Suspended school board trustees McNally and Paynter reinstated by BC Supreme Court

A BC Supreme Court judge has overruled a decision by the Greater Victoria School District (SD61) to suspend two school board trustees. The judge determined that the board went beyond its authority in removing the elected officials over accusations of bullying.

The two trustees, Rob Paynter and Diane McNally, are set to return to a board that’s been divided into two factions for years. The decision Friday was a rebuke to the majority faction’s February 2022 decision (two trustees, Whiteaker and Duncan, did not participate in that vote).

“It’s been made clear that any elected body that’s fed up with someone on their elected body cannot simply get together with a majority and get rid of them,” McNally said. “That’s not how democracy works. I was elected to represent the people who voted me in, and they can vote me out.”

The decision to remove McNally and Paynter was made after a report found the accusations against them could be substantiated. That followed an earlier investigation, by lawyer Roslyn Goldner, was released publicly by McNally in 2020, and lays out the kinds of misbehaviour she and Paynter were accused of, including criticizing administrators in public meetings, accusing staff of not being transparent, and derailing presentations and conversations.

“Each of the District employees interviewed reported that this combination of behaviours has created a ‘culture of fear’ and a toxic work environment that is having a negative impact on individuals and on the workplace,” the report read.

Paynter defended his behaviour, saying he was trying to express legitimate concerns, but admits he went further than he should have in expressing them.

“At the time, I understood that these would have been considered fair comment on work performance, and clearly there was a difference of opinion after the fact,” he said. “It’s a learning experience; I don’t think I’d be doing the same thing in the future.”

The report into his behaviour, and that of McNally and two other trustees, formed the basis for the board’s decision to remove the pair from office. But the report itself acknowledged the board had “few meaningful remedies” to remove elected officials. The board did so anyway—a move the judge said was an overreach.

“[T]he Board does not have the power to suspend a trustee in a manner that amounts to a de facto removal of a trustee from their elected office,” Justice Briana Hardwick wrote in her decision.

Paynter, while grateful for the decision, says that conclusion was clear from “a pretty basic reading” of the School Act, which governs the board, and that he’s disappointed Education Minister Jennifer Whiteside didn’t intervene. The minister declined to step in, saying at the time it was a local matter.

Paynter estimates his legal costs—which the school board is now responsible for paying, along with McNally’s and its own—amount to about $45,000.

Board chair Ryan Painter referred requests for comment on the decision to SD61’s spokesperson, Lisa McPhail, who was not able to comment Friday afternoon. The first board meeting featuring all nine trustees since February will take place on Monday.

Both McNally and Paynter are running for their same positions in the Oct. 15 school board election. “I’m a glutton for punishment, I guess,” Paynter joked.

McNally isn’t worried about how the ordeal affects her chances.

“Whoever appreciates my style at the table will have voted for me anyway,” she said.

Paynter, for his part, wants to put the drawn-out conflict behind him.

“I wouldn’t be running if I didn’t think there were opportunities to make a positive impact; to contribute to a more positive future for our students,” he said. “I’m not out to settle scores.”

Justice Hardwick, Re Paynter v. School District No. 61, 09-23 by Jimmy Thomson on Scribd

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Correction at 9am on Sept. 24, 2022: An earlier version of this story said the Goldner report was the one that led to the removal of the two board members. That report was the first of two—the second report led to the vote.