Ian Penny’s letter to the NHLPA

This is a letter written by Ian Penny, former interim executive director of the NHLPA on October 23, 2009 to the organization’s player executive board. It details reasons why he believes he was constructively dismissed by the NHLPA. It was obtained by CBCSports.ca

Executive Board Members: I am writing to the Board in my capacity as Interim Executive Director to share my concerns about a number of very troubling issues, including surveillance activities at the NHLPA office; the leaking of confidential information from Board meetings; fatal flaws with the review of operations; and my personal situation. I recognize that I am in a conflicted position when I comment on the review and some of the other office issues that concern me, but it remains my duty to advise the Board on these types of matters.

1. Poisonous Office Environment In recent weeks, there have been a series of hostile and intimidating acts taken against members of the NHLPA staff. These acts are contrary to the legal obligation of the NHLPA to create a safe work environment that is free of harassment. Unfortunately, this obligation is not being fulfilled because of these acts, which include the following:

“Ian when you r done can you please call me and let me know what you 5 staff members are discussing with each other i would like to know being your guys Emplyer.”

It is obvious based on this text message and other recent incidents that Chelios has staff members spying on their colleagues so that he can intimidate and harass the targeted staffers. This completely inappropriate conduct has created a hostile, fractured and distrustful work environment. It is the type of environment that exists in repressive, totalitarian regimes - not work places. It must stop immediately.

Chelios’ suggestion that he is the employer and that he is entitled to engage in this form of harassment is simply wrong. No employer is entitled to intimidate employees in this manner. In addition, this view reflects a misunderstanding of the relationship between the Executive Board and the staff. There are over 700 NHLPA members who dictate the union’s course through 30 Player Reps acting as a group. No single Player and no single Player Rep directs the day to day management of the NHLPA or its staff. Not only would that be a recipe for chaos, it would allow a single Player to engage in activities that may create legal liability for the entire membership.

Because I am a target of Chelios’ surveillance activities, I strongly recommend that the Board seek guidance from other counsel regarding the legal exposure that these activities may have created for the NHLPA.

2. Leaking of Internal Information The hostile work environment that currently exists has been made significantly worse by the consistent leaking of information, including information from our recent Executive Board calls. Sensitive, confidential union information is appearing in the media within minutes of the meetings’ conclusions. These leaks have resulted in a siege mentality among staff and have created the perception that we are an ineffectual organization that is incapable of governing itself. The NHLPA and the Board owe a duty to maintain the confidentiality of the matters discussed in Board meetings and they also owe a duty of confidentiality to staff. Now that the Board has authorized a review of operations, this practice of leaking information significantly raises the risk of legal exposure for the NHLPA. As I discuss more below, it will be the Board’s responsibility to make sure that appropriate steps are taken to prevent the release of confidential information relating to the review.

3. Review of Operations Consistent with my fiduciary duty to the Board, I am compelled to advise you that the review of operations is fatally flawed as it is currently designed. The key flaw is the well-established bias of Chris Chelios(notes) - one of the four committee members conducting the review. That bias is demonstrated by the following:

Because of these significant flaws, the results of the review will be placed in doubt and the Board will be prevented from taking effective action.

The Board should also be concerned with the possibility that the review will result in breaches of privacy that would violate applicable privacy legislation. This concern should be heightened in light of Chelios’ recent statement that he may involve Agents and individuals from other sports in the review process. To guard against privacy violations and to comply with the duty of good faith owed to staff, the Board needs to have effective controls in place to insure that information is not accessed by unauthorized individuals or otherwise leaked.

Given all of these circumstances, I recommend that the Board retain an independent, objective professional to conduct the review and that Chris Chelios have no further involvement. If those steps were taken, I would welcome the review and the opportunity to work with the independent professional in reaching a fair and balanced assessment based on all of the evidence.

Due to the fact that I am in a conflicted position in rendering this advice, I further recommend that the Board seek advice from other legal counsel. This advice should address whether the review committee is properly constituted given the strong appearance of bias and whether the review will allow the Board to meet its legal obligations with respect to privacy, confidentiality and good faith.

4. Ian Penny Based on the actions that have been taken to date with respect to my employment, including the ongoing surveillance of my activities at the office and the reduction of my role through the circulation of false information, it is my view that I have been constructively dismissed by the union. However, what is more important to me is that it has simply become impossible to work for the Players in the environment that has been created. It is also unfair to the hard-working, dedicated staff of the NHLPA to have my untenable situation negatively impact them in any way.

Due to this unacceptable work environment, I am prepared to resign from the NHLPA subject to certain reasonable conditions being met. At the present time there is no person with whom I can discuss the situation. I therefore recommend that the Board appoint counsel who can handle such a discussion. If you appoint a representative, I will appoint someone to represent my interests. If an amicable resolution cannot be worked out, I will consult my representative about next steps.

In the meantime I intend to continue to perform my duties on behalf of the NHLPA. However, I will not respond to Chris Chelios’ demands for information about my meetings and discussions with staff unless directed to do so by the Executive Board.

For those who want to believe that this memorandum is an attempt to undermine or avoid the review process, I suspect they cannot be convinced otherwise. The truth of the matter is that I would have no difficulty being held accountable in an environment where a fair and balanced assessment can be made. Unfortunately, that environment does not exist. This is due to the steady campaign of misrepresentations that has impaired the trust that needs to exist between me and the membership.

Please give these matters your prompt attention.

In solidarity, Ian