Public Policy Sources 25:
Donnelly’s Boycott of the Panel Hearings

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Some people contend that although the events were unfortunate, they were caused by Donnelly’s non-participation in the Panel hearings, a terribly wrong thing for him to do that somehow justifies or mitigates the subsequent actions taken against him. Although tempted to argue the validity of Donnelly’s non-participation, I will merely demonstrate the following.

1. Donnelly’s actions were legal according to the Policy in force.

2. Donnelly’s actions were morally and ethically defensible.

3. SFU acted improperly in having the Panel decide Donnelly’s challenge.

4. The Panel’s lack of standing completely undermined SFU’s position.

5. The anomalies cannot be blamed on Donnelly’s non-participation.

Legality of Donnelly’s action

There was no rule that required Donnelly’s participation. No one in authority ever presented him with a command to participate, nor did SFU ever cite a rule or principle that required his participation. SFU never charged him with an offense (real or imagined) of non-participation. Even Anita Braha (June 6, 1997) stated that "the University does not coerce parties into participating in the process either as a complainant or respondent." She later referred to Donnelly’s not exercising his "right to participate," and that, "he failed to exercise his right to proceed." Neither she nor anyone acting for SFU ever claimed that Liam Donnelly had a duty to participate. Thus, not only was Donnelly’s action legal, but the legality was recognized.

Morality of Donnelly’s actions

Donnelly was a person of limited means, confronted by an empire that can and does spend the taxpayers money lavishly to further its special agendas. The University Administration can keep dubious cases going, just to establish a tough reputation. It can exploit the employee’s resource disadvantage in many ways.

Anyone accused of rape (no matter how absurd the charges) would be crazy to participate in hearings without a lawyer. Hence, the costs to Donnelly could have been extremely large, and Stubbs felt no obligation to award legal fees even to successful defendants (see "Prior Considerations" and "Attitude Towards Innocent Professor" below). If Donnelly felt (as well he might) that he could not afford to pay for two defenses, he had the ethical right to save his resources for the most competent and fair tribunal. If the University wishes to require such participation, it should meet the cost. To require participation without paying the cost is an arbitrary confiscation of an employee’s wealth.

Dispute over jurisdiction

The dispute over jurisdiction was legitimate. Many university employees and students live with or have relations with other employees or students. Are all such relationships to be regulated by the University? Does the University have the right to pry into its employees’ personal lives more than do other employers? Most professors and faculty associations would answer with an emphatic "no," yet this Panel answered in the affirmative, based on some fuzzy comments on their concept of community (PR, p. 6; and see "Social Views of the Panel" below).

Donnelly was never given any legitimate arguments why the challenge to jurisdiction was wrong. No legal authority, no relevant case law, no binding employee agreements were cited to support the views given. There was nothing more than the opinion of the sort of reach that three politically correct amateurs would like to impose.

Further, their consideration of this issue was likely to cause panelists to see the defendant as a person who: (a) is trying to escape guilt based on technicalities; (b) does not share their values; and (c) has insulted their competency. Moreover, to consider jurisdiction, panelists have to presume guilt, which may compromise their subsequent ability to assess whether the defendant actually is guilty; this seems to have occurred here. To avoid all such problems and to obtain a credible decision, SFU should have obtained a legal ruling from a competent independent authority.

Lack of standing of Panel

As was explained in "Improper Panel Selection Procedures" earlier, the Panel was selected in a way that substantively violated the rules. This was known to Stubbs before he fired Donnelly. Therefore, Donnelly was entitled to a new trial at which he could present whatever relevant evidence he liked. Stubbs and Braha were utterly hypocritical and dishonest in attacking Donnelly’s non-adherence to protocols, while concealing SFU’s substantive violation of explicit rules on the formulation of the tribunals.26

Effect on actions

Suppose (contrary to my beliefs) I concede for sake of argument that: (a) the Panel did have jurisdiction; (b) that Stubbs would ordinarily be justified in rejecting previously available evidence submitted after the hearing; and (c) that Donnelly should have expected these results. Still, these highly generous concessions do not come close to justifying what was done, since Donnelly is ethically responsible only for those diminutions of rights that legitimately followed from his non-participation. Braha, O’Hagan, Stubbs, and the Panel are responsible for the rest.

Donnelly’s actions did not authorize SFU to run roughshod over rights that could be protected without his participation. This included the right that any case against him be based on a fair and competent evaluation of relevant and reliable evidence, with prejudicial material excluded from the decision process. Nor did Donnelly surrender the right to an impartial review of the PR.

As the previous sections have shown, Marsden’s case should have failed for lack of evidence, even without Donnelly’s counters. My demonstration does not depend on evidence submitted by Donnelly. Hence, the moral and ethical failures inherent in this egregiously wrongful dismissal cannot legitimately be attributed to Donnelly’s non-participation.

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