The Phantom Committee

When Senator Brandon Bishop calls a meeting of several senators to order tomorrow, he will be giving life to a sort of shadow committee, one that the senators all believe exists and has power to exist, but in reality does not. Hence the title of this post. This phantom committee will be "apparently seen, heard, or sensed, but [will have] no physical reality." Well, no legal reality.

Remember back when the Senate thought it adopted rules at its first meeting of the session? We do, and it is somewhat of an important point. Well, the senators, try as they might, attempted to do it right this time (we applaud the effort) but managed to pull off a magic trick. Before the senators decided to go on extended holiday for the entire summer, despite the end-of-semester posturing that they would work tirelessly while everyone else was up at Tahoe working on their tans, we blogged that because the Senate didn't adopt a legally and parliamentarily proper rules resolution, the Interim Operations Committee did not exist.

Enter Sen. Patrick "Rules" Kealy to the rescue--sort of. At the June 3 Senate meeting, Sen. Kealy offered a resolution to adjourn the Senate for the summer (I guess it's too much to ask that the senators work for the students while the students are away). Included in that resolution was a clause that read, "The Interim Committee of the Senate is hereby active during the recess of the Senate. The duties, membership, and chairperson may be decided at the discretion of the Speaker, pursuant to Senate Rule XI."

Looks simple enough, right? The Interim Committee will be active. Just one slight problem: This committee doesn't legally exist. It would have had the Senate adopted a proper rules resolution at the beginning of the year. Why? The Interim Committee is not included in the codified Rules of the Senate; instead, it was created under a standalone resolution (S. Res. 75-29) (see here, page 221 of the scribd document). (That resolution was subsequently amended by S. Res. 75-64 to allow the committee to meet during spring break.)

Since the Senate did not readopt this resolution for this session, as should have been done at its first meeting, the Interim Committee does not exist. Yet, here we have the trick of this committee, which does not exist, meeting tomorrow. Thus, when the group of senators meet tomorrow, despite the Senate's best intentions, they will be without the legal authority to meet. Of course this is very easy to fix. A resolution like the one below would suffice.

Resolved, That Senate Resolution 75-29, as amended, shall apply in the 77th Session of the Senate in the same manner as such resolution applied in the 75th Session of the Senate.

The resolution is short, clear, and unambiguous. It not only makes clear to the senators what they believed was clear already, but allows people looking back to have clarity as well. Indeed, if you compare Sen. Kealy's clause to the actual resolution that created this committee in the first place, it becomes clear that the membership selection is somewhat different than what is precsribed in Rule XI, especially with respect to selecting a chairperson.

Sen. Bishop, since you are the parliamentarian of the Senate, we expect you will take this analysis under consideration and take the reasonable course of action to cancel tomorrow's meeting so that this legal and parliamentary oversight can be corrected by the full Senate. (Oh, and while you're at it, if you could fix the problem that exists with the Senate's rules, too, that'd be great. We've got some other quarrels, but let's start with something simple, eh?)

In reality, we fully expect that this post won't even get the lip service it deserves, let alone actually be taken seriously. No worries, just another item to add to the list of ways the ASUN Senate has tried but failed.

Is Our Senators Learning: Retreats and the Open Meeting Law

This certainly has to be a broken record to our readers, but the Senate and other public bodies that attended this past weekend's retreat at Lake Tahoe broke the Open Meeting Law when they held their retreat. This post is in response to a couple of comments we received to this post. One reader asked whether holding the retreat without posting agendas creates a problem under the OML. Another reader defended the practice, stating that "[n]o meetings were held, Senate or otherwise, so no violation in NOML. The 'retreat' was used to teach those new to ASUN about ASUN, set amazing goals, and learn how to better serve you the students."

This post will examine whether the Open Meeting Law applies to retreats at which members of a public body will gather.

Executive Summary
The Open Meeting Law applies to retreats because a retreat is a meeting for the purpose of the OML. Keep reading to find out why the OML applies to retreats.



It is unquestionable that the OML applies to the Senate and other public bodies of the ASUN (Clubs Commission, etc.). The specific question is whether a retreat, in this particular case at the 4-H camp at Lake Tahoe, at which a quorum of the members of a public body will meet must comply with the provisions of the Open Meeting Law (Chapter 241 of NRS).

By its terms, the Open Meeting Law states that "all meetings of public bodies must be open and public, and all persons must be permitted to attend any meeting of these public bodies" (NRS 241.020(1)). Several definitions operate to define the scope of the law's coverage (NRS 241.015); they are applicable here.

First, the term "meeting" must be defined. The law states that persons must be allowed to attend "any meeting" of a public body. "Meeting" is defined as "[t]he gathering of members of a public body at which a quorum is present to deliberate toward a decision or to take action on any matter over which the public body has supervision, control, jurisdiction or advisory power" (NRS 241.015(2)(a)(1)). "Quorum" is defined as a majority of the members of a public body (NRS 241.015(4). (For the Senate, ASUN Constitution states it is two-thirds of the members of the Senate, but that is a requirement in addition to the OML. The OML is implicated when only a majority is present, regardless of the fact that the Senate cannot act under the ASUN Constitution unless two-thirds of the members are present.)

It is without dispute that a majority of the Senate's members attended the retreat. (EDIT: It appears that the retreat was more sparsely attended than assumed (See Gracie Geremia's comment below. This claim should be viewed taking the new information into account. However, as a matter of situations, this post is still valid.) The threshold question of whether enough members were present to trigger the OML is therefore answered in the affirmative. We next turn to determine whether a "meeting" occurred for the purposes of the law.

Remember, "meeting" is defined as:

• the gathering of members of a public body
• at which a quorum is present
• to deliberate toward a decision OR
  
• to take action on any matter over which the public body has supervision, control, jurisdiction or advisory power

We have already answered that there was a gathering of a quorum of the Senate. The questions becomes whether the Senate deliberated toward a decision or took action on "any matter over which [the Senate] has supervision, control, jurisdiction or advisory power."

According to this commenter, "[t]he 'retreat' was used...to set amazing goals...." The aggrandizing language aside, it appears that some action was taken at the retreat, as goal setting would qualify as an action. (The collective experience of the members of this blog corroborates this comment. Past ASUN officials agree that deliberation occurs during these retreats. Just to be sure, let's look at how "action" is defined in the OML.

"Action" means:
(a) A decision made by a majority of the members present during a meeting of a public body;
(b) A commitment or promise made by a majority of the members present during a meeting of a public body;
(c) If a public body may have a member who is not an elected official, an affirmative vote taken by a majority of the members present during a meeting of the public body...

(NRS 241.015(1)). Setting goals certainly appears to qualify as "a decision made by a majority of the members" of the Senate or as "a commitment or promise made by a majority of the members" of the Senate. If a goal is not a commitment to take some sort of future action, I don't know what is.

But keep in mind, the OML does not require that action be taken to trigger its provisions; to deliberate toward a decision on some item over which the Senate has control or advisory power is sufficient to implicate the provisions of the law. For example, even if the Senate did not take action to set goals but merely discussed them, the OML would still apply.

We have satisfied all of the factors to determine whether the OML applies. None of the exceptions to the law apply either. (I have omitted discussing the stated exceptions for the sake of brevity but will gladly comment on them if raised by commenters.) The fact that this meeting was styled as a retreat is irrelevant. It doesn't matter what you call the meeting, because, as the saying goes, if it looks like a duck and quacks like a duck, it's a duck. Same thing with meeting vs. retreat.

Accordingly, the remainder of the OML law applies to this situation. Notice of the meeting must be given, agendas prepared and posted, minutes taken, public comment allowed, etc.

Don't agree with my analysis? Fine, don't take my word for it, take the Nevada Attorney General's word. The Attorney General has specifically opined about retreats and concluded that the OML does apply and that agendas for retreats must be drafted with particular attention to satisfying the clear and complete agenda requirement (Open Meeting Law Opinion No. 99-02).

The general rule is whenever a quorum of a public body is going to gather to deliberate on matters the body has control over or an interest in, the meeting must be held in compliance with the Open Meeting Law. The rules don't change just because you don't call it a "meeting."

ASUN Summer Vacation

We here at Vis Lupi Est Grex hope that all the ASUN folks heading up to Tahoe for the retreat remember that the exciting weekend you're spending at the Lake is paid for from the pocket of the students, most of whom would just as soon elect not to pay their ASUN fees and use that money to enjoy a weekend at Tahoe themselves.

Shortest Summer Break Ever!

Perhaps I was a little premature in announcing summer break. The Senate may be in "recess" until August, but the Speaker has called a special meeting for next Friday, June 12. The Senate is scheduled to take up the nominations the Oversight Committee considered yesterday, as well as a bill authorizing the SAFE program (after the program was funded yesterday in the Senate's budget) (VLEG story).

Senate's Out For the Summer

Last night, the Senate voted to adjourn until the fall semester. Congratulations, senators! Mr. President Eli Reilly now has the authority to recess appoint all pending nominations and vacant positions until the Senate reconvenes. And how can you say no to a candidate who has been working all summer? I wonder what that means for the Oversight Committee meeting held last night to consider the nominations of several individuals to multiple offices. I suppose it was sort of held in vain, since the Senate won't be around to consider its recommendations.

And since the Senate is out for the summer, I suppose so will this blog. We'll have sporadic posts, but for now, enjoy your summer break.

Is Our Senators Learning: Beyond the Senate's Power

The Senate's University Affairs Committee today is continuing its discussion on President Reilly's proposed SAFE (Student Aid for Emergencies) program. The program, proposed in Reilly's budget for fiscal year 2010, seeks to provide support for students in financial emergencies. The proposal is below.

ASUN FY 2010 Proposed Budget

Publish at Scribd

The Senate is considering companion legislation (sponsored by Senator Christine Lemon [College of Science]) presumably to authorize the program. This is an excellent step, but the legislation suffers from several problems. Read more to find out how.

The Senate Cannot Legislate Beyond Its Jurisdiction
The ASUN Constitution, in Article II, section 3(b)(3), states that the "Senate shall not...[c]reate laws that presume binding authority beyond the jurisdiction of the Associated Students." This basically means that the Senate cannot legislate on things beyond ASUN. On this basis, the SAFE bill is unconstitutional.

Section 3 establishes the program as an ASUN service. Section 4 of the bill is where the problems are. Subsection (a)(1) states that "The SAFE program shall be administered by the Coordinator of Student Advocacy, who shall deliver monthly written reports to the ASUN President." This bill attempts to direct a University administrator, who is clearly beyond the jurisdiction of ASUN and the Senate's ability to direct, to run the program.

Subsection (a)(2) of section 3 further states that the SAFE administrator "shall determine the number of meal swipes and/or the duration of stay for students participating in the program." Again, this directory and mandatory language is beyond the Senate's ability to mandate and legislate.

Section 3(b) states that meals "shall be provided by Office of Residential Life, Housing, and Food Services." Now the Senate attempts to direct entire University departments what to do. Ah, but this isn't even the worst of it.

Section 3(c) states that "Super 8 Motel located at 1651 N. Virginia Street shall accommodate the students in need of shelter who are participating in the SAFE program." Apparently the Senate of the Associated Students now has the power to tell private businesses what to do.

The program looks like a good idea. But the Senate's legislation needs a lot of work. The bill needs to spell out ASUN's role in this program. Reilly's budget states that ASUN would provide $10,000 to the program, but the proposal on the SAFE program makes no mention of cost. This would be a good thing to sort out. By contributing to SAFE, what future liabilities and obligations does this commit ASUN to?

If the only thing ASUN is doing is providing some financing, that's all the bill really need to say. It's clear from both the proposal and ASUN's bill that ASUN is not administering the program. If that's the case, and there is no obligation on ASUN's part to providing anything more than funding, then that's all the bill need to do: authorize the transfer of funds to this program. If ASUN is actually administering the program, then the bill should spell that out.

Bottom line: it is unclear, from both Reilly's proposal and Senator Lemon's bill, what role ASUN plays in this program. The Senate should get answers to those questions before it spends any money on this program. We hope the Committee does its job and seriously scrutinize this piece of legislation and the underlying program.

Budget Bill Problems
The Senate tomorrow will consider the ASUN's budget for the upcoming fiscal year. (This bill many problems, which we will discuss in a future post.) But for now, the line item for the SAFE program should raise some eyebrows (link). This program hasn't been authorized yet. Until it has been, it is not legal for the line item to appear in the budget.

If this is a Senator's bill, why didn't it get a first reading?
The Senate's rules (Rule XV) provide that senators may introduce legislation. The bill bears the name of an individual senator, indicating that it was introduced for consideration by that senator. So why didn't this bill get a first reading in the Senate? Committees can report original legislation (bypassing the first reading step) directly to the Senate, but they would carry an indication that it was not introduced. So which is it supposed to be? And why isn't the Speaker making sure the rules are being taught and followed?

By the way...
Where is the "Joe Crowley Student Presidents Conference Room"? (Agenda) Is that a building? A room? I know what was meant, but this could be yet another violation of the Open Meeting Law in the works.