Vis Lupi Est Grex

The Council defined malfeasance as "a dynamic and contextually defined act, as illegal or dishonest activity by an official" and as "wrongdoing or misconduct by an officer." Finding that malfeasance is a ground for impeachment in the ASUN Constitution, the Council entered a judgment and directed that the ASUN Senate begin impeachment proceedings. It further ordered the Senate to undertake those acts by a date certain, May 7, 2014, and issued orders commanding ASUN Speaker Caden Fabbi to post agendas by a date certain. The Council by a separate injunction enjoined the appointment of any officers by Pereira or by the Senate until the matter is finally resolved.

After the Council's judgment and orders issued, Fabbi raised a number of concerns about the process as it was unfolding. Chief among his concerns were whether the Judicial Council was exceeding its authority by ordering a coordinate branch of governing to undertake certain acts that are within that branch's sole power and authority. Perhaps unwisely Fabbi sought Kish's advise in his capacity as ASUN attorney general. Kish responded, essentially siding with the Judicial Council and essentially threatened Fabbi with a contempt finding if he did not heed the Council's orders. Fabbi's underlying memo and the response memo from Kish are here.

The stage is set. Now time to unpack it all.

Analysis and Comments

I'll start with some remarks on Pereira's alleged conduct. I continue to call it alleged because I am uncertain as to whether Pereira was afforded real due process protections before the Judicial Council--whether he had the right to confront his accuser, to hear the evidence against him, to present his own witnesses and evidence, had advance notice of the charges, and whether he had a reasonable time to prepare a defense and to seek and have the benefit of counsel. I also will continue to call the acts alleged because, as I will discuss in more detail below, I believe the Judicial Council has acted wholly outside of its jurisdiction and has blatantly exceeded its authority. Finally, any prosecution against Pereira is likely tainted by being undertaken by the alleged victim, Kish.

Pereira is in the cross hairs of official misconduct for essentially two things: lying during the election about his membership in Coffin & Keys and for his conduct surrounding his influencing Kish to delete the misdirected e-mail. One of these is plainly a red herring, but might raise constitutional issues against ASUN if it proceeds on that ground.

First of all, Pereira is alleged to have directly violated no relevant ASUN law. ASUN does not have criminal law or civil law that covers bribery, coercion, intimidation, etc. It also has no law requiring a candidate for Association office to disclose membership interests. The lying about his Coffin & Keys membership is wholly irrelevant as a matter of law. Might it matter to the voters? Probably. But politicians lie all the time in election campaigns. Voters should expect that. And there might even be a First Amendment right to lie in political campaigns. To now seek to punish Pereira by removing him from office for lying about his membership in Coffin & Keys could violate the First Amendment, not just because the lie itself is protected, but because a person has a right to associate with others and to keep those associations secret. Punishing Pereira for his membership in Coffin & Keys would likely chill speech and membership in expressive organizations, its members fearing reprisal for being a member of an unpopular group. The Coffin & Keys angle is the weakest part of the case against Pereira.

As to the non-expressive conduct, the alleged threats and intimidation and possible bribery to delete an e-mail, that part of the story might have legs. One critical fact is unknown about this e-mail: where exactly was it sent and to whom was it addressed? If it was actually directed to Kish in his official capacity in ASUN or to his ASUN e-mail account, the e-mail could be a public record, the deletion of which and the urging to delete it may be crimes. But even if the e-mail was sent to an official ASUN e-mail account, if it plainly was not addressed to him, it'd be akin to misdirected snail mail or junk mail, meaning it was not a public record, and thus probably no crime to delete it.

The alleged coercion and intimidation might have legs, but it sounds fairly week. Did Kish really feel threatened or did Kish overreact, or maybe lie in wait to file charges? After all, charges for the alleged misconduct weren't filed until more than two months after the incident, only after Pereira was sworn in as president. The timing smells of political intimidation in its own right. As for coercion, there don't appear to be any threats of violence or physical harm, so coercion fails as a matter of law.

The allegation of bribery might be the strongest allegation, but I think it fails too, and depends entirely on precisely where the e-mail was sent. If Pereira wasn't asking Kish to do something within Kish's power as ASUN attorney general, you probably have no bribery as a matter of law. And did Pereira expressly communicate a quid pro quo for the e-mail's deletion? "Delete the e-mail, and you'll keep your job." Kish's allegations are made in too favorable and self-serving a light to be relied upon without probing inquiry. The facts are muddy on the precise circumstances surrounding the February 9 encounter, and the Judicial Council did a poor job of seeking to arrive at reliable facts. Instead, they appear to have prejudged the situation and were more concerned with "doing right," or at least their own subjective view of right, and to protect the integrity of the ASUN, again at least according to their own subjective standards.

The situation regarding the request to delete the e-mail may have been tactlessly handled, but let's boil it down to its essence. A secret society embarrassingly sent an e-mail intended only for membership to an outsider. Realizing their mistake, two members go to have a word with Kish and ask him to delete the e-mail, letting him know they'd appreciate and wouldn't forget the favor. That's how any reasonable person would react if he or she misdirected an embarrassing e-mail to someone it wasn't intended. To call for Pereira's head over this situation seems over the top. The situation is scandalous, yes; impeachable, no.

What can constitute an impeachable offense; how is impeachment conducted?

Impeachment is the way by which executive officers and justices in ASUN can be removed from office for certain kinds of misconduct. However, proceeding against Pereira is significantly complicated by the fact that an amendment adopted back in 2008 still has never managed to find its way incorporated into the ASUN Constitution.

Under the ASUN Constitution, the power of impeachment is committed to the Senate, as is the power to conduct impeachment trials. It takes a majority vote to impeach an officer, which simply means to accuse an officer of specified wrongdoing. This is like an indictment in criminal law. Once impeached, the case proceeds to trial, where to convict the charged conduct would need to be proven. Normally, the body holding the charging power (here, the ASUN Senate) would also not have the power to judge guilt, but because ASUN has a unicameral legislature, the precedent of impeachment from 2008 favored allowing an investigative committee to determine whether sufficient evidence existed warranting impeachment and then for that committee to manage (i.e. to prosecute the case) the impeachment, which created safeguards to ensure each step was followed in a deliberate, careful order.

Here, the Judicial Council has cast order and care to the wind. It has undertaken for itself, outside of its bounds of authority, the preliminary investigation into the alleged wrongdoing. This is problematic for at least two reasons. First, the Judicial Council has no role to play in impeachments. Second, by hearing the merits of the facts that will underlie any potential impeachment against Pereira and by issuing a decision and opinion on those facts, the Chief Justice has prejudiced himself in being able to preside impartially over an impeachment trial. The Judicial Council's intrusion has in essence tainted the process before the process has begun to unfold. Though their intentions may have been noble, they've created what we lawyers like to call reversible error and legal harm. If Pereira should find himself removed from office, he could have reasonable grounds to sue ASUN. And ASUN's counterpart to the south at UNLV knows exactly how that can end up.

The Judicial Council issued three injunctions purporting to prohibit the President from making and the Senate from confirming any appointments to Association office. This act is also beyond the Council's authority and also amounts to a violation of the separation of powers against not just the legislative branch but the executive branch as well. The President has exclusive power and authority to nominate and appoint justices to the Judicial Council and all other officers of the Associated Students whose appointments have been established by law. ASUN Const. Art. III, Sec. 2(b). The Senate has the exclusive power to confirm those nominees by a two-thirds vote. Id. By enjoining appointments, the Judicial Council has again intruded into areas it has no business intruding, no matter how corrupted the institutions may seem, and no matter how pure its interests in preserving the integrity of the Association may be. In essence, the Judicial Council is stripping Mr. Pereria of the power of his office before the Senate has adjudged him guilty of impeachment--or even charged him with an impeachable offense--conducted a trial, and voted to removed him from office. This is as clear a violation of the rule of law as I can imagine. The Senate alone should decide how to deal with Pereira's nominees.

It's a bit ironic that to prevent harm from Pereira's alleged bullying of Kish, the Judicial Council has engaged in what I think is fairly characterized as institutional bullying of two separate, coordinate branches of ASUN government. The Senate should not stand for the usurpation of its powers by the Judicial Council, and neither should President Pereira stand for the usurpation of his executive powers by the Judicial Council before he has been adjudged guilty of an impeachable offense.

Impeachment proceedings in Senate must comply with the Open Meeting Law

It is well-known and clearly established under Nevada law that the Open Meeting Law (OML), codified at Chapter 241 of Nevada Revised Statutes, applies to student governments. NRS 241.017; Board of Regents Handbook, Tit. 4, Ch. 20, Pt. B., Sec. 3(3). The OML's requirements are also reinforced by separate ASUN legal enactment. See generally Statutes of the Associated Students (SAS), Tit. VIII. Thus, it is indisputable that the OML applies to the ASUN Senate and its committees. Additionally, in order to apply the OML, it must be read in the context of student government structures. Meetings to consider impeachment proceedings against an ASUN officer fall within provisions of the OML governing meetings to consider the character, alleged misconduct, competence, or physical or mental health of a person (referred to in short as "character or alleged misconduct"). NRS 241.033, .034.

OML Notice Requirements Relating to Consideration of Character, Alleged Conduct, Competence, or Health
NRS 241.033 contains numerous detailed requirements of notice to a person whose character or alleged misconduct will be considered by a public body. Specifically,

1. NRS 241.033 requires written notice of the time and place of the meeting be given to the person whose character or alleged misconduct will be considered. NRS 241.033(1)(a). 
2. Service of the notice must be by personal service 5 working days prior to the meeting or by certified mail 21 working days before the meeting. NRS 241.033(2)(a). 
3. Proof of service is required before the public body may proceed, unless the person whose character or alleged misconduct executes a written waiver of service. NRS 241.033(1)(b); see also Nev. Att'y Gen. Open Meeting Law Manual (11th ed.), sec. 6.09 (discussing waiver of NRS 241.033 notice). Waivers must be in writing, voluntarily given, and with actual knowledge of the consequences of granting the waiver. Although there is no binding Nevada case law on OML notice waivers, and despite the Nevada Attorney General's opinion that a waiver of OML notice requirements may be effective, a waiver should be disfavored as giving adequate notice and the Nevada Supreme Court has repeatedly strictly construed the notice requirements as mandatory requirements on public bodies.
4. The notice should also include a statement that administrative action may be taken against the person to avoid a separate notice requirement under a separate statute. NRS 241.033(2)(b). If such notice is not included in the notice, then, under NRS 241.034, the public body must provide separate notice under NRS 241.034 that the public body may take administrative action against a person. This would require a separate meeting after the meeting that was held to consider the character or alleged misconduct. Action taken against the ASUN President in the form of adoption of articles of impeachment, although not a final adjudication, would qualify as administrative action against a person because it relates to his alleged misconduct in a personal capacity and officially charges him with wrongdoing. See Nev. Att'y Gen. Open Meeting Law Manual (11th ed.), sec. 6.10 (discussing meaning of "administrative action against a person"). 
5. The notice must also include "a list of the general topics concerning the person that will be considered by the public body." NRS 241.033(c)(1). 

If the notice under NRS 241.033 is deficient in any way, action taken relating to the subject matter of the notice would be in violation of the OML and void under NRS 241.036. Additionally, under Board of Regents policy, any student government members found to have knowingly violated the OML also thereby commit a violation of the NSHE Code and can be removed from office by the University on that basis. See Board of Regents Handbook, Tit. 4, Ch. 20, Pt. B, Sec. 3(5)(b), (f).

The Notice Apparently Given to Mr. Pereira is Ineffective
I have reviewed a notice that is printed on ASUN Judicial Council letterhead, entitled a Memorandum to Jake Pereira, President of the Associated Students, from Robert Eugene del Carlo, Chief Justice of the Associated Students, regarding Notification of Impeachment from Office, and appearing to bear the signature of Mr. del Carlo and what appears to be two sets of initials showing "renderer" (sic) and "recipient." This notice is published at page 5 of the Kish memo dated April 28, 2014. Having reviewed the notice, it is facially deficient with the clear requirements of NRS 241.033 for at least four separate reasons.

First, the notice fails to inform the recipient of the time and place of the meeting, as required by NRS 241.033(1)(a). The notice merely states that the Senate of the Associated Students will consider impeachment against President Pereira on May 7, 2014. It does not state the time of the meeting, nor the place the meeting will occur.

Second, the notice does not list the general topics that the ASUN Senate may consider during the meeting relating to President Pereira, as required by NRS 241.033(c)(1). Indeed, the notice expressly states that the "meeting will not be a discussion of your character as the hearing of Kish v. President Pereira was." This assertion is farcical on its face. A meeting held to consider whether the ASUN President should be impeached and removed from office is by definition a meeting where the President's character will be considered. The Nevada Attorney General has opined that "character" "include[s] one's general reputation. It might also include such personal traits as honesty, loyalty, integrity, reliability, and such other characteristics, good or bad, which make up one's individual personality." Nev. Att'y Gen. Open Meeting Law Manual (11th ed.), sec. 9.04. Given the allegations that appear central to the matter relating to President Pereira, unquestionably the meeting will enter into topics related to Mr. Pereira's character, alleged misconduct, or professional competence. To the extent the notice states otherwise and does not clearly state the general topics that may be considered at the meeting, it does not comply with NRS 241.033(c)(1).

Third, there is no properly executed proof of service, as required by NRS 241.033(1)(b), or a properly executed waiver of personal notice. Generally to be adequate as proof of service, the notice must be served by a non-interested third party to the meeting who then must execute a proof of service, under oath or penalty of perjury, that particularly states the identities of the person effectuating service and the person being served, the time and place of service, and the items served. The initials at the bottom of the notice do not clearly show the identities of the person serving and the person being served the notice, does not state the time and place of service, and was not properly executed under oath or penalty of perjury.

Fourth, because the notice does not contain the information statement regarding administrative action that may be taken, pursuant to NRS 241.033(2)(b), the ASUN Senate will be precluded from voting on articles of impeachment at the May 7, 2014 meeting.

Fifth, and finally, though this is not directly, or perhaps technically, a concern under the Open Meeting Law, the notice issued from Mr. del Carlo is an ultra vires act--or an act without legal or proper authority--on his part. He has no authority to issue notices on behalf of the ASUN Senate, and thus this notice may be completely void. The notice was not issued from the ASUN Senate or from any of its officers or agents and Mr. del Carlo cannot be an agent of the Senate as it would violate the separation of powers. In his haste to see his version of justice be done, he again usurped for himself the role of another. For that reason, the notice is void ab initio (or from the beginning). (I was later told that Kish may have issued a new notice, but Kish likewise is not an agent of the Senate, and he is the alleged victim. That means he is a party to the proceeding and he is incompetent to serve notice.)

For those five reasons, the notice allegedly provided to Mr. Pereira does not comply with NRS 241.033 and NRS 241.034. The ASUN Senate should exercise extreme caution in proceeding forward with the consideration of President Pereira's character or alleged misconduct at its May 7, 2014 meeting. If it proceeds anyway, violations of the OML may occur.

Though the Judicial Council appears dutifully concerned with maintaining the integrity of the Association, it has quite plainly overstepped its bounds--repeatedly--in this matter. The ASUN Judicial Council has no authority to direct the Senate to conduct any impeachment proceedings. It had no authority to undertake a hearing to form a prelude to impeachment. It had no authority to issue injunctions to prevent the lawful operation of coordinate branches of ASUN government in carrying out their exclusive and respective constitutional prerogatives, powers, and duties. The Judicial Council having no proper authority to engage in the actions it has in this whole affair, the ASUN Senate should not feel obligated to obey the Judicial Council's commands, as those commands are contrary to the plain text of the ASUN Constitution, are offensive to the rule of law, and appear too bound up in the inflamed passions of personality rather than the dispassionate force of reason. To yield to the Judicial Council now would be to set a dangerous precedent of allowing one branch to forcefully intrude into the exclusive affairs of a separate branch of government.

Kish's continued involvement in his own case, other conflicts

The whole situation is rife with serious conflicts of interest. The Kish memo's conclusions and purported legal reasoning should not be relied upon for any purpose. As a legal practitioner, the memo is unsound for any number of reasons as a matter of legal reasoning. But perhaps more importantly, as a matter of ethics, the alleged victim of the underlying conduct at issue in this matter should not be giving advice or guidance on how the ASUN Senate or other ASUN officers or the branches of ASUN government should handle the matter, procedurally or otherwise. Mr. Kish has a direct conflict of interest that precludes him from giving such advice or guidance, as the fruits of his advice are plainly self-interested and conflicted. Additionally, he is a material witness to the alleged misconduct. He cannot simultaneously give sound advice while also the victim. Being the victim impairs his judgment and taints his credibility. The Speaker of the Senate and the Senate should instead heed the advice of outside counsel, who have no significant connection or acquaintance with the individuals involved in this matter and who can render impartial, dispassionate, sound, and competent guidance.

Finally, the Judicial Council may have prejudiced the entire case by rendering judgment outside of its jurisdiction. Certainly the Chief Justice, Robert Eugene del Carlo, who constitutionally presides over the Senate when it sits as a court of impeachment for executive officers, cannot seriously maintain actual impartiality or the appearance of impropriety as he has already sat in judgment of the merits of the case. He also is giving media interviews, which is wholly inappropriate for a judicial officer to do while a case is pending.

What would I do?

If I were still a senator (thankfully, I am not), I would seriously consider impeachment of the three justices on the Judicial Council who voted to usurp the Senate's exclusive constitutional prerogatives in conducting impeachments and the President's and Senate's joint constitutional prerogatives to make and confirm appointments to Association offices, although that may be a wasted effort since two will graduate in a couple of weeks. I would ignore the injunctions and carry on the Senate's constitutional business of making sure the ASUN government keeps running.

If I were President Pereira, I would ignore the injunctions, though it's a lot trickier for him since he is the alleged wrongdoer. I would publicly state that I welcome a full investigation by the Senate, which is the proper venue to have the discussion. I would also fire Kish, as he cannot simultaneously serve as the government's legal adviser whilst being a victim of alleged government wrongdoing and seeking to see the downfall of his chief executive. In his place, I would appoint a known opponent, to quiet concerns of retaliation and whitewashing. Again, regarding the Senate, if Pereira didn't fire Kish, I'd open impeachment proceedings into his alleged wrongdoing (after all, he waited two months and for maximum political effect to spring the charges on Pereira), and I certainly would not vote to confirm him to another term of office if he was somehow renominated. I'd want to know what really motivated the charges. The timing smells of sour grapes, perhaps because Kish's favored presidential candidate lost, perhaps because Kish didn't get tapped for membership in Coffin & Keys, perhaps for other personality clashes not known.

Regardless, the situation smells so bad the Senate should not rush to judgment, as the Judicial Council is "ordering" but should instead take its time and conduct its own thorough investigation. From the outside, the story sounds like one clique of students battling another clique. This seems all the more suspect given the Judicial Council's rush to judgment and willing desire to usurp for itself the roles of other branches of ASUN, all for the purported sake of guarding the integrity of the ASUN.

Only through the students' direct representatives in the Senate will justice be done here, and only if the law and due process protections are followed to the T. A rush to finality may only create legal causes of action if anyone ends up losing their offices or suffers other legally cognizable wrongs.

Coda

It's unfortunate a newly-elected Senate finds itself in these unenviable circumstances so early in its term, with the eyes of Reno's media upon them. (Though, interestingly, little ink has been spilled in the Nevada Sagebrush, perhaps, as I've heard, because its editor in chief is a Coffin & Keys member.) But the opportunities abound for teachable moments and for the Senators to demonstrate a level of maturity I know they are capable of as university scholars and leaders of their respective constituencies. Hopefully intemperate passions that are inflamed will cool and time can be found to allow reasoned discourse to flourish so that reasonable and legally supportable outcomes are made. They should seek outside counsel and try to gain outsiders' perspectives on this situation.

Sadly, I fear the student leaders' desire to reach a quick resolution on the eve of summer break, by doing subjective right and to quickly get out of a very uncomfortable situation, will override the more important concerns of finding objective and reliable facts, following the law, and affording everyone adequate due process. Only then can all rest assured that justice was done.