Thursday, June 18, 2009

Vernon: the end?

In my last post about the Vernon issues here, I was premature in hoping that all had been resolved. The Conduct Panel had reported, and I summarised what I assumed was about to be released. I had not realised that there was an appeals procedure, and it transpired that Derek Brown, the National Coach, appealed the Conduct Panel's decision.

Then, at the Ladies' Branch AGM, Gail Munro revealed that Brown and his advisors had instituted further action against her because she 'leaked the Conduct Panel's decision to the media'. This dispute now seems to have been resolved, or so I assume, and Bob Tait, the Royal Caledonian Curling Club Chairman, has made good his promise, made at the Ladies' Branch AGM, to communicate the panel's decision as soon as possible. This he has done so today, in a post on the Royal Club's website here.

Tait makes a number of points today. Significantly, he indicates that the Board wants to draw a line under the issue, saying, "The Board, having considered the reasons the Conduct Panel has given for dismissing both complaints, will not be instituting further complaints against any of the parties."

He has also apologised on behalf of the Board to everyone for the time it has taken to conclude the matter. He emphasises that the Board is moving forward to deal with the shortcomings in RCCC procedures which have been exposed. He says, "The groups established to review Discipline and Performance are at work on this to address the issues highlighted by the unfortunate and unprecedented events from a year ago." We may well hear more about these committees and their deliberations at the Royal Club AGM this Saturday at Braehead.

You can download the Conduct Panel's decision from the Royal Club site here. (It's a Word document). It was originally issued in the form of a letter to Bob Tait, sent on April 6. I've copied out the download below, rather than summarise it. Note that some paragraphs which contained closing comment by the Conduct Panel have been removed by the Royal Club 'on legal advice' before the letter was put up for download today. We are left to draw our own conclusions of why this has happened.

"On or about 30 May 2008 Sheriff Richard Scott accepted an invitation by Mr Frank Gill to chair a Conduct Panel appointed by him under the provisions of the RCCC’s Ethics Manual and its Policy and Procedure for Dealing with the Conduct of Participants. Mrs Pam McKay and Mr Ewan Malcolm accepted invitations to be members of the Panel.

The Panel had before them two complaints, namely (1) a complaint by Mr Derek Brown against Mrs Gail Munro and Mrs Lyndsay Wilson, dated 11 April 2008 and (2) a complaint by Mrs Munro against Mr Brown dated 28 April 2008. The complaints related to events at the Ford World Women’s Curling Championships in Vernon in March 2008 which resulted in the Scottish team playing two games with just three players.

In his complaint, Mr Brown states that he believes disciplinary action may be required against Mrs Munro and Mrs Wilson “for breach of the Royal Club Players Contract”. He goes on to give a “summary of events”, which it is not necessary to set out in full. In her complaint, Mrs Munro states that she does not feel that Mr Brown conducted himself in a manner consistent with the codes of conduct and ethical standards as set out in the Ethics Manual. It is not necessary to set out the terms of her complaint in full, but the salient points are as follows: “Following upon his decision to allow Scotland to take to the Ice with three players, he did not allow any alternatives to be considered and at no time gave me or [Mrs Wilson] an opportunity to discuss or attempt to resolve the situation……[H]is conduct showed a complete lack of leadership through non-existent communication and management skills which resulted in him providing me and [Mrs Wilson] with no support, no guidance and no direction……He represented to the CEO and to the World Media that I had been asked to stand down and had then refused to take to the Ice……”

The RCCC’s Ethics Manual contains among other things its Policy and Procedure for Dealing with the Conduct of Participants (“the Conduct Policy”).

The Panel held a procedural hearing on 9 June 2008. At that hearing, Mrs Munro and her solicitor told the Panel that what she wanted was an independent investigation into the events that gave rise to the complaints by her and Mr Brown. She pointed out that that a statement dated 29 March 2008, on the RCCC’s website, stated that a full investigation into the circumstances and actions that led to Scotland taking the ice with three players at the Women’s World Championships would take place when the team returned. The statement also indicated that the investigation would be led by an independent lawyer who would advise the Board on any actions which should be taken.

The Panel decided that it would write to you to ask you to take whatever steps you considered appropriate to ascertain whether or not the independent investigation referred to was to proceed. The Panel subsequently learned that the independent investigation was to proceed. The Panel agreed to suspend its consideration of the complaints until the outcome of that investigation was known.

On or about 6 March 2009 the Panel received copies of the report of the independent investigation, together with appendices and witness statements. The investigation and subsequent report were the work of Mr Michael Nicholson, of Harper Macleod LLP. Appendix 1 to the report sets out his remit, which was agreed by the Chairman of the Board of the RCCC, Mrs Munro, Mrs Wilson and Mr Brown. They agreed that the report should b admissible as evidence at any proceedings that might follow but that the report was not binding on any individual or panel hearing these proceedings.

The Panel held a further procedural hearing on 25 March 2009. The hearing was attended by Mrs Munro. She was represented by her solicitor, Mr Alan Cowan. Mr Cowan also represented Mrs Wilson, who was not present. Mr Derek Brown was neither present nor represented at the hearing, although he was aware of where and when it would take place. The Panel was assisted by their clerk, Ms Sara Grewar.

The Panel had before them all the papers they had before them on 9 June 2008. In addition, they had the report of the independent investigation and appendices (“the Nicholson report”), a letter from the Chief Executive of the RCCC dated 6 March 2009, with enclosures; a copy of a statement posted on 6 March 2009 on the RCCC’s website; and email letters to the Panel’s clerk from Mrs Munro’s solicitor, dated 17 and 25 March, and from Mr Brown’s solicitors, Mr Mike Townley, dated 17, 23 and 25 March 2009.

Mr Brown’s solicitors, writing on behalf of his client, adhered to the statement in earlier correspondence that it was not his client’s intention to prosecute a complaint under the RCCC Ethics Policy and Procedures against Mr Munro and Mrs Wilson. To the extent that his initial correspondence with the RCCC could be construed as a complaint, that complaint had been withdrawn. Mr Brown’s solicitor also pointed out that his client freely submitted to interview for Mr Nicholson’s investigation and provided all information and documentation that was requested of him.

On one view, there never was a complaint by Mr Brown. Mr Gill held, though, in terms of section 14(b) of the Conduct Policy, that disciplinary action against Mrs Munro and Mrs Wilson was warranted, in the sense that it would be reasonable or justified if in the legal sense a prima facie case had been made out. Applying that test, he was satisfied that the correct course of action was to proceed by way of a formal hearing, under sections 19 to 25 of the Conduct Policy. that being so, it appeared to the Panel that it had a wide discretion in relation to Mr Brown’s complaint. Section 22 of the Conduct Policy provides that the Conduct Panel shall govern the hearing as it sees fit. There is nothing in the Conduct Policy about withdrawal of complaints. The Panel took the view that it could, if it thought it appropriate to do so, consider the complaint on its merits. Or it could choose not to do so, and take note of the fact that Mr Brown had intimated, through his solicitor, that he did not wish to make “an ethical complaint” and if he had done he now wished to withdraw it. Mr Cowan suggested that the RCCC could, if it wished, seek to take over a complaint and prosecute it itself.

After considering the matter, the Panel decided to dismiss Mr Brown’s complaint. It did so for three principal reasons. One was the fact that Mr Brown did not wish to pursue his complaint, whatever his position had been initially. The second was the Panel could not find anything in the Manual that spelled out any relevant obligation that was incumbent upon either Mrs Munro or Mrs Wilson. The Panel noted that Mr Brown, in his “summary of events”, had stated that Mrs Munro or Mrs Wilson, or both, had done or not done various things. But before these acts or omissions could form a basis for the imposition of disciplinary sanctions there would, in the Panel’s view, have to be something in the Ethics Manual, and the Conduct Policy in particular, that spelled out the obligations on Mrs Munro and Mrs Wilson in regard to those matters. The Panel’s view was that there was not. The third reason acknowledges the fact that the independent investigation has now taken place. The report is in the public domain. Although the report falls short of attributing fault or blame for what happened in Vernon, it deals exhaustively with the facts of the case. Any intelligent observer can read the report for themselves and draw their own conclusions. It is difficult to see that any new facts of any significance could emerge from further enquiry. The report makes recommendations, most if not all of which appear to be accepted by the RCCC. The RCCC has announced details, in their statement of 6 March 2009, of the specific action it is taking to implement the recommendations.

As far as Mrs Munro’s complaint is concerned, the Panel was told that Mrs Munro wished to insist in her complaint. She spoke directly to the Panel and explained why it was she felt so strongly about the matter. She noted that the Nicholson report did not reach a firm view on certain matters of fact that were disputed and tended to attribute conflict in the evidence to failures in communication.

The problem for Mrs Munro and her solicitor was the same deficiency in the Ethics Manual and the Conduct Policy that formed part of the Panel’s reasons for dismissing Mr Brown’s complaint. The Conduct Policy does not set out a set of rules or code of conduct, breach of which is stated to result in a liability to suffer any of the sanctions that are listed therein. Section 3 of the Conduct Policy provides: “The participants shall conduct themselves in a manner consistent with the principles, codes of conduct, and ethical standards set out in the RCCC Ethics Manual.” The Manual contains a number of policies, of which the Conduct Policy is just one. Each of the other policies has its own procedures, some of quite different from those laid down under the Conduct Policy. Mr Cowan could not point to anything in any of the other policies that could found a complaint against Mr Brown.

Mr Cowan referred to the Statement of Ethics that comes just before the Conduct Policy in the Ethics Manual. He appreciated that statement of the “values” of the game of curling was somewhat general and did not seem to relate much to the conditions in which international competitions take place. He founded, though, on the words “the honesty and good manners of the players and a sporting approach to the game.” He pointed out that each of the members of the panel was a curler and therefore had a background that should enable them to judge whether or not particular forms of conduct showed or did not show “honesty and good manners”. He asked the Panel to fix a date for a full hearing at which evidence could be led from Mrs Munro and Rhona Martin, the team coach.

The Statement of Ethics reads:

“The Royal Caledonian Curling Club (RCCC) is committed to organising the sport of curling within the spirit, values and traditions of the game. These values are written into the rule book as follows

Curling is a game of skill and traditions. A shot well played is a delight to see as is a game played in the true spirit of curling. Curlers play to win but never to humble their opponents. Curling has always relied on the common sense, the honesty and the good manners of the players and a sporting approach to the game. This spirit should influence both the interpretation and application of the rules of the game and also the conduct of all participants on and off the ice.

The Royal Caledonian Curling Club Rule Book 2005/06, Section J – Etiquette”

As pointed out earlier, the salient points in Mrs Munro’s complaint are (1) that Mr Brown showed a complete lack of leadership through non-existent communication and management skills and (2) that he represented falsely to the CEO and to the World Media that Mrs Munro had been asked to stand down and had then refused to take to the Ice. The complaint goes on to claim that he was unable or unwilling to take responsibility for his decision to play with three players and then refers to four other matters, all of which seem to have some sort of basis in fact but none of which were regarded by Mrs Nicholson as having taken place in the way they are described in the complaint. Essentially, Mrs Munro’s complaint is that Mr Brown was a bad coach.

The Panel came to the view that the Statement of Ethics affords an insufficient basis for asserting that any of the things attributed to Mr Brown amount to conduct that attracts a disciplinary sanction. The sanctions set forth in the Conduct Policy are of some significance. It is a legal principle of general application that no one should be compelled to suffer in body or goods other than for a clear breach of a clearly expressed rule or law. The spirit, values and traditions of curling are important, and it is desirable that the conduct of curlers and participants should reflect those values, but it cannot be right that anything that some might see as a deviation from these values should carry with it liability for the sanctions listed in the Conduct Policy. The Statement of Ethics is too general and lacking in specification. It fails to describe with sufficient precision the categories of conduct that give rise to the imposition of sanctions.

Any one can read the Nicholson report and draw their own conclusions. The Panel does not think it appropriate to make any comment on the merits of Mr Brown’s complaint, simply because he says he never made a complaint and if he did he has withdrawn it. As far as Mrs Munro’s complaint is concerned, it too will be dismissed, for the reason that even if it is true, it cannot be said that Mr Brown was in breach of any clearly defined obligation incumbent upon him, the breach of which could result in sanctions under the Conduct Policy.

[Obiter comment removed on legal advice]

This letter is the record of the Panel’s decision in relation to each complaint and of its reasons therefor.

Copies of this letter will be sent to Mr Brown, Mrs Munro and Mrs Wilson and to their solicitors. A copy will be sent to Mr Frank Gill. Ms Sara Grewar has been authorised to sign this letter on behalf of the Panel."

No comments:

Post a Comment