Ontario College of Teachers v. Howard, 2014 ONOCT 48

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Howard, 2014 ONOCT 48

Date: 2014-11-20

In the Matter of the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;

And in the Matter of a discipline proceeding against Stephan Sebastian Howard, a member of the Ontario College of Teachers.

Panel: Robert Gagné, Chair Vicki Shannon, OCT Louis Sloan, OCT

Between:

Ontario College of Teachers Andrew Matheson, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Bev Hodsdon, Law Clerk

– and –

Stephan Sebastian Howard (Certificate #138559) Allyson Otten, Ontario Principals’ Council, for Stephan Sebastian Howard

Marc Spector, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: November 20, 2014

Decision, Reasons for Decision and Orders

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 20, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated February 1, 2014 was served on Stephan Sebastian Howard, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on February 20, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 20, 2014.

The Member was in attendance at the hearing.

The Allegations

The allegations against Stephan Sebastian Howard (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he failed to keep records as required by his professional duties, contrary to Ontario Regulation 437/97, subsection 1(10);

(c) he signed or issued, in the member’s professional capacity, a document that the member knew or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically sections 264 or 265 thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(f) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and,

(g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

Agreed Statement of Facts

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:

1. Stephan Sebastian Howard is a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab A is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. Between 2004 and 2009, the Member was employed by the Toronto District School Board (the “Board”) as a Principal at [XXX] School (the “School”) in Toronto, Ontario.

3. The [XXX] School Advisory Council (the “Council”) is a parent council which organizes fund-raising, social and community-assistance programs to benefit the students at the School. Monies raised and managed by the Council are maintained in a separate Council account.

4. Funds donated by the Council to the School, as well as other funds collected from students, were paid into an account intended to be used for school purposes (the “School Account”). The Council donated funds in response to School needs and specified what the donated funds were to be used for.

5. The School Account was also used for student funds collected for, and to be spent on, co-curricular activities, field trips, or other school projects and events.

6. The Principal’s responsibilities in regard to non-Board funds such as the School Account are to ensure that, inter alia, these funds are kept separate from Board funds; proper accounting records are maintained; records regarding receipt and disbursement of funds are accurate and up to date; and to ensure that the funds are used for their intended purpose. According to Board policy, monies in the School Account were to be used solely for student programs and activities and were not permitted to be used for salaries or wages for any permanent or casual employees.

7. During the material time, all amounts paid from the School Account were approved by the Member.

8. In March 2009, the Board Superintendent, Ms. Messner (the “Superintendent”), received an anonymous telephone call from a person who claimed to represent the parents of the School and requested a meeting to discuss the Member’s inappropriate use of money donated to the School by the Council for the use of students at the School.

9. On further investigation, the Board found that from in and around September 2004 to in and around August 2009, the Member authorized some inappropriate expenditure of funds from the School Account and failed to ensure that all funds donated by the Council were used for their intended purpose. The inappropriate use of funds authorized by the Member included:

(a) between 2004 and 2008 the Council donated over $56,000 to the School Account and gave specific directions for its use. About $35,700 was used as directed, but some of the items for which funds had been raised were not purchased as directed;

(b) amounts were improperly paid from the School Account to the Member which included reimbursement of approximately $2000 for the purchase of alcoholic beverages for staff events;

(c) payments were made from the School Account to certain School staff members on leave, to extend the period of time the staff members remained on leave. These payments were not consistent with the Board’s human resources policy nor approved by the Board and no statutory deductions were made from the amounts paid. In some cases, the payments were recorded in the accounting records as having been spent on other items such as purchase of Kindergarten furniture, costs of a basketball referee, or repairs to a car damaged by a student, when those were not the true reasons for the payments;

(d) payments out of the School Account were made to the School`s Office Assistant in 2007/2008 and in 2008/2009 which were said to be for overtime during the summer and throughout the year. In fact, the payments were not approved by the Board, there was no record that such overtime had been worked, and no statutory deductions were made from the amounts paid;

(e) money from the School Account was paid to the son of the Office Assistant and a friend of the son of the Office Assistant for caretaking work in the summer, despite the fact that the Board had not approved their hiring and no statutory deductions were made from the amounts paid;

(f) funds from the School Account were paid to a teacher to resume a position of additional responsibility within the School, even though another teacher who had performed the role in the former teacher’s absence continued to hold the position in question. No statutory deductions were made and no T4 was issued for the “added responsibility allowance” that was paid. School accounting records made it appear that the payment was to purchase cameras for the school but that was not the case.

10. From July to September 2009, the Member was in the process of concluding the school year at [XXX] School and transitioning to [XXX] School. The Member’s Board Purchasing card was available for him to use in July/August for [XXX] School and in September for [XXX] School. The Member made purchases but failed to provide receipts for the purchases made on this card in the amount of $2,175.19. If he were to testify, the Member would say that he did not provide receipts because he ceased to be at [XXX] School as of mid-October.

11. On October 13, 2009, the Superintendent directed the Member be sent home pending an investigation.

12. The Member submitted his resignation for the purpose of retirement on February 28, 2010.

Criminal Proceedings:

13. On or about May 27, 2013, the Member pleaded guilty to the charge of misappropriation of funds (s. 332) in that sometime between and including the fifth day of September, in the year 2006 and the first day of September, in the year 2009, he committed theft, by receiving either solely, or jointly, money from the [XXX] School Advisory Committee, with a direction that the money or a part of it, shall be applied for purposes of purchases for the benefit of the students, and/or facilities of [XXX] School, and that he, fraudulently, and contrary to that direction, applied that money, or part of it, for other purposes, or paid it to other persons in an amount that exceeded $5,000.00 contrary to the Criminal Code. The Member paid $29,448.24 to the Board in restitution. The Member received a conditional discharge and twelve (12) months’ probation, conditional on the Member keeping the peace and being on good behaviour. Attached to Exhibit 2, Tabs B, C & D respectively are the certified copy of the Information, the Probation Order and the Transcript of Guilty Plea and Reasons for Sentence and Judgment.

14. In his reasons for judgment, Justice Hopkins stated as follows: “This is an individual who, without question, has an otherwise remarkable and unblemished career, behind him. And this is a matter that comes into the criminal court, as an example of a good person who is [sic], admittedly, now done a bad thing. There is a breach of trust involved here. The statutory aggravating circumstance. One of the “wrinkles”, that’s being referred to, is that the terms and scope of the trust, in this matter, are less than clear. What is clear is that this money was put aside for certain purposes. And it was spent on a number of matters that were clearly not for those purposes. Having said that, from my understanding of the evidence, as the facts have been put forward, and through my involvement as a case-management Judge, none of this money went to the personal benefit of Mr. Howard. In my characterization, it seemed to be misguidedly applied for the benefit of others, that he felt were in need, and would otherwise not have been taken care of”.

15. The facts admitted by the Member in support of the guilty plea are set out in the Transcript.

Guilty Plea

16. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

17. The Member hereby acknowledges that the Admitted Facts referred to above constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(10), 1(12), 1(15), 1(16), 1(18) and 1(19).

18. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

19. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

Decision

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Stephan Sebastian Howard committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(10), 1(12), 1(15), 1(16), 1(18) and 1(19).

Reasons for Decision

The Member acknowledged that the Admitted Facts in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) constitute conduct which is professional misconduct and pleaded guilty to the allegations of professional misconduct against him. The Committee accepts the Member’s guilty plea and the information contained in the Agreed Statement of Facts tendered by the parties.

As a Principal, the Member was in a position of trust and had added responsibility, specifically around management of school funds. The Member had a duty to serve as a leader and role model for the students, teachers and the school community.

It was the Member’s responsibility to manage non-board funds ethically, to keep and maintain proper accounting records, and to ensure that the funds were used for the intended purposes, namely student programs and activities. The Member failed to do so on a consistent basis. The Member also neglected to follow policies of the Board, specifically those pertaining to the use of non-Board funds for salaries or wages.

By his actions, the Member clearly disregarded his responsibilities for the appropriate maintenance and use of monies raised by the school community which were intended to benefit students.

As such, the Committee finds the Member guilty of professional misconduct. The Member occupied a position of trust and authority, which he did not honour. Regardless of his reasons, the Member falsified documents with intent in order to conceal his unacceptable conduct. As well, the Member approved inappropriate purchases from the non-Board funds, including buying alcohol for staff events.

The Member’s professional misconduct was not a single incident, but rather an accumulation of instances over a period of several years in which funds were misused. He betrayed the ethical standards of the profession, and has brought the position of Principal and school leader into disrepute. In fact, the Member’s actions resulted in criminal proceedings wherein he pled guilty to the charge of misappropriation of funds.

Joint Submission on Penalty

Counsel for the College and Counsel for the Member submitted a Joint Submission on Penalty (Exhibit 3) indicating the following:

The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of 18 (eighteen) months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register.

3. direct the Registrar to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to returning to any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics;

(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) he or she has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

4. direct that there be publication of the findings and Order of the Committee in summary form, with the name of the member, in the official publication of the College, Professionally Speaking/Pour parler profession.

Penalty Decision

The Committee makes the following order as to penalty:

1. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 18 (eighteen) months commencing on November 20, 2014, the date of the Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, and the fact of the reprimand is to be recorded on the Register;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to returning to any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics;

(b) within thirty (30) days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(i) the course provider has reviewed a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

4. The Committee directs that there be publication of the findings and Order of the Committee in summary form, with the name of the member, in the official publication of the College, Professionally Speaking/Pour parler profession.

Reasons for Penalty

The Member acknowledged that the Admitted Facts constitute professional misconduct. The Committee finds the Joint Submission on Penalty to be appropriate, given the Member’s misconduct, the betrayal of public trust and the resulting criminal proceedings.

The Committee agrees that an 18 (eighteen) month suspension and a reprimand are appropriate in this matter, and act as specific and general deterrence to members, while maintaining public confidence in the profession. In addition, the course of instruction covering professional ethics reinforces to the Member the need for principled decision-making, and serves as a remedial measure.

The Committee agreed with both Counsel that publication of the findings and order, with the Member’s name, responds to the need for transparency and accountability. This disclosure also informs both the public and the profession of the consequences of unethical behaviour. Publication with name acts as a specific deterrent to the Member, and advises the profession and the public that such conduct will result in serious sanctions.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Dated: November 20, 2014

Robert Gagné Chair, Discipline Panel

Vicki Shannon, OCT Member, Discipline Panel

Louis Sloan, OCT Member, Discipline Panel