Professional Conduct Unit Investigations

Your local president will assist you in applying for BCTF legal aid. All matters are treated confidentially. If your local president is unavailable or you wish to proceed without their assistance (in PCU matters only), the legal aid application form is also available on our website.

Keep copies of all correspondence you receive from the PCU as well as any other documents or information you may have related to the allegations. You will be asked to provide these documents to the BCTF with your request for legal aid.

3. If the PCU contacts you and you already have a legal representative, ask the PCU to contact your legal representative. If you do not yet have a legal representative, advise the PCU that you would like to obtain legal advice before responding. If necessary, ask that any deadline be extended until you have an opportunity to consult a lawyer—this request should not be refused unnecessarily by the PCU.

• Reports of disciplinary action taken by a school district (any and all discipline is usually reported to the PCU)
  • common reports include improper classroom management or supervision, inappropriate response to stressful classroom incidents (such as yelling, grabbing or profanity), failure to supervise students or protect confidentiality, misuse of sick leave, perceived cultural insensitivity and inappropriate off-duty conduct including inappropriate social media posts
• “Person” complaints—usually from parents but can be from students or community members
  • The most common reports include inappropriate classroom interactions or discipline, perceived cultural insensitivity, failure to protect confidentiality, inappropriate social media use or other off-duty conduct
• Reports of criminal charges
  • Teachers are required to self-report to the PCU when they are charged or convicted of certain criminal offences as set out in section 17 of the Criminal Records Review Act, RSBC 1996 Ch. 86. The circumstances of such a charge may then become the subject of a conduct review by the PCU.
  • Other public or private sources may report a teacher’s criminal charge(s) to the PCU even where the charge is not a self-reportable offence and this can lead to the PCU initiating an investigation.

• If a report to the PCU is made against you, the PCU will send you a letter advising you of the report.
• Very often the initial letter from the PCU states that an investigation is being commenced.
• You may be asked to respond in writing to the allegations that have been made against you or to attend for an interview at the PCU office.
• The PCU may offer to resolve your matter “informally” by having you reflect on the allegations and respond in writing to a series of ethical questions from the PCU.
• The PCU may offer to resolve your matter with a Consent Resolution Agreement (CRA). A CRA is a public document that sets out the facts of your case and provides for varying levels of discipline including reprimand, a suspension of your certificate for a fixed period of time or until certain conditions are met; cancellation of your certificate or placing of conditions or limitations on your certificate.
• In some cases, including where a teacher fails to respond to the PCU or an agreement cannot be reached about how to resolve a case, the PCU will issue a Citation which is a short, publicized document that summarizes the case and indicates the case will go to a public hearing.

Do not do any of the following without legal advice:

1. Respond to an investigation report, advise the PCU of your position or provide any information in response to the allegations. But do not ignore correspondence from the PCU. Get in touch with your local president or Legal Services Department if you do not know the status of your case.
2. Resign, retire, relinquish your teaching certificate or let your teaching certificate lapse.
3. Answer informal resolution questions.
4. Attend an interview with a PCU investigator.
5. Make an agreement with the PCU.
6. Participate in a hearing.

Prior to 1987 the Ministry of Education issued teaching certificates. Certificates were non-expiring unless they were removed by the ministry due to teacher misconduct. This generally only occurred in response to criminal convictions for serious violent and/or sexual offences. More minor misconduct was dealt with through discipline by the employer and the federation.

In 1987 the British Columbia College of Teachers was established through legislation. The Teaching Profession Act provided a statutory mandate to regulate the conduct and competency of certified teachers in British Columbia. The Act established a self governance structure headed by a council with a majority of councilors was elected by teachers of the profession. Sub-committees of councilors made decisions on qualifications, fitness and discipline. All staff, including the registrar, were under the employ and direction of the council.

In 2011 the provincial government repealed the Teaching Profession Act and replaced it with the Teachers Act. The Act dissolved the BC College of Teachers and established a new system for teacher certification, regulation, and discipline administered by the Ministry of Education. A new Teacher Regulation Branch (TRB) has been created within the ministry. Many of the functions performed by the college continue as part of the TRB with former college staff continuing their work under the employ and direction of the ministry.

Some elements of self government are retained. Teacher representatives have a voting majority on the new BC Teachers' Council. The council is a policy setting body which determines the standards for the profession and for teacher education programs.

The British Columbia Teachers’ Council

The council consists of:

• three teachers nominated by BCTF;
• five practicing teachers elected from regions. Practicing is defined as having taught or supervised educational programs in the last two years. Elected teachers may serve a maximum of seven years. Aside from the requirement of currency of practice and residency within the zone, there is no restriction on who may be a candidate;
• seven persons appointed by the minister; and
• one non-voting government appointment.

The council has authority to:

• establish standards for teacher education programs;
• cooperate with the design and evaluation of teacher education programs;
• establish qualifications required for certification;
• establish standards for conduct and competency; and
• create categories of certificates.

Disciplinary and Professional Conduct Board

The Discipline and Professional Conduct Board will be appointed by the minister from teachers of the council. The board will consist of:

1. four members from the councilors appointed by BCTF or elected by teachers; and
2. five from the other ministry appointees.

The board’s role appears to be limited to providing members to serve on discipline hearing panels and certification appeals. Hearings are before panels of three. Only one member of a hearing panel can be an individual appointed by the BCTF or elected by teachers.

Commissioner

The commissioner is appointed by the Lieutenant Governor on the recommendation of the minister to oversee professional conduct and discipline manners.

The commissioner reviews all reports regarding teacher discipline, conduct or competency and determines whether to:

• close the file with no action;
• defer the matter on the basis that it is being addressed in another forum;
• resolve the matter informally
• commence an investigation;
• resolve the matter through a consent resolution agreements;
• issue a citation for a hearing;
• issue pre-hearing suspensions where a teacher poses a risk to the safety of students.

The Act gives the commissioner sole authority over all discipline matters which are resolved without a hearing. This is the vast majority of all discipline cases. Very few matters require a hearing.

If a matter goes to a hearing, the commissioner appoints the hearing panel.

The current commissioner is Dianne Flood, a senior lawyer with extensive administrative law experience.

Director of Certification

The director of certification is appointed through the ministry pursuant to the Public Service Act. The director of certification:

• Determines whether applicants meet requirements for certification with respect to both qualifications and good character;
• Provides written reasons for any decision to deny an applicant a certificate of qualification;
• Enforces the requirements of the Criminal Records Review Act. This includes suspending or cancelling the certificate of individuals who do not provide criminal records checks or have been found through the criminal records review process to pose a risk to students.

The TRB reviews teacher conduct which falls into the following categories:

1. Professional misconduct
   Professional misconduct is unprofessional behaviour that occurs while carrying out teaching duties. Professional misconduct may involve very serious allegations such as assault of a student, or more minor matters such as inappropriate verbal interactions with students.
2. Conduct unbecoming
   Conduct unbecoming is off duty conduct which has a negative affect on the teacher’s role as a teacher. During the 1980s and 1990s, conduct unbecoming generally involved serious criminal conduct, such as sexual abuse of children or young people. Over the last few years the TRB has taken an interest in a wider range of off duty behaviour. Teachers now find the TRB will review almost any criminal conduct as well as any non-criminal conduct alleged to reflect poorly on the teaching profession.
3. Incompetence in carrying out teaching duties
   Incompetence in carrying out teaching duties occurs when a teacher fails to perform in a manner which meets the minimum standards expected for a teacher of the teaching profession.

The TRB has published Standards for the Education, Competence and Professional Conduct of Educators in British Columbia (See www2.gov.bc.ca/gov/content/education-training/k-12/teach/standards-for-educators for current version.) These standards where carried over from the BC College of Teachers. The new BC Teachers’ Council may revise the standards in the future.

The standards articulate the commonly held values and attributes of the teaching profession. Prior to the publication of the standards, the standards existed as unwritten understandings among teachers of the profession regarding how teachers should behave.

The standards are not a complete list of specific things that a teacher must or must not do. Teachers are expected to carry out their professional duties in a manner which is consistent with what can be reasonably expected of a responsible teacher.

There is no doubt that certain types of behaviour, such as sexual or physical assault of students, violate the professional standards for teachers.

More borderline is behaviour which results from inexperience, lack of support, poor judgment, and/or a momentary loss of control. Many incidents occur in the practice of teaching which in retrospect are regrettable. Not all of these show professional misconduct on the part of the teacher. Conduct must reach a certain level of severity to merit professional discipline.

Matters may come to the attention of the TRB from a wide variety of sources. The following are most common:

1. Report from school board. Boards are required under section 16 of the School Act to report:
   • All suspensions and terminations;
   • Any other discipline (including reprimands) which involves:
     1. physical harm to a student or minor,
     2. sexual abuse or sexual exploitation of a student or minor, or
     3. significant emotional harm to a student or minor,
   • Any conduct in breach of the certification standards where it is in the public interest to make a report. Boards may report conduct concerns which did not result in discipline but they normally only do so if the conduct only came to their attention after a teacher has left the district.
   • resignations where it in the public interest to do so. Boards generally report resignations which occur in the context of a discipline investigation or a negative teaching evaluation. Teachers resigning after conduct concerns should be warned that a report will likely be made.
2. Person Complaints. The TRB accepts any written and signed complaint about a teacher from any person, with no limitations on subject of the complaint or the identity of the complainant.
3. Written report from another teacher.
4. Report of criminal charges. Teachers are required to self report criminal charges to the TRB. Criminal charges involving teachers are also reported to the TRB by the Attorney General’s office.
5. Information from any source which provides the commissioner with reasonable grounds to commence an inquiry.

Intake stage - Initial communication to the teacher

Once the TRB receives a report or complaint, the teacher will be provided with written notice of the complaint.

At this point the teacher may seek assistance from the local. The teacher should be directed to immediately apply for legal aid. Our legal aid application form is available on the BCTF website or through BCTF legal. The legal aid application should have all relevant documents attached including those relating to employer discipline proceedings.

It is very important that teachers receive advice from the union or a lawyer before responding to letters or other forms of communication from the TRB.

TRB staff generally keep notes regarding discussions with teachers, including casual telephone conversations. Comments made by teachers may be used against them in later proceedings. Teacher should not admit any wrongful conduct and should not express frustration and anger in conversations with TRB staff.

Preliminary information gathering

The initial review of the complaint does not involve a full investigation but it does involve collecting information from the employer and other sources. The employer is required to provide all requested information including documents regarding unrelated complaints and investigations.

Employers should provide a copy of documents disclosed to the TRB to the teacher but in practice they rarely do so without prompting. Legal counsel should ensure that boards comply with their statutory obligation under section 16(9) of the School Act to send a copy of all records disclosed to the TRB to the teacher.

A thorough submission should be provided to the TRB on behalf of the teacher in order to ensure that any concerns set out in the employer’s materials are fully addressed.

Although prepared by a lawyer, submissions should not be overly legalistic. Submissions should provide a sympathetic narrative which explains the teacher’s behaviour and satisfies the conduct concerns of the TRB.

The commissioner is not well positioned to decide disputed facts. Where allegations are minor, disputed allegations should be noted in a relatively brief manner. The main focus of the submission should be on assuring the commissioner that, regardless of the merit of the allegations, there are no serious conduct concerns that need to be pursued by the TRB.

Where allegations are very serious and are disputed by the teacher, submissions should emphasize other proceedings where the allegations were determined to be unfounded and any evidence which shows that it is unlikely that the allegations could be proven at a hearing.

Decision to take no further action

The commissioner may decide not to take further action if s/he determines that any of the following apply:

1. the matter is not within the jurisdiction of the commissioner or a panel ( for example, does not involve an allegation of professional misconduct, behavior unbecoming or incompetence);
2. the matter is frivolous, vexatious or trivial or gives rise to an abuse of process;
3. the complaint was made in bad faith or filed for an improper purposes or motive;
4. there is no reasonable prospect the report or complaint will result in an adverse finding by a panel;
5. it is not in the public interest to take further action in respect of the matter; and
6. the matter has not been pursued in a timely manner.

Deferral

The Teachers Act provides for a matter to be deferred if the commissioner determines that it is in the public interest for it to be dealt with in another process before action is taken by the TRB.

This is a new provision that did not exist under the Teaching Profession Act. It is unclear how the TRB will use deferrals. We expect that the TRB will continue the college’s practice of proceeding irrespective of outstanding grievances.

The commissioner may order that a matter be investigated. Investigations are carried out by TRB staff. The investigations usually take between six and 18 months to complete.

Under the newTeachers Act, the commissioner has very express authority to compel participation in investigations. Our position is that this authority must be exercised in a reasonable matter with appropriate deference to:

• privileged and confidential communications
• the personal and professional interests of teacher witnesses
• the best interests of children and young people
• other aspects of the public interest

We have expressed the following concerns to the college and the TRB regarding their investigation procedures:

• investigations take too long
• there is a lack proportionality between the seriousness of the allegations and the resources put into the investigation
• reasonable boundaries are not placed on the scope of investigations
• there are not procedures for compensating teachers or witnesses for the costs of attending investigation meetings
• investigation reports have included rumours, hearsay, malicious allegations and other clearly unreliable material
• interviews with students, parents and district employees can be stressful for those individuals and damaging to the teachers reputation
• investigations by the TRB often occur several years after the original incident resulting in issues which have been fully resolved being unnecessarily reopened.
• Teachers are not provided with adequate disclosure during the investigation stage

The lack of disclosure of information and documents to teachers during the investigation means that their ability to respond to allegations is compromised. For this reason we often recommend that teachers wait until receiving an investigation report before providing a full response. Once the investigation is complete, we are in a better position to assess the specifics of the allegations and what evidence there is against the teacher.

We can then provide facts and documents that support the teacher’s explanation of what occurred.

At the completion of the investigation the teacher is provided with an investigation report. This report describes the information gathered by the investigator. Relevant documents are attached. The investigator does not reach any conclusions about what occurred or make any recommendations.

The TRB generally provides the teacher with 30 days to respond to the report. The time limit may be extended if a request is made with valid reasons.

It is important to provide the TRB with a thorough response to the report. The response should answer the allegations and also describe positive aspects of the teacher’s background and teaching record. Any mitigating factors, such as stress related health problems, should be fully explained. The teacher should indicate sincere regret for any conduct with is clearly inappropriate or unprofessional. The teacher should also show a willingness to engage in remedial activity such as workshops, courses, counseling or medical treatment.

The commissioner reviews the investigation report and any response to the report submitted on behalf of the teacher. The commissioner may decide not to take further action, defer the matter, propose and informal resolution or issue a citation for a hearing.

Hearings take place before a hearing panel consisting of three teachers of the discipline board. Only one panel teacher can be a teacher elected or appointed by the BCTF.

Hearings are public unless there are circumstances which justify restricting public access.

A panel, after a hearing, may make any of the following findings:

1. dismiss the citation;
2. determine that an authorized person has been or is guilty of professional misconduct or conduct unbecoming a teacher;
3. determine that an authorized person has been or is incompetent to carry out the professional duties and responsibilities of a teacher;
4. determine that an authorized person does not have the capacity to carry out professional duties and responsibilities of a teacher because of a physical or mental disability;
5. make to the commissioner any other report respecting the citation that the panel considers appropriate.

If there is a finding of misconduct or conduct unbecoming, the committee may impose the following penalties:

1. reprimand;
2. suspension; or
3. termination of teachership and certificate of qualification.

The Panel may also recommend or order participation in remedial activities.

A finding of incompetence can result of a wide variety of consequences including requirements to:

1. complete a course of study designated by the Council;
2. appear before a board of examiners; and/or
3. satisfy a board of examiners that the teacher’s competence to carry out his or her responsibilities is not adversely affected by a physical or mental disability or addiction to alcohol or drugs.

Costs

Under the Teaching Profession Act, college hearing panels had general authority to require teachers to pay for some or all of the costs of a hearing. Despite this awards of costs were rare and generally confined to cases where the length of proceedings has been extended as a result of unreasonable conduct by the teacher.

Under the Teachers Act, teachers can only be required to pay costs the hearing if the panel considers the conduct of the teacher to have been improper, vexatious, frivolous or abusive during the hearing.

Publication – On line registry

Following a decision to discipline a teacher, the TRB must publish the decision, including the teacher’s name, in the TRB newsletter and on the TRB website.

Currently there are no practices in place to limit the length of time a matter is published.

We have encouraged the TRB to develop policies and practices regarding this.