Tuesday, April 28, 2009
Can the ASUN Attorney General? Part Two.
Updated to include Executive Summary
As we stated in our last post in this subject, we said we'd give our readers the first chance to comment on this item. In an e-mail to us, Senator Purney was grateful that we withheld our comments.
I just wanted to thank you for posting the proposed bill on your website and not scrutinizing it. I like that you're using your blog as a means to gather constituents opinions. I know I have my grievances toward the AG position but now I can read others' views. Thanks!Any time, Senator. Unfortunately, this blog is about scrutinizing the actions (or inaction) of ASUN. So, without further adieu, we present our analysis of the bill to eliminate the ASUN Attorney General position. Follow us across the jump for the rest of the post.
Brief Recap
As a recap, Senator Jessica Purney (Education) is introducing a bill Wednesday to eliminate the the ASUN Attorney General position, currently held by Lindsey Sanford. President Reilly has renominated Sanford for a third term as AG. A similar bill was introduced in the last hours of the 76th Session, but was quickly killed.
Executive Summary
- Lindsey Sanford SUCKS AT HER JOB.
- The bill suffers from critical drafting errors.
- The bill, if passed, would create more problems than it would solve.
- The problem is with the occupant of the office, not with the office itself.
The ASUN Attorney General has been something of a controversial position ever since it was created. Practically forever ago (2007), then ASUN President Sarah Ragsdale decided to create the Attorney General position without any legislative action whatsoever. Senators at the time decried the action of the President as bypassing the Senate's constitutional role. The new constitution's taking effect intervened and the Senate later enacted the position into law.
President Ragsdale nominated Lindsey Sanford to be the first AG. The nomination was made days after the Senate rejected Sanford's petition to be seated to a vacant Senate seat (Sagebrush). She didn't receive a single vote to be a Senator. Seeing that the Senate was clearly satisfied with her qualifications, Ragsdale nominated Sanford to be AG. The Senate ended up confirming her, despite the objections of a single senator. It was later revealed that the decision to nominate Sanford was made after the Senate soundly rejected her for the vacant Senate seat because Ragsdale "felt bad for her."
Since that time, Sanford has been reappointed to a second term. She is now nominated by Reilly for a third term as AG.
Role of the AG
There are many good reasons for eliminating the position. Sanford has been the subject of much criticism about giving poorly reasoned opinions (will be the subject of a future post), taking government pay while vacationing in Washington, D.C., and not being around when needed.
However, too much focus shouldn't be placed on Sanford when looking to eliminate the position; the bill is about the office, not Sanford.
Under the law, the ASUN Attorney General has essentially three duties:
- to issue advisory opinions concerning the law, legislation, or any other Act of the Association;
- to attend all meetings of the Select Committee on Rules (obsolete provision); and
- to publish the Constitution of the Associated Students when amended.
The AG also has some duties related to elections, as expressed throughout the Election Code. Generally speaking, for elections the duties are:
- to verify petitions for placement on the ballot; and
- to prosecute Election Code violations in the Judicial Council.
Merits of Eliminating the Position
Senator Purney, apparently for herself and former senator Jennifer Richards, proposes to eliminate the position altogether. We can see several reasons for eliminating the position.
First, the AG position is unnecessary. There is not enough demand within ASUN to necessitate the executive branch having an official who specializes in ASUN law. Further, not enough cases are filed in the Judicial Council to warrant having a designated representative to argue the case for the executive branch.
Second, since the Senate must represent itself in the Judicial Council, so too should the executive.
Third, the Election Commission is capable of prosecuting elections cases in a more nonpartisan manner. The AG is not going to be willing to prosecute cases. For instance, is it likely that Sanford would file charges against Reilly when Reilly intends to reappoint her if reelected? This is what happened in this past election.
Fourth, other areas in ASUN can pick up the slack created by eliminating the position. The Archivist already has primary responsibility to do one of the AG's duties. Other agencies can pick up the rest of the slack.
Those would be reasonable grounds to base a decision to eliminate the AG. However, that probably isn't the real reason behind all of this. This is (probably) what is:
Lindsey Sanford sucks at her job.
That would be a good reason to not confirm Sanford as AG for a third term, but not for eliminating the office.
Merits of Keeping the Position
The biggest reason for keeping the position is also the biggest reason for preventing the incumbent from having it for a third term:
Lindsey Sanford really sucks at her job.
Is the problem with the position? Or is it with the person who is the only one to have held the position since it was created? A comparison: The 76th Session senators decried the Election Code as being too complicated and that it was the problem with Nicole Nelson administering a horrible election in 2008. Then Sean Driscoll came along in 2009 and ran a pretty good election cycle--all with the SAME code! Before eliminating the position, the senators need to look closely at whether it is the position or the person. We argue it's the person.
Merits of the Bill
If Senator Purney still believes that AG position should be eliminated, perhaps her beliefs will change when we examine, in detail, the provisions of her bill.
Some Language Gets Left Behind
The bill does not eliminate all references in statutory law relating to the Attorney General. In fact, section 4 bill strikes the wrong compensation provision from the law. The law cited in section 4 of the bill was an appropriations bill. As such, those provisions only had effect for a single fiscal year. The provision that needs to be stricken is in section 2(c)(3) of ASUN Public Law 75-48, the Executive Compensation Act of 2008, which contains the permanent law relating to the AG's compensation. The bill also fails to repeal section 10 of ASUN Public Law 75-50, which sets the term of office for the AG.
Unnecessary Provision
Section 2 of the bill is unncessary. Section 2 of the bill would assign the constitutional amendment duties of the AG to the Archivist. But, as we explained above, the Archivist already has that duty.
Bad Ideas
Sections 3 and 5 of the bill cause the most concern. Those sections would reassign the remaining duties of the AG, including the election duties, to the Director of the Legal Services agency in ASUN. There are several problems with this approach. First, the Legal Services agency is not established in ASUN law. It's something the 75th Session senators never got around to doing.
Second, the Director of Legal Services is beyond the reach of the Senate's disciplinary powers. He is not an officer of the government so much as he is an employee of the administrative aparatus headed by the Director of ASUN. He does not take an oath to support the Constitution. Further, the Director of the program is not accountable to the executive. He is not accountable to the ASUN government; he is accountable to his employer--Sandy. He is beyond the ASUN government.
Third, the Legal Services program is designed to be separate from the "partisan" function of the ASUN government. Making the Director of the program subject to partisan, political influences would compromise his ability to provide impartial services to clients.
Fourth, an inherent conflict would be created by reassigning the election duties to the Director of Legal Services. One of the election duties is to essentially act as a prosecutor, going after candidates who violate the Election Code. But, under ASUN Public Law 75-41, there is an office of Student Advocate within the Legal Services program. The Student Advocate is empowered to represent students being prosecuted by the ASUN government. In essence, the same office would be at once prosecuting and defending the same case. That is a massive conflict no matter how you slice it.
We heard a rumor that it was the Legal Services director who approached Purney about getting the AG's duties reassigned to him. If that's the case, this person probably does not deserve to be Legal Services Director, as he would willingly compromise his office's ability to provide impartial, nonpolitical services to its clients.
Eliminating the AG position seems to be a solution in want of a problem. The real issue is the current AG is not cut out for the job. But rather than address what seems to be a "personal" issue (it's really professional issue), the senators seem keen on avoiding the real problem by simply eliminating the office.
The AG position is not a bad position. It certainly has room to grow, could benfit from having its duties more clearly defined, and could benefit from better guidance on the part of the "advisers." Eliminating the postion is an extreme and unnecessary step. Just like we learned with the Election Code, many times it's the person and not the office that is the problem. In short...
It's not the position but Lindsey Sanford who sucks.
Matters of Form
For the geeks who care about how to write bills, continue reading.
Although the effect is the same, there is a difference between "striking" part of a law and "repealing" part of a law. Repealers are usually reserved for larger segments of a law (section, title, etc.); striking language is usually reserved for smaller segments of a bill (a subsection, paragraph, etc.) When you strike a provision, the provisions that follow need to be redesignated. Example: an amendment that says "section 6 of the ABC Act is amended by striking subsection (c), the law would look like this:
Section 6. Blah blah blahWhen the amendatory language says "section 6(c) of the ABC Act is repealed, it would look like this:
(a) Text.
(b) Text.
(d) Text.
Section 6. Blah blah blahThe first result looks like a drafting error. The second result tells the reader exactly what happened.
(a) Text.
(b) Text.
(c) Repealed.
(d) Text.
A problem with the langauge in the bill is it doesn't actually strike anything. When you say "Title VI shall be stricken.", all that really means is it should be at some future point. But bills amend law, so the bill should be phrased in the active, present tense.
Thus, in section 1 of the bill, Title VI and section 706 of Title VII should be repealed. Also, material in the section heading is not binding. Thus, the first section of the bill should read
(a) Title VI and section 706 of the Executive Branch Act of 2007 (ASUN Public Law 75–7; 75 ASUN Stat. 17) is repealed.Notice the complete formal citation--(ASUN Public Law 75–7; 75 ASUN Stat. 17)--is included in the law. Amendatory langauge must be very literal so it is abundantly clear what is being talked about.
A more complete version of the first section would read
SECTION 1. REPEAL OF THE CREATION OF THE OFFICE OF THE ATTORNEY GENERAL.Notice none of the operative language is in the section heading and the language is abundantly clear.
(a) Title VI and section 706 of the Executive Branch Act of 2007 (ASUN Public Law 75–7; 75 ASUN Stat. 17) are repealed.
(b) Section 4(c)(1) of the Presidential Succession Act of 2008 (ASUN Public Law 75–38; 75 ASUN Stat. 107) is amended by striking “Attorney General,”.
(c) Section 2(c)(3) of the Executive Compensation Act of 2008 (ASUN Public Law 75–48; 75 ASUN Stat. 124) is amended by striking “, the Attorney General”.
(d) Section 10 and paragraph (5) of section 11 of the Executive Officer Term Limits Act of 2008 (ASUN Public Law 75–50; 75 ASUN Stat. 129) are repealed.
The remaining sections of the bill suffer from the same phrasing problem.
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We offered Senator Purney an opportunity to publish her unedited remarks on the bill here before we published this post. She is welcome to publish her comments here (as is any of our readers).
ReplyDeleteTim Taycher, get a fucking life!!! Your not fooing anybody with this blog. Your boyfriend lost. Stop attacking people who don't deserve it. You had your chance to be a part of the senate but you pussied out.
ReplyDeleteJust to clear up any "rumors", Lane (the current Director of Legal Services) did not approach me. I approached him and asked him if it was plausible for his position to take on these said duties.
ReplyDeleteI am the true creator of this post! The idea for this post came from my dear wife and is now being facilitated by one of my great great....etc. nephews. However, I WILL NOT REVEAL THEIR IDENTITY! You must enlist the help of Nicholas Cage to find the real culprit behind this, I'm afraid you might find a bit of a conspiracy though. Hint, look on the ASUN 5 dollar bills.
ReplyDeleteP.S. Once again, who gives a shit! Whether they were elected or graduate or batman, judge their arguments on merit not identity. I don't always agree with them, but it isn't because I think their Tim Taycher one day and Sean McDonald the next and Jessica Purney after that.
I don't care about ASUN. I haven't picked up a copy of the Sagebrush since the election, I haven't been to the ASUN website in just as long. It really is not a part of my life anymore. ASUN is STUDENT government, it has no relevance beyond the 16,000 students at the university, I would rather spend my time and energy in the community where I know I can make an impact.
ReplyDelete