To whomever had the brilliant idea to scrub the ASUN website of history:
Please stop pretending it never happened. Yes, I know the Senate repealed all legislation and reintegrated it into a comprehensive codification, but those documents exist. They happened. Repealing them doesn't make them go away; it just means they don't have present force or effect. By scrubbing the website, you're making historical research next to impossible to conduct solely on the web.
K thx.
Showing posts with label Laws. Show all posts
Showing posts with label Laws. Show all posts
Tuesday, May 18, 2010
Sunday, April 18, 2010
So what all is now void, and what remains?
Bringing order to chaos once again will be a difficult task for the 78th Session of the Senate. As I recently pointed out, the first thing they should do is get their bearings. As a gesture of good will, the fine folks at VLEG have compiled a couple of documents that might prove helpful. They are linked below.
Acts Voided Under Judicial Council Cases
Legislative Acts Invalidated
One caveat: I am applying the ruling's findings to all items the petitioner complained against, even if the Council did not specifically address it. My reasoning is two-fold. First, for consistent application and in hopes of finding a holistic solution, logic demands it. The fact is insufficient practices persist, and the rulings give instruction.
Second, procedurally, the defending parties in the cases all admitted liability and did not dispute any material facts. Thus, petitioner was entitled to the judgment she sought in her complaints.
One last point: these documents advocate for corrective action. The Senate is on abundant notice that, as a matter of ASUN law, the standards in the state's open meeting law apply internally and are judicially enforceable. The Senate should now seek to avoid new harm and mitigate past harm by curing it. Indeed, I am merely an observer providing my two cents, but I hope I have demonstrated I am a knowledgeable observer.
Acts Voided Under Judicial Council Cases
Legislative Acts Invalidated
One caveat: I am applying the ruling's findings to all items the petitioner complained against, even if the Council did not specifically address it. My reasoning is two-fold. First, for consistent application and in hopes of finding a holistic solution, logic demands it. The fact is insufficient practices persist, and the rulings give instruction.
Second, procedurally, the defending parties in the cases all admitted liability and did not dispute any material facts. Thus, petitioner was entitled to the judgment she sought in her complaints.
One last point: these documents advocate for corrective action. The Senate is on abundant notice that, as a matter of ASUN law, the standards in the state's open meeting law apply internally and are judicially enforceable. The Senate should now seek to avoid new harm and mitigate past harm by curing it. Indeed, I am merely an observer providing my two cents, but I hope I have demonstrated I am a knowledgeable observer.
Read more...
Briefing the cases making waves in ASUN
Since the Judicial Council has issued its final orders in cases virtually erasing the 76th Senate Session's acts, and some 77th Session acts, too, now seems an appropriate time to review what the cases were about, how the Council ruled, and the rulings' immediate effects.
BRIEFS OF CASES
Case No. AN-001: Open Meeting Law (OML) complaint; a notice of a meeting that misstates the date of the meeting by including the wrong year does not satisfy the clear and complete agenda requirement.
Facts: The Senate held a meeting on April 22, 2009. The posted notice of the meeting said the meeting was for "April 22, 2008."
Held: A notice of a meeting that incorrectly states the date the meeting is to occur violates the Open Meeting Law as applied under ASUN law.
Reasoning: The clear and complete agenda requirement under the OML requires that an agenda clearly state when a meeting is scheduled so as to give actual notice to the public. An error that causes confusion, even when inadvertent or minor, is no excuse.
Notes: Although the Council did not declare actions taken during that meeting void, the OML states that any action taken in violation of the law is void.
Case No. AN-002: OML complaint; agenda items must satisfy clear and complete agenda requirement to give public notice of what public body will discuss or decide at meeting.
Facts: Petitioner alleged certain agenda items, for meetings held between May 7, 2008, and May 6, 2009, violated the OML's clear and complete agenda requirement, as elucidated under Nevada case law and state attorney general opinions. Specifically, Petitioner alleged agenda were vague and misleading, giving the public insufficient notice of what would be discussed or decided at public meetings of the Senate. Additionally, the failure to list the numbered designation of legislation on agendas confused the public by not giving them actual notice of what the Senate would consider at meetings.
Held: The Senate must adhere to the complete and clear agenda requirements applicable under state law. Because complaint was unchallenged, Petitioner's summary judgment granted.
Reasoning: The OML's standards apply to the ASUN with equal force as at the state level. When agendas are vague, the public is not on notice of what their representatives will discuss and decide.
Notes: Although not expressly declared, since summary jugment was granted in full, all items listed in Petitioner's complaint are, under the OML, void.
Case No. AN-003: ASUN law case; bills certified properly enrolled and having passed the Senate in the form of the enrolled bill by a secretary of the Senate who was appointed after the bills passed the Senate were fraudulently certified.
Facts: The Senate passed bills numbered 76-1 through 76-19 during the period of May 7, 2008, to February 25, 2009. The secretary of the Senate who certified passage of those bills was not appointed until March 4, 2009.
Held: The Secretary of the Senate cannot certify the passage of bills that predate her appointment. Any bills so certified are fraudulently certified and cannot withstand scrutiny. A secretary of the Senate must have actual knowledge of the passage of bills to certify them. Therefore, all such acts so certified are void.
Reasoning: Bills not passed and certified correctly undermines the legislative record's integrity, creating doubt about the legitimacy of enactments.
Case No. AN-004: OML complaint; written minutes of meetings must comply with the OML standard that the substance of all matters proposed, discussed or decided are included.
Facts: Petitioner alleged that minutes of Senate meetings did not comply with minutes standard because they were vague and did not provide sufficient detail so the public could know the substance of all matters proposed, discussed or decided at meetings of the 76th and 77th Sessions of the Senate (up to the date of the complaint).
Held: Minutes that do not comply with the OML standard are insufficient to give public notice of what occurred during the meeting.
Notes: Council declined to void actions taken during the meetings at issue. However, under the OML, where violations are found, the acts are void as a matter of law.
Case No. AN-005: OML complaint; minutes must be produced within 30 working days of a meeting.
Facts: Petitioner alleged that numerous sets of minutes from meetings of the Senate were not produced within 30 days of a meeting, many of which were never produced at all.
Held: Minutes for a meeting that are not produced within 30 working days of a meeting violates the OML. When minutes are not produced within 30 working days of a meeting, the actions taken at the meeting are void.
Reasoning: Without minutes minutes being published in a timely manner, the students have no way of knowing what their representatives did in their name and with their money. Voiding the acts taken at meetings with no minutes is only real option because there is no way to determine if the meeting occurred, what happened at the meeting if it did occur, and, should disputes arise about what was decided at a meeting, what did in fact occur. Without a record, the meeting must be presumed, under the OML, to not have occurred.
Notes: Council decided to not declare meetings void when Senate, as of the date of the order, had published minutes. However, under the OML, where violations of found, as a matter of law they are void.
Case No. AN-006: OML and ASUN law complaint to invalidate FY2009 budget; minutes not produced within 30 working days of a meeting creates a void meeting; audio recordings must be produced within 30 days of a meeting, and when not produced creates a void meeting; meeting held when notice and agenda was not posted in enough locations is void; agenda that does not list the location and place of a meeting with particular clarity creates a void meeting; when acts creating evidence of essential steps in the legislative process are omitted, proof of valid enactment cannot be verified; enactment of a budget by itself does not create a constitutionally recognized appropriation; successive amendments to a budget or appropriation are void in and of themselves when the base enactment is void; spending without lawful authorization is illegal; promulgation of a bill, within a reasonable time of enactment, is required.
Held: Because Respondents admitted liability, Petitioner granted summary judgment on all grounds listed in complaint. All enactments related to the ASUN budget for fiscal year 2009 are void.
Reasoning: Respondents did not challenge allegations, thus creating no issue.
Notes: This case served to invalidate all spending that occurred during the 2009 fiscal year.
BRIEFS OF CASES
Case No. AN-001: Open Meeting Law (OML) complaint; a notice of a meeting that misstates the date of the meeting by including the wrong year does not satisfy the clear and complete agenda requirement.
Facts: The Senate held a meeting on April 22, 2009. The posted notice of the meeting said the meeting was for "April 22, 2008."
Held: A notice of a meeting that incorrectly states the date the meeting is to occur violates the Open Meeting Law as applied under ASUN law.
Reasoning: The clear and complete agenda requirement under the OML requires that an agenda clearly state when a meeting is scheduled so as to give actual notice to the public. An error that causes confusion, even when inadvertent or minor, is no excuse.
Notes: Although the Council did not declare actions taken during that meeting void, the OML states that any action taken in violation of the law is void.
Case No. AN-002: OML complaint; agenda items must satisfy clear and complete agenda requirement to give public notice of what public body will discuss or decide at meeting.
Facts: Petitioner alleged certain agenda items, for meetings held between May 7, 2008, and May 6, 2009, violated the OML's clear and complete agenda requirement, as elucidated under Nevada case law and state attorney general opinions. Specifically, Petitioner alleged agenda were vague and misleading, giving the public insufficient notice of what would be discussed or decided at public meetings of the Senate. Additionally, the failure to list the numbered designation of legislation on agendas confused the public by not giving them actual notice of what the Senate would consider at meetings.
Held: The Senate must adhere to the complete and clear agenda requirements applicable under state law. Because complaint was unchallenged, Petitioner's summary judgment granted.
Reasoning: The OML's standards apply to the ASUN with equal force as at the state level. When agendas are vague, the public is not on notice of what their representatives will discuss and decide.
Notes: Although not expressly declared, since summary jugment was granted in full, all items listed in Petitioner's complaint are, under the OML, void.
Case No. AN-003: ASUN law case; bills certified properly enrolled and having passed the Senate in the form of the enrolled bill by a secretary of the Senate who was appointed after the bills passed the Senate were fraudulently certified.
Facts: The Senate passed bills numbered 76-1 through 76-19 during the period of May 7, 2008, to February 25, 2009. The secretary of the Senate who certified passage of those bills was not appointed until March 4, 2009.
Held: The Secretary of the Senate cannot certify the passage of bills that predate her appointment. Any bills so certified are fraudulently certified and cannot withstand scrutiny. A secretary of the Senate must have actual knowledge of the passage of bills to certify them. Therefore, all such acts so certified are void.
Reasoning: Bills not passed and certified correctly undermines the legislative record's integrity, creating doubt about the legitimacy of enactments.
Case No. AN-004: OML complaint; written minutes of meetings must comply with the OML standard that the substance of all matters proposed, discussed or decided are included.
Facts: Petitioner alleged that minutes of Senate meetings did not comply with minutes standard because they were vague and did not provide sufficient detail so the public could know the substance of all matters proposed, discussed or decided at meetings of the 76th and 77th Sessions of the Senate (up to the date of the complaint).
Held: Minutes that do not comply with the OML standard are insufficient to give public notice of what occurred during the meeting.
Notes: Council declined to void actions taken during the meetings at issue. However, under the OML, where violations are found, the acts are void as a matter of law.
Case No. AN-005: OML complaint; minutes must be produced within 30 working days of a meeting.
Facts: Petitioner alleged that numerous sets of minutes from meetings of the Senate were not produced within 30 days of a meeting, many of which were never produced at all.
Held: Minutes for a meeting that are not produced within 30 working days of a meeting violates the OML. When minutes are not produced within 30 working days of a meeting, the actions taken at the meeting are void.
Reasoning: Without minutes minutes being published in a timely manner, the students have no way of knowing what their representatives did in their name and with their money. Voiding the acts taken at meetings with no minutes is only real option because there is no way to determine if the meeting occurred, what happened at the meeting if it did occur, and, should disputes arise about what was decided at a meeting, what did in fact occur. Without a record, the meeting must be presumed, under the OML, to not have occurred.
Notes: Council decided to not declare meetings void when Senate, as of the date of the order, had published minutes. However, under the OML, where violations of found, as a matter of law they are void.
Case No. AN-006: OML and ASUN law complaint to invalidate FY2009 budget; minutes not produced within 30 working days of a meeting creates a void meeting; audio recordings must be produced within 30 days of a meeting, and when not produced creates a void meeting; meeting held when notice and agenda was not posted in enough locations is void; agenda that does not list the location and place of a meeting with particular clarity creates a void meeting; when acts creating evidence of essential steps in the legislative process are omitted, proof of valid enactment cannot be verified; enactment of a budget by itself does not create a constitutionally recognized appropriation; successive amendments to a budget or appropriation are void in and of themselves when the base enactment is void; spending without lawful authorization is illegal; promulgation of a bill, within a reasonable time of enactment, is required.
Held: Because Respondents admitted liability, Petitioner granted summary judgment on all grounds listed in complaint. All enactments related to the ASUN budget for fiscal year 2009 are void.
Reasoning: Respondents did not challenge allegations, thus creating no issue.
Notes: This case served to invalidate all spending that occurred during the 2009 fiscal year.
Read more...
Friday, April 16, 2010
Inheriting a mess
Newly elected Senate Speaker Brandon Bishop, along with 21 other senators who began their one-year terms of office Wednesday night, have inherited a mess, mostly not of their doing. It's a terrible situation to be in. You're new, you're excited, you don't really know what's going on, though some of the cockier senators may think they do (I'm looking at you, incumbents), and that's difficult enough, but now the Judicial Council has just pissed on your joyous day by erasing much of what a Senate did two sessions ago and created precedents that could spell doom for much of the previous session as well. Sucks, don't it?
How Bishop immediately leads the Senate through these murky times will speak volumes about his potential as Speaker. Humbly, I submit three things he should do immediately, so as to not create further damage.
First, get your bearings. You need to figure out what the Council said and how it applies to the here and now. Just because the acts invalidated happened ages ago (not even 2 years ago, to those of us existing in the real world) doesn't mean it won't have repercussions on what happens on today and tomorrow. For instance, the fact the Open Meeting Law was violated and bills were not properly enacted isn't the only reason the FY2009 spending was invalidated. It's also because enacting a budget doesn't satisfy the appropriations clause of the ASUN Constitution. (Senators who just read that and are lost, welcome to the real world.)
Second, make damn sure you don't make new mistakes, especially on the same grounds as the old ones. This should be pretty obvious, but sometimes student leaders can be particularly thick-skulled. Bishop seems pretty level-headed, so hopefully he won't disappoint. Indeed, he already seems to be off to a much more competent start than his predecessor given his first agenda. Each session does not exist in a vacuum. Institutions like the Senate must be cognizant of what happened in the past because often it has an effect on what can be done in the present.
The Open Meeting Law is the most immediate thing Bishop needs to become proficient in. As short as the law may be, it covers a lot and has a lot of nuance to it. Seek out competent help, and I can tell you right now, it doesn't exist among the ASUN student development personnel. You can decide to go it alone, but I hope you can see how well that worked out for Speakers Priscilla Acosta and Gracie Geremia. That's not to say the advisors are completely worthless, but learn their weaknesses.
Third, once you have your bearings and have ensured you won't make the same mistakes twice, or new ones for that matter, it's time to start cleaning up the mess. That's going to be considerably more complicated than it may appear now. It will take time. It will take patience. It will take assistance from others. Don't rush this step, because doing so will increase the likelihood of mistakes.
Oh, I almost forgot: while all this is happening, you've got until June 30 to enact a lawful budget and make appropriations for ASUN for the next fiscal year. Don't get too excited now.
Finally, be aware that although the Judicial Council may have ruled, this story ain't over yet. Others will be gunning to point fingers and assign blame to someone. It will go beyond the confines of the ASUN sandbox. Just be aware. Others still might decide to have some fun at ASUN's expense and start picking away at the 77th Session's acts, now that the heavy lifting of establishing some precedents is done. All I can say is learn, and learn quickly.
It may seem the whole world is instantly against you, but it just seems that way. Seek outside advice. You may find your biggest assets are not in the ASUN bubble. This is somewhat self-serving, but seeking help from exceptional former senators might be a good idea. Some are willing to help, they just need to be asked.
How Bishop immediately leads the Senate through these murky times will speak volumes about his potential as Speaker. Humbly, I submit three things he should do immediately, so as to not create further damage.
First, get your bearings. You need to figure out what the Council said and how it applies to the here and now. Just because the acts invalidated happened ages ago (not even 2 years ago, to those of us existing in the real world) doesn't mean it won't have repercussions on what happens on today and tomorrow. For instance, the fact the Open Meeting Law was violated and bills were not properly enacted isn't the only reason the FY2009 spending was invalidated. It's also because enacting a budget doesn't satisfy the appropriations clause of the ASUN Constitution. (Senators who just read that and are lost, welcome to the real world.)
Second, make damn sure you don't make new mistakes, especially on the same grounds as the old ones. This should be pretty obvious, but sometimes student leaders can be particularly thick-skulled. Bishop seems pretty level-headed, so hopefully he won't disappoint. Indeed, he already seems to be off to a much more competent start than his predecessor given his first agenda. Each session does not exist in a vacuum. Institutions like the Senate must be cognizant of what happened in the past because often it has an effect on what can be done in the present.
The Open Meeting Law is the most immediate thing Bishop needs to become proficient in. As short as the law may be, it covers a lot and has a lot of nuance to it. Seek out competent help, and I can tell you right now, it doesn't exist among the ASUN student development personnel. You can decide to go it alone, but I hope you can see how well that worked out for Speakers Priscilla Acosta and Gracie Geremia. That's not to say the advisors are completely worthless, but learn their weaknesses.
Third, once you have your bearings and have ensured you won't make the same mistakes twice, or new ones for that matter, it's time to start cleaning up the mess. That's going to be considerably more complicated than it may appear now. It will take time. It will take patience. It will take assistance from others. Don't rush this step, because doing so will increase the likelihood of mistakes.
Oh, I almost forgot: while all this is happening, you've got until June 30 to enact a lawful budget and make appropriations for ASUN for the next fiscal year. Don't get too excited now.
Finally, be aware that although the Judicial Council may have ruled, this story ain't over yet. Others will be gunning to point fingers and assign blame to someone. It will go beyond the confines of the ASUN sandbox. Just be aware. Others still might decide to have some fun at ASUN's expense and start picking away at the 77th Session's acts, now that the heavy lifting of establishing some precedents is done. All I can say is learn, and learn quickly.
It may seem the whole world is instantly against you, but it just seems that way. Seek outside advice. You may find your biggest assets are not in the ASUN bubble. This is somewhat self-serving, but seeking help from exceptional former senators might be a good idea. Some are willing to help, they just need to be asked.
Read more...
Thursday, April 15, 2010
ASUN spending of $1.6M illegal, Council finds
Last night and early this morning, the ASUN Judicial Council released its orders in three remaining cases challenging the legal sufficiency of several acts of the Senate during its 76th Session, including bills authorizing spending for the 2008-2009 fiscal year. (Last discused here.)
In unanimous opinions, the Council declared the 2009 fiscal year budget was not legally passed and thus all money ASUN spent was without legal authorization. The Council also invalidated most of the 76th Senate's actions because of gross violations of the Open Meeting Law and because the Senate's secretary fraudulently certified the passage of legislation.
The opinions effectively wipe the 76th Session from the books, finding that the Senate and other ASUN officers did not fulfill their legal and constitutional requirements during the course of enacting legislation.
The Council excoriated the Senate, its Speaker, and ASUN President Eli Reilly for not following the proper, legal processes. These rulings come after the defending parties in the cases admitted liability but plead the Council look past the errors since they were not committed with malicious intent.
With these rulings, experts in ASUN process agree that they could serve as valuable precedents to overturn much of what the 77th Session did, including the budget for the current fiscal year, which ends June 30.
These rulings come on the heals of 78th Session convening last night. The Council also ordered the opinions to be read to the new senators in an open meeting so they can be apprised of the seriousness of the situation they now find themselves in.
We expect to have a fuller analysis in the near future.
Updated to clarify that Geremia was not held personally responsible. The office was sued, and she was in the office at the time these rulings were signed.
In unanimous opinions, the Council declared the 2009 fiscal year budget was not legally passed and thus all money ASUN spent was without legal authorization. The Council also invalidated most of the 76th Senate's actions because of gross violations of the Open Meeting Law and because the Senate's secretary fraudulently certified the passage of legislation.
The opinions effectively wipe the 76th Session from the books, finding that the Senate and other ASUN officers did not fulfill their legal and constitutional requirements during the course of enacting legislation.
The Council excoriated the Senate, its Speaker, and ASUN President Eli Reilly for not following the proper, legal processes. These rulings come after the defending parties in the cases admitted liability but plead the Council look past the errors since they were not committed with malicious intent.
With these rulings, experts in ASUN process agree that they could serve as valuable precedents to overturn much of what the 77th Session did, including the budget for the current fiscal year, which ends June 30.
These rulings come on the heals of 78th Session convening last night. The Council also ordered the opinions to be read to the new senators in an open meeting so they can be apprised of the seriousness of the situation they now find themselves in.
We expect to have a fuller analysis in the near future.
Updated to clarify that Geremia was not held personally responsible. The office was sued, and she was in the office at the time these rulings were signed.
Read more...
Wednesday, April 7, 2010
What happens to an office when it is repealed?
Tonight the ASUN Senate will consider a bill to create an ASUN Department of Traditions. Overall, the reorganization of the existing Homecoming Programming Department to include other large events seems to be an interesting idea, although there still isn't a clear reason why there needs to be two programming departments in ASUN.
One thing, though, caught my eye in the bill. It repeals the act establishing the Homecoming Programming Department and the Director of Homecoming Programming without dealing with those who hold office with unexpired terms.
It appears that someone holds the office of director right now. The current officer's term, under the act, expires November 30, 2011. So what happens to this officer should this bill become law?
To me, the critical issue is whether an incumbent has a vested right in continuing to hold office until the natural termination of the term. I really don't know the answer to this question. It seems reasonable to me that the Senate has the unfettered power to abolish the offices it creates, but it also seems reasonable that an officer has some sort of contract right in her appointment to an office.
Thoughts?
One thing, though, caught my eye in the bill. It repeals the act establishing the Homecoming Programming Department and the Director of Homecoming Programming without dealing with those who hold office with unexpired terms.
It appears that someone holds the office of director right now. The current officer's term, under the act, expires November 30, 2011. So what happens to this officer should this bill become law?
To me, the critical issue is whether an incumbent has a vested right in continuing to hold office until the natural termination of the term. I really don't know the answer to this question. It seems reasonable to me that the Senate has the unfettered power to abolish the offices it creates, but it also seems reasonable that an officer has some sort of contract right in her appointment to an office.
Thoughts?
Read more...
Wednesday, March 24, 2010
BREAKING: Judicial Council rules against Senate, Speaker, President
The ASUN Judicial Council today announced it would issue summary judgment in favor of Corinna Cohn in her remaining cases pending against the ASUN Senate, Speaker of the Senate, ASUN President, and other ASUN officers, including a case to have ASUN's spending during fiscal year 2009 declared illegal.
In the statement filed today, the Council canceled Friday's scheduled hearing on the cases and said that, in light of the admissions of liability from ASUN Senate Speaker Gracie Geremia and ASUN President Eli Reilly, it would issue summary judgment in Cohn's favor. (Disclosure: Cohn is a contributor to this blog.) The Council said it would meet Friday to discuss the summary judgment orders and release them in a timely manner.
Two of the pending cases alleged the ASUN Senate violated the Open Meeting Law (OML) by not keeping and timely producing written minutes of its meetings and violated ASUN law by not properly preparing bills for presidential consideration. The third case challenged the validity of ASUN's budget for fiscal year 2009 on multiple grounds, including several OML violations.
These three cases and three cases decided last month could have far reaching consequences. With respect to the budget, the Council's forthcoming ruling will declare that the ASUN illegally spent around $1.5 million last year. The cases regarding OML violations could have the effect of invalidating much of what the Senate has done in the past couple of years.
The rulings could also open Geremia and other senators to individual liability under the university's code of conduct. Any violation of the OML found under the code of conduct can result in automatic removal from office, as well as other disciplinary sanctions.
Check back later for analysis and commentary.
In the statement filed today, the Council canceled Friday's scheduled hearing on the cases and said that, in light of the admissions of liability from ASUN Senate Speaker Gracie Geremia and ASUN President Eli Reilly, it would issue summary judgment in Cohn's favor. (Disclosure: Cohn is a contributor to this blog.) The Council said it would meet Friday to discuss the summary judgment orders and release them in a timely manner.
Two of the pending cases alleged the ASUN Senate violated the Open Meeting Law (OML) by not keeping and timely producing written minutes of its meetings and violated ASUN law by not properly preparing bills for presidential consideration. The third case challenged the validity of ASUN's budget for fiscal year 2009 on multiple grounds, including several OML violations.
These three cases and three cases decided last month could have far reaching consequences. With respect to the budget, the Council's forthcoming ruling will declare that the ASUN illegally spent around $1.5 million last year. The cases regarding OML violations could have the effect of invalidating much of what the Senate has done in the past couple of years.
The rulings could also open Geremia and other senators to individual liability under the university's code of conduct. Any violation of the OML found under the code of conduct can result in automatic removal from office, as well as other disciplinary sanctions.
Check back later for analysis and commentary.
Read more...
Monday, March 22, 2010
ASUN officers admit liability in cases challenging laws
ASUN President Eli Reilly and Speaker of the Senate Gracie Geremia admitted liability in three cases alleging violations of the Open Meeting Law (OML) and ASUN laws governing enactment of legislation.
In separate statements filed yesterday, respondents Reilly and Geremia admitted that laws, processes, and safeguards were not followed in the Senate consideration and enactment of several bills. Shortly after the filings, the petitioner in the cases, Corinna Cohn, requested the Council issue summary judgment in her favor since nothing at issue was in dispute. (Disclosure: Cohn is a contributor to this blog.)
In his statement in the case to invalidate the fiscal year 2009 budget, Reilly said, "I will admit that process was not entirely followed surrounding the signing into law of the Association budget for fiscal year 2009." Reilly further pleads that none of the omissions were done "in a malicious or intentional manner."
Regarding the case challenging the Senate's failure to timely produce written minutes of its meetings, Geremia blames noncompliance on poor advisement, the fact that student government officials and employees receive no formal training on the law's requirements, and have a high turnover rate from session to session. Geremia also claims that the 75th Session committed similar violations, but that is not before the Council. Geremia concludes that the problems will cease with proper training and advisement.
In the case challenging the proper preparation of legislative measures after Senate passage, Geremia writes, "I recognize that the process was not carried out in the correct manner.... There are many reasons to (sic) why this process wasn’t followed, ranging from a transition in Senate advisement to the resignation of the Secretary of the Senate." Geremia similarly concludes that improved communication will ensure mistakes like this do not occur in the future.
Geremia's statements tended to point the blame at others, particularly ASUN administrative faculty, while Reilly's statements accepted responsibility but claimed the liability was of no consequence since it wasn't done with malicious intent.
None of the statements explicitly indicates the Senate or executive branch should escape the consequences of liability, but all intimate that the Council should overlook the violations of the law.
The statements are in response to three cases still pending from more than a year ago. In February, the Council ruled against ASUN in three other cases alleging various violations of the OML, but refused to invalidate the underlying Senate actions (VLEG coverage here).
To date, the Senate has taken no action in response to these cases. No item has listed these cases on a Senate agenda, and presumably no formal discussion has taken place at Senate meetings regarding these cases. It does not appear Geremia issued her statements admitting liability with the consent of the Senate, possibly exceeding her authority as speaker. The Senate is named as a respondent in the cases and the Senate never delegated authority to the speaker to answer the cases.
Geremia's admissions of OML liability also open her to university disciplinary sanctions under the NSHE Code. The punishment for being found liable for OML violations is removal from office and other possible sanctions under the code of conduct, including disciplinary notation on the violator's transcript.
All six cases, if ruled in Cohn's favor, will create binding precedents that will invalidate much of the 76th Senate Session's actions, and could have application to the acts of the current Senate session as well.
The three cases pending are scheduled for argument on March 26. With the admissions of liability, it is possible the Council will cancel argument and issue summary judgment.
The cases pending are numbered AN-003, AN-005, and AN-006 (available here).
In separate statements filed yesterday, respondents Reilly and Geremia admitted that laws, processes, and safeguards were not followed in the Senate consideration and enactment of several bills. Shortly after the filings, the petitioner in the cases, Corinna Cohn, requested the Council issue summary judgment in her favor since nothing at issue was in dispute. (Disclosure: Cohn is a contributor to this blog.)
In his statement in the case to invalidate the fiscal year 2009 budget, Reilly said, "I will admit that process was not entirely followed surrounding the signing into law of the Association budget for fiscal year 2009." Reilly further pleads that none of the omissions were done "in a malicious or intentional manner."
Regarding the case challenging the Senate's failure to timely produce written minutes of its meetings, Geremia blames noncompliance on poor advisement, the fact that student government officials and employees receive no formal training on the law's requirements, and have a high turnover rate from session to session. Geremia also claims that the 75th Session committed similar violations, but that is not before the Council. Geremia concludes that the problems will cease with proper training and advisement.
In the case challenging the proper preparation of legislative measures after Senate passage, Geremia writes, "I recognize that the process was not carried out in the correct manner.... There are many reasons to (sic) why this process wasn’t followed, ranging from a transition in Senate advisement to the resignation of the Secretary of the Senate." Geremia similarly concludes that improved communication will ensure mistakes like this do not occur in the future.
Geremia's statements tended to point the blame at others, particularly ASUN administrative faculty, while Reilly's statements accepted responsibility but claimed the liability was of no consequence since it wasn't done with malicious intent.
None of the statements explicitly indicates the Senate or executive branch should escape the consequences of liability, but all intimate that the Council should overlook the violations of the law.
The statements are in response to three cases still pending from more than a year ago. In February, the Council ruled against ASUN in three other cases alleging various violations of the OML, but refused to invalidate the underlying Senate actions (VLEG coverage here).
To date, the Senate has taken no action in response to these cases. No item has listed these cases on a Senate agenda, and presumably no formal discussion has taken place at Senate meetings regarding these cases. It does not appear Geremia issued her statements admitting liability with the consent of the Senate, possibly exceeding her authority as speaker. The Senate is named as a respondent in the cases and the Senate never delegated authority to the speaker to answer the cases.
Geremia's admissions of OML liability also open her to university disciplinary sanctions under the NSHE Code. The punishment for being found liable for OML violations is removal from office and other possible sanctions under the code of conduct, including disciplinary notation on the violator's transcript.
All six cases, if ruled in Cohn's favor, will create binding precedents that will invalidate much of the 76th Senate Session's actions, and could have application to the acts of the current Senate session as well.
The three cases pending are scheduled for argument on March 26. With the admissions of liability, it is possible the Council will cancel argument and issue summary judgment.
The cases pending are numbered AN-003, AN-005, and AN-006 (available here).
Read more...
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.
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.
Read more...
Wednesday, January 27, 2010
Senatorial Compensation Act is unconstitutional without student vote
In 2008, ASUN voters approved a ballot measure to grant to the Senate the authority to set senator compensation at a maximum of a $500 grant per semester in addition to the equivalent to the cost of 14 undergraduate credit hours per year (in 2008, that equated to almost $2,700 at the maximum). ASUN Public Law 75-42. See also Senate Report on the bill here. That question passed by the requisite majority. See election results certificate here. The Senate never acted on this authority.
Tonight the Senate considered a bill to implement the authority the voters granted back in 2008. There's just one problem: this might not be constitutional.
The ASUN Constitution states "The elected members of this government shall receive a compensation to be set by law. Any increase in compensation will take effect after the next intervening general election, which shall be subject to approval by a majority vote of the students voting in the election on that question." ASUN Const. article I, section 1(e). Broken into its component parts, in order:
Now, to be fair, the provision at issue in the Constitution is subject to several reasonable interpretations; indeed, at the time I supported the view the Senate is now acting on, that it is permissible to ask for the authority now and act on it later. But I now believe my reasoning then was flawed, and perhaps clouded by my proximity to the senatorial pay issue.
What if the Senate asked for the authority to set compensation at a maximum that, in its judgment, was reasonable? This is at the core of why what the Senate did in 2008 is not permissible. Nothing was set. The only difference in the two situations is in the one the Senate asked for authority bound by an upper cap and in the other there is no cap, but in neither case is anything set, fixed, determinate.
The phrase "set by law" as used in the Constitution implies a determinate figure, not some indeterminate permission to "set by law" the actual compensation in the future, so long as the voters agree. Should this bill pass, which is a poor judgment call after University President Glick told the senators tonight the University is facing budget cuts that will set the campus back at least a decade, it should be challenged in the Judicial Council and held invalid.
Tonight the Senate considered a bill to implement the authority the voters granted back in 2008. There's just one problem: this might not be constitutional.
The ASUN Constitution states "The elected members of this government shall receive a compensation to be set by law. Any increase in compensation will take effect after the next intervening general election, which shall be subject to approval by a majority vote of the students voting in the election on that question." ASUN Const. article I, section 1(e). Broken into its component parts, in order:
- Compensation set by law. The Senate passes a law.
- Any increase cannot take effect until a general election intervenes. This means members of one Senate cannot raise its compensation knowing if they had been reelected. This is designed to limit corruption.
- The voters must approve the law in the general election for it to take effect.
Now, to be fair, the provision at issue in the Constitution is subject to several reasonable interpretations; indeed, at the time I supported the view the Senate is now acting on, that it is permissible to ask for the authority now and act on it later. But I now believe my reasoning then was flawed, and perhaps clouded by my proximity to the senatorial pay issue.
What if the Senate asked for the authority to set compensation at a maximum that, in its judgment, was reasonable? This is at the core of why what the Senate did in 2008 is not permissible. Nothing was set. The only difference in the two situations is in the one the Senate asked for authority bound by an upper cap and in the other there is no cap, but in neither case is anything set, fixed, determinate.
The phrase "set by law" as used in the Constitution implies a determinate figure, not some indeterminate permission to "set by law" the actual compensation in the future, so long as the voters agree. Should this bill pass, which is a poor judgment call after University President Glick told the senators tonight the University is facing budget cuts that will set the campus back at least a decade, it should be challenged in the Judicial Council and held invalid.
Read more...
Wednesday, December 16, 2009
ASUN Revised Statutes: An interesting idea, but poorly executed
Tonight, the ASUN Senate is set to take up Sen. Sean Hostmeyer's ASUN Revised Statutes bill. The bill is an attempt to create a single volume codification of ASUN law of a general and permanent nature. The bill, while an interesting and even anticipated idea, is poorly executed.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
Read more...
Monday, December 14, 2009
Apportion what?
The ASUN Constitution, in article I, section 1(b), requires the Senate to apportion its seats every two years according to number of students in each college or school. The 75th Senate enacted a law to largely remove itself from the apportionment process. ASUN Public Law 75-28. That law provides that the ASUN President is to transmit a statement of the apportionment and of the Senate for the next two years. This is to be done by the first day of December or one week thereafter. To my knowledge, this has not been done. (For an example of what such a statement looks like at the federal level, see this. By the way, ASUN's apportionment law is modeled after the federal House of Representatives apportionment law.)
Some senators, at a recent Government Operations Committee meeting, while discussing Sen. Sean Hostmeyer's efforts to create revised statutes for ASUN, expressed concern over the President having control of apportionment. (Surprisingly, it sounded like it was the first time they had read that provision, given their tone, but that's another story.) That's a farce, because the ASUN President really doesn't have control over anything. The numbers are the numbers, and the equal proportion method dictates how many seats each college gets.
Under my quick count, using the fall headcount numbers (my math here), CABNR will get its long-awaited second seat at the expense of a Health Sciences seat. One little note that could use some senatorial attention is how, if at all, to count the 160 interdisciplinary students, University Studies Abroad Consortium students and bachelor of science neuroscience students. Typically, they are lumped in with Liberal Arts, since all undeclared majors are counted there. Where they get counted shouldn't matter, as they probably wouldn't get counted in a college where 160 could change apportionment.
Another thing that should be looked into is the basis for the headcount numbers. In the 75th Session, the University's method of counting as the basis for ASUN's apportionment caused some controversy. See section 5 of the ASUN law and this report, particularly my dissenting view. Basically, the University's system was claimed to be incapable of counting a single student more than once, as in the case of multiple majors or degrees. This could substantially throw off the apportionment, as is demonstrated in my dissent when using student credit hours as the basis of the apportionment. Just wanted to share my knowledge.
Some senators, at a recent Government Operations Committee meeting, while discussing Sen. Sean Hostmeyer's efforts to create revised statutes for ASUN, expressed concern over the President having control of apportionment. (Surprisingly, it sounded like it was the first time they had read that provision, given their tone, but that's another story.) That's a farce, because the ASUN President really doesn't have control over anything. The numbers are the numbers, and the equal proportion method dictates how many seats each college gets.
Under my quick count, using the fall headcount numbers (my math here), CABNR will get its long-awaited second seat at the expense of a Health Sciences seat. One little note that could use some senatorial attention is how, if at all, to count the 160 interdisciplinary students, University Studies Abroad Consortium students and bachelor of science neuroscience students. Typically, they are lumped in with Liberal Arts, since all undeclared majors are counted there. Where they get counted shouldn't matter, as they probably wouldn't get counted in a college where 160 could change apportionment.
Another thing that should be looked into is the basis for the headcount numbers. In the 75th Session, the University's method of counting as the basis for ASUN's apportionment caused some controversy. See section 5 of the ASUN law and this report, particularly my dissenting view. Basically, the University's system was claimed to be incapable of counting a single student more than once, as in the case of multiple majors or degrees. This could substantially throw off the apportionment, as is demonstrated in my dissent when using student credit hours as the basis of the apportionment. Just wanted to share my knowledge.
Read more...
Sunday, November 29, 2009
Can anyone explain this to me?
I don't want to spend too much time on this since most probably do not care, but I'd like those who read this to mull this over and give some feedback.
It is indisputable that the Open Meeting Law applies to the ASUN Senate and its committees. The law provides that public bodies can take action on items only when the public is noticed through an agenda that contains "[a] clear and complete statement of the topics scheduled to be considered during the meeting" and "[a] list describing the items on which action may be taken." NRS 241.020(2)(c)(1)-(2).
The idea here is that the public should know what it is their representatives will be doing. When a public body takes action beyond the scope of its notice, it violates the law. (More on the clear and complete standard and scope provisions available here.)
The Committee on Government Operations had an item on its agenda, and the Senate has the same item on its agenda for its meeting this week, which reads as follows
In addition to considering whether to create a codification of ASUN law, the Committee did the following:
Oh, by the way, there wasn't a single ASUN member, other thnt the senators on the committee, who was present to offer testimony on this bill.
It is indisputable that the Open Meeting Law applies to the ASUN Senate and its committees. The law provides that public bodies can take action on items only when the public is noticed through an agenda that contains "[a] clear and complete statement of the topics scheduled to be considered during the meeting" and "[a] list describing the items on which action may be taken." NRS 241.020(2)(c)(1)-(2).
The idea here is that the public should know what it is their representatives will be doing. When a public body takes action beyond the scope of its notice, it violates the law. (More on the clear and complete standard and scope provisions available here.)
The Committee on Government Operations had an item on its agenda, and the Senate has the same item on its agenda for its meeting this week, which reads as follows
Senate Bill 77-__ To Establish the ASUN Revised Statutes.On its face, the item appears to be quite vague. However, using the commonly understood legal meeting of "revised statutes," it would appear that the Committee was considering creating a codification of ASUN law. Codifications themselves are never used to make substantive changes to law.
In addition to considering whether to create a codification of ASUN law, the Committee did the following:
- Made substantive changes to existing law regarding compensation of ASUN officials, senators, and employees
- Created new law governing the Speaker of the Senate
- Created new law governing the Secretary of the Senate and that officer's compensation
- Changed the title of an official publication of the Association
- Made substantial changes to existing law governing the Vice President of ASUN and the Unity Commission
- Changed the number of programmers and assistant programmers in the Programming Department
- Changed the number and name of assistant directors in the Homecoming Department
- Made a change in the name of the Executive Schedule for officer compensation ("level" to "tier")
- Changed the terms of office of clubs commissioners
- Changed the terms of office of programmers
- Changed the compensation scheme of elections officers
- Changed spending limits on election campaigns
- Changed removal procedures when Student Union is closed due to catastrophic emergency
- Changed funding obligations ASUN scholarships
- Changed requirements on ASUN Archives to keep digital copy of the archives
- Created brand new law on the following programs and services, including compensation and discussion of Federal labor laws and minimum wage laws
- Legal Services
- Sound and Lights
- Inkblot
- Advertising Department
- Campus Escort
- Administrative support
- Created new law governing the relationship of ASUN to student publications
Oh, by the way, there wasn't a single ASUN member, other thnt the senators on the committee, who was present to offer testimony on this bill.
Read more...
Thursday, October 29, 2009
Tell me which law....
Before the Senate invests too much energy on Joint Vision 2017, it might want to take notice of all of ASUN's structure and operational realities that--ahem--are not enacted into ASUN law. Inkblot? Nope. Legal Services? Barely. ASUN Advertising? Nah ah. The beast that is the "administrative operation" of ASUN? Not a word. Campus Escort? Sorry. ASUN's relationship with publications? No. Not important.
The fact of the matter is very little of what ASUN is and does is codified into statute law passed by the Senate. The consequences? Well, the Senate has pretty much no control over what a unit does once the Senate hands out money to the unit. The best example is Inkblot. Over the years it has been a chameleon, constantly changing its color to suit the needs of one ASUN presidential administration after another. When I began taking notice of ASUN in 2004, Inkblot was fully open for use by clubs. By 2007, it was practically an exclusive publicity arm of ASUN. And not a single word from the Senate dictated that policy shift. And the consequences are even more grave than just the Senate not having control.
Continuing our example, since no law explicitly establishes Inkblot, arguably spending money on it is not legal, as framed under ASUN's Constitution and budget laws. A student literally could file a complaint with the Judicial Council citing this fact, and the Council would probably rule that Inkblot has no basis in law, and therefore it is not legal to spend money on that program. See where I am going with this? Extrapolate that ruling out to every other ASUN program and service that was never established by the Senate, or at least never had the current establishments and practices codified into current law, and you've got one hell of a disaster. We started placing the current structures into law right after the new constitution took effect in 2007, but it never got finished (sorry, guys, but the senators of the 75th Session and I are not gods). There just wasn't enough time and other things took priority. Of course, there's nothing preventing the Senate from picking up where we left off.
The implications in light of Joint Vision 2017
ASUN President Eli Reilly's Joint Vision document (narrative and fees proposal) will necessitate many structural changes in ASUN. Ideally, these changes would be accompanied with implementing legislation so it is absolutely clear what the Senate intends to change and how. One example: programming. Under JV 2017, the programming for the major university weeks (Welcome Week, Homecoming, and Mackay Week) would no longer be within the purview of the elected student government. That's right, it's handed over completely to unelected, unaccountable employees of Student Activities. But wait? We have this fantastic homecoming department just for homecoming and a programming department for everything else that already exists in ASUN. It's in the ASUN law. The Senate has spoken, and the law is the law. Well, until the Senate fixes that conflict, should the plan come to pass, there'd be two groups on campus responsible for programming the exact same event. Problem? Just a little.
But the administrators like having little in law. Less accountability when no written document states what the expectations and limitations are. If you can't point to a written standard of conduct, it's hard to argue someone isn't doing his or her job. Also, each time the Senate writes a law defining how the business of ASUN is to be run, the administrators throw up their hands in protest, arguing that the Senate is infringing on their abilities to conduct business. I call bullshit. That's exactly what a legislature should be doing. This is the table of contents for the Nevada Revised Statutes. All of that law comes from the legislature. Almost all of the law defines how the government and persons and entities within Nevada should do things. The ASUN Senate should endeavor to do the exact same thing, on a much smaller scale, of course.
Joint Vision 2017 may have merit, but let's not fool ourselves into thinking the Senate's work is done when it disposes of this plan by non-binding resolution, which I might add is very vague and poorly written.
The debate is widespread
This debate has sparked widespread discontent among the student body, and even the graduates for the portion of the fee they would be subject to. Below are some links to some of the more interesting sources.
The fact of the matter is very little of what ASUN is and does is codified into statute law passed by the Senate. The consequences? Well, the Senate has pretty much no control over what a unit does once the Senate hands out money to the unit. The best example is Inkblot. Over the years it has been a chameleon, constantly changing its color to suit the needs of one ASUN presidential administration after another. When I began taking notice of ASUN in 2004, Inkblot was fully open for use by clubs. By 2007, it was practically an exclusive publicity arm of ASUN. And not a single word from the Senate dictated that policy shift. And the consequences are even more grave than just the Senate not having control.
Continuing our example, since no law explicitly establishes Inkblot, arguably spending money on it is not legal, as framed under ASUN's Constitution and budget laws. A student literally could file a complaint with the Judicial Council citing this fact, and the Council would probably rule that Inkblot has no basis in law, and therefore it is not legal to spend money on that program. See where I am going with this? Extrapolate that ruling out to every other ASUN program and service that was never established by the Senate, or at least never had the current establishments and practices codified into current law, and you've got one hell of a disaster. We started placing the current structures into law right after the new constitution took effect in 2007, but it never got finished (sorry, guys, but the senators of the 75th Session and I are not gods). There just wasn't enough time and other things took priority. Of course, there's nothing preventing the Senate from picking up where we left off.
The implications in light of Joint Vision 2017
ASUN President Eli Reilly's Joint Vision document (narrative and fees proposal) will necessitate many structural changes in ASUN. Ideally, these changes would be accompanied with implementing legislation so it is absolutely clear what the Senate intends to change and how. One example: programming. Under JV 2017, the programming for the major university weeks (Welcome Week, Homecoming, and Mackay Week) would no longer be within the purview of the elected student government. That's right, it's handed over completely to unelected, unaccountable employees of Student Activities. But wait? We have this fantastic homecoming department just for homecoming and a programming department for everything else that already exists in ASUN. It's in the ASUN law. The Senate has spoken, and the law is the law. Well, until the Senate fixes that conflict, should the plan come to pass, there'd be two groups on campus responsible for programming the exact same event. Problem? Just a little.
But the administrators like having little in law. Less accountability when no written document states what the expectations and limitations are. If you can't point to a written standard of conduct, it's hard to argue someone isn't doing his or her job. Also, each time the Senate writes a law defining how the business of ASUN is to be run, the administrators throw up their hands in protest, arguing that the Senate is infringing on their abilities to conduct business. I call bullshit. That's exactly what a legislature should be doing. This is the table of contents for the Nevada Revised Statutes. All of that law comes from the legislature. Almost all of the law defines how the government and persons and entities within Nevada should do things. The ASUN Senate should endeavor to do the exact same thing, on a much smaller scale, of course.
Joint Vision 2017 may have merit, but let's not fool ourselves into thinking the Senate's work is done when it disposes of this plan by non-binding resolution, which I might add is very vague and poorly written.
The debate is widespread
This debate has sparked widespread discontent among the student body, and even the graduates for the portion of the fee they would be subject to. Below are some links to some of the more interesting sources.
- The Nevada Sagebrush, Senate and University Affairs Committee meeting live blog, October 28, 2009
- Get Informed on JV 2017 facebook group
- Graduate Student Association Blog, "New Student Fee Proposal & Activities for Grads"
Read more...
Monday, September 14, 2009
I'm Just A Bill Redux
We've all seen the Schoolhouse Rock animation "I'm Just A Bill," an elementary explanation of how a bill becomes a law. This post will provide a collegiate-level explanation of how a bill becomes a law within the context of the ASUN.
The basic steps are pretty much the same in any legislative body. A bill starts as an idea. The idea is put to paper--the bill. The bill gets introduced and referred to committee. The committee considers the bill and, if it agrees with the bill, reports it favorably back to the full house. If the full house agrees with the bill, the bill is passed. Then, in a bicameral (two house) legislature, the process starts again, with the bill as it passed the first house. In ASUN, this step is omitted, as there is no second house. When the bill has passed the legislature, it is sent on up to the chief executive, be it the president or the governor. If he agrees, it becomes law. If not, it is sent back to the house of origin together with his objections. If the legislature decides to override the veto, the bill becomes law; if not, the bill does not become law, and it continues to sit up on capitol hill. Simple, right? Well, let's add some detail. (Fair warning, this is a beast of a post.)
A Bill is an Idea
The Schoolhouse Rock song tells us that a bill starts as an idea. This post will use a prototypical bill that addresses a policy issue the Senate should take up. In April 2009, the Board of Regents changed its policy regarding the approval of student government constitutions. The new policy delegates the power of approval to the Chancellor of the Nevada System of Higher Education. Previously, amendments to a student government's constitution required Board of Regents approval. This policy change makes an act of the ASUN Senate obsolete as written. The draft bill below proposes to change the ASUN policy to conform to the System policy. Desiring to do that, a draft bill might be put together, such as the one below.
Sample Discussion Draft Bill
Read more...
Saturday, August 15, 2009
Is Our Senators Learning: The Reach of the Open Meeting Law
It's been some time since our last post, which must mean the Senate has not been doing much lately. We did notice one item of interest on the next Phantom Committee agenda, however: "a resolution reiterating the requirement of the ASUN Executive Board to comply with [the] Nevada Open Meeting Law." This got our attention because there is no requirement for the Executive Board to comply with the Open Meeting Law. Hell, there isn't even an "Executive Board."
We need to begin by dealing with two unfounded assumptions on which this agenda item is based. First, there is no Executive Board. There used to be one, but that was under ASUN's previous constitution. There is something called the President's Advisory Cabinet, established under Title VII of the Executive Branch Act of 2007 (ASUN Public Law 75-7; 75 ASUN Stat. 13). Second, there is nothing in ASUN law to require this group to abide by the Open Meeting Law.
With those two assumptions out of the way, we can now look to the Open Meeting Law for guidance. The Open Meeting Law (Chapter 241 of NRS) requires public bodies to conduct their business openly, in view of the public. The OML applies to student governments because the Nevada Legislature has required the Board of Regents to adopt regulations equivalent to the OML for student governments and to provide for their enforcement (NRS 241.038). The Regents have done that, and the policy is codified in the Board of Regents Handbook, Title 4, Chapter 20, Part B, section 3 (link). The Board of Regents policy essentially says that student governments must comply with the OML.
The Open Meeting Law applies only to public bodies. The law defines a public body as "any administrative, advisory, executive or legislative body of the State or a local government which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof" (NRS 241.015(3)).
The Nevada Attorney General advises us that in order for a body to be a public body, it "administrative, advisory, executive or legislative body of the State or a local government," meaning that it "must (1) owe its existence to and have some relationship with a state or local government, (2) be organized to act in an administrative, advisory, executive or legislative capacity, and (3) must perform a government function" (Open Meeting Law Handbook, link). If any one of the elements are missing, the body is not a public body. Applying these elements to the President's Cabinet, condition 1 is only partly satisfied. Although the Cabinet does owe its existence to the Senate (only because it enacted a law establishing the Cabinet), it does not have any relationship with the Senate. Condition 2 is satisfied because it acts in an advisory capacity. Condition 3 is not satisfied because it is only advising the President, who himself is not a a public body.
The law also requires that the body be collegial in nature, meaning that the members share equal power through their votes. The members of the Cabinet have no collective power; the ASUN President is not bound by its advice. Therefore, under the OML, the President's Cabinet is not required to obey the OML.
However, the language the Regents used in applying the OML to student governments is a little grayer. It says that the OML applies to "[t]he meetings of any multi-member executive or legislative body, committee, subcommittee, commission or subsidiary thereof" (Handbook, Title 4, Chapter 20, Part B, section 3(3)). Even under this broader application, the OML does not seem to apply. The President's Advisory Cabinet is not an executive body. It has no collective decision-making power of its own, it has no collective ability to execute policy, etc. Its members each possess decision-making and executive powers in their own departments, but it is the President in this case who possesses all the power.
This language also suffers from circular reasoning. Assume it says the Cabinet must follow the OML according to the OML's provisions, but the OML, according to its provisions, says it does not. Even if you assume the Cabinet is covered within the term "multi-member executive body," the OML says that it doesn't apply to a body such as the Cabinet.
For those reasons, we believe the Cabinet is not required to obey the OML. Now, that's not to say that the Senate could not pass a law requiring the Cabinet to abide by the OML's provisions, but it would be subject to constitutional challenge in the Judicial Council on the grounds that it violates the separation of powers doctrine, that it prevents the President from receiving candid advice from his department chiefs, and that it abuses the deliberative process privilege enjoyed by executives.
Now, there may be more to this story than we are aware. Perhaps a university attorney has disagreed with our interpretation of the OML and Regents policy. Even if that were the case, it would take a disciplinary action to test that interpretation. Unfortunately, under federal law disciplinary actions cannot be disclosed by the university, so we'd likely never know about it, unless a subject of such an action were to speak out.
But given the fact that this is a nonbinding resolution the Phantom Committee is deliberating, and given the phrasing that it would "reiterate" a requirement that is presumed to already exist, we think this is coming from some senators who are misinformed on the reach of the OML, and whose motivation is probably that they don't like that President Eli Reilly and his cronies are allegedly meeting behind closed doors to share their mutual disdain for Gracie Geremia and discussing how to undermine her every move, starting with elevating Sen. Brandon Bishop's status.
We need to begin by dealing with two unfounded assumptions on which this agenda item is based. First, there is no Executive Board. There used to be one, but that was under ASUN's previous constitution. There is something called the President's Advisory Cabinet, established under Title VII of the Executive Branch Act of 2007 (ASUN Public Law 75-7; 75 ASUN Stat. 13). Second, there is nothing in ASUN law to require this group to abide by the Open Meeting Law.
With those two assumptions out of the way, we can now look to the Open Meeting Law for guidance. The Open Meeting Law (Chapter 241 of NRS) requires public bodies to conduct their business openly, in view of the public. The OML applies to student governments because the Nevada Legislature has required the Board of Regents to adopt regulations equivalent to the OML for student governments and to provide for their enforcement (NRS 241.038). The Regents have done that, and the policy is codified in the Board of Regents Handbook, Title 4, Chapter 20, Part B, section 3 (link). The Board of Regents policy essentially says that student governments must comply with the OML.
The Open Meeting Law applies only to public bodies. The law defines a public body as "any administrative, advisory, executive or legislative body of the State or a local government which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof" (NRS 241.015(3)).
The Nevada Attorney General advises us that in order for a body to be a public body, it "administrative, advisory, executive or legislative body of the State or a local government," meaning that it "must (1) owe its existence to and have some relationship with a state or local government, (2) be organized to act in an administrative, advisory, executive or legislative capacity, and (3) must perform a government function" (Open Meeting Law Handbook, link). If any one of the elements are missing, the body is not a public body. Applying these elements to the President's Cabinet, condition 1 is only partly satisfied. Although the Cabinet does owe its existence to the Senate (only because it enacted a law establishing the Cabinet), it does not have any relationship with the Senate. Condition 2 is satisfied because it acts in an advisory capacity. Condition 3 is not satisfied because it is only advising the President, who himself is not a a public body.
The law also requires that the body be collegial in nature, meaning that the members share equal power through their votes. The members of the Cabinet have no collective power; the ASUN President is not bound by its advice. Therefore, under the OML, the President's Cabinet is not required to obey the OML.
However, the language the Regents used in applying the OML to student governments is a little grayer. It says that the OML applies to "[t]he meetings of any multi-member executive or legislative body, committee, subcommittee, commission or subsidiary thereof" (Handbook, Title 4, Chapter 20, Part B, section 3(3)). Even under this broader application, the OML does not seem to apply. The President's Advisory Cabinet is not an executive body. It has no collective decision-making power of its own, it has no collective ability to execute policy, etc. Its members each possess decision-making and executive powers in their own departments, but it is the President in this case who possesses all the power.
This language also suffers from circular reasoning. Assume it says the Cabinet must follow the OML according to the OML's provisions, but the OML, according to its provisions, says it does not. Even if you assume the Cabinet is covered within the term "multi-member executive body," the OML says that it doesn't apply to a body such as the Cabinet.
For those reasons, we believe the Cabinet is not required to obey the OML. Now, that's not to say that the Senate could not pass a law requiring the Cabinet to abide by the OML's provisions, but it would be subject to constitutional challenge in the Judicial Council on the grounds that it violates the separation of powers doctrine, that it prevents the President from receiving candid advice from his department chiefs, and that it abuses the deliberative process privilege enjoyed by executives.
Now, there may be more to this story than we are aware. Perhaps a university attorney has disagreed with our interpretation of the OML and Regents policy. Even if that were the case, it would take a disciplinary action to test that interpretation. Unfortunately, under federal law disciplinary actions cannot be disclosed by the university, so we'd likely never know about it, unless a subject of such an action were to speak out.
But given the fact that this is a nonbinding resolution the Phantom Committee is deliberating, and given the phrasing that it would "reiterate" a requirement that is presumed to already exist, we think this is coming from some senators who are misinformed on the reach of the OML, and whose motivation is probably that they don't like that President Eli Reilly and his cronies are allegedly meeting behind closed doors to share their mutual disdain for Gracie Geremia and discussing how to undermine her every move, starting with elevating Sen. Brandon Bishop's status.
Read more...
Wednesday, May 20, 2009
Is Our Senators Learning: When Two Bills Do the Same Thing
In this edition of Is Our Senators Learning, we take a look at the legislation on today's Senate agenda. The theme of our post will be apparent once you reach our brief review of the last bill.
Senate Bill 77-1
This bill changes the structure of the Department of Programming (aka Flipside Productions) by eliminating the ability of Programmers to appoint Assistant Programmers. The bill disrupts the hierarchy in the Department. The committee report indicates that they want to create a step below the director but above programmers.
This bill (77-1) only allows the director to appoint both programmers and assistant programmers. It sounds like the Senate really wants to have something like assistant directors below the director. This makes entirely no sense when taken together with the companion bill, S.B. 77-2, which creates the compensation for these new assistant programmers.
Senate Bill 77-2
This bill amends the Executive Compensation Schedule to add a new tier for the Assistant Programmers created by S.B. 77-1. The bill does not appear to mesh with the stated intent of the Government Operations Committee that the Director of Programming be allowed to have "higher paid assistants." In fact, these new assistants, under this bill, will be paid less than programmers.
The bill adds a Tier VI to the compensation schedule. Rather than keep the order of descending dollar figures intact, the bill adds the new tier at the end, thusly:
Senate Bill 77-3
This bill changes existing law that requires ASUN to maintain a reserve fund of 5 percent of the fee revenues in each fiscal year. After consulting with University budget officers, it was determined that 2.5 percent is sufficient. This bill would make the President's current budget proposal for this reserve fund to be in compliance with the law. Only they will have done the steps in reverse (President takes action, Senate enacts legislation authorizing action). It usually works the other way around.
Senate Bill 77-4
This bill modifies the amount of money ASUN will contribute to a general scholarship program it created back in 2007. The bill reduces the contribution by $50,000 in this fiscal year to $100,000. It is unclear whether this bill violates contract rights. This bill might in fact be unconstitutional under the ASUN Constitution.
Senate Bill 77-5
This is perhaps one of the better written bills we've seen since the 75th Session. This bill creates a Diversity Commission chaired by the Vice President. Some specific language and technical language in the bill is not quite correct, but the bill has a clear and understandable message. The bill would be well to coordiate with current ASUN Law on the subject, such as the Diversity Week Creation Act of 2008, as amended by S.B. 76-1. (S.B. 76-1 repealed the creation of the Director of Diversity but didn't entirely clean up all references in law to that director.) We would recommend holding off on passing this bill intil some of the technical stuff is fixed.
Senator Diaz obviously has the right idea about bills.
Senate Bill 77-6
Oh, damn, looks like we may have spoken too soon about Senator Diaz. This bill creates compensation for the diversity commissioners created by S.B. 77-5. This probably isn't her fault, but this bill does not take into account S.B. 77-2, which makes almost the exact same amendments to the Executive Compensation Schedule. Under S.B. 77-6, Tier VI would be $500 for the diversity commissioners. But, under S.B. 77-2, Tier VI would be $1,500 for Assistant Programmers. Thus, we finally get to the theme of our post.
When two bills make similar amendments to the same provision of law, only one can survive. Thus, one of the bills should be amended to fix the conflict.
Other Things
The enacting clause in all of the bills still appears to be erroneous ("students" should be capitalized, as it is part of the official title of the Senate of the Associated Students). If the enacting clause is not exactly correct, the bill could be held to be invalid (See ASUN Public Law 75-39, section 2).
When referring to sections subordinate elements of other laws, parentheses are used. So when you want to refer to subsection (b) of section 2 of ASUN Public Law 75-48, you write it as "section 2(b) of ASUN Public Law 75-48. Also, "Sec.306.g.3" is not the same thing as "section 306(g)(3)." We all know what you are talking about, but the law doesn't. Think of this like a computer program: if it is not exactly right, it will not compute.
The formal cites to the laws being amended by all of the bills is off, too. The laws can be cited by their popular titles (e.g. "Executive Compensation Act of 2008") but also need to include the formal cite (ASUN Public Law 75-48; 75 ASUN Stat. 124).
On a happy note, we are glad to see that bills are finally getting numbered. Now if we can do the same for committee reports.
Some of our senators are beginning to learn. Now let's see if we can keep this heading in the right direction.
Senate Bill 77-1
This bill changes the structure of the Department of Programming (aka Flipside Productions) by eliminating the ability of Programmers to appoint Assistant Programmers. The bill disrupts the hierarchy in the Department. The committee report indicates that they want to create a step below the director but above programmers.
The bill creates two positions directly under the Director of Programming to take on a variety of duties, of which were somewhat small duties to be assigned specifically to one programmer. This bil would allow for the Director of Programming to eliminate an unnecessary programmer position, and the elimination of such would allow for the funding of these higher paid assistants.Unfortunately, the bill does not do what it purports to. The programmers are already under the director. Under section 303(a) of ASUN Public Law 75-7, the Director gets to "nominate" (the term "nominate" versus "appoint" is used inconsistently in this law) programmers to assist the director. In turn, the programmers get to appoint assistant programmers, under subsection (b) of section 303.
This bill (77-1) only allows the director to appoint both programmers and assistant programmers. It sounds like the Senate really wants to have something like assistant directors below the director. This makes entirely no sense when taken together with the companion bill, S.B. 77-2, which creates the compensation for these new assistant programmers.
Senate Bill 77-2
This bill amends the Executive Compensation Schedule to add a new tier for the Assistant Programmers created by S.B. 77-1. The bill does not appear to mesh with the stated intent of the Government Operations Committee that the Director of Programming be allowed to have "higher paid assistants." In fact, these new assistants, under this bill, will be paid less than programmers.
The bill adds a Tier VI to the compensation schedule. Rather than keep the order of descending dollar figures intact, the bill adds the new tier at the end, thusly:
(4)Level IV: $3,000.00, to be disbursed in equal increments at the end of each semester.It would make more sense to make the new $1,500 tier Tier V and change the current Tier V to become Tier VI. A bill that does that would look something like this:
(5) Level V: $1,000.00, to be disbursed in equal increments at the end of each semester.
(6) Level VI: $1,500.00, to be disbursed in equal increments at the end of each semester.
Section 2(b) of the Executive Compensation Act of 2008 (ASUN Public Law 75-48; 75 ASUN Stat. 124) is amended by striking paragraph (5) and inserting the following:You'd do essentially the same thing for adding new offices to each tier.".
"(5) Level V: $1,500.00, to be disbursed in equal increments at the end of each semester.
"(6) Level VI: $1,000.00, to be disbursed in equal increments at the end of each semester.
Senate Bill 77-3
This bill changes existing law that requires ASUN to maintain a reserve fund of 5 percent of the fee revenues in each fiscal year. After consulting with University budget officers, it was determined that 2.5 percent is sufficient. This bill would make the President's current budget proposal for this reserve fund to be in compliance with the law. Only they will have done the steps in reverse (President takes action, Senate enacts legislation authorizing action). It usually works the other way around.
Senate Bill 77-4
This bill modifies the amount of money ASUN will contribute to a general scholarship program it created back in 2007. The bill reduces the contribution by $50,000 in this fiscal year to $100,000. It is unclear whether this bill violates contract rights. This bill might in fact be unconstitutional under the ASUN Constitution.
Senate Bill 77-5
This is perhaps one of the better written bills we've seen since the 75th Session. This bill creates a Diversity Commission chaired by the Vice President. Some specific language and technical language in the bill is not quite correct, but the bill has a clear and understandable message. The bill would be well to coordiate with current ASUN Law on the subject, such as the Diversity Week Creation Act of 2008, as amended by S.B. 76-1. (S.B. 76-1 repealed the creation of the Director of Diversity but didn't entirely clean up all references in law to that director.) We would recommend holding off on passing this bill intil some of the technical stuff is fixed.
Senator Diaz obviously has the right idea about bills.
Senate Bill 77-6
Oh, damn, looks like we may have spoken too soon about Senator Diaz. This bill creates compensation for the diversity commissioners created by S.B. 77-5. This probably isn't her fault, but this bill does not take into account S.B. 77-2, which makes almost the exact same amendments to the Executive Compensation Schedule. Under S.B. 77-6, Tier VI would be $500 for the diversity commissioners. But, under S.B. 77-2, Tier VI would be $1,500 for Assistant Programmers. Thus, we finally get to the theme of our post.
When two bills make similar amendments to the same provision of law, only one can survive. Thus, one of the bills should be amended to fix the conflict.
Other Things
The enacting clause in all of the bills still appears to be erroneous ("students" should be capitalized, as it is part of the official title of the Senate of the Associated Students). If the enacting clause is not exactly correct, the bill could be held to be invalid (See ASUN Public Law 75-39, section 2).
When referring to sections subordinate elements of other laws, parentheses are used. So when you want to refer to subsection (b) of section 2 of ASUN Public Law 75-48, you write it as "section 2(b) of ASUN Public Law 75-48. Also, "Sec.306.g.3" is not the same thing as "section 306(g)(3)." We all know what you are talking about, but the law doesn't. Think of this like a computer program: if it is not exactly right, it will not compute.
The formal cites to the laws being amended by all of the bills is off, too. The laws can be cited by their popular titles (e.g. "Executive Compensation Act of 2008") but also need to include the formal cite (ASUN Public Law 75-48; 75 ASUN Stat. 124).
On a happy note, we are glad to see that bills are finally getting numbered. Now if we can do the same for committee reports.
Some of our senators are beginning to learn. Now let's see if we can keep this heading in the right direction.
Read more...
Friday, May 15, 2009
Was The Law Broken? Does it Matter?
Obviously, this is a question only a court is allowed to answer in a formal way, but sometimes another process can play out.
Because of the adversarial nature of the conflict between Corinna Cohn and the ASUN and its officers, I think something has been lost. There are a couple simple questions I hope the Senate and Speaker Geremia ask themselves before proceeding to trial against Ms. Cohn.
In two cases (AN-001 and AN-002) the remedy is quite simple for ASUN. In the case of the meeting agendized as occurring in 2008 (it didn't occur in 2008, it has held in 2009), the remedy is perhaps stupidly simple. Agendize a meeting with all the actions that occurred during that meeting and redo the actions. It might take like 10 minutes if there is no public comment on items. It wouldn't even require seeking settlement with Ms. Cohn. If it was done properly, the Judicial Council would have no interest in the allegations because the complaint becomes moot. In cases involving inadequate notice (i.e., insufficient detail), the solution is similar, although slightly more difficult to execute. But a solution might work something like this.
But, alas, all this is premised on the assumption that the 77th Session admit the 76th Session did something wrong. And it requires the Speaker to be willing to work with Ms. Cohn and Ms. Cohn to work with the Speaker. And perhaps the animosity that has built is too much to overcome at this point. But dammit this is not hard to fix.
Updated at 10:35 a.m. by Lupus
I added links to the referenced cases.
Because of the adversarial nature of the conflict between Corinna Cohn and the ASUN and its officers, I think something has been lost. There are a couple simple questions I hope the Senate and Speaker Geremia ask themselves before proceeding to trial against Ms. Cohn.
- Do I think I violated the Nevada Open Meeting Law?
- If so, should I try to correct my own mistake?
In two cases (AN-001 and AN-002) the remedy is quite simple for ASUN. In the case of the meeting agendized as occurring in 2008 (it didn't occur in 2008, it has held in 2009), the remedy is perhaps stupidly simple. Agendize a meeting with all the actions that occurred during that meeting and redo the actions. It might take like 10 minutes if there is no public comment on items. It wouldn't even require seeking settlement with Ms. Cohn. If it was done properly, the Judicial Council would have no interest in the allegations because the complaint becomes moot. In cases involving inadequate notice (i.e., insufficient detail), the solution is similar, although slightly more difficult to execute. But a solution might work something like this.
- Ask Ms. Cohn what agendas her evidence found to be deficient.
- Find the actions items under those agendas.
- Find thedocuments (e.g., bills, resolutions, minutes)
- Properly agendize the items for a new meeting
- Pass it all
But, alas, all this is premised on the assumption that the 77th Session admit the 76th Session did something wrong. And it requires the Speaker to be willing to work with Ms. Cohn and Ms. Cohn to work with the Speaker. And perhaps the animosity that has built is too much to overcome at this point. But dammit this is not hard to fix.
Updated at 10:35 a.m. by Lupus
I added links to the referenced cases.
Read more...
Monday, May 11, 2009
Explication of a Theory on Failure to Follow the Law
In an earlier post, I gave two possibilities for why individuals ignore the laws:
1. It is inconvenient or cumbersome to follow it,
2. It is too complicated to follow.
Some would argue it is not because people find the law inconvenient. I believe there are several very plain examples of where this is the case:
• Eli Reilly and the budget,
• Jeff Champagne, Sarah Ragsdale, and Eli Reilly with a bookswap,
• Priscilla Acosta and Gracie Geremia with posting locations,
• Making sure minutes (more generally records of the association) are up to date (e.g., minutes, reports, legislative history).
However, if you disagree with me that the above alleged violations occurred because it was too difficult or too burdensome to follow the law, then I would ask that you prove violations don’t occur for the second reason.
But, let me take the argument from the side of those who say that the people violating the law are people who just want to do good (ignoring the resume whores), and they haven't gotten their heads around all the laws and rules (you’ll notice that this argument puts violators in my second category).
OK. That's fine. Vis Lupi, among others, exists partly to point out the failures we are aware of. Often, the individuals targeted admit the mistake. Sometimes they don't.
But if we aren't saying, you can't do this. Or look at this law please. Or are you aware of this? Who will? If you believe one of our contributors, ASUN committed an act of age discrimination while an advisor was in the room (and even if it wasn’t illegal it was definitely poor practice). Corinna Cohn has filed 11+ lawsuits alleging violations of the law. Obviously there is a failure in the system. I've spoken to close to a dozen senators over the past two years who believe their advising was inadequate (including two incumbents this year). Part of the mission of this blog, as it has evolved, is to attempt to fill a serious performance deficiency on the part of the advisors.
On a side issue. I’ve personally spoken to both Speaker Geremia and Senator Hostmeyer about some of the issues this blog has brought up. I laid out a very clear strategy, to both of them, for addressing many of the minor points that both Vis Lupi and Corinna have raised. I set up a meeting between Corinna and Gracie in hopes of trying to establish a rapport, with the goal a mutually agreeable resolution to many of Corinna’s complaints. Nothing was done about the complaints. So, to make another thing clear: the authors of this blog have talked to people and have suggested solutions and have been ignored.
1. It is inconvenient or cumbersome to follow it,
2. It is too complicated to follow.
Some would argue it is not because people find the law inconvenient. I believe there are several very plain examples of where this is the case:
• Eli Reilly and the budget,
• Jeff Champagne, Sarah Ragsdale, and Eli Reilly with a bookswap,
• Priscilla Acosta and Gracie Geremia with posting locations,
• Making sure minutes (more generally records of the association) are up to date (e.g., minutes, reports, legislative history).
However, if you disagree with me that the above alleged violations occurred because it was too difficult or too burdensome to follow the law, then I would ask that you prove violations don’t occur for the second reason.
But, let me take the argument from the side of those who say that the people violating the law are people who just want to do good (ignoring the resume whores), and they haven't gotten their heads around all the laws and rules (you’ll notice that this argument puts violators in my second category).
OK. That's fine. Vis Lupi, among others, exists partly to point out the failures we are aware of. Often, the individuals targeted admit the mistake. Sometimes they don't.
Sometimes they stonewall. Sometimes they ignore the point. Sometimes they indicate we should go fuck ourselves.
But if we aren't saying, you can't do this. Or look at this law please. Or are you aware of this? Who will? If you believe one of our contributors, ASUN committed an act of age discrimination while an advisor was in the room (and even if it wasn’t illegal it was definitely poor practice). Corinna Cohn has filed 11+ lawsuits alleging violations of the law. Obviously there is a failure in the system. I've spoken to close to a dozen senators over the past two years who believe their advising was inadequate (including two incumbents this year). Part of the mission of this blog, as it has evolved, is to attempt to fill a serious performance deficiency on the part of the advisors.
To make my argument very clear: you don’t get to argue these people are trying to learn and then say we are petty for trying to help them learn.
On a side issue. I’ve personally spoken to both Speaker Geremia and Senator Hostmeyer about some of the issues this blog has brought up. I laid out a very clear strategy, to both of them, for addressing many of the minor points that both Vis Lupi and Corinna have raised. I set up a meeting between Corinna and Gracie in hopes of trying to establish a rapport, with the goal a mutually agreeable resolution to many of Corinna’s complaints. Nothing was done about the complaints. So, to make another thing clear: the authors of this blog have talked to people and have suggested solutions and have been ignored.
Read more...
Thursday, May 7, 2009
Why Barry Belmont's Single-mindedness Indicates a Useless Philosophy
Barry Belmont of the UNR Students for Liberty recently took time to comment on a recent post on Vis Lupi about illegal redaction of personal information be done to applications for the open College of Liberal Arts Senate seat. It is his opinion that "dumb" laws need not be followed. Here is one reason why he is wrong.
If a society agrees to, and forms around, the idea that it should be governed by laws, to allow any individual to arbitrarily choose what laws are "bad" or "dumb" means the rule of law is consequentially dead. Perhaps this particular violation cited by Vis Lupi and commented on by Belmont is ultimately meaningless but what Vis Lupi is attempting to report on is a trend in ASUN.
The individuals in ASUN have shown an inclination to ignore laws they find inconvenient or cumbersome. They also like to claim ignorance because the system is too complicated for them to understand. This is not fair to those that create expectations and behave in a manner befitting the rule of law. This behavioral asymmetry will lead to a culture that eventually places no value in following the rules of the law, and that culture will descend into anarchy.
While I'm sure the UNR Students for Liberty would love that, it is a scenario that if allowed to proceed apace will destroy any efficacy ASUN has. ASUN is partly a deliberative body. Deliberative bodies need rules so all members can participate on a level playing field. While I’m not particularly concerned if ASUN implodes or not, I would rather they succeed if they are going to be taking $5/credit hour from every undergraduate student. It’s not the law itself, it’s the idea that any person gets to choose what laws are worth following, that is a serious problem in ASUN.
If a society agrees to, and forms around, the idea that it should be governed by laws, to allow any individual to arbitrarily choose what laws are "bad" or "dumb" means the rule of law is consequentially dead. Perhaps this particular violation cited by Vis Lupi and commented on by Belmont is ultimately meaningless but what Vis Lupi is attempting to report on is a trend in ASUN.
The individuals in ASUN have shown an inclination to ignore laws they find inconvenient or cumbersome. They also like to claim ignorance because the system is too complicated for them to understand. This is not fair to those that create expectations and behave in a manner befitting the rule of law. This behavioral asymmetry will lead to a culture that eventually places no value in following the rules of the law, and that culture will descend into anarchy.
While I'm sure the UNR Students for Liberty would love that, it is a scenario that if allowed to proceed apace will destroy any efficacy ASUN has. ASUN is partly a deliberative body. Deliberative bodies need rules so all members can participate on a level playing field. While I’m not particularly concerned if ASUN implodes or not, I would rather they succeed if they are going to be taking $5/credit hour from every undergraduate student. It’s not the law itself, it’s the idea that any person gets to choose what laws are worth following, that is a serious problem in ASUN.
Read more...
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