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Impending Changes to the Regulation of Teachers’ Professional Conduct and Practice: Issues and Association Response

The proclamation of Bill 15, the Education (Reforming Teacher Profession Discipline) Amendment Act, on May 31, 2022, set into motion a process for creating the office of the Alberta Teaching Profession Commissioner to oversee teacher and teacher leader conduct and competency complaints for the profession.

The legislation was developed without input from the Alberta Teachers’ Association and would apply not only to active members of the Association who are currently subject to the Association’s process but also to all teachers and teacher leaders under the Education Act, including superintendents, chief deputy superintendents and certificated district office staff, as well as certificated staff of charter and private schools.

The takeover of the Association’s professional regulatory functions has given rise to several serious concerns that, along with the Association’s response, are detailed in this briefing note.

One-page note highlighting the issue, background and key messages 

 

I. Transition to the new commission process

The process for transitioning responsibility for professional regulation from the Association to the government is set out in regulations published in June 2022. The process, again defined without Association input or participation, is remarkably convoluted and, at points, incoherent. In an effort to make sense of the transition, Association staff and government officials, assisted by their respective legal counsel, have been meeting regularly to iron out how responsibility for discipline and practice review files will be transferred along with all necessary documentation.

Ignoring a great deal of complexity, the government will take over responsibility for managing new complaints under a new Code of Professional Conduct and Practice effective January 1, 2023. Complaints initiated before that date and investigations and hearings under way will be dealt with in a variety of ways, depending on a number of factors, including where they are in the Association process, but any new hearings commencing after January 1 will be undertaken by the commissioner and heard by committees drawn from a panel appointed by the minister of education. After June 30, 2023, the commissioner will take over all investigations and hearings, except where an explicit extension has been granted to allow the Association to complete its work.


II. Independence of the commissioner

In other provinces, the regulation of professionals, in some cases including teachers, is typically undertaken by an independent body at arm’s length from government and with the participation of the relevant professional bodies. In contrast, the design of the process to be implemented in Alberta is quite distinct from regulatory processes that are in place for teachers elsewhere in the country and even for other professions in Alberta.

In particular, the minister of education has given herself in legislation the sole responsibility to appoint a commissioner and the members of the panel from which various hearing committees will be struck. She has also given herself the ability to alter, at whim, the findings of a hearing committee or any penalty imposed by a committee, either on first instance or upon appeal.

This immediately undermines claims that the process set out in legislation is truly independent from government and protected from political interference. Having seen this minister systematically attack and cynically misrepresent the Association’s own regulatory processes over the last three years, teachers and members of the public are entitled to question the legitimacy of the government’s proposed mechanisms and means for upholding standards of professional conduct and practice.

Furthermore, all the processes, including those directed by the commissioner, will be housed inside the Department of Education and are potentially subject to political direction from the minister and other officials of government. Moreover, the commissioner does not actually head up a commission of any description. Instead, the commissioner is effectively a bureaucrat who has no independent standing (unlike, for example, the information and privacy commissioner, the auditor general and other independent officers of the legislature) and, like most senior officials in Alberta Education these days, is not a member of the profession or required to possess any experience or expertise in education or teaching.

The recent appointment of the commissioner highlights this reality. While she may have relevant experience as a lawyer, the only background relevant to public education that Julia Sproule appears to bring to her role is membership on a school council. Generally, none of the expected protections for maintaining the independence of the professional regulation are provided for in legislation governing her role, and many of the practices and procedures for administering the new regulatory processes remain to be defined.

While ministry officials have claimed that the model they are implementing is essentially the same as that in place in British Columbia, this ignores several significant differences. In British Columbia, there is an arm’s-length commission with guaranteed representation from the British Columbia Teachers’ Federation, teachers at large and public members appointed by government. The commission in British Columbia is designed to function apart from the regular structures of government, and decisions in individual cases are not subject to ministerial interference, only to judicial review.


III. Code of Professional Conduct and Practice

With less than two months left before it is to come into place, teachers still do not know what the government’s proposed Code of Professional Conduct and Practice will entail. We know only what “concepts” the government was test driving in a public consultation it ran in mid-September through early October. A response to the government’s consultation survey submitted by the Association has been previously provided to members of Provincial Executive Council and can be found here

Despite drawing upon the ATA’s Code of Professional Conduct for much of its content, the “concepts” being tested in the government survey depart from and expand in significant and troubling ways the understanding of the responsibilities embodied in the current ATA code:

  • They conflate competence, which is often contextual, with conduct, which tends to be more absolute—the two entailing very different evidentiary tests and responses.
  • They conflate the fiduciary responsibility a teacher has to their employer (and potentially government) as an employee with their larger professional responsibility to students, colleagues and the school community.
  • They fail to differentiate or prioritize the different obligations a teacher has with respect to students, parents, employers, communities and government, creating the potential for intractable conflicts among these various interests.
  • Collectively, the government’s “concepts” appear to be intended to weaponize the code against teachers and their exercise of professional judgment in order to increase employer (and government) control while creating processes that could be used to evade protections set out in collective agreements, labour standards, and principles of natural justice and fairness.

IV. Pivoting to representation

Now that it is no longer responsible for professional regulation and given the potential for the government’s process to be unfair and detrimental to teachers caught up in it, the Association must determine what its role will be going forward. Association staff have engaged with teacher organizations, notably in British Columbia and in Ontario, to determine how their experience with similar regulatory regimes might inform our approach.

These unions provide representation, albeit subject to limitations, as part of their core service. For the Alberta Teachers’ Association, doing likewise will be a significant departure from almost 85 years of practice. Members will have an expectation that their rights and interests will be protected, especially given the flawed process being implemented and the potential that exists for political and bureaucratic involvement in the process and its outcomes. Furthermore, the Association has an interest, on behalf of its members, to ensure that principles of natural justice and fairness are upheld, even where the circumstances of a case may not reflect well upon the individual or the profession.

In the case of other teacher organizations, representation is discretionary, and because regulatory processes concerning conduct and practice are not related to or derive from the teacher’s collective agreement, there is no “duty of fair representation” binding the union to provide representation.

Complicating the Association’s task are the many unresolved questions concerning the operation of the commissioner’s processes. Although staff have been in contact with government to make sense of the convoluted legislative and regulatory regime being implemented and to manage the transition of individual cases and responsibility to the commissioner, it is still unclear what the Association can expect after January 1, 2023:

  • What will be within the purview of the government’s code of professional conduct?
  • What will preliminary investigations look like?
  • What nature of complaints will be subject to further investigation?
  • Who will be undertaking investigations and making recommendations to the commissioner?
  • Will similar processes be used for responding to complaints related to conduct and to practice competence?
  • Will the government’s process entertain its use by employers for the purpose of personnel management?
  • Will there be an effort to make more extensive use of alternative resolution processes as opposed to convening hearings?
  • What will be the composition of committees?
  • Will the outcome of cases that do not go to a hearing be made public?
  • To what extent will the management and preparation of cases entail the use of legal counsel?
  • What will be the basis for precedent, particularly with respect to penalties?

Despite all this uncertainty, the Association must provide direction to members and to staff with respect to representation of members before January 1, 2023. At this point, the direction is necessarily fairly abstract and high level. As government’s intentions and practices become clearer, it will be necessary to develop additional administrative guidelines and processes. It will also be necessary to undertake a review of bylaws, policy and administrative guidelines to remove or amend content that is no longer relevant, given the change in the Association’s role.

Given the short timelines ahead, Provincial Executive Council has approved a very broad policy framework that can inform the development of the Association’s response and the development of related policies and procedures going forward:

  • The Association will provide assistance and representation to active members (and those who have been consistently in possession of the highest level of membership available to them) in investigations, processes and proceedings concerning professional conduct and practice administered by the Alberta Teaching Profession Commissioner.
  • The purpose of representation is to ensure that professional conduct and practice proceedings adhere to legislation and regulations, legal standards established for similar administrative proceedings, and requirements of fairness and natural justice. The provision of representation does not constitute an endorsement of a member’s conduct or practice.
  • Representation and assistance will be provided by Association staff, with the assistance of external legal counsel as required. As the situation becomes clearer over time, related changes to staff complements and Association programs or structures may be proposed to Provincial Executive Council and, through the budget process, to the Annual Representative Assembly.
  • The nature and extent of assistance and representation will be determined on an individual case-by-case basis based on several factors, including the nature and facts of the case, the potential consequences for the accused, the potential to establish precedent, and the potential cost to the Association. Members will have a mechanism to appeal decisions concerning the scope and extent of their representation.

As more becomes known about the government’s intentions, more specific policies will be developed for consideration at the 2023 Annual Representative Assembly.


V. Aspirations and policy direction

On January 1, 2023, the Association’s Code of Professional Conduct will be without force and effect. To avoid confusion, Provincial Executive Council has placed into abeyance the Association’s code effective January 1, 2023. Once the content of the government code is finalized and released, the Association will consider whether to adopt its own code and what the content for such a code might be.

The Association has identified an opportunity to expand its role in assisting colleagues to manage conflict between them, a frequent source of complaints under sections 13 and 14 of the code:

  • “When possible, members should use informal and formal processes, including those established by the Association, to address and resolve conflicts with colleagues in a constructive, restorative manner.”

Provincial Executive Council has reiterated in interim policy that, regardless of the actions of government, teachers continue to aspire to be a fully self-regulating profession with independent control of its regulatory processes:

  • “Responsibility for upholding high standards of professional conduct and practice of teachers should be within the exclusive mandate of the Association as a professional regulatory authority (or entrusted to a professional college, independent of government, governed by teachers appointed by the Association, elected at large, with sufficient public representation to ensure transparency and legitimacy).”
  • “Legislation, regulations, processes, structures and institutions intended to uphold high standards of professional conduct and practice of teachers should be established only with the advice and consent of the Association.”
  • “Any costs associated with processes, structures and institutions established by the Government of Alberta without the consent of the Association for regulating the professional conduct and practice of teachers should be paid for by the Government of Alberta, with no fees, levies or charges being imposed upon teachers for this purpose.”
  • “Teacher members of the Teacher Professional Conduct and Practice Panel should be populated from a list consisting of active members nominated by the Association.”