Who Speaks for the Senate?

Short answer: In general, the Senate does.

In our last post, we briefly mentioned how the ASUN's statement regarding alleged workers' rights violations by a manufacturer of Russell Athletic apparel, of which the ASUN Bookstore is a customer, raised some interesting issues because of who signed onto the message. Sen. Brandon Bishop (Liberal Arts), who is the Senate's parliamentarian and chairman of the Phantom Committee (Interim Operations Committee), signed on to the statement with ASUN President Eli Reilly.

The statement said that "members of the Associated Student (sic) Senate have conducted thorough research and analysis" of several reports alleging Russell Athletics' misconduct. The statement went on to say that "the Associated Students of the University have instructed the ASUN Bookstore to cease all orders of Russell Athletic merchandise. Furthermore, Marie Stewart[,] the Manager of the Associated Student (sic) Bookstore has been instructed by the Association to search for a new supplier of Wolf Pack Merchandise." The message also relays that "[a]t the instruction of the Association, the Bookstore will cease ordering from Russell, all reserves of merchandise from Russell Athletic will continue to be sold by the Bookstore as to not impact scholarship funding for the Association."

The message concludes that "[u]pon the conclusion of the Senate of the Associated Students investigation into the actions of Russell Corporation a final recommendation will be released," presumably to follow up on a recommendation request from the President of the University (a recommendation regarding what specifically is unknown).

The statement raises a few issues. First, the statement, in several places, mentions that the ASUN has directed its bookstore manager to stop ordering from Russell Athletic, to search for a new supplier of apparel, but to sell off all of the inventory in stock, and that once all Russell stock has been sold, the purchase or sale of Russell gear is banned. Under what authority, explicit or implicit, did President Reilly have to unilaterally direct to the bookstore these policies? Very little statutory law enacted by the Senate discusses the formal relationship between the bookstore and the government of the Association. What little law does exist defines reporting and budget requirements. So the question remains, does the President have authority over the bookstore?

If you're of the view that the bookstore is part of the executive branch of ASUN, and that the bookstore manager reports to the ASUN President, then it would be reasonable to assume that the ASUN President has authority to direct the manager what to do, who to use as suppliers, what to buy and sell, etc. However, the relationship isn't that simple.

In reality, the bookstore manager is just another University administrator. She reports to the Associate Vice President of Student Life services, Gerald Marczynski, the same person to whom the director of the Associated Students/Student Activities, Sandy Rodriguez, reports to. The Associated Students "owns" the bookstore, true, but more formally the relationship is closer to how the student body of the University "owns" the student union: the Board of Regents hold it in trust for the ASUN. With that understanding, the relationship between ASUN and its bookstore, and the President and the bookstore's manager, gets a little fuzzy.

Let's compare it to a similar relationship: ASUN to its director, Sandy Rodriguez. The director of ASUN is also the director of the University unit known as Student Activities. It's a fine distinction, one that even we don't have a firm grasp on--it's hard to tell where ASUN ends and Student Activities begins. We do know that ASUN foots the bill for all of it. Rodriguez reports to Marczynski in the same way that Stewart (the bookstore manager) does. However, there is an implicit understanding that the ASUN director's job is to carry out the day-to-day functions of the Association, under the direction of the Association's leadership (i.e. the elected and appointed student officers). It shouldn't be much of a stretch to believe that the relationship should work the same way with the bookstore and its manager.

More reality: historically, ASUN has left the management, operation, and policy choices regarding the bookstore to its management. Think of it like this: ASUN is the owner but leaves the management up to someone else. Thus, it should be rare for the owner to intervene in the management of the operation.

It's pretty clear that ASUN owns the bookstore. It's less clear to what extent ASUN has authority over its operation. It's not inherently unreasonable to state that the ASUN President has the authority to direct the bookstore to do certain things. However, given that the ASUN Senate has never defined the relationship, or put into law the current relationship, the ASUN President is acting in a gray area.

Now, as far as the Senate is concerned, this should be a big clue to wake up and legislate. The Senate is the policy making branch of the Association, and it should make some policy defining the relationships, especially respecting the ASUN President's authority over the bookstore.

This finally brings us to Sen. Bishop. The statement talks about how the Senate has "conducted thorough research and analysis" of the issues surrounding Russell. The message seems to imply that the Senate had some say in directing the bookstore to take the aforementioned actions regarding Russell Athletic merchandise. Notice that the statement doesn't say that "I (President Reilly)" or "we (Reilly and Bishop)" have directed the actions. It says "the Association" has.

The fact that Bishop signed off on the statement would seem to imply that the Senate was behind it, yet (as far as we can tell) the Senate has taken no action on this item. The Phantom (Interim) Committee has only discussed the matter. Keep in mind, the Interim Committee has no authority to do things on its own. It's just like any other Senate committee: it takes the Senate's action to give effect to a committee's recommendations. Since the Senate has not acted on this, it seems clear that the Senate is not behind this statement.

Thus, it would appear that Sen. Bishop was a little overzealous in attaching the Senate to it. If Bishop was merely signing onto the parts of the statement indicating that the Senate was investigating, that would be fine, but he signed onto the whole statement. In that case, it might have been better to release two statements: one defining the Senate's role and the other discussing the actions Reilly took.

Another aspect is that the Interim Committee doesn't have any inherent authority to initiate actions. Under the original authorizing resolution adopted during the 75th Senate Session (S. Res. 75-29, page 221 here), the Interim Committee has "the authority specifically to consider legislation from any Standing Committee or discharge any legislation from any Standing Committee with the consent of the Standing Committee chairperson." It appears that the Interim Committee only has authority to consider stuff the other standing committees were handling at the time the Interim Committee existed. Notice the consent of the committee chair involved is required for the Interim Committee to handle a matter. Even under a more expansive view, the Committee can only do things that other committees can do with the consent of the appropriate chair. This is to prevent the Interim Committee from unilaterally depriving a committee of its jurisdiction. Remember, the purpose of the Interim Committee, according to the original resolution, is "to conduct specific business of the Senate Committees during times of break."

Now, as we previously covered here, the Interim Committee right now has no real legal authority because it was never properly constituted. So all of this discussion is pretty much academic.

One last thing to consider, as an aside. The role of the ASUN Bookstore is to serve the university community. It isn't a profit making enterprise, at least not in the traditional sense. The revenue the bookstore generates above and beyond the cost of doing business is reinvested at the University, through scholarships and funding for campus improvements, as directed by ASUN. There used to be a profit sharing agreement with the Graduate Student Association, but it lapsed without being renewed. (Interesting question: any bets as to whether GSA is still getting its cut even though the profit sharing agreement lapsed more than a year ago?)

It's what it doesn't say that matters

Recently, the Associated Students released a statement by ASUN President Eli Reilly denouncing Russell Athletic for its alleged workers' rights violations at its recently closed Jerzees de Honduras plant. ASUN, through its bookstore, is a licensee and customer of Russell Athletic merchandise. Apparently, the ASUN Senate has been conducting an investigation into these matters, although it must've been a big secret since it never appeared on an agenda (which is interesting because Reilly's statement says that "members of the Associated Student (sic) Senate have conducted thorough research and analysis" of this issue.

The matter of the workers' rights violations isn't what is interesting to us, although it is good that the ASUN will be denouncing Russell Athletic's behavior by taking their business elsewhere. What's interesting is the fact that this joint statement between ASUN's executive and legislative branches wasn't signed on to by the Senate's leader, Gracie Geremia. Instead it was Phantom Committee chairman Brandon Bishop who joined Reilly in the statement. What, Gracie not good enough?

What's even more interesting is that the statement implies that the Senate stands behind the message, yet there's been no action by the Senate on this subject.

Is Our Senators Learning: Committee Jurisdiction

This will be a short installment of IOSL. Before I begin, a bit of a disclaimer. There appears to be some dispute what the present form of Rule X is. In November 2008, the Government Operations Committee considered an amendment to the rule to change the descriptions of the committee's jurisdiction. We previously believed that amendment to have been agreed to by the Senate. However, the (one would assume) official listing of legislation on the ASUN Web site does not show said piece of legislation. Without ample proof, we are unable to state with any level of confidence what Rule X should say. So for the purposes of this piece, we will use the unamended text of Rule X which, as it would be, is the same text that is supposedly the "official" rule.


Rule X of the Rules of the Senate defines the jurisdictions of the standing committees. A standing committee is one that is permanently established under the Senate's Rules. Clause (d) of that rule informs us that the Committee on Government Operations has the jurisdiction to consider, among other things, "amendments to the Rules of the Senate."

So imagine my surprise to read today's Conduct and Appointments Oversight Committee agenda. Item 6(b) reads:

b. ABSENCE POLICY
The committee may discuss implementing an absence policy prior to the conduct hearing for senators who have exceeded 3 absences, pertinent to Senate Rule I (e) Attendance Policy. The committee may discuss the absence policy related to office hours. The committee may discuss or draft legislation regarding the Senate absence policy.

This is a problem. The Oversight Committee does not have legislative jurisdiction. Even under its amended description (here), there is no mention of the committee having jurisdiction beyond investigations of personnel issues, disciplinary hearings, confirmation hearings, reviewing senators' absences, and conducting impeachment hearings. Thus, it would appear that this committee is without the jurisdiction to consider legislation. They can talk all they want about what the rules should be, any one of the senators on the committee is free to draft a resolution to amend the rules, but it is the Government Operations Committee that has the jurisdiction to consider it.

I'm sure that Speaker Geremia, who is chair of the committee, won't let this pesky little rule stand in her way. After all, she didn't do anything to keep the Phantom Committee from meeting. These aren't hard things to fix, but this demonstrable lack of respect for rules and the written word is disturbing, considering all the senators took an oath to uphold them.

Is Our Senators Learning: It's Hard to Legislate Without Reading

It's been a while since our last post, and now seemed like as good a time as any for a revival of sorts. In this edition of Is Our Senators Learning, we explore why it might be more appropriate for us to call this series "Is Our Senators Reading" instead.

First, however, I'd like to commend Senator Shirley Diaz for doing what senators should be doing, and that is writing legislation. While she still has much to learn about bill drafting, she is proving herself to be both thoughtful and willing to learn, both traits invaluable for a senator to possess. However, we are not without our criticism.

Executive Summary

• Senator Diaz is turning out to be quite the legislator. She already holds the record for most bills drafted by a senator in this session.
• The Senate cannot change the terms of office for officers when such change affects contractual obligations.
• You cannot amend amendatory bills directly; you have to amend the underlying language.
• These words are not equivalent: precedence / precedent / president
  

Today the Phantom Committee is taking up three bills, all drafted by Sen. Diaz. (meeting info). The first bill relates to the Department of Homecoming Programming and the terms of office of its officers. The second bill relates to the Diversity Commission. The third bill (which really isn't a bill at all--it's a resolution) makes amendments relating to the Senate's parliamentarian.

Bill No. 1: Homecoming Programming Department
The first bill up for consideration changes the term of office of the Director of Homecoming from expiring on November 30 to expire instead on the dead day in the spring semester. The bill further provides that the terms of office of the subordinates in the department will expire on dead day in the spring as well.

First to the merits of the bill. It is uncertain why Sen. Diaz, at the urging of the the Director of Homecoming, Molly Fronapfel, proposes to change the term of office for the Director. As originally conceived, the Director would be in office for a full year, beginning soon after the end of the previous homecoming. This would allow the Association to have people in place to give homecoming the attention it deserves, much like the Alumni Association does now. In fact, it was then Director of Programming Eli Reilly who proposed the November 30 date.

One reason that comes to mind why this change is proposed is so a new president will have complete control over who is in office at the change of an administration. But this goes against the philosophy that experience and competence should outweigh patronage in ASUN, especially in the less political offices.

The bill also defines the terms of the subordinates in the department. No complaints as to that provision.

From a drafting standpoint, this bill needs some tweaking. First of all, the bill moves the term of office provisions from the law creating the Homecoming Director (ASUN Public Law 75-29) and moves it into a law that defines the terms of office of several other executive officers (ASUN Public Law 75-50). There are differing philosophies on how to group similar provisions of law, but it is generally more acceptable to put the term of office for an officer in the same law that created the office. (That's right, the 75th Session of the Senate that normally receives this blog's highest praises got lazy. Instead of amending the various laws that created the offices, they merely created another law and listed the offices and their terms. This would be a good thing for some senator to fix.)

So rather than have provisions relating to one officer scattered throughout the statutory law, it makes better sense to keep it all together. In that light, we have drafted a substitute to the bill under consideration. It is below.

A BILL
To amend the term of office of the Director of Homecoming, to provide for the terms of office of the Assistant Directors and Programmers in the Department of Homecoming Programming, and for other purposes.

Be it enacted by the Senate of the Associated Students,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Department of Homecoming Amendments Act of 2009”.
SEC. 2. AMENDMENT TO TERM OF DIRECTOR OF HOMECOMING.
Section 3(a)(4)(A) of the Homecoming Act of 2008 (ASUN Public Law 75–29; 75 ASUN Stat. 94) is amended to read as follows:
“(A) The Director of Homecoming shall serve for a term of one year beginning on Dead Day in the spring semester. On the expiration of the term, the Director shall continue to perform the duties of the office until a successor is appointed and qualifies. As used in this subparagraph, “Dead Day” has the meaning ascribed to it in section 2 of the Executive Officer Term Limits Act of 2008 (ASUN Public Law 75–50; 75 ASUN Stat. 129).”.
SEC. 3. TERM OF ASSISTANT DIRECTORS AND PROGRAMMERS.
  (a) Section 4 of the Homecoming Act of 2008 (ASUN Public Law 75–29; 75 ASUN Stat. 94) is amended by adding to the end the following new subsection:
  “(e) TERMS OF OFFICE.—Assistant Directors and Programmers in the Department of Homecoming shall hold office for a term of one year. On the expiration of the term, a Programmer shall continue to perform the duties of the office until a successor is appointed and qualifies. As used in this subsection, “Dead Day” has the meaning ascribed to it in section 2 of the Executive Officer Term Limits Act of 2008 (ASUN Public Law 75–50; 75 ASUN Stat. 129).”.
SEC. 4. APPLICATION.
This Act, and the amendments made by this Act, shall not apply to any person holding an office covered by the provisions of this Act as of the date of enactment of this Act.

You'll also notice that I added a section 4 regarding the application of the changes made by the bill. The Senate cannot constitutionally change the term of office if it will affect a contractual obligation. Appointing someone to an office with a fixed date of termination, and then moving the date forward, would deprive that person of the wages she would otherwise be entitled to. Therefore, this sort of change should not apply until the successor takes office.

If, however, Sen. Diaz is partial to her original bill's organization, it's been redrafted to adhere to ASUN's bill drafting style below.

A BILL
To amend the term of office of the Director of Homecoming, to provide for the terms of office of the Assistant Directors and Programmers in the Department of Homecoming Programming, and for other purposes.

Be it enacted by the Senate of the Associated Students,
SECTION 1. SHORT TITLE.
This Act may be cited as the “Department of Homecoming Amendments Act of 2009”.
SEC. 2. AMENDMENT TO TERM OF DIRECTOR OF HOMECOMING.
Section 3(a)(4)(A) of the Homecoming Act of 2008 (ASUN Public Law 75–29; 75 ASUN Stat. 94) is amended to read as follows:
“(A) The Director of Homecoming shall serve for a term of one year beginning on Dead Day in the spring semester. On the expiration of the term, the Director shall continue to perform the duties of the office until a successor is appointed and qualifies. As used in this subparagraph, “Dead Day” has the meaning ascribed to it in section 2 of the Executive Officer Term Limits Act of 2008 (ASUN Public Law 75–50; 75 ASUN Stat. 129).”.
SEC. 3. TERM OF ASSISTANT DIRECTORS AND PROGRAMMERS.
  (a) Section 4 of the Homecoming Act of 2008 (ASUN Public Law 75–29; 75 ASUN Stat. 94) is amended by adding to the end the following new subsection:
  “(e) TERMS OF OFFICE.—Assistant Directors and Programmers in the Department of Homecoming shall hold office for a term of one year. On the expiration of the term, a Programmer shall continue to perform the duties of the office until a successor is appointed and qualifies. As used in this subsection, “Dead Day” has the meaning ascribed to it in section 2 of the Executive Officer Term Limits Act of 2008 (ASUN Public Law 75–50; 75 ASUN Stat. 129).”.
SEC. 4. APPLICATION.
This Act, and the amendments made by this Act, shall not apply to any person holding an office covered by the provisions of this Act as of the date of enactment of this Act.

We've discussed other points of bill drafting convention in other posts.

Bill No. 2: Diversity Commission
The second bill up for consideration changes the name of all things related to the Diversity Commission to the Unity Commission. This is a minor bill and doesn't seem to do much other than change some names.

On drafting style, we'd prefer the language to read as follows:

SECTION 1. DIVERSITY COMMISSION REDESIGNATION.
(a) Redesignation.--The Diversity Commission Act of 2009 (ASUN Public Law 77-4) is amended by striking "Diversity Commission" in each place it appears and inserting "Unity Commission".
(b) Technical Amendments.--Section 2(c)(7) of the Executive Compensation Act of 2008 (ASUN Public Law 75-48; 75 ASUN Stat. 144), as amended, is further amended by striking "Diversity" and inserting "Unity".

Notice the change to the second part of the bill. You cannot amend amendatory bills like you can standalone bills. The reason why is once the bill has been enacted, its amendatory provisions are considered to be "executed" and are no longer permanent law. It's like telling someone to write down "The sky is red," later giving that person an instruction to change "red" to "blue," and then later changing your mind on the amendatory instruction by changing the instruction (if that makes any sense). You can't do things that way. You have to amend the underlying language, as amended.

Up to this point, it appears that Sen. Diaz has been doing her homework. Aside from mainly stylistic and legalistic points, she's doing as well as can be expected for senators who receive no (real) training on the mechanics of legislating.

Resolution regarding the Senate's Parliamentarian
This is the resolution that gave rise to the lament at the beginning of this post that we should call the IOSL series "Is Our Senators Reading."

I'm going to ignore the matters of style for this piece of leigslation in favor of focusing on the merits. This resolution would make significant changes to the parliamentarian's role in the Senate.

First, the resolution creates an Office of the Parliamentarian. It would authorize the parliamentarian to appoint a deputy. The resolution also expands the scope of the parliamentarian in an expansive way. It authorizes the parliamentarian to represent the Senate or senators in suits before the Judicial Council. The resolution also authorizes the parliamentarian to render opinions on the constitutionality of legislation. This could be dangerous. As a general proposition, when a legislative body acts, it does not question the constitutionality of its acts. However, we do see value in having someone, acting in the capacity of a legislative counsel, providing such opinions. But the Speaker should never rule on such matters from the Chair.

There are two clauses (c)(7) in the resolution, but one of them provides that the Parliamentarian "shall assist the Secretary on the Publication of the Statues at Large of the Association." Why "Publication" is capitalized is beyond me, but this is the specific section that gives us doubt that the senators are reading the laws. The Secretary of the Senate does not publish the Statutes at Large; the Archivist does (ASUN Public Law 75-39, section 15).

Finally, a point that matters: precedence vs. precedents. There is a difference. (See also here.) And for those readers old enough to remember, this reminded me of the time the Judicial Council, back in 2004 or 2005, didn't understand the difference between "precident" and "president."

The resolution is good in that it provides a deputy for the parliamentarian and that it defines that someone is authorized to represent the Senate in cases before the Judicial Council. However, this resolution needs more work before it is ready to be reported out of committee.

All in all, kudos to Sen. Diaz for putting forth the effort to do what a senator should do. Now, to all the other senators: Get crackin'!