Analysis

The USP Meet That Did Not Happen

At its last meeting on July 3, the University of the South Pacific council resolved to ask the Executive Committee to determine if there was material evidence of misconduct in
14 Aug 2020 13:55
The USP Meet That Did Not Happen

At its last meeting on July 3, the University of the South Pacific council resolved to ask the Executive Committee to determine if there was material evidence of misconduct in the 33 allegations that were filed by the Chair of Audit and Risk Committee of USP.

They were to report to Council in its meeting on August 12. August 12 has passed and there was no Council meeting.

The reason given for this was that the Executive Committee did not meet and thus had nothing to report.

Why no meeting?

The question then is why did the Executive Committee not meet?

The answer is:

The Chair of the Executive Committee (the Pro-Chancellor) had been asked by Council to recuse himself from anything to do with the discipline of the VC. As per the Ordinance, in the absence of the Pro-Chancellor, the Deputy Pro-Chancellor Chairs the Executive Committee. However, Council has also asked the Deputy Pro-Chancellor to recuse herself from anything to do with the discipline of the VC.

Now if neither the Pro-Chancellor nor the Deputy Pro-Chancellor can be involved then there is no provision in the Ordinance to allow anyone else to call a meeting of the Executive Committee.

This means that no Executive Committee meeting will ever be called to discuss if there was any material misconduct in the 33 allegations.

So, this points to one of two things:

Council acted irrationally in asking the Pro-Chancellor and the Deputy Pro-Chancellor to recuse themselves and now they are in a fix?
The Council deliberately acted in bad faith to prevent these investigations?

So, what is it?

The clause

The Council earlier claimed that the Executive Committee that suspended the VC, acted outside the provisions in the Ordinance. However, look at the clause below:

f The Pro-Chancellor, with the agreement of the Executive Committee may suspend the Vice-Chancellor for the duration of the investigation but only if the Pro-Chancellor and the Executive Committee, acting reasonably, consider the Misconduct to be both Material if proven and to be conduct which would result in sanctions being imposed on the Vice-Chancellor by persons outside of the University. If the Vice-Chancellor is suspended, the suspension shall be suspension from duties on pay and without withdrawal of privileges.

While the Council appears to want to follow the Ordinance, it has created a situation that is clearly in breach of the Ordinance itself by not allowing the Executive Committee to meet and investigate a potential material misconduct.

So what is the value of the allegations now? Does the fact that these allegations were brought by the Chair of the Audit and Risk Committee mean anything anymore?

What the USP Ordinance says

This is what the USP Ordinance says:

Clause 6. Allegation of Misconduct against Vice-Chancellor

(a) Where the Pro-Chancellor:

(i) receives a written document which identifies the complainant and alleges Misconduct against the Vice-Chancellor which, if proven, would be Material; or

(ii) becomes aware of circumstances which may constitute Material Misconduct, then, the Pro-Chancellor must, within 10 Days of either receiving the allegation or becoming aware of circumstances which may constitute Misconduct and in consultation with the Deputy Chair, and having engaged with any other persons whom the Pro-Chancellor determines may assist him or her to make a determination (including at the ProChancellor’s discretion, the University’s legal counsel, University staff and the complainant), determine whether the allegation is Material.

(b) If an allegation is deemed not to be Material by the Pro-Chancellor and the Deputy Chair, acting in good faith, then the Pro-Chancellor shall within one Day of making a determination in accordance with section 3(a) notify the Vice-Chancellor and the complainant of the dismissal of the allegation of Misconduct.

(c) If an allegation is deemed to be Material by the Pro-Chancellor and the Deputy Chair acting in good faith, the Pro-Chancellor must as soon as possible but no later than 2 Days after making a determination in accordance with section 3(a): (i) notify the Vice-Chancellor in writing that there will be a referral of the allegation to a sub-committee in accordance with section 3(c)(ii); and 4 (ii) refer the allegation to a sub-committee comprised of the Pro-Chancellor or his/ her delegate and three (3) members of the Council appointed by the Pro-Chancellor.

The sub-committee may co-opt one or more external expert(s) and shall consult with the University’s legal counsel.

(d) The sub-committee shall:

(i) conduct its investigation over a period of up to 15 Days from the referral of the allegation to it;

(ii) notify the Executive Committee that an investigation has been instigated;

(iii) consider the allegation;

(iv) hear the Vice-Chancellor (if the Vice-Chancellor requests) or review any submissions the Vice-Chancellor wishes to make in response to the allegation; and

(v) report on the investigation to the Executive Committee as soon as the sub-committee, acting expediently and in good faith, is able to consider the allegation and make a report on its findings available.

(e) Both the sub-committee and the Executive Committee may meet at any time and by any means they deem appropriate, including by electronic transmissions in writing or in person to meet their obligations under this Ordinance.

(f) The Pro-Chancellor, with the agreement of the Executive Committee may suspend the Vice-Chancellor for the duration of the investigation but only if the Pro-Chancellor and the Executive Committee, acting reasonably, consider the Misconduct to be both Material if proven and to be conduct which would result in sanctions being imposed on the Vice-Chancellor by persons outside of the University.

If the Vice-Chancellor is suspended, the suspension shall be suspension from duties on pay and without withdrawal of privileges.

(g) If the Pro-Chancellor is unavailable, the Misconduct allegation shall be considered by the Deputy Chair of Council, who may exercise the powers of the Pro-Chancellor.

(h) If the Pro-Chancellor has an actual or potential conflict of interest in relation to the allegation or the relationship of trust and confidence between the Pro-Chancellor and the Vice-Chancellor has broken down, the Misconduct allegation shall be considered by the Deputy Chair of Council.

If the Pro-Chancellor and Deputy Chair both have a conflict of interest, the Secretary to Council shall convene a special meeting of the Executive Committee to consider the allegation of Misconduct.

(i) The sub-committee shall within 5 Days of concluding its investigation, make its draft report in relation to its consideration of the Misconduct allegation to the Vice-Chancellor, who shall have the right of reply within 15 Days of receipt of the report.

(j) The sub-committee shall consider the Vice-Chancellor’s response, finalise its draft report and make its recommendations to the Executive Committee. The sub-committee shall endeavour to deliver its final report to the Executive Committee no later than 5 Days after it receives any comments from the Vice-Chancellor on the draft report.

7. Report of the Executive Committee

(a) The Executive Committee shall consider the final report and recommendations from the sub-committee and may determine that the allegation be dismissed.

(b) If the Executive Committee does not dismiss the allegation it shall within 10 Days of receipt of the report from the sub-committee, present the final report and any recommendations to the Council at either a scheduled Council meeting or, if required by the Executive Committee, an extraordinary meeting of Council held by electronic transmission in writing or in person.

(c) The Pro-Chancellor shall inform the Vice-Chancellor of Council’s decision as soon as practicable.

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