Professor David Mullan's Narrative of his Case, and its Successful Resolution

This is a narrative of how the administration of the University College of Cape Breton, Sydney, Nova Scotia, tried to compel one of its professors to apologize for writing a letter to the local daily which criticized a story which it had run about the achievements of its then-president, Dr. Jacquelyn Thayer Scott.

On 11 July 2000 an article appeared in the Cape Breton Post. It made reference to President Jacquelyn Thayer Scott's publications, including 'numerous articles and books'. I contacted the president's office to acquire a list of her publications. To this day I have never received a reply to that request. Therefore I simply went on-line, as per my letter of 14 July 2000, and found no books.

On the morning of 25 September I received a telephone call from Ramona Lewis, secretary, summoning me to a meeting in the office of Mlle Suzanne Drouin, executive vice president, along with Mrs. Lois Devoe, acting director of human resources, and Dr. Michael Manson, president of the faculty association; it was Dr. Manson who told me the nature of the meeting.

The meeting was held on Wednesday afternoon, 27 September, in the executive vice president's office. Mlle Drouin came quickly to the point, which was to state that the content of my letter was inaccurate, for whereas I wrote that President Scott had published no books, Mlle Drouin claimed in her behalf that she was the author of two. I was advised that I must write a private letter of apology which would be placed in my personnel file. At the meeting I was told that I might consult a list of the president's publications, but only under supervision in HR, which condition I refused, pointing out that the word 'publication' begins with the word 'public'.

Early in the following week that list was made available to me, sent in an envelope marked "confidential".

Even before I received the list I had gone back to the on-line catalogues and I retraced some of my steps, again searching under the president's names, including 'Jacquelyn', which is a useful search term because of its unusual spelling. I also added to my search York University and the Toronto Public Library. I found only what I had found before.

Upon reviewing the list of publications I identified two items which I thought might be considered by the president to be her books-i.e., titles not associated with journals or edited books of essays from various contributors-and I clarified this matter with Mrs. Devoe who indicated that I had in fact fastened upon the intended items. In addition to my own research I also conscripted the help of a qualified librarian (MA, MLIS) at an Ontario university and also that of an employee of the federal government, seeing that one the alleged books was a government publication. The result has been the same: neither of the alleged books has come onto the search horizon. Where else might one reasonably expect to find books? What sort of definition is at work here? Would it satisfy the requirements of any reasonably informed member of the public? What does it mean to claim to be the author of a book if it cannot be found in any library in Canada or the United States of America?

I therefore wrote to the executive vice president on 18 October 2000: 'Thus I have come to the end of this part of the process. It would seem necessary that if the process is to go further Dr Scott may choose to supply me with either library references so that I can send for the books through the channels of inter-library loan service, or else let me have possession for a few days of her personal copies.'

I heard nothing further until 3 January 2001, when an email from Mrs. Devoe advised me that the president had put copies of her alleged books in HR. A further email followed a couple of weeks later and shortly thereafter I, with Dr. Manson, went to HR to pick up the books, as per my earlier letter. Mrs. Devoe refused to let me take the books, saying she had no authority to part with them. I explained that I needed to have them for a few days so that I might seek the advice of my colleagues, and told Mrs. Devoe to call me again when she had the requisite authority. A nice image-an experienced and well-published scholar sitting at a desk under the watchful eye of Mrs. Devoe. Published books are by definition available to the public, and given the faculty interest in this case, it is only reasonable that my peers should have the opportunity to examine the president's documents.  In any event, the president had the alternative of supplying me with library references for them so that I might obtain other copies, but she has chosen not to do that.

Mrs. Devoe then wrote a letter, dated 9 February 2001, accusing me of having done a faulty search for the alleged books (failing to suggest how I might improve my technique), and charged me with making 'academic distinctions'-what else might she have expected, she does not indicate. The letter concluded by threatening me with disciplinary action if I did not write the prescribed letter acknowledging the commission of an error and offering an apology by 28 February 2001.

On 14 February 2001 I replied to Mrs. Devoe: 'The argument of your letter is both bizarre and incoherent. I am not in error and I do not apologize.'

On 9 April 2001 I received a letter signed by Mr. Brian Siegner, newly appointed director of HR, which stated: 'It is intended that you receive the disciplinary sanction of a letter of reprimand. The reason for this intended discipline is your letter to the editor of the Cape Breton Post, published 14 July 2000, which contains improper criticism of Jacquelyn Scott, the President of the University College, contrary to your employment duties and responsibilities to the University College.' In fact the letter contains no criticism of the president.

A meeting was scheduled for 11 July 2001; the lateness of the date was required by my three-month absence while on research in Scotland. Present were Mr Siegner, Dean Arthur Tucker (in place of Dean Mary K MacLeod, of the School of Arts and Letters), Dr Allen Britten, the newly elected president of the faculty association, and Dr Peter McIntyre, my personal representative who has since been appointed my grievance officer. At this meeting Mr. Siegner attempted to bring the matter to a conclusion by asking me to provide a letter merely stating that I showed bad judgment in sending my letter to the Post. I replied that not only had I not shown bad judgement-I had shown good judgement. Mr. Siegner and Dr. Tucker were asked, before another meeting to be held the following week, to supply written answers to several questions:

1. What are the details of the charges against me?

2. Is it fair that this process did not begin, and then only informally, until 2 ½ months after the publication of my letter, and that it continues, with 2 delays on the part of the administration of 2 ½ months each, nearly one year after the fact?

3. What powers to negotiate rest in the hands of the director of human resources?

4. Does President Scott affirm the accuracy of the article which appeared in the Cape Breton Post on 11 July 2000, particularly with reference to the claims which I scrutinized in my letter of three days later?

I also pointed out that books have International Standard Book Numbers, and asked for those on Dr. Scott's books.

When the meeting was held on 20 July 2001, the questions remained unanswered. However, with respect to number 4, at the meeting of 11 July 2001, upon being asked this question Mr Siegner answered in the affirmative. Despite the lack of written answers and despite my clear statement at the previous meeting, I was again asked to write a letter to the president, acknowledging 'that I acted contrary to my obligations as an employee of the University College of Cape Breton by writing a letter to the Editor. . . .' At this point I stormed out of the room. Dr. Britten and Dr. MacIntyre were then shown a letter from HR which indicated that if I wrote the required letter, it would be removed from my file by 31 July 2001. An hour later I received a letter of discipline.

The grievance hearing took place at 14:00 on 30 August 2001. The grievance demanded the following remedies:

    i. The immediate removal of the letter of reprimand and all other related materials from my personnel file.

    ii. A letter of apology, directed to the grievor, from President Scott, for harassment.

    iii. A letter from President Scott to the faculty association declaring that she recuses herself from sitting in judgement upon my forthcoming (fall, 2001) application for promotion to the rank of professor, and affirming that she will accept a positive decision, if such is forthcoming, from the Rank and Tenure Committee.

For the president, Mr. Brian Siegner, Director of Human Resources, and Mrs. Lois Devoe, Manager of Human Resources. With myself was my grievance officer, Dr. Peter MacIntyre. It was made clear in the first five minutes that neither side was prepared to move, and that arbitration was the only recourse left to the complainant. After the preliminaries, a 40 minute discussion ensued.

The discussion was at times vigorous, and Mr. Siegner was more than once reduced to silence. I begged, quite literally, Mr Siegner to answer my questions in order to help me to understand the charges and thereby be placed in a position where I might be enabled to acknowledge my wrongdoing. At no time did Mr Siegner offer more than his usual 'mantra', that 'we have a difference of opinion and a third party is needed to a reach a resolution.'

Following are two salient issues that I attempted to debate with Mr. Siegner.

1. Throughout the three meetings with him, Mr. Siegner has insisted that I violated my employment obligations. At no time has he indicated where such obligations are defined. He has stated that I ought first have gone to the president directly for clarification of the claims in the article. Then, if satisfaction was not obtained, I ought to have gone to the chairman of the board of governors. That is as far as Mr. Siegner would go. He refused to say what stage three might be, if I found the chairman's response unsatisfactory. Then I asked him whether, in this scheme, there would ever be a time when I might legitimately go public, in order to address the same public which the article about Dr. Scott addressed. He refused to give a coherent answer. I then asked him whether he would circulate a memo to the university college community describing these ground rules for 'employees' so that all might know about their obligations to their employer and avoid falling into the same error that I am charged with. He declined to do so.

2. The collective agreement states that I am entitled to criticize the institution and the faculty association, and that I can perform my duties without censorship: 'freedom to criticize the University College and the Association, and freedom from institutional
censorship' (Article 12.2). Mr. Siegner insisted that I am not being censored. I replied that he was leading the way to arbitration, costing tens of thousands of dollars, in order to ask an arbiter to redefine 'censorship' to suit his own requirements.

I left the meeting dazed.

Thereafter I received a letter denying the grievance.

In late August 2001, it was announced that Dr. Jacquelyn Thayer Scott, president of the University College of Cape Breton, had been appointed an officer of the Order of Canada for her services to education.

To give Dr. Scott due credit, on 5 April 2002 she promoted me to the rank of Professor, accepting the recommendation of the peer committee.

On 17 May 2002 Dr. Scott resigned as a result of the Board of Governors' third refusal to accept her budget for 2002-2003. She will be on administrative leave for a year. She continues as president of the UCCB Foundation, and is a tenured member of faculty.

An arbitration hearing was convened in the Fleur de lis room of the Sydney, NS, Delta Hotel on 3 and 4 September.  At that time I was joined by Dr. Michael Manson, again my grievance officer, and Mr. Jerry Kovacs, an experienced labour lawyer from Ottawa, whose services were supplied by the Canadian Association of University Teachers. On the other side of the table were Mr. Eric Durnford of Halifax, counsel for the employer; Mrs. Lois Devo, Human Resources Manager, for the employer; and Dr. Jacquelyn Scott. The arbiter was Mr. Peter Darby, retired Dean of Law at the Dalhousie University Law School.

On the first day Dr. Scott took the stand and during the morning we heard examination-in-chief as Mr Durnford questioned her. In the afternoon Mr. Kovacs commenced his cross, and this continued until the end of the second day.   At that time the hearing was recessed until 19 November, when again Dr Scott was cross-examined for the morning. The afternoon was devoted to examination-in-chief of Mrs. Devo by Mr Durnford. The day's work ended at about 16:15 with agreement to resume on the next morning at 9:00.

At that time Mr. Kovacs and I were prepared to begin, but Mr. Durnford and Dr. Scott were observed entering the hotel restaurant, to which we in due course resorted, leaving the arbiter and Mrs Devo, now joined by Mr. Brian Siegner, Director of Human Resources, who was to supply testimony later in the day. At approximately 9:40 Mr. Durnford motioned to Mr. Kovacs to join him outside.  It was then that the future course of the case seemed to clarify, and indeed it was Mr. Durnford's desire to negotiate an end to the proceeding.

The morning was spent in relatively easy negotiating. Mr. Kovacs made it clear that we would accept no article which would place any burden upon me, the faculty association, or the Canadian Association of University Teachers. We refused to commit ourselves to ensuring that nothing similar would happen again.

The concluded agreement reads:

Now therefore the parties agree to settle this matter on the following terms:

1. Mullan fully and finally hereby withdraws his Grievance effective on signing of this Agreement with the result that the Arbitration Proceeding is concluded;

2. As soon as is practicable after the signing of this Agreement (but in any event no later that 5:00 p.m. Thursday, (November 21, 2002), the Employer will remove the Reprimand and all other related materials from Mullan's official file;

3.  Mullan, FAUT [my association], and CAUT do not challenge the integrity of Scott's Curriculum vita[e];

4. Arbitrator Peter Darby will be jointly requested by the Parties to conclude the Arbitration Proceeding without rendering any decision thereon. . . .

We agreed to number 3 because in fact the integrity of [Dr] Scott's curriculum vitae was not an issue in this dispute.

I shall spare visitors to my web site the tedium of my moralizing on the issue. Its significance will be obvious enough to interested persons.

It remains for me to express my heartiest thanks to the many people who have expressed their support over a dreadfully long period of time. In particular my colleagues Michael Manson, Peter MacIntyre, Allen Britten, and Dale Keefe, in their various official capacities in the Faculty Association of University Teachers of the University College of Cape Breton, and to all my other colleagues and friends here and elsewhere; to Mr Jim Turk, Executive Director, CAUT, for his commitment to the prosecution of this case, and to all the officers of that organization, and indeed the entire national membership whose financial contributions to the organization made possible its provision of legal counsel; to Mr. Jerry Kovacs of Ottawa if you need a good lawyer, and one who understands academic issues. . . .who provided excellent representation and a model of diligence in his preparation; to Olga Wojtas and the editorial staff of the Times Higher Education Supplement who provided even-handed coverage of the story in the issue of 26 October 2001; to Clive Seligman and his colleagues at The Society for Academic Freedom and Scholarship for their interest in the case and for writing a letter in my behalf to the current administration. Academics have plenty of differences and sometimes they fight amongst themselves about matters large and small, but when the freedom of the academy comes under a threat there is a great movement of closing ranks and presenting a united front. I have been the beneficiary of that unity, and I am very grateful.

David George Mullan, Professor,
History and Religious Studies
 

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