998, Lynk), and OPSEU (Hannan) and Mimstry of Econonuc Development, Trade and Tounsm, GSB 0008/96 (January 7, 1998, 19 Gray) The Hallborg decIsIOn IS the only one that deals wIth conflIct between employment m the cIvIl serVIce and holdmg mUnIcIpal office [54] In McKendry and the Treasury Board (May 31, 1973, E B JollIffe, unreported, quoted m Re Regwnal MU1uc[pahty of Hanulton- Wentworth and Canadwn Unwn of Pubhc Employee, Local 167 (1978), 18 L.AC (2d) 46 (Kennedy) at 54 and 55) the arbItrator made these observatIOns about conflIct of mterest m the federal publIc serVIce 1 Pubhc servants must not seek, for pnvate gam, to make use of mformatIOn not aVaIlable to the general pubhc to whIch they have access by reason of theIr officIal dutIes 2. A conflIct of mterest occurs when the pubhc mterest In proper admmIstratIOn of a government office and a government officIal s mterest m hIs pnvate economIC affaIrs clash or appear to clash, and a finchng of conflIct of mterest does not depend on wIlful wrongdomg by the officIal or on the Issue of whether the officIal's Judgment has m fact been affected. '3 A government officIal should not put hImself m a posItIon where hIs Judgment could, even unconscIOusly be affected by fnendshIp ThIS IS not a matter of YIeldmg to pubhc SuspICIOn or mahcIOUS cntIcIsm. The essentIal reqUIrements are that the pubhc servant should serve only one master and should never place hImself m a posItIon where he could be even tempted to prefer hIS own mterests or the mterests of another over the mterests of pubhc he IS employed to serve Those reqUIrements constItute the ratIOnale of the doctrme that he should aVOId a pOSItIon of apparent bIas as well as actual bIas and that he should never place hImself m a pOSItIon where as Dean Manmng puts It two mterests clash or appear to clash [55] LIkewIse, m Edwards, 2216/94 (Fmley), at pages 25 and 26 thIS Board (dIfferently constItuted) observed that The nature of conflIct of mterest legIslatIon and pohcy respectmg pubhc servants m the Provmce of Ontano IS preventIve m chrectIOn and IS very broad m concept. It puts the onus on the employee to make known to the Deputy Mimster an actual, perceIVed, or potentIally actual or perceIVed conflIct m order that the Deputy Mimster may provIde advIce on the matter and see that the matter IS promptly resolved. The penalty for faIlure to notIfy can be severe It can go so far as chsmIssal. The Deputy Mimster has WIde chscretIOn m provIdmg that advIce and resolvmg the Issue or m removmg the conflICt. Some sItuatIOns whIch may attract the conflIct of mterest label are the receIpt of honorana, the holchng of pohtIcal office outsIde employment actIvItIes outsIde busmess actIvItIes the denvatIOn of personal benefit when bemg m a pOSItIon to mfluence the ownershIp of property the acceptmg of favours ant the receIpt of personal benefit by the Immechate gamIly of a 20 pubhc servant. It IS not necessary for any financIal advantage to come to a pubhc servant for a conflIct of mterest to eXISt. The pubhc servant whose sItuatIOn attracts the conflIct of mterest label, may have taken no actIOn whatsoever and further may have no mtentIOn of takmg any actIOn whIch would be contrary to the Employer s mterest A pubhc servant who finds hIm or herself so labelled may feel that hIs or her honesty IS bemg Impugned. ThIs however does not follow A pubhc servant WIth a conflIct of mterest label IS not bemg accused of a lack of mtegrIty or honesty For such an accusatIOn there would need to be some specIfic actIOn on the part of the employee whIch would attract such a deSIgnatIOn. It IS sufficIent m conflIct of mterest sItuatIOns that there IS the suggestIOn of the possIbIhty of a conflIct of mterest and no actIOn need ever have taken place and no benefit present or future need be derIved. [56] The cases frequently refer to a conflIct between the employer's mterest and the employee's finanCIal mterest, but the conflIctmg employee mterest need not be economIC m order for a conflIct of mterest to anse It may anse from a matnmomal or other personal relatIOnshIp, as m Edwards and Hannan, or from the holdmg of mumcIpal office, as m Hallborg [57] In Hallborg the gnevor had been employed by the MmIstry of Revenue as a NeIghbourhood Assessor He had decIded to seek electIOn as a member of mumcIpal counCIl of a mumcIpalIty m the assessment regIOn m whIch he was employed. He had mformed hIS superIOrs of that mtentIOn, and the Deputy MmIster had advIsed hIm that If elected he would have a conflIct of mterest. He was elected, dId not reSIgn and was dIsmIssed He gneved, and the central Issue was whether there was a conflIct of mterest between the gnevor's employment and hIS holdmg mumcIpal office Although the gnevor's assessment work was pnmanly m another mumcIpalIty m the assessment regIOn, he had access to mformatIOn concermng propertIes throughout the assessment regIOn and would be mvolved m dIscuSSIOns about them WIth other assessors m the regIOn WIth a VIew to ensurmg that sImIlar propertIes were sImIlarly assessed The board found that some of the mformatIon to whIch assessors had access was mformatIOn that they were oblIged to keep confidentIal from others, mformatIOn that mIght gIve a mumcIpal counsellor an advantage, real or perceIved, m some cIrcumstances In that context the board made these observatIOns at pages 6 to 9 of ItS award 21 There IS as the employer acknowledges and as we are convmced, no questIOn of the gnevor s personal honesty and mtegnty There IS no suggestIon that the gnevor would take advantage of hIS speCIal knowledge for hIS own benefit or even for the benefit of hIS constItutents [SIC] or hIS mUnIcIpahty It IS nevertheless the case that the proper mterests of an Assessor conflIct WIth the proper mterests of a mUnIcIpal counsellor m the same RegIOn. Not only IS the same person undertakmg to serve two masters whose mterests are not the same and are sometImes opposed but he may be seen and reasonably so as bemg m a pOSItIon where It IS open to hIm to take advantage m one pOSItIon (even If not for hIS own benefit) of the speCIal knowledge he has gamed m the other The constItuent ward, mUnIcIpahty or provmce on the other sIde of some matter m whIch the councIl member WIth speCIal knowledge IS mvolved mIght well feel, whatever the real case may be that the sItuatIOn IS an unfaIr one There IS m fact a conflIct of mterest. The sItuatIon m the mstant case IS of course very dIfferent from those whIch were dealt WIth by the Pubhc ServIce Staff RelatIOns Board m the McKendry (166-2-674) Atlnns (166-2-889) or Garrett (166-2-'3040) cases In those cases the gnevors eIther accepted benefits from those whose cases they were to deal WIth, traded on knowledge or pOSItIon or entered mto transactIOns WIth the employer for theIr own benefit. There was what some of the wItnesses for the gnevor referred to as an actual conflIct of mterest In those cases m the sense that the employee concerned had behaved wrongly and had m fact taken Improper advantage of hIS pOSItIon. That IS a conflIct of mterest had occurred, and the employee had promoted hIS own mterests over those of hIS employer There IS of course nothmg hke that here but there IS an actual" conflIct of mterests nevertheless m that the gnevor has - honestly and from the best of motIves - taken on obhgatIOns whIch are m part contrachctory and whIch mvolve mterests whIch wIll, at tImes be m conflIct and be seen to be m conflICt. The conflIct of mterest m thIs case IS a sIgnIficant and substantIal one and anses out of the very nature of the two obhgatIOns whIch the gnevor has undertaken. It IS not the sort of mterest ansmg out of some partIcular matter or transactIOn to whIch The MUnIcIpal ConflIct of Interest Act 1972 apphes and whIch can be dealt WIth by declaratIOn and abstentIOn. It mvolves rather a fundamental chvergence of obhgatIOns The nghts of Crown employees to partICIpate m pohtIcal actIvItIes are governed by The Pubhc Sen'l,ce Act and the RegulatIOns thereunder A canchdate m provmcIal or federal electIOns must take a leave of absence to campaIgn and on bemg elected must reSIgn hIS pOSItIon as a Crown employee Crown employees may however (wIth certam exceptIOns noted m the Act or RegulatIOns and whIch do not cover the gnevor) be canchdates for mUnICIpal office and If elected may serve m such office prOVIded, as IS set out m sectIOn 11 of the Act aJ the candl,dacy, sen'l,ce or actwl,ty does not U/,terfere wl,th the performance of /ns dutws as a Crown employee, b) the candIdacy, sen'lce or actll'lty does not conflict WIth the Ulterests of the Crown, and c) the candl,dacy, sen'l,ce or actu'l,ty I,S not u/, affilwtwn wl,th or sponsored by aprOl'ulcwl or federal pohtl,cal party R.S.O 1970, c 386, s 11 22 In the mstant case whIle there IS no eVIdence touchmg on conchtIOn (c), and whIle we do not consIder that conchtIOn (0) apphes m any very substantIal way It IS our VIew that there IS for the reasons we have gIVen a conflIct WIth the mterests of the Crown so that conchtIOn (b) IS not met and the gnevor IS not entItled to serve m the mUnIcIpal office m questIOn. His servmg m such office constItuted a vIOlatIOn of SectIOn 11 and must under sectIOn 16 be deemed to be suffiCIent cause for chsmIssal. There was adduced, on behalf of the gnevor conSIderable eVIdence as to other cases m whIch Crown employees have been elected to and serve m MUnIcIpal office and vet rem am m employment In many of these cases we are not convmced that there IS m fact any SIgnIficant conflIct of mterest There are some we thmk partIcularly of the case of a Manager m the NIagara Assessment RegIOn who IS SaId to SIt as a member of the NIagara Penmsula ConservatIon Authontv where (although we make no determmatIOn of the matter) a conflIct of mterest does appear That such cases may have escaped notIce or conSIderatIOn however does not absolve others from meetmg the reqUIrements of The Pllbhc Sen'~ce Act. In any event It IS clear to us that there has been no attempt to chscnmmate unjustly agamst the gnevor hImself. The reqUIrements of the law are we thmk, clear and they must be met m the CIrcumstances of thIS case It should be repeated that m reachmg the conclUSIOn whIch we do we do not reflect at all adversely on the gnevor s honesty or mtegntv It IS sImply that wIthm a gIVen Assessment RegIOn, the pOSItIons of mUnIcIpal counCIl member and NeIghbourhood Assessor are not ones whIch can properly be held bv the same person at the same tIme as they necessanlv mvolve that person m conflIctmg allegIances [58] The umon argues that whatever the conclUSIOn mIght have been had the gnevor been seekmg office for the first tIme m 2000, the employer was oblIged to approach the matter m a manner conSIstent WIth the 1997 opmIOn of the then ASSIstant Deputy MmIster unless some change m eIther or both of the roles m questIOn had gIven nse to a conflIct where none prevIOusly eXIsted. In effect, the argument IS that no feature of the SItuatIOn as It eXIsted m 2000 should be weIghed m favour of a conclUSIOn that there was a conflIct of mterest If that feature was present m July 1997 It also argues that m mterpretmg the PolItIcal RIghts portIOn of the PSA, "conflIct of mterest" should be mterpreted narrowly when It IS bemg weIghed agamst the nght to seek and hold publIc office, and m that regard relIes on Be Windsor Star, supra, for the propOSItIOn that a conflIct should be actual and not merely potentIal m order to qualIfy as a conflIct of mterest m thIS context 23 [59] There was some dIscussIOn about whether the gnevor had faIled to comply wIth the condItIons In the 1997 letter, by seekmg out, acceptmg and partIclpatmg m specIal assIgnments that affected the UCDSB Whether or not hIS partIcIpatIOn m them mvolved a conflIct of mterest, the terms of the letter reqUIred the gnevor to first clear hIS partIcIpatIOn m those proJects wIth the Deputy Mmlster or hIs/her delegate dIrectly, and he faIled to do so It IS not an answer that hIS ImmedIate superIOrs knew of hIS dual role and even of the 1997 letter when they approved the assIgnments It was not theIr role to assess the conflIct of mterest questIOn. That was a matter on whIch the gnevor, and mdeed any CIVIl servant, was bound to deal dIrectly wIth the Deputy Mmlster (or hIs/her delegate for that purpose) The gnevor's ImmedIate superIOrs were entItled to expect that he would do that before acceptmg the assIgnments [60] These faIlures to mform and consult the Deputy Mmlster were not offered as cause for termmatIOn of hIS employment m October 2000 but, rather, to dlmlmsh the weIght that mIght otherwIse have been assIgned to the letter and to Illustrate, m conJunctIOn wIth the eVIdence about the radIO mtervlew, the dIfficulty of keepmg the two roles from commg mto ObVIOUS conflIct. [61] In any event, I do not thmk It matters whether hIS faIlures m that regard somehow dlmlmshed the effect of the Jackson letter Even If there had been no faIlure to meet the condItIons set out m the letter, I would not agree wIth the umon that the opmIOn expressed m It controlled or controls the conflIct of mterest determmatIOn m the manner the umon suggests I should certamly take It mto account m assessmg the credibIlIty and bona fides of the employer's contentIOns I am not oblIged to treat the opmIOn as havmg been correct at the tIme, however, nor was the employer m 2000 If the employer had reqUIred that the gnevor resIgn one or other of hIS roles by reason of hIS holdmg office as trustee durmg the 1997 2000 term, I mIght have had to grapple wIth the questIOn whether the Crown could be estopped from exerclsmg ItS nghts under the statute by reason of the 1997 opmIOn, or If some other doctrme wIth respect to expectatIOn mterests would have that effect The 1997 letter only spoke to hIS 24 seekmg electIOn and servmg "another term as a Pubhc School Board Trustee", however It dId not purport to bmd whoever mIght have to deal wIth a request from the gnevor to seek electIOn and serve as trustee for the 2000 2003 term. [62] In hIS partIculars, the gnevor saId The gnevor dIsputes the ImphcatIOn that School Boards and the Mimstry are m an adversanal relatIOnshIp They are cbfferent components m a large system wIth one goal, to prOVIde quahty educatIOn to the people of Ontano Smce these components are not m competItIOn wIth each other the basIs for a conflIct of mterest IS mImmal. Whether the relatIOnshIp between school boards and the Mmlstry may properly be described as adversanal, the thrust of the Mmlstry's case IS that on occaSIOn the mterests of the Mmlstry are m conflIct WIth the mterests of school boards and of school board trustees generally or of a partIcular school board or ItS trustees I find that to be so WhIle I accept as genume the gnevor's behef that a school board could not and would not make use of the confidentIal mformatIOn to whIch he would have access as a Fmance Office, I accept as true the eVIdence of the Mmlstry wItnesses that school boards behave as though that mformatIOn IS of value to them. It IS eVIdent that not all school board trustees share the gnevor's perspectIve The questIOn whether a Fmance Officer would have a conflIct of mterest servmg as a school board trustee cannot turn on the partIcular Fmance Officer's pohtIcal perspectIve or on how sympathetIc he IS to the Mmlstry's mterests [63] Fmance Officers have access to mformatIOn that the Mmlstry reasonably wIshes kept confidentIal from school boards That Mr Schoular would not share the mformatIOn wIth hIS school board colleagues IS not a sufficIent answer to thIS Fmance Officer Schoular could not keep the mformatIOn confidentIal from Trustee Schoular There are some respects, at least, m whIch only he would know whether Trustee Schoular had taken advantage of mformatIOn acqUIred by Fmance Officer Schoular m determmmg what posItIOn to advance or support on Issues ansmg at or concermng the UCDSB In any event, as m Hallborg the Issue IS not whether the gnevor has actually taken or would be hkely to take 25 Improper advantage of hIS posItIOn as Fmance Officer for the benefit of hIS school board or hIS posItIOn as trustee The Issue IS whether by assummg office as school board trustee whIle contmumg m employment as a Fmance Officer he became subJect to "oblIgatIOns whIch are, m part, contradIctory, and whIch mvolve mterests whIch wIll, at tImes, be m conflIct, and be seen to be m conflIct." If he dId, then, as the Hallborg decIsIOn says, there IS an actual conflIct of mterest of the sort wIth whIch the PSA IS concerned. [64] I agree wIth the Mmlstry that as of October 2000, the gnevor's servmg both as Fmance Officer and as school board trustee would have created a conflIct of mterest wlthm the meamng of sectIOns 284 and 28 7 of the PSA. Apart altogether from whether It would have been possible for the gnevor to have favoured hIS school board financIally m the course of hIS dutIes as Fmance Officer, I consIder It sufficIent that as Fmance Officer he would necessanly be pnvy to mformatIOn that the employer reasonably wIshes kept confidentIal from school boards [65] At least some of the CIrcumstances that have led me to find a conflIct of mterest were present m a more attenuated form m 1997, when Mr Jackson opmed that there would be no conflIct of mterest If the condItIons he outlme were met. I am mclmed to Mr Pebbles' VIew that that opmIOn may not have been entIrely correct at the tIme It was expressed, and that It mIght have been more accurate for Mr Jackson to have saId that the conflIct was sufficIently slIght m the CIrcumstances as they then eXIsted that the Mmlstry was prepared to tolerate It. [66] I wIsh to emphasIze that there IS no suggestIOn by the Mmlstry, and I have made no findmg, that Mr Schoular took Improper advantage of hIS employment as Fmance Officer whIle servmg as a trustee of the UCDSB Moreover, whIle I have come to the conclusIOn that hIS posItIOn on the conflIct Issue must be reJected, It IS entIrely understandable m the CIrcumstances that he took and pursued that posItIOn WIth the umon's able assIstance 26 [67] Although I have come to the same conclusIOn as the Mmlstry dId m 1999, I am troubled that It dId not mform the gnevor of that conclusIOn m May 1999 when Mr Peebles came to It. The appropnate officIal of the Mmlstry had told the gnevor m 1997 that there was no conflIct The mtervlew transcnpt on whIch the Mmlstry acted m May 1999 recorded that the gnevor had told the radIO mtervlewer there was no conflIct. The Mmlstry repnmanded hIm for havmg saId other thmgs m the mtervlew, but dId not take that opportumty to dIsabuse hIm of the notIOn that there was no conflIct. Its mactIon m that regard could only have encouraged the gnevor m hIS behef that there was no conflIct. Although he left hIS obtammg approval of a thIrd term as trustee rather late, m the CIrcumstances he mIght be forgIven for havmg thought that the outcome was a foregone and favourable conclusIOn. By the tIme he learned otherwIse he was pubhcly commItted to runnmg, the electIOn was a few weeks away and there was no way any challenge to the Mmlstry's changed posItIOn could be resolved before he had to choose between droppmg out of the electIOn or nsk losmg hIS Job [68] Havmg come m May 1999 to the conclusIOn that there was a conflIct, the Mmlstry was prepared to tolerate the conflIct for the balance of the gnevor's term of office as trustee There IS no reason why It could not have told hIm m May 1999 both of ItS conclusIOn that there was a conflIct of mterest and of ItS wlllmgness to tolerate the unavOIdable aspects of the conflIct for the balance of hIS term. That would have gIven hIm an opportumty to have hIS gnevance about that posItIOn addressed m the gnevance process and at arbItratIOn before havmg to choose between hIS two roles It would have gIven hIm the opportumty to seek some other posItIOn m the CIVIl serVIce m whIch It would not be a conflIct for hIm to contmue to serve as trustee It would have gIven hIm the opportumty to plan a graceful eXIt from one or other of the two roles [69] I do not accept the umon's submIssIOn that the employer had an obhgatIOn to find the gnevor a non-confllctmg posItIOn m the CIVIl serVIce I do not suggest that the employer's faIlure to gIve the gnevor notIce of ItS changed VIew earher than It dId was a breach of some legal entItlement of the gnevor's m respect of 27 whIch he IS entItled as of nght to a partIcular remedy It IS, however, a consIderatIOn that I thmk should be taken mto account m consIdermg the exerCIse of my statutory JunsdIctIOn to alter the penalty for the gnevor's havmg put hImself m a conflIct of mterest contrary to the MmIstry's belated dIrectIOn. [70] Accordmgly, I dIrect that If wIthm the SIxty day perIOd followmg the release of thIS decIsIOn the gnevor gIves the employer hIS wntten undertakmg to resIgn hIS posItIOn as trustee effectIve on the date of hIS remstatement, the employer shall remstate hIm to hIS former posItIOn as Fmance Officer wIthm two weeks after receIvmg that wntten undertakmg, or such further tIme as he and the MmIstry may agree In the event that the gnevor delIvers such an undertakmg, the penod between hIS last day of pmd employment m October 2000 and the date of hIS remstatement IS to be treated as a leave wIthout pay pursuant to ArtIcle 24 1 of the partIes' collectIve agreement Any breach of such an undertakmg to resIgn WIll be cause for dIscharge I retam JunsdIctIOn to resolve any dIspute concermng the ImplementatIOn of these dIrectIOns OtherwIse, these two gnevances are dIsmIssed [71] The partIes are free to agree on some outcome other than one provIded for m my dIrectIOn. I have stIpulated a SIxty day perIOd m order that the partIes can have adequate tIme to consIder theIr mterests and optIOns m that regard. Havmg smd that the employer IS under no legal oblIgatIOn to do so, I nevertheless hope that m the SIxty day penod provIded for, and any extensIOn on whIch the partIes may agree, It WIll explore wIth the gnevor, If he wIshes, the possibIlIty of restormg hIm and hIS talents to the CIVIl serVIce m a posItIOn that would not necessItate hIS resIgmng office as school board trustee Dated at Toronto thIS 18th dav of July, 2002 ~V