Tauranga Boys' College historical sexual abuse: Ombudsman finds board ‘acted unreasonably'
Marshall was advised the board did not support a public apology.
He complained to other authorities and, following inquiries by Open Justice, the school apologised in March 2022 for historical sexual harassment and 'to all former students who suffered abuse while in our care'.
At least five other complainants have come forward.
Marshall, now living in Napier, complained to the Ombudsman about the board's investigation and response.
He said the board acknowledged investigative shortcomings - including not interviewing victims - but took 'no steps' to remedy this.
The Ombudsman has previously ruled on another of Marshall's complaints, finding in December 2023 that the college was 'not entitled' to partially refuse Marshall's Official Information Act request.
The Ombudsman also ruled in May last year it was 'unreasonable' for the college to charge Marshall $1094 for official information. The board apologised to Marshall and refunded him with interest.
The board's evidence
In the new decision, released last month, Chief Ombudsman Peter Boshier said his office notified the board of his investigation in May 2022.
He would consider the 'appropriateness' of the response to the 2021 complaint and the adequacy of the board's actions to address acknowledged shortcomings in its review.
The board provided Boshier's office with evidence and said it was satisfied 'appropriate processes' were in place to respond to historic abuse claims.
The board considered the investigation consistent with the scope set in November 2021.
Asked why Marshall was not interviewed, the board said the investigator, a lawyer not named in the decision, 'did not view this as part of his brief or adding value to the review of the board's 1988 processes'.
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A subcommittee consisting of the board chairperson and college principal 'formed organically' to decide who did the review.
The investigator advised the chair and principal not to engage with the 1988 chair and principal 'to maintain the integrity of his proposed independent investigation'.
The board did not say when that advice was given.
The Ombudsman's opinion
Boshier found the board 'acted unreasonably' in handling Marshall's 2021 complaint.
In February 2022, the investigator provided the principal and board chair with two reports - one on the investigation and another with additional sections on the board's legal liability and 'general comments on tactics and what should happen next'.
'It is problematic when a lawyer undertakes all those roles at the same time, when the independence and fairness of the inquiry into the facts is critical — as it was in this case.'
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Boshier said the board's failure to separate the legal functions 'undermines' the investigation report.
There also appeared to be 'very little involvement' by the board when overseeing Marshall's claim, including the board not meeting to consider the complaint.
He found the board did not decide, by resolution, to delegate the matter to an appropriately appointed subcommittee.
Without that, the board did not have 'sufficient oversight' of its handling and response to the complaint.
This included the board not clearly defining the scope of the investigation and 'little attempt' being made to obtain information from sources external to the college.
The board also failed to consider whether further action was needed relating to Marshall to address the deficiencies of its review, once these were acknowledged.
No recommendation by Ombudsman
Boshier made no recommendation as there was none he could identify that would 'resolve the underlying issues and bring finality to this matter'.
He 'strongly' encouraged the board and Marshall 'to reflect on how they can engage going forward' to achieve a resolution.
Boshier said Marshall and the board had continued to correspond, each disputing the other's position as to whether Marshall's complaint could be considered resolved, and about the adequacy of the board's actions.
'It is up to the board and Mr Marshall to consider alternative ways of establishing a more constructive relationship.
'In the event that this does not occur, the current situation would seem likely to continue - to the benefit of neither party.'
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