Should regulators be policy makers?

1. Should regulators be policy makers? Peter Alexander palexander@oct.ca www.oct.ca Presentation to CLEAR conference Toronto September 12, 2003 The presenter is a Policy Analyst for the Ontario College of Teachers. Opinions expressed are those of the presenter.

2. For and Against From the New York Times, Aug. 29, 2003 re greenhouse gas regulations “If Congress has not specifically addressed the question, a reviewing court must respect the agency’s construction of the statute as long as it is permissible.” -- Justice Sandra Day O’Connor “Where there is a major public policy issue, Congress needs to decide… The Supreme Court said where there is a major public policy decision to be made, an agency can’t just go out and use a broadly worded statute to deal with that.” -- Jeffrey R. Holmstead, Environmental Protection Agency

3. Rules are not enough “Discretion is a tool, indispensable for the individualisation of justice… Rules alone untempered by discretion, cannot cope with the complexities of modern government and of modern law… The seven instruments that are most useful in the structuring of discretionary powers are open plans, open statements, open rules, open reasons, open precedents and fair informal procedure. The reason for repeating the word ‘open’ is a powerful one; openness is the natural enemy of arbitrariness and a natural ally in the fight against injustice.” -- Kenneth Culp Davis, Discretionary Justice

4. Questions to consider • How clear is the regulator’s mandate with respect to the policy at issue? • Does a policy vacuum exist? Is this preferable to making good policy yourself to fill the vacuum? • Which is the higher duty: to serve and protect the public interest, or to respect the parameters of delegated authority?

5. Case in point:Preventing sexual misconduct Background • In 1996, an Ontario teacher pleads guilty to 14 separate sexual offences, involving 13 victims over a period of 21 years. • The victims are all female, ranging in age from 10 to 18. All but one are students. • This grievous crime results in a public review, commissioned by the Attorney General of the province of Ontario in 1999.

6. A call for policy action • The “Robins report”, April 2000: Protecting Our Children: A review to identify and prevent sexual misconduct in Ontario schools. • Systemic failure in the public school system and related public services • 36 recommendations addressed directly to the Ontario College of Teachers • Another 65 recommendations for school boards, faculties of education, provincial prosecutors, sentencing judges, federal justice department, provincial ministries of education, attorney general and community and social services

7. Regulator’s response • June 8, 2000 - Executive Committee of the College directs staff to analyze Robins Report • February 8, 2001 - College hosts working session with provincial education representatives and others with responsibility for the care of children. • March, 2001 - Feature article on this matter in official publication of the College, Professionally Speaking • March 22, 2001 - Council resolves to make recommendations to the Minister of Education based on the Robins Report

8. Government response • September 2001 - Minister of Education introduces Student Protection Act • No other response from any other ministry or government body, provincial or federal • Dozens of recommendations ignored completely • Some evidence of ad hoc response by local school boards • Legislation uses language and professional context of Regulated Health Professions Act

9. Policy shortcomings • Sanctioning “sexual abuse” (cf. “sexual misconduct”) keeps emphasis on the victim, not the professional • Grooming behaviour of sexual predators addressed only partially • Children’s vulnerability not fully addressed • The context of the educational environment is broader than doctor-patient context • A missed opportunity to do better

10. Regulator’s response • College develops its first Professional Advisory: “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct” • based on Robins recommendations and consultations with stakeholders • conceptual approach supported by chiefs of police and children’s aid services

11. Regulator’s response (continued) • Advisory falls within College mandate as set out in statute (Ontario College of Teachers Act): • “establish and enforce professional and ethical standards” • “deal with discipline and fitness to practice issues” • “provide for the ongoing education of members of the College” • “communicate with the public on behalf of the members of the College”

12. Regulator’s response (continued) • Explain and define concepts not in legislation as subsets of statutory language • Provide examples and scenarios • Articulate considerations that may guide the deliberations of a discipline panel. • Offer members suggestions for ways to govern their own conduct • Emphasize duty to intervene and prevent

13. Regulator’s response (continued) • The advisory cites authority in regulation to discipline members for: • “failing to maintain the standards of the profession” • “an act or omission that (is)… disgraceful, dishonourable, or unprofessional” • “conduct unbecoming a member” • Province-wide public tour to 18 communities to promote the advisory

14. Stakeholder response • Mostly positive • Fair and balanced media coverage • Anecdotal evidence from practitioners in the field of the utility of the advisory • Requests made for presentation materials for use in staff training in schools • Increased appetite and confidence among College staff to communicate and conduct similar outreach on other issues

15. Should you make policy? In a word: Yes! • You were delegated authority for a reason: to exercise it. • Let your mandate be your guide. • In addition, structure your discretion with: • open plans and processes • open rationale and findings • open dialogue with oversight body • open rules, policy statements, guidelines, etc.

16. Questions?