A response to legal questions with Faceboook and ASUN?

Timing seems awfully coincidental.

Ken Munsterman, March 31 at 3:03pm

Hello everyone! Just to give you the heads up, we have created a new ASUN fan page! This new page is your source for everything from your student government, from activities to important reminders. Please join the page as this group will be shut down in two weeks.

http://www.facebook.com/pages/The-Associated-Students-of-the-University-of-Nevada-Reno/294825107734

Maybe this is a response to the legal issues I posed here.

What you do speaks so loud that I cannot hear what you say.

It is easy to assume one's cause so virtuous as to justify any action in support of it. The youthful libertarians of UNR Student's for Liberty convinced themselves their recent Abolish ASUN event was a justified attack on a system they find wasteful. Not too many people were amused with the event. Many expressed disgust. However, the political savants at UNR-SFL remain unapologetically unabashed. Those who are annoyed, bemused, confused, disgusted, enraged, flabbergasted, etc are just too simple-minded to get the enlightened point being made by UNR-SFL.

Well, John Russell has proved his assumed beliefs might be just a little too large for him to wear intelligently. His recent post condemning ASUN's Flipside Productions recent event suggests he still does not get why people will label him and his fellow club members hypocrites and still support Flipside's event.

You stand on a soapbox professing disdain for waste and then engage in waste yourself; regardless of the purpose, you are a hypocrite. The club's petty behavior may have made a point, but it was not done elegantly. It was done with contempt and displayed rank hypocrisy.

p.s. Another reason you are all hypocrites is your voluntary attendance at a tax supported state sponsored school.

Be what you would seem to be - or, if you'd like it put more simply - never imagine yourself not to be otherwise than what it might appear to others that what you were or might have been was not otherwise than what you had been would have appeared to them to be otherwise.
~Lewis Carroll, Alice in Wonderland

Wasteful spending is wasteful spending

As rare as this occasion is: Agreed.

Now, that's not to say that all entertainment programming is wasteful. Spending on entertaining as part of larger events, such as Homecoming and Mackay Week, is probably more justifiable than just a random event. This spending might also be justified as providing students something to do late at night as an alternative to drinking.

Holding two events with essentially the same activities within a short time period seems duplicative, as well. Duplicative events by their nature are wasteful. To our friends at UNR SFL, I pose this question: Ignoring your premise that ASUN is wasteful because it coercively takes from all to support the "annonyingly active," is all programming spending wasteful? If not, what is not wasteful?

There might also be First Amendment issues implicated by ASUN's practice of banning from their Facebook pages individuals who express dissenting views. Even though government is utilizing a private service (Facebook), the government cannot act in ways that violate a person's constitutional rights. And guess what, ASUN is a government actor. At the very least, ASUN might want to consult with an attorney to determine what its First Amendment liabilities are with respect to its use of Facebook and other social media outlets to connect with ASUN members.

And we're not the only ones to notice this as an issue. The problem with the ASUN's Facebook pages is it appears ASUN and ASUN officers create forums with no announced limits on participation--an open forum--and then engage in editorial control over comments and membership--censorship. This is a no-no and potentially opens ASUN and the University to liability in a civil rights suit.

Senate should abandon laws revision

Given the recent revelations about the cases filed against the Senate and other ASUN officials challenging their legal sufficiency, the Senate might want to wake up and take notice about what is happening.

Just today the Judicial Council informed the parties that it intends to grant summary judgment against ASUN on all remaining cases in light of two ASUN officers admitting liability in the cases.

Sen. Sean Hostmeyer's project to revise and codify all ASUN law is in serious jeopardy given these cases. Practically, the Senate should scrap this project so it can get its bearings in light of the Judicial Council decisions. Much of what ASUN has done during the 76th Senate Session is now invalid, and the application of the precedents could invalidate much of what the 77th Session has done.

The biggest problem at this point is it is entirely unclear what is the law and what is not the law given the decisions against ASUN. Sen. Hostmeyer's project only works if what is being revised and codified is in fact currently law. But under the Open Meeting Law (OML), any action taken in violation of that law is void. The Judicial Council has now ruled that the Senate has engaged in countless OML violations. This is fatal to the revised statutes (now called the revised code) project.

Although in three of the cases the Judicial Council declined to declare the ASUN actions invalid under the OML, ASUN should nonetheless treat them as invalid for a couple of reasons. First, it is the right thing to do. Second, the University and Board of Regents could later step in and invalidate the acts with much more severe consequences. And if some other entity invalidates the underlying acts, the revised statutes would instantly become worthless. There would be no ability to rely on it, defeating its very purpose. The safest thing to do is treat any actions taken as invalid, within the scope of the considered cases, and fix them. Therefore, the senators should scrap the revision proposal, at least until they determine where everything stands. This will take some time.

Most of my previous concerns with the project still apply. I have new concerns about the implementation bill because it creates an inherent conflict in what is the law. The original enactment and the codification? This isn't how codification works. Since ASUN's law and constitution borrows much from the federal system, the Senate would be well advised to borrow the code style the feds use. This would promote consistency and stability, as well as promote the ability for students to learn the styles because many resources are readily available.

Update: For anyone who cares, this is our 200th post. Yay us!

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.

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).

Still pending, three years later

Another ASUN Election has passed, and a constitutional amendment ratified by the students an eternity ago (three years) is still pending. This has been well discussed in this space before. Since the previous posts have been getting some traffic lately, perhaps someone has noticed this somewhat important oversight.

Previous posts:
What Constitutional Amendment?
Oh, That Constititonal Amendment
Another BoR meeting, constitutional amendment still pending

Since the amendment was ratified back in 2008, the Regents have enacted a policy delegating the approval power over student government constitutions to the Chancellor. See section 1.3.6 of Chapter 1, Title 2, Board of Regents Handbook. Thus, the Regents do not have to approve the amendment, but the amendment still must be formally transmitted to the university president, and ASUN law is explicit about whose duty that is.

Once again, in hopes of making this all so utterly easy a caveman could do it, below is a specimen certificate, updated for current Election Commission Chairman Jeremiah Todd. All he needs to do--literally--is print out the certificate the number of times required under ASUN law, sign them, and send to them to the required recipients.

I have to say, I'm hard pressed to think of anything more embarassing to anyone ever involved in ASUN, the administrative faculty included, than letting the people's votes go ignored, particularly on something so important.

Specimen Certificate to UNR President on ASUN Constitutional Amendment_rev 2010-03-19

Please, someone, anyone, fix this so I can stop writing about it.

Congratulations to the President and Vice President elect and the Members of the 78th ASUN Senate

As promised, some brief analysis.

• Jose won by an 8-point margin
• Sadykova won by a 14-point margin
• All 5 incumbent senators won reelection. The only ASUN insider to lose was Shirley Diaz, although it was inevitable for an insider to lose in that race.
• 14 men and 8 women were elected to the Senate
• About 12 percent of the undergraduate student body voted, about the same as in the past few years
• Both advisory funding questions passed by more than 60 percent of the vote
• The closest race, in the School of Journalism, was decided by three votes

Once we have the numbers, we will compare voter turnout rates by college.

The most surprising result from this election was student support for increased fees. By significant margins, both questions passed. It is evidence that even in times of increased tuition and fees, students are willing to pay additional fees for specific programs and services.

Also of note is how smoothly this election was conducted. Major kudos to Commission Chair Jeremiah Todd and his entire crew. Their hard work is apparent and they deserve our praise. Great job, guys!

2010 ASUN General Election Uncertified Results

Winners in bold; NOTA stands for none of the above. Some analysis later.

President of the Associated Students
Charlie Jose-850
Casey Stiteler-713

Vice President of the Associated Students
Shirley Diaz-657
Leissan Sadykova-855

Senator for the College of Agriculture, Biotechnology, and Natural Resources (2 seats)
Jeffrey Fine-49
Corey Jokerst-78
Randy Pares-38
Chelsea Truax-61
NOTA-0

Senator for the College of Business Administration (3 Seats)
Jake Butera-151
Richard Corn-117
Jacob Crawley-91
Mathew Neben (Incumbent)-157
NOTA-20

Senator for the College of Education (2 seats)
Ashlee Benton-35
Jourdan Douglas-17
Edna Meza-43
David Ronan-48

Senator for the College of Engineering (2 Seats)
Alexandria Hill-70
Adam Khan-70
Roger Przybyla-53
NOTA-16

Senator for the College of Liberal Arts (8 Seats)
Joseph Barrett-124
Brandon Bishop (Incumbent)-231
Mitch Bottoset (Incumbent)-162
Samuel Crampton-144
Christopher Day-164
Branden Jung-167
Tatiana Kosyrkina-113
Lea Moser (Incumbent)-187
Ann Newsome (Incumbent)-164
Joey Nizuk-123
Jesus Palma-242
Jordan Weaver-119
NOTA-58

Senator for the College of Science (2 Seats)
Joseph Agor-38
Angel Arias-33
Jennifer Masters-54
Natasha Monga-87
Lauren Riley-74
NOTA-0

Senator for the Division of Health Sciences (2 Seats)
John Haller-51
Reynaldo Veloz-67
Kim Williams-70

Senator for the School of Journalism
Jonathan Moore-61
Misha Ray-59

Ballot Question 1- JV $5 Art Fee
Yes-865
No-506

Ballot Question 2- JV $25 Student Support Services Fee
Yes-855
No-534

Flashback to 2006

Taking no opinion on the votes expressed here, notice anything amiss?

Bragging rights go to the first person to answer what is wrong and cite to some authority.

Just what exactly do they hope to accomplish?

The UNR Students for Liberty Ludicrousness want to Abolish ASUN. So what exactly do they hope to accomplish? Oh, right. Abolish ASUN. Unfortunately, their latest endeavor in ludicrousness is destined to fail. Putting aside their pure hypocrisy, why are their efforts wasted? Because what they want can't happen.

What exactly is their petition seeking? A student ballot question to dissolve ASUN? Board of Regents action to eliminate ASUN? The petition is unclear as to its effect. Without the petition's legal effect being clear, it is insufficient to be recognized. Aside from the petition's lack of clarity, other concerns exist.

First, as a matter of ASUN law, the petition does not propose a proper popular initiative. The ASUN Constitution limits popular initiatives by petition to constitutional amendments and popular enactment and repeal of legislative acts (i.e. laws subordinate to the constitution). There is nothing in the ASUN Constitution that authorizes the dissolution of the Association (compare student government constitutions that contain express dissolution provisions). As a matter of ASUN law, the petition seeks something that the government cannot grant: a popular vote on whether to abolish ASUN. (This is predicated on my understanding of what the petition in fact seeks.)

Second, the petition is directed to the Board of Regents, suggesting that the petition is not intended to implicate ASUN's electoral process at all (can you understand my confusion about what this petition is asking for?). The Regents are not inclined to abolish ASUN without the consent of the students. But if ASUN cannot legally place a dissolution question on the ballot, this question will never get to the Regents. The only way I see the Regents abolishing ASUN is if the organization becomes so demonstrably corrupt that wiping the slate clean is the only option.

Third, even assuming that ASUN could place a dissolution question on the ballot, what vote would be sufficient to abolish ASUN? A majority of those voting? A majority of the membership of ASUN? It is entirely unclear what vote is necessary, as a matter of law, to dissolve a student government. To me, it seems that an absolute majority of the membership is required. Also, keep in mind that ASUN is not self-chartering. The Board of Regents is the chartering authority. Thus, to eliminate ASUN requires their approval, and as I've said, it's unlikely they'll grant it.

Fourth, the electronic version is an unacceptable medium in which to circulate the petition. ASUN law does not allow for petitions to be circulated electronically. Thus, the ASUN Attorney General has no authority to accept such a petition.

Finally, what the petition is against, namely "a student government that funds itself through a compulsory student fee," implicates a solution that is worse than what exists now. Implicitly, UNR SFL is in favor of an ASUN that does not obtain revenue through a mandatory fee. But it's that mandatory fee that prevents ASUN from engaging in content and viewpoint discrimination when deciding who gets funding and who does not. In other words, if UNR SFL requested funds for its "Abolish ASUN" event under a voluntary fee system, ASUN could deny the request simply because it didn't agree with the message. It is because ASUN has a mandatory fee that the U.S. Constitution prevents ASUN from engaging in viewpoint discrimination.

One last thing to consider: Getting rid of ASUN isn't going to make college less expensive by $5 per credit. The Regents will happily reallocate that money to something else. In short, doing away with ASUN will do more harm to students than good because the students will lose their official representation.

Sweet, sweet video evidence

At the risk of giving Mitch Bottoset and Chris Day attention they do not deserve, we give you this YouTube video.



Pay particular attention at the 2:30 mark in the video. A couple of thoughts.

The Code of Elections makes it a violation to "[use] ASUN authority, facilities, funds, or resources for campaign purposes." Section 14(b)(5). A plain reading of that statute seems to indicate that filming campaign videos in ASUN offices is prohibited.
 
Bottoset and Day (probably for show, given this is intended to be a funny campaign video) appear to pick the lock to ASUN Vice President Charlie Jose's office. Ignoring whether they actually picked the lock, were they authorized to enter that office? If yes, then the only issue is the issue above. If no, is this trespassing or gaining unauthorized entry to an office, in violation of the System Code and state criminal law?

Update: As I initially suspected, the candidates state they were authorized to be in the office. As to my first question, they indicate that even the Election Commission is unclear about how the statute should be applied. Personally, I am torn as to whether this particular instance should be prohibited, never mind if it actually is. In any event, it's clear that this particular statute needs some tweaking to cure its vagueness.

A sure way to lose a debate and a giant in the room

A great way to lose a debate: agree with your opponent(s). That is all Jacob Camp, candidate for ASUN President, did in last week's debate. I'm pleased to see the Nevada Sagebrush picked up on this, which was, to several observers of the debate, a giant gorilla in the room. So kudos to the Sagebrush for paying attention to and reporting on the details that mattered. I don't think it's a stretch to say, as far as ASUN coverage is concerned, this is so far the best issue under Editor-in-Chief Jessica Fryman.

That said, there was another giant in the room during the "debate," (available online here--apologies for poor audio) and it wasn't Eli Reilly's epic ego or Casey Stiteler's sense of entitlement, not even Jacob Camp's love fest (but no homo!). It was how painfully obvious how woefully unfamiliar the candidates are--even insiders!--with what ASUN is.

You want to know what ASUN is? An excellent--nay, the only--place to start is with the charter document, the ASUN Constitution, included below for your reading pleasure. For, in the words of "West Wing" character Toby Ziegler, referring to the U.S. Constitution, "in all it is the owner's manual and we should read what it has to say!"

Constitution of the Associated Students of the University of Nevada, 2007

What should we take away from that reading? A few things.

1. ASUN is an association composed of every undergraduate student at Nevada.
2. The purpose of the undergraduate student body in establishing ASUN under this constitution is, according to the Preamble, to "advance our interests, set forth our duties, and provide for meaningful participation in the governance of our University." Basically, look after the interests of all undergrads.
3. The association is governed by a tripartite representative government, and it looks a hell of a lot like the federal government. Although true, this is a government composed of students (i.e. "student government"), it is a government nonetheless.
4. ASUN is governed under a rule of law.

Now that you've read the ASUN Constitution, we have a framework within which to review the debate. The most evident conclusion is that no candidate is familiar with the owner's manual, the ASUN Constitution. Even Jacob Camp, who claimed superiority over his opponents because he had a copy with him, botched a most basic issue about which offices are created in the constitution. His response after the debate was, "oops."

Particularly with the vice presidential candidates, each has a notion of what the vice president should be, not what it is under the constitution. For those who are curious, the vice president's only constitutional obligations are to be able to succeed to the presidency if need be, to preside over the Senate during judicial impeachments, and do what the Senate or President delegate. That's it. All the jockeying of who is better for diversity was pointless.

I know this next point is nitpicky, but precision with language matters.

• Legislator, n., a member of a legislature
• Legislature, n., a body composed of legislators
• Legislation, n., a written document legislators debate in a legislature

The terms are never interchangeable. Get these right or you'll lose life points.

Last point, universal among the candidates is the idealism to "do good," to "do the right thing," or to help make the campus better. Those are all laudable motivations, but that isn't your job. Getting elected to ASUN means getting elected to run, manage, and lead a government. It is a job with public weight. It means legal duties and obligations, and legal consequences if mistakes are made.

Too often students believe that ASUN is a popular place to be, a resume builder (the perpetual favorite), and really not that serious a thing. But ASUN is more than that. It is a proving ground for future elected leaders. It is a place to learn about functions of government, how governments work. It isn't a sandbox on some playground. So candidates, stop treating it like it is. You'll earn much more credibility if you do.

A little presumptuous?

Maybe it's just me, but it seems just a little bit presumptuous to start inviting people to the presidential debate you will hope to appear in before you've even won a spot in the general election.