Non-disclosure, plausible deniability and lack of transparency in leadership: UBC and the Duffy trial

August 23, 2015 Tony Bates
John Moltalbano, Chair of the Board, and Arvind Gupta, the President , in happier days at UBC

John Montalbano, Chair of the Board, and Arvind Gupta, the President , in happier days at UBC

The need to know

Even if you have been holidaying in outer Mongolia, you are probably aware (if you are Canadian) of the trial of Senator Duffy and the sudden resignation of the President of the University of British Columbia. These two seemingly unrelated events however have common themes which I wish to explore.

First, let me be clear. I have no inside information on either event. I don’t know whether or not the Prime Minister knew about the $90,000 payment to Senator Duffy by his chief of staff, nor the ‘real’ reason for President Arvind Gupta’s resignation from his position as President of UBC, after only 13 months into a five year term. But that is exactly my point. Other than those on the ‘inside’, no-one knows. And we should.

Plausible deniability

We don’t know whether Stephen Harper was a party to the deception being perpetrated by the Prime Minister’s Office about getting the Senator to appear to repay his expenses, because the whole premise of the PMO’s office is to enable ‘plausible’ deniability by the Prime Minister if anything should go wrong with the various scheming carried out by his office to protect the ‘brand’ of the Conservative Party. Damage control is the prime mandate of this office. The less the public knows of what it does and what the Prime Minster knows, the better – for the Conservative Party.

Non-disclosure

The Board of Governors at UBC also has used a common tool to manage damage control, a non-disclosure agreement which prevents anyone involved in the decision-making that lead to the resignation of the President from speaking about it. To give some idea of the legal power of a non-disclosure agreement, not one of the more than 20 members of the Board, including student, staff and faculty representatives, has given any hint of a comment about this very unusual decision. Clearly, from the Board’s perspective also, the less the public knows about it, the better.

So here we have two clear instances of leaders hiding behind damage-control tools to avoid explaining their decisions and in essence denying their responsibility for such decisions. And it looks like they will both get away with not accepting responsibility or avoiding explanations if they can sit tight and keep quiet until the public gets tired, or gets distracted by other events.

The consequences

I am angry about this, not because I feel I have a right to know what the Prime Minister or UBC’s Board of Governors does or why they did it, but because without the acceptance of responsibility for their decisions, our ‘governors’ have carte blanche to do what they like without restraint. All power corrupts and total power corrupts absolutely.

The UBC case

With specific respect to the UBC context, it seems beyond plausible that the President voluntarily stepped down after only 13 months, and so soon after setting out a bold and personal vision for the university. The reason given in the only public statement by UBC is as follows:

This leave will enable him to focus on his research and scholarly work that will be of mutual benefit to Dr. Gupta and UBC.

If you believe that then you believe the Toronto Maple Leafs will win the Stanley Cup next season. There aren’t many plausible reasons why he would resign:

  • overwhelming personal circumstances, such as a terminal sickness in the family
  • malfeasance of some kind
  • a sharp difference of views with at least the more powerful members of the board about the President’s policies or management decisions.

Let’s look at each of these reasons. It is hard to see why a non-disclosure agreement would be necessary for overwhelming personal circumstances. Most people would understand and feel great sympathy for the President in such circumstances, and the Board would really have no reason to feel responsible for this.

There has been no suggestion of malfeisance – wrongdoing by the President. However, in the unlikely and hypothetical case that it was malfeisance, then the Board might want to cover it up to protect the university’s reputation, but this would be totally the wrong decision. This would be a perversion of justice. I personally do not think this could possibly have been the reason. No Board would be that stupid.

So we are left with the most plausible reason – a disagreement between the Board and the President about policy and/or management. Now maybe the public and students (who after all pay the taxes and tuition fees that keep the university running) may not be in a good position to judge who is right on such issues, but certainly the faculty need to know whether or not there was a basic disagreement between Board and President, because faculty are tasked with moving the university in the direction set by the Board and President.

To give just one instance, two or so years ago, under the previous President, the university launched a visionary and ambitious flexible learning strategy that would transform teaching and learning at UBC. Do faculty continue to move in this direction, was it supported by the new President, or was it supported by the Board but not the President? The reason for the disagreement of course may have been over something completely different, but we don’t know and in such circumstances the university is on hold with regard to all its previous initiatives until a new (permanent) President and administration is in place.

What should we do?

What can the public do about these decisions? In the case of the PMO’s office, I will vote for any of the opposition parties that comes forward with a practical plan that will make the Prime Minister and his/her office more accountable for the consequences of their decisions, and will put in place policies and procedures that will make government more transparent.

UBC is more difficult. I no longer work there, although I have a complex love/hate relationship with the institution. It is easy to be an arm-chair quarter-back over someone else’s decisions. Personally, though, I think there were problems with the new President, such as his firing the VP Administration within days of taking office (see here). If so, the Board should be commended for making the right decision in difficult circumstances (after all, they are the ones who hired him in the first place). However, the Board needs to come clean and give its reasons and not hide behind a non-disclosure agreement.

Lastly, I think politicians should look carefully at the use of non-disclosure agreements. They are too often used as a tool for covering up the paying off of incompetent leaders or for covering arbitrary firings when there are personal issues between a board chair and the CEO or President. Non-disclosure agreements too often encourage both bad governance decisions and above all a lack of transparency over how tax dollars are being used. But it will be a brave and clever government that finds a way to get rid of non-disclosure agreements while still protecting the charter rights of those involved.

In the meantime, both the Duffy and UBC cases point to a lack of transparency in decision-making at the highest levels in Canada. We should do better.

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