Thursday, February 18, 2010
Three strikes against Senate in Council rulings
In three unanimous decisions released yesterday, the ASUN Judicial Council ruled against the ASUN Senate for various violations of the Nevada Open Meeting Law (OML) and ASUN laws implementing the OML.
About a year after initially being filed, the decisions in these cases represent a victory for the petitioner, Corinna Cohn.
In the three cases, the Council found the Senate violated the OML several ways: (1) including an incorrect date on an agenda for a meeting that was held, (2) not satisfying the "clear and complete" agenda requirement, and (3) publishing minutes that do not reflect the substance of what was proposed, discussed, or decided at a meeting.
In none of the cases did the Council decide to invalidate the actions taken in violation of the OML, citing the desire to issue warnings first. But the Council noted it is within its constitutional and statutory power to invalidate actions should similar cases arise in the future.
It is unclear whether the Council exceeded its authority in declining to invalidate the actions, given the plain language of NRS 241.036, which states that any action taken in violation of any provision of the OML is void.
In the case regarding meeting minutes, the Council had especially harsh words for the Senate. "Minutes not recorded with careful and required detail of all actions occurring during the meeting of the Senate is in no way acceptable and is deemed intolerable by requirements of ASUN Law," the Council said in its written decision.
Although these cases have no teeth in and of themselves, they could serve as valuable precedents to invalidate other actions of the Senate, as similar deficiencies have been noted in Senate practice the last two sessions.
These cases were ruled on summary judgment, meaning that the Council found that the petitioner made her case and that the Senate could present no reasonable defense. Some believe that this bodes well for future petitioners who wish to challenge Senate actions based on OML violations.
These cases also could serve as a foundation for seeking individual officer liability under the University code of conduct. ASUN officers who violate the OML are liable to disciplinary action for violating a stated NSHE policy. Such discipline can extend to removal from office and a disciplinary note being placed on a violator's transcript.
Still remaining to be argued are three more cases. One challenges whether the secretary of the Senate can certify to the accurate enrollment and passage of bills purportedly passed before her appointment. The second seeks to invalidate actions taken at meetings where no minutes were published. The third seeks to invalidate the fiscal year 2009 budget. Although that fiscal year has passed, any ruling on that case could set precedents for what is acceptable budgetary practice. The third case also contains several OML violation allegations.
The cases are numbered AN-001 through AN-006. All six cases, evidence, and the rulings are available here.
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