Maybe ASUN isn't broken after all.

Tonight the ASUN Senate considered whether to proceed with impeachment against ASUN President Jake Pereira. According to the Nevada Sagebrush, the Senate has voted to indefinitely postpone impeachment proceedings against Pereira. In parliamentary procedure speak, that means the allegations forwarded by the Judicial Council are officially dead.

Cooler heads have prevailed, and hopefully this will not mar President Pereira's term and the Senate's session so early in their tenure. With that, this blog can safely return to mothballs for another four or more years.

They finally did it. They broke ASUN. Or: what a mighty fine constitutional crisis you've created.

This blog has been sitting in mothballs for nearly 4 years. Its contributors, long since graduated from the University of Nevada and the halls of student government, have moved on to bigger and better things. To get a little biblical, we moved on to helping souls that wanted to be saved. It seems in our absence the youthfully exuberant officers, senators, and justices in the Associated Students of the University of Nevada have managed to create quite a constitutional crisis--and only two weeks into the Senate's 82d Session. What promise! There's scandal, intrigue, raw exercises of power, allegations of corruption and intimidation, a secret society is involved, a newly-elected president only two weeks into his term is facing possible removal from office. And, sadly, though perhaps not surprisingly, very little actual reason is being flung around the Joe Crowley Student Union in the ASUN offices in the weeks before summer break.

To shamelessly borrow a phrase from the secret society involved, "for the betterment of the University of Nevada," Vis Lupi Est Grex rises from the ashes mothballs and offers its considered, detached, dispassionate, and reasoned view on the recent goings-on in ASUN. I thought long and hard about whether to publish this post. I am taking this opportunity to make my comments public for two primary reasons: (1) I believe the leaders in ASUN would benefit from having access to these thoughts and (2) I'm growing tired of repeating them on a person-by-person basis. Although I have offered below significant criticisms of how this process has unfolded and whether Pereira is deserving of impeachment, I am not a person with a vote and my only desire is to give those who do have the vote some outside perspective and reliable information. How those with the power ultimately choose to use it is up to them, though I hope they'll exercise their power better informed as a result of this blog post. For those with the intestinal fortitude, or perhaps the slightly masochistic leanings to read a post of 6,542 words, click on. But you were warned.

A committee of the Senate is not the Senate

The 78th Session senators have now had a few weeks' taste of summer, which means it's time for the Senate to recess until August and leave those poor souls who are in Reno (and who volunteer) to handle the Senate's business.

What usually occurs (at least in every interim period since 2007) is the Senate establishes an interim committee that has the authority to consider legislation within the jurisdiction of the standing committees and report it to the Senate by the time the Senate reconvenes from its break. Below is the model resolution establishing an interim committee (S. Res. 75-29).

Associated Students Statutes at Large Volume 75--Unofficial

When the Senate adopts rules of the Senate at the beginning of a session in the model fashion, readopting this type of resolution is unnecessary (sort of discussed here and here). Anyway, that's sort of off topic.

Enter Sen. Jesus Palma, who has introduced S. Res. 78-25 (thanks for numbering legislation!), scheduled to be considered at today's Senate meeting. The resolution would create an interim committee that is "entrusted with the full power and duties of the Senate," including the authority to pass legislation. That legislation would automatically sunset when the Senate reconvenes following a recess. The resolution is creative, no doubt about that, but it is fatally unconstitutional. Before I get to the constitutional concerns, a couple nitpicky points.

• The legislation says the committee (called the "Summer Session" in the legislation, but let's call a spade a spade) is to have a number of members "not to equal or exceed a majority of the full Senate; but must consist of at least twelve Senators." With a 22-member Senate, a majority is 12. The reason staying below a majority is critical is because generally under the Open Meeting Law, whenever a quorum (defined as majority) of a public body meets, it must be noticed and conducted under the OML.
• Ignoring that this committee would have power to pass legislation, it's exceedingly rare for the presiding officer of the parent body to also chair a committee (a continuing problem for the Oversight Committee) because a presiding officer should maintain the appearance of impartiality; the chair of a committee must advocate for the committee's positions, creating an inherent conflict.

Constitutionally, this "Summer Session" idea is dead on arrival. The ASUN Constitution is explicit about the enactment of legislation. In order for a bill to become law, it must first have "passed the Senate." ASUN Const. art. II, sec. 4(a). While the Senate may have all the legislative power of the Association, ASUN Const. art. II, sec. 1, and have the power to make all laws necessary for ASUN, ASUN Const. art. II, sec. 3(a), that doesn't mean it has the power to rewrite by rule the constitutional process for enacting laws. Sen. Palma's proposed committee would do just that.

The proposed committee also deprives the students of their representation because the full Senate is not considering the legislation before it goes to the President for him to sign or veto. Those senators who are not on the committee will have no vote, and thus the students who those senators represent will be unrepresented.

The proposal also leaves some questions unanswered. Does legislation the committee "passes" have to be presented to the President for approval? If so, what if the President vetoes a bill? Does it go to the committee for an override? What about the constitutional provisions governing veto overrides by the Senate, ASUN Const. art. II, sec. 4(b)-(e)? Does this committee obliterate the President's power to make recess appointments, ASUN Const. art. III, sec. 2(c)? If the committee truly has the "full power" of the Senate, can it expel senators from the Senate under article II, section 2(c) of the ASUN Constitution? And the list goes on. This alone should be sufficient evidence that this "committee with full power" proposal is a bad idea.

Finally, the Senate cannot delegate to a committee the constitutional powers that are explicitly vested in the body as a whole (e.g., enacting legislation, confirming executive appointments, proposing constitutional amendments). To do so would circumvent the exclusive processes laid out in the constitution.

This proposal reminds me of a couple of proposals that were considered during the 74th Senate Session (selected documents here). Assuming this proposal is based on one of those, a critical point that Sen. Palma seems to be unaware is that the previous ASUN constitution did not explicitly dictate how legislation became law; the present one does. That single difference precludes this proposal.

Rarely does the Senate need to take immediate action during the summer. If the need does exist, however, convening a special meeting with distant senators teleconferencing or video-conferencing should not be much of an impediment to achieving quorum.

In short, the model interim committee established during the 75th Session should be adequate, and it carries with it none of the constitutional concerns as does this proposal, since it is a committee of the Senate just like any other. Sen. Palma's proposal is certainly creative, but the constitutional concerns make it unworkable.

Budgets and appropriations

One of the more nuanced items in ASUN is the difference between a budget and appropriations. The ASUN Constitution states that the Senate has the power "[t]o set a budget for the ASUN, but no money shall be spent from the treasury without appropriations made by law." ASUN Const. art. II, sec. 3(a)(2). This clause clearly indicates there is a difference between a "budget" and "appropriations made by law."

It may help to have some definitions. Black's Law Dictionary defines budget as "[a] statement of an organization's estimated revenues and expenses for a specified period, usu. a year." An appropriation is defined as "[a] legislative body's act of setting aside a sum of money for a public purpose." An appropriations bill is "[a] bill that authorizes governmental expenditures." And a budget bill is "[a] bill designating how money will be allocated for the following fiscal year."

Applying these definitions to ASUN, in its simplest form, a budget bill is one that sets an estimate of the amount of money coming into ASUN (revenues) and the amount going out (expenditures). A budget does nothing more than that. It does not authorize spending. That is what an appropriations bill (or several) is for. This distinction is important because the fiscal year 2009 budget was invalidated in Judicial Council Case No. AN-006 in part because proper appropriations were never made. That brings us to tonight.

The Senate is going to take up a bill setting the budget, which reads as follows:

Be it enacted by the Senate of the Associated students,[*]
That the budget of the Associated Students for Fiscal Year 2011 is hereby made effective as set out in Schedule A of this law.

[*] Could someone seriously fix the bill template to capitalize "students," as it is supposed to be?

So if this is all the Senate passes, ASUN cannot legally spend any money in the next fiscal year because no appropriations have been made by law. So what does a proper appropriation look like? I'll give a current example. Below is a properly drafted appropriations bill using figures in the proposed budget for next fiscal year.

Be it enacted by the Senate of the Associated Students, That the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, for the Senate for the fiscal year ending June 30, 2011, namely:

SENATE

Compensation, Officers and Employees

For compensation of officers, employees, and others as authorized by law, $72,573.70, which shall be paid from this appropriation without regard to the following limitations:

office of the secretary

For the Office of the Secretary, $15,810.00.

fringe benefits

For fringe benefits expenses, $2,155.70.

Expenses of the Senate

For expenses of the Senate and its officers and employees, $6,000.00.

Travel

For travel expenses as authorized by Senate resolution or law, $6,000.00.

Hosting

For hosting expenses, $1,500.00, of which $500.00 is for summer training and $1,000.00 is for the outreach efforts of the Senate.

This Act may be cited as the "Senate Appropriations Act, 2011".

That is a proper appropriations bill for just the Senate. Repeat for each department, office, account, or other unit of ASUN. The appropriations process is one way by which the Senate can exert control over the executive on how to spend money.

If the reader needs more evidence that this is the proper appropriations process, look up appropriations bills from the 75th Senate Session here. One note, ASUN Public Law 75-2 is a special case because the budget and spending authorizations for that fiscal year were adopted under the previous constitution. That law was intended simply to make effective under the new constitution the prior authorizations. It was not meant as a model of a proper appropriations act for subsequent fiscal years.

N.B.: Changes to appropriations were not made by striking dollar amounts in the budget and inserting new ones (as has become the practice since the 75th Session), but were made by enacting new appropriations bills. See, e.g., ASUN Public Laws 75-23, 75-24, and 75-30. For an example of a rescission, see ASUN Public Law 75-31. For an example of capital spending, see ASUN Public Law 75-43. (I'd link to the individual files on the ASUN website, but they've been needlessly scrubbed.)

Stop pretending it didn't happen

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.