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.
Showing posts with label 77th Senate Session. Show all posts
Showing posts with label 77th Senate Session. Show all posts
Sunday, April 18, 2010
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 9, 2010
Don't get no respect...
ASUN Senator Jessica Purney, a two-term representative for the College of Education, called out two-term ASUN President Eli O'Reilly in her status, writing: "Eli Reilly once again has no respect for the legislative body by vetoing an almost unanimous bill from the 77th session because of his opinion."
On one hand it seems like Sen. Purney's rationale completely misses the obvious point that the ASUN Constitution establishes a separation of powers between the legislative and executive branches, and that it is the President's prerogative to veto legislation just as it is the Senate's prerogative to override a veto.
Furthermore, the Senate is by far the more powerful branch of government. Sen. Purney complains that the executive pushed the Senate to pay for mascot uniforms for the athletic department, and that he created high-paying positions on his cabinet. However, those positions were funded by the consent of the Senate, and the Senate can destroy those positions at nearly any time (so long as they are not constitutional offices).
On the other hand, I think it says something about the ASUN advisors that even with two years of experience, ASUN government officials seem to have so many gaps in their institutional knowledge. As an undergrad I probably would pointed the finger at Sen. Purney and impugn her competence for complaining about problems that have constantly been within her domain to address and fix. Having developed a broader view of ASUN, I think it is more appropriate to ask why the faculty advisor to the Senate has not provided more guidance to the legislature to inform them of their legal powers.
Most senators end up serving only one term. That is not enough time for them to learn on their own what power they wield. They must rely on someone else for assistance. If that advisor is indifferent, or worse, calculating, there is a risk that ASUN will be less able to fulfill its mission to serve the needs of all students.
This raises the question… what portion of the ASUN budget goes to feed the salaries of ASUN professional faculty?
On one hand it seems like Sen. Purney's rationale completely misses the obvious point that the ASUN Constitution establishes a separation of powers between the legislative and executive branches, and that it is the President's prerogative to veto legislation just as it is the Senate's prerogative to override a veto.
Furthermore, the Senate is by far the more powerful branch of government. Sen. Purney complains that the executive pushed the Senate to pay for mascot uniforms for the athletic department, and that he created high-paying positions on his cabinet. However, those positions were funded by the consent of the Senate, and the Senate can destroy those positions at nearly any time (so long as they are not constitutional offices).
On the other hand, I think it says something about the ASUN advisors that even with two years of experience, ASUN government officials seem to have so many gaps in their institutional knowledge. As an undergrad I probably would pointed the finger at Sen. Purney and impugn her competence for complaining about problems that have constantly been within her domain to address and fix. Having developed a broader view of ASUN, I think it is more appropriate to ask why the faculty advisor to the Senate has not provided more guidance to the legislature to inform them of their legal powers.
Most senators end up serving only one term. That is not enough time for them to learn on their own what power they wield. They must rely on someone else for assistance. If that advisor is indifferent, or worse, calculating, there is a risk that ASUN will be less able to fulfill its mission to serve the needs of all students.
This raises the question… what portion of the ASUN budget goes to feed the salaries of ASUN professional faculty?
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
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!
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!
Read more...
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...
Monday, February 22, 2010
"The President shall give to the Senate information of the state of the Association"
The ASUN Constitution requires the President to "give to the Senate information of the state of the Association, and recommend to their consideration such measures as he or she shall judge necessary and expedient." ASUN Const. art. III, sec. 2(d). This language, borrowed directly from article II, section 3 of the U.S. Constitution, basically means the ASUN President must give a State of the Association address, if we can assume an intent to mirror the practices (I was there, and we can).
Although this provision did not exist under the previous ASUN Constitution, in 2006 the Senate invited ASUN President Jeff Champagne to deliver his annual address before the Senate. 74 ASUN Stat. 11. The invitation was issued under a Senate statute that required the president to deliver an annual address in the fall semester. ASUN Senate Statutes, section 350.1 (April 11, 2007). Since the Senate acts and communicates through the legislation it passes, the invite was a formal resolution.
Since then, the practice envisioned under the current constitution is dramatically lost. During the 75th Session, rather than coordinate a date with the Senate so the address could be attended formally, as it was during the 74th Session, ASUN President Sarah Ragsdale decided to go it alone: she scheduled the event on her own, sent out her own invitations, and never consulted the Senate until after invites were sent out.
The Senate attempted to salvage the event by formally inviting the President to deliver her address before the Senate, as constitutionally required, but the resolution was not agreed to. The Senate felt it had been snubbed (rightfully so, given that the address is to be given to the Senate), and the result was the Senate largely boycotted the speech.
ASUN President Eli Reilly never did deliver a message to the Senate during the 76th Session.
This year, President Reilly is borrowing from Ragsdale. He appears to be going it alone. Why President Reilly is continuing this poor practice is unclear, but it might have something to do with the lack of a professional interbranch relationship between Reilly and Speaker Gracie Geremia.
It is not an accident that we used the language from the Federal Constitution in the ASUN Constitution's rewrite, now all of three years old. We intended the practice to mirror the Congress and the President's State of the Union message. I'd suggest the Senate fix this misunderstanding, take the upper hand, invite the President, and get the practice back in order, but we all know how well the Senate follows procedure and the intended practice set by those who preceded them.
Although this provision did not exist under the previous ASUN Constitution, in 2006 the Senate invited ASUN President Jeff Champagne to deliver his annual address before the Senate. 74 ASUN Stat. 11. The invitation was issued under a Senate statute that required the president to deliver an annual address in the fall semester. ASUN Senate Statutes, section 350.1 (April 11, 2007). Since the Senate acts and communicates through the legislation it passes, the invite was a formal resolution.
Since then, the practice envisioned under the current constitution is dramatically lost. During the 75th Session, rather than coordinate a date with the Senate so the address could be attended formally, as it was during the 74th Session, ASUN President Sarah Ragsdale decided to go it alone: she scheduled the event on her own, sent out her own invitations, and never consulted the Senate until after invites were sent out.
The Senate attempted to salvage the event by formally inviting the President to deliver her address before the Senate, as constitutionally required, but the resolution was not agreed to. The Senate felt it had been snubbed (rightfully so, given that the address is to be given to the Senate), and the result was the Senate largely boycotted the speech.
ASUN President Eli Reilly never did deliver a message to the Senate during the 76th Session.
This year, President Reilly is borrowing from Ragsdale. He appears to be going it alone. Why President Reilly is continuing this poor practice is unclear, but it might have something to do with the lack of a professional interbranch relationship between Reilly and Speaker Gracie Geremia.
It is not an accident that we used the language from the Federal Constitution in the ASUN Constitution's rewrite, now all of three years old. We intended the practice to mirror the Congress and the President's State of the Union message. I'd suggest the Senate fix this misunderstanding, take the upper hand, invite the President, and get the practice back in order, but we all know how well the Senate follows procedure and the intended practice set by those who preceded them.
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...
Sunday, February 7, 2010
Response to budget cuts: let's hold hearings!
With the latest round of state budget cuts threatening to put the state back to the stone age, and cuts to higher education that are practically inhumane, students across the state are rallying for action. Students at UNLV are planning a walkout (Nevada State College students reportedly are joining). UNLV students have an activism page set up on facebook, SaveUNLV, and they even have a Web site. Students from the College of Southern have consistently been vocal against budget cuts at Board of Regents meetings. The student response at Nevada? Let's hold some hearings!
Now, we can debate the merits of a walkout, which to me seems like a stupid, misdirected effort at activism, but at least it's activism. But ASUN? Holding hearings? Now? Really?! The time for hearings has passed. You guys are way behind the curve. Now is the time for activism.
I look at the ASUN Web site, and there is not a single mention of budget cuts. Instead, I'm told about scholarships, some thing called "The Conference," and some useless waste of money about stereotyping through words.
Instead of spending time in a room insulated from your peers, it's time to start rallying them to Carson City to lobby the legislature that budget cutting is not the solution. Instead of spending money on a sexual health week and a leadership conference, why not spend it on flooding legislators with letters explaining why the state must consider diversifying revenue to spare higher education?
One thing is clear, Nevada: It's time to take matters into your own hands, because the ASUN is busy looking out for their selfish interests, not the interests of its 12,500 undergraduate members.
At least not all hope is lost. Some Nevada students seem to have the right idea.
Now, we can debate the merits of a walkout, which to me seems like a stupid, misdirected effort at activism, but at least it's activism. But ASUN? Holding hearings? Now? Really?! The time for hearings has passed. You guys are way behind the curve. Now is the time for activism.
I look at the ASUN Web site, and there is not a single mention of budget cuts. Instead, I'm told about scholarships, some thing called "The Conference," and some useless waste of money about stereotyping through words.
Instead of spending time in a room insulated from your peers, it's time to start rallying them to Carson City to lobby the legislature that budget cutting is not the solution. Instead of spending money on a sexual health week and a leadership conference, why not spend it on flooding legislators with letters explaining why the state must consider diversifying revenue to spare higher education?
One thing is clear, Nevada: It's time to take matters into your own hands, because the ASUN is busy looking out for their selfish interests, not the interests of its 12,500 undergraduate members.
At least not all hope is lost. Some Nevada students seem to have the right idea.
Read more...
A year later, cases coming to trial
Nearly one year after being filed, six cases variously against the Senate, its leader and secretary, the President, and other ASUN officials are finally coming to trial.
In March 2009, student Corinna Cohn (who is a contributor to this blog) filed six complaints in the ASUN Judicial Council alleging gross violations of the Open Meeting Law and of the ASUN Constitution in the passage of legislation during the 76th Session of the Senate.
The first case docketed is AN-005, a case that alleges the Senate violated the Open Meeting Law (OML) by failing to keep written minutes of its proceedings, is scheduled for February 17, during a Senate meeting.
The OML requires public bodies, which the Senate is, to keep written minutes and produce them within 30 working days after a meeting. Failure to do so constitutes a violation. The consequences of a judicial finding of a violation include invalidation of the actions taken at the meeting. If handled by the university conduct office, consequences include removal from office and a disciplinary note being included on the offender's transcript.
The result of invalidation would be far reaching, voiding many pieces of legislation, including last year's budget. All of the cases have the potential to wipe the 76th Session from the books. And since practice has not changed since that session, a favorable ruling for Cohn could lead to challenges of the actions taken during this session, as well.
Respondents in the case, purportedly being represented by the Senate's leader, Speaker Gracie Geremia, complained in documents filed with the Council that Cohn no longer has standing to bring the complaints because she has since graduated.
Geremia has also questioned the ethics of hearing complaints from individuals who are no longer students. "The students of the Association are paying into a system that's paying for judicial wages. As of now, our judicial council is working on cases from an individual who is no longer a student. How is this ethical. (sic)," Geremia wrote in a filing with the Council.
The Council has rejected both arguments, noting that Cohn was a member when the cases were initially filed and thus has standing to see the cases through. The Council did, however, require Cohn to find a representative to argue her cases, which she did.
The cases, which were originally scheduled to be heard in May 2009, were indefinitely postponed because then Chief Justice Ashley Nikkel graduated. The new Chief Justice, Ebeth Palafox, was out of the country for most of the summer, and the cases languished on the docket. Nothing was done until last month, when Cohn received a communiation from Palafox notifying her that the cases were on.
Also of note is Justice Taylor R. Anderson, who formerly recused himself from the cases back in May, is now back on the cases, causing Geremia to take exception. "Ms.Cohn (sic) and Mr.Anderson (sic) have discussed and agreed upon this issues in my presence, prior to his appointment as a justice," Geremia wrote. So far, the Council has instructed Geremia to ask for a recusal hearing if she believes it is warranted.
These cases also rekindle interesting constitutional and parliamentary questions about who can properly represent the Senate in these cases (previously discussed on VLEG here). Although the Senate considered a resolution to allow the parliamentarian to represent the Senate, there is no record of it being agreed to.
Recently, the Judicial Council has been critical of the failures of the Senate and President to properly handle the reapportionment of the Senate for the next two years.
In March 2009, student Corinna Cohn (who is a contributor to this blog) filed six complaints in the ASUN Judicial Council alleging gross violations of the Open Meeting Law and of the ASUN Constitution in the passage of legislation during the 76th Session of the Senate.
The first case docketed is AN-005, a case that alleges the Senate violated the Open Meeting Law (OML) by failing to keep written minutes of its proceedings, is scheduled for February 17, during a Senate meeting.
The OML requires public bodies, which the Senate is, to keep written minutes and produce them within 30 working days after a meeting. Failure to do so constitutes a violation. The consequences of a judicial finding of a violation include invalidation of the actions taken at the meeting. If handled by the university conduct office, consequences include removal from office and a disciplinary note being included on the offender's transcript.
The result of invalidation would be far reaching, voiding many pieces of legislation, including last year's budget. All of the cases have the potential to wipe the 76th Session from the books. And since practice has not changed since that session, a favorable ruling for Cohn could lead to challenges of the actions taken during this session, as well.
Respondents in the case, purportedly being represented by the Senate's leader, Speaker Gracie Geremia, complained in documents filed with the Council that Cohn no longer has standing to bring the complaints because she has since graduated.
Geremia has also questioned the ethics of hearing complaints from individuals who are no longer students. "The students of the Association are paying into a system that's paying for judicial wages. As of now, our judicial council is working on cases from an individual who is no longer a student. How is this ethical. (sic)," Geremia wrote in a filing with the Council.
The Council has rejected both arguments, noting that Cohn was a member when the cases were initially filed and thus has standing to see the cases through. The Council did, however, require Cohn to find a representative to argue her cases, which she did.
The cases, which were originally scheduled to be heard in May 2009, were indefinitely postponed because then Chief Justice Ashley Nikkel graduated. The new Chief Justice, Ebeth Palafox, was out of the country for most of the summer, and the cases languished on the docket. Nothing was done until last month, when Cohn received a communiation from Palafox notifying her that the cases were on.
Also of note is Justice Taylor R. Anderson, who formerly recused himself from the cases back in May, is now back on the cases, causing Geremia to take exception. "Ms.Cohn (sic) and Mr.Anderson (sic) have discussed and agreed upon this issues in my presence, prior to his appointment as a justice," Geremia wrote. So far, the Council has instructed Geremia to ask for a recusal hearing if she believes it is warranted.
These cases also rekindle interesting constitutional and parliamentary questions about who can properly represent the Senate in these cases (previously discussed on VLEG here). Although the Senate considered a resolution to allow the parliamentarian to represent the Senate, there is no record of it being agreed to.
Recently, the Judicial Council has been critical of the failures of the Senate and President to properly handle the reapportionment of the Senate for the next two years.
Read more...
Tuesday, February 2, 2010
Sagebrush incapable of basic fact checking
The Nevada Sagebrush, in its latest show of being incapable of even the most basic fact checking, embarrassingly (and erroneously) states that Division of Health Sciences students will be without representation when Sen. Geremye Teeter resigns this week. Sen. Renee Freeman recently resigned.
But, what's this? DHS has three senators, you say? Indeed, it does. Sen. Kimberly Anichowski. Can't she get any love for representin'?
And guess what's worse? They have an editorial cartoon about it this week, too.
Now, in the Sagebrush's defense, they might have gotten confused about DHS losing a senate seat under the reapportionment for the next two sessions. But that doesn't take effect until after the elections.
This is really sad, Sagebrush. I'd expect this kind of rank amateruism from the senators.
But, what's this? DHS has three senators, you say? Indeed, it does. Sen. Kimberly Anichowski. Can't she get any love for representin'?
And guess what's worse? They have an editorial cartoon about it this week, too.
Now, in the Sagebrush's defense, they might have gotten confused about DHS losing a senate seat under the reapportionment for the next two sessions. But that doesn't take effect until after the elections.
This is really sad, Sagebrush. I'd expect this kind of rank amateruism from the senators.
Read more...
Monday, February 1, 2010
University e-mail going bye-bye
Some of our more "in" readers may know that in a budget saving move, NSHE System Computing Services will no longer provide centralized, systemwide student e-mail support. This means that Fallon Mail is going bye-bye. The Nevada Sagebrush reported on this back in September, after a senator mentioned it during a Senate meeting.
Each campus has the option to implement replacement services for students. Many students expressed displeasure, arguing that cutting student e-mail service would make it much more difficult for students to prove eligibility for online software discounts.
The lesser university in the southern portion of the state, Nevada Southern (a/k/a University of Nevada, Las Vegas), is replacing their student e-mail system with Google Mail, which is provided free to educational institutions.
So if UNLV can afford the nominal increase in costs for existing staff to manage the system, why can't Nevada? It isn't because UNLV is better than Nevada, is it?
And why isn't the ASUN Senate doing anything about this? You want to tackle something that matters to students, this is a great issue.
Each campus has the option to implement replacement services for students. Many students expressed displeasure, arguing that cutting student e-mail service would make it much more difficult for students to prove eligibility for online software discounts.
The lesser university in the southern portion of the state, Nevada Southern (a/k/a University of Nevada, Las Vegas), is replacing their student e-mail system with Google Mail, which is provided free to educational institutions.
So if UNLV can afford the nominal increase in costs for existing staff to manage the system, why can't Nevada? It isn't because UNLV is better than Nevada, is it?
And why isn't the ASUN Senate doing anything about this? You want to tackle something that matters to students, this is a great issue.
Read more...
Saturday, January 30, 2010
Wasteful Spending
President Reilly recently sent a proposal (warning: .doc file) to Senator Hostmeyer, Chair of the Committee on Budget and Finance. He is asking for $5,000 for the purchase of WAC Basketball Tournament tickets and nearly $8,200 so ASUN can pay for the replacement suits for Alphie and Wofie.
I'll address my concerns regarding purchasing new mascot outfits. In 2009, Athletics was to receive $7 million from the state, with $2 million going to athletic scholarships.1 The department ended up with around $5.85 million.2 The department also expected to generate $17 million in self supporting revenue.3 The figure to date is $15.1 million.4
What's my point? ASUN has a budget that sits at a little over 10% of the athletic budget. Yet ASUN can afford an expenditure of $8,200 but athletics can't? I'm dubious. But, let's accept the premise. Then, we can conclude ASUN has more money than it knows what to do with, if 9 months into a term it has that much money lying around. This is just one example of many of why ASUN does not need more money. Note, this money is not coming out of the contingency fund, but the nearly $30,000 that still remains uncommitted. Thirty-thousand dollars out of a discretionary fund of somewhere around $600,000.
I would personally like to see the top coaches and department heads, all of whom make make very nice six-figure salaries sacrifice a little for the respect of Nevada. How very populist of me.5
I won't say much on the $5,000 for WAC tournament tickets other than that I paid for my own tickets back in 2006, and I'm pretty sure there was not an inadequate supply of similar minded fans. This is, in my mind, just another example of wasteful, unnecessary, hard to justify spending. But, when you have more money than you know what to do with, it's easy to throw it at things. Like the geniuses over at SFL.
References
1 Parker and Shively, "University Budgets: A Guide for the Perplexed", 2009.2 2009-2010 State Appropriated Budgets.
3 Parker and Shively, 2009.
4 2009-2010 Self-Supporting Budgets. (warning: .xls (Excel) file)
5 Executive Salary Schedule.
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...
Tuesday, January 26, 2010
And we're so humble, too
You're welcome. In fact, were it not for our posts on this subject, CABNR would probably still have its single seat for another two decades. I might as well go ahead and state the obvious.
VLEG: Where the Nevada Sagebrush turns to for ASUN News.
VLEG: The ASUN Instruction Manual.
Read more...
Monday, January 25, 2010
Judicial Council rebukes President, Senate
In a rare use of its constitutional power, the ASUN Judicial Council Wednesday unanimously ordered the Election Commission to implement a new apportionment scheme for Senate seats. In an unsigned order (meaning no single justice claims authorship), the Council found that both ASUN President Eli Reilly and the 22-member Senate failed to carry out their constitutional and legal responsibilities to apportion the seats in the Senate for the next two sessions.
According to population figures, the College of Agriculture, Biotechnology, and Natural Resources is entitled to a second seat, at the expense of one seat in the Division of Health Sciences. This shift is due to increased enrollment in CABNR degrees, primarily as a result of realignment of degree programs in the past year.
The ASUN Constitution requires the Senate to reapportion its seats every two years based on the number of students in each college and school. In 2008, the Senate passed a law delegating this function to the President, requiring him to transmit to the Senate by the first week of December every two years a statement showing the population in and the number of seats to which each college and school is entitled.
The Council found President Reilly failed to carry out his duty, noting that he does not dispute he failed to do his duty--indeed he readily admitted to the Council in writing of such failure. Further, since the deadline the Senate set has lapsed, the Council found that the Senate failed to accomplish its constitutional duty as well.
The Council's order indicates that it became independently aware of this situation. VLEG was the first to report on this issue. Neither the Senate nor President Reilly have commented on their failures.
The order directs the Election Commission to publish the new seat distribution in the Nevada Sagebrush and in election packets immediately. As of today, the numbers on the ASUN election web page are correct, but there is no indication it is because of the Council's action. Indeed, there is no record of the order on the ASUN Web site. The order was obtained only after VLEG requested the order directly from the Council.
There is no record of the Council ever exercising this power before Wednesday. This power existed under the previous ASUN Constitution, which voters revised in 2007.
Since filing for election to the Senate closes next week, the Judicial Council's order should have no effect on the election. Experts believe that the Council decided to act now rather than after the election so as to not prejudice any candidate's chances for election.
In Re Reapportionment Order 1-20-2010
According to population figures, the College of Agriculture, Biotechnology, and Natural Resources is entitled to a second seat, at the expense of one seat in the Division of Health Sciences. This shift is due to increased enrollment in CABNR degrees, primarily as a result of realignment of degree programs in the past year.
The ASUN Constitution requires the Senate to reapportion its seats every two years based on the number of students in each college and school. In 2008, the Senate passed a law delegating this function to the President, requiring him to transmit to the Senate by the first week of December every two years a statement showing the population in and the number of seats to which each college and school is entitled.
The Council found President Reilly failed to carry out his duty, noting that he does not dispute he failed to do his duty--indeed he readily admitted to the Council in writing of such failure. Further, since the deadline the Senate set has lapsed, the Council found that the Senate failed to accomplish its constitutional duty as well.
The Council's order indicates that it became independently aware of this situation. VLEG was the first to report on this issue. Neither the Senate nor President Reilly have commented on their failures.
The order directs the Election Commission to publish the new seat distribution in the Nevada Sagebrush and in election packets immediately. As of today, the numbers on the ASUN election web page are correct, but there is no indication it is because of the Council's action. Indeed, there is no record of the order on the ASUN Web site. The order was obtained only after VLEG requested the order directly from the Council.
There is no record of the Council ever exercising this power before Wednesday. This power existed under the previous ASUN Constitution, which voters revised in 2007.
Since filing for election to the Senate closes next week, the Judicial Council's order should have no effect on the election. Experts believe that the Council decided to act now rather than after the election so as to not prejudice any candidate's chances for election.
In Re Reapportionment Order 1-20-2010
Read more...
Wednesday, January 20, 2010
BREAKING: Judicial Council to reapportion Senate
In an incredibly rare exercise of its constitutional power, the ASUN Judicial Council will issue an order to reapportion the Senate, due to the failure of both the ASUN President and Senate to satisfy their constitutional duties, sources close to the Council said this evening. We'll have the order once it's made available to us. We were the first to discuss this issue here.
UPDATE 1/21/2010: The ASUN Website appears to be offline, and we have not yet received a copy of the order. If this experience is any indication, I suppose I shouldn't expect to see the order for seven months or so.
UPDATE 1/21/2010: The ASUN Website appears to be offline, and we have not yet received a copy of the order. If this experience is any indication, I suppose I shouldn't expect to see the order for seven months or so.
Read more...
Trying to solve the wrong problem
Tonight the Senate will resume consideration of a bill to create a codified version of ASUN law, the ASUN Revised Statutes. I have previously discussed the bill here. In light of the President and Senate's joint failure to follow the ASUN Constitution and laws on reapportioning the Senate (discussed here), it has become ever more clear to me that Sen. Sean Hostmeyer's bill is unnecessary.
The bill is in fact trying to solve the wrong problem. And, beyond that, the bill will exacerbate the problem that does exist: no one knows the law, and no one is willing to invest the time and energy required to acquire a basic understanding of just what is governed by the law, much less the nuances. Until that problem is solved, everything else is just ugly window dressing.
When the President outright fails to do the duty clearly outlined in statute to report to the Senate the population figures in each college and school and, based upon those figures, the number of seats each college and school is entitled, it indicates he either had no clue a law existed giving him that duty (worst case) or he willfully decided to ignore it (best case). I call willful negligence best case because at least it wasn't willful ignorance. Worse, no senator has, to our knowledge at least, caught this oversight (an overly charitable term, given the circumstances).
The problem isn't that the law is scattered all over the place in several different acts. The problem isn't that bills amending prior law make it difficult to keep the law up-to-date. The problem isn't that all law should be in one place. The problem isn't that the law is inaccessible. No, the problem is much more fundamental. If you don't take the time to find out what law exists, you are in a hopeless position. It's like trying to explain how to tie a shoe to a person who has no conception of what a shoe is, or like asking a blind person to tell you what the color blue looks like. Without a conceptual understanding of the world surrounding them, the best we can expect the senators to do is muddle along.
The problem is the senators and other ASUN officials do not take the time necessary to survey the law for themselves, to take notice of what is spelled out in law, and what is not. After all, with respect to government, the law is just an instruction manual. It tells you what, when, and how to do something. But if you're ignorant of the law, that something will never get done until enlightenment occurs. This reapportionment debacle is case in point.
Before creating another level of complexity, which is all this codification bill really does, the senators and officers need to go back to the basics. Only when the players in this game have mastered the basic skills should they attempt to tackle more complex issues. Listen to any Senate meeting and it is readily apparent that no one has mastered the basics, yet they all share a duty to represent the students, and representing the students implicitly means knowing the basics.
The Senate is not only an extracurricular activity, not only is it something one volunteers to do, but it is essentially a job, a public job. The voters gave them their trust that they'd do a good job. As with any job, a good employee needs to make an effort to be minimally competent at the job. The fact is no senator is, despite all their self-aggrandizing talk about how much good they do for students.
This is a cyclical problem. It has happened in years before I was a senator, it has happened in years since I was a senator, and it will continue to happen until the powers that be make revolutionary changes to how senators are orientated, how they learn what their job is, and how they learn the special skills necessary to be successful senators.
The perennial defense of my criticisms is that I expect too much of them; after all, they are only students. That is true, they are students. So why don't they act like students and start learning?
The bill is in fact trying to solve the wrong problem. And, beyond that, the bill will exacerbate the problem that does exist: no one knows the law, and no one is willing to invest the time and energy required to acquire a basic understanding of just what is governed by the law, much less the nuances. Until that problem is solved, everything else is just ugly window dressing.
When the President outright fails to do the duty clearly outlined in statute to report to the Senate the population figures in each college and school and, based upon those figures, the number of seats each college and school is entitled, it indicates he either had no clue a law existed giving him that duty (worst case) or he willfully decided to ignore it (best case). I call willful negligence best case because at least it wasn't willful ignorance. Worse, no senator has, to our knowledge at least, caught this oversight (an overly charitable term, given the circumstances).
The problem isn't that the law is scattered all over the place in several different acts. The problem isn't that bills amending prior law make it difficult to keep the law up-to-date. The problem isn't that all law should be in one place. The problem isn't that the law is inaccessible. No, the problem is much more fundamental. If you don't take the time to find out what law exists, you are in a hopeless position. It's like trying to explain how to tie a shoe to a person who has no conception of what a shoe is, or like asking a blind person to tell you what the color blue looks like. Without a conceptual understanding of the world surrounding them, the best we can expect the senators to do is muddle along.
The problem is the senators and other ASUN officials do not take the time necessary to survey the law for themselves, to take notice of what is spelled out in law, and what is not. After all, with respect to government, the law is just an instruction manual. It tells you what, when, and how to do something. But if you're ignorant of the law, that something will never get done until enlightenment occurs. This reapportionment debacle is case in point.
Before creating another level of complexity, which is all this codification bill really does, the senators and officers need to go back to the basics. Only when the players in this game have mastered the basic skills should they attempt to tackle more complex issues. Listen to any Senate meeting and it is readily apparent that no one has mastered the basics, yet they all share a duty to represent the students, and representing the students implicitly means knowing the basics.
The Senate is not only an extracurricular activity, not only is it something one volunteers to do, but it is essentially a job, a public job. The voters gave them their trust that they'd do a good job. As with any job, a good employee needs to make an effort to be minimally competent at the job. The fact is no senator is, despite all their self-aggrandizing talk about how much good they do for students.
This is a cyclical problem. It has happened in years before I was a senator, it has happened in years since I was a senator, and it will continue to happen until the powers that be make revolutionary changes to how senators are orientated, how they learn what their job is, and how they learn the special skills necessary to be successful senators.
The perennial defense of my criticisms is that I expect too much of them; after all, they are only students. That is true, they are students. So why don't they act like students and start learning?
Read more...
Sunday, January 17, 2010
Election season kicks off...with two fails?
The annual ASUN election cycle is a story of one debacle after another. In the past several years, elections have been mired in procedural and substantive errors, including questionable ballot counting practices, wholesale negligence with respect to following election rules, and officers who fail to perform their duties, but I have a feeling that this year will take the cake.
Already we have reported about two failed attempts of the Election Commission to meet this year, under the inspired leadership of a failed vice presidential candidate and former senator who was censured for Open Meeting Law violations, Jeremiah Todd. [UPDATE: A scheduled third meeting apparently happened, but a fourth meeting won't since the agenda never made it online. So the Commission has successfully held only 25 percent if its scheduled meetings this year.] Already we have reported on ASUN President Eli Reilly's failure to follow the law on Senate apportionment. Tonight we have proof.
This facebook page has surfaced stating the number of seats each college is entitled in the next Senate session. [UPDATE 1/20/2010: A more official source, the ASUN web site, contains the same info.] Notice anything wrong? CABNR gets screwed out of its new seat. According to the fall 2009 undergraduate headcount figures, CABNR is entitled to a second seat at the expense of one of the Division of Health Sciences seat (see our analysis here).
Unfortunately, since President Reilly never bothered to run the numbers and transmit them to the Senate, we're operating under an erroneous apportionment scheme. It's pretty sad considering we did all the hard work (30 minutes worth, tops) and even gave an example of what an appropriate statement looks like in our post here. Practically all that was required was to fill in the blanks.
Perhaps the Judicial Council will exercise its constitutional power under Article IV, section 2(d) to take over the apportionment process. [UPDATE 1/19/2010: We have received credible information that the Judicial Council is in fact examining whether to exercise its constitutional power and duty in this matter.]
Candidate packet misreports the law
The election packet misreports the Election Code. It does not include the amendments that were made to the code in the 76th Session that were scheduled to take effect in this election. Don't forget that the legal status of those amendments, among most everything else that came out of the 76th Session, was seriously in question, but was never resolved. (Hint hint to some enterprising candidate. Filed documents available here. Second hint: the issues in the cases are still viable.)
If anything, since record keeping is so abysmally poor from the 76th Session forward, good luck trying to determine what is law and what is not. Heck, even the government won't publish an accurate, up-to-date compilation of the Election Code (that link is now two elections old and no active links point to it--it took a Google search to unearth it).
And don't even get me started on the constitutional amendment that the voters ratified but still hasn't been included in the document.
Any bets on whether the Sagebrush has picked up on any of this. Or maybe they've made it policy to ignore ASUN entirely.
So if the goal is to out-do (in a bad way) past elections, this election is off to a commendable start.
Peace and love.
Already we have reported about two failed attempts of the Election Commission to meet this year, under the inspired leadership of a failed vice presidential candidate and former senator who was censured for Open Meeting Law violations, Jeremiah Todd. [UPDATE: A scheduled third meeting apparently happened, but a fourth meeting won't since the agenda never made it online. So the Commission has successfully held only 25 percent if its scheduled meetings this year.] Already we have reported on ASUN President Eli Reilly's failure to follow the law on Senate apportionment. Tonight we have proof.
This facebook page has surfaced stating the number of seats each college is entitled in the next Senate session. [UPDATE 1/20/2010: A more official source, the ASUN web site, contains the same info.] Notice anything wrong? CABNR gets screwed out of its new seat. According to the fall 2009 undergraduate headcount figures, CABNR is entitled to a second seat at the expense of one of the Division of Health Sciences seat (see our analysis here).
Unfortunately, since President Reilly never bothered to run the numbers and transmit them to the Senate, we're operating under an erroneous apportionment scheme. It's pretty sad considering we did all the hard work (30 minutes worth, tops) and even gave an example of what an appropriate statement looks like in our post here. Practically all that was required was to fill in the blanks.
Perhaps the Judicial Council will exercise its constitutional power under Article IV, section 2(d) to take over the apportionment process. [UPDATE 1/19/2010: We have received credible information that the Judicial Council is in fact examining whether to exercise its constitutional power and duty in this matter.]
Candidate packet misreports the law
The election packet misreports the Election Code. It does not include the amendments that were made to the code in the 76th Session that were scheduled to take effect in this election. Don't forget that the legal status of those amendments, among most everything else that came out of the 76th Session, was seriously in question, but was never resolved. (Hint hint to some enterprising candidate. Filed documents available here. Second hint: the issues in the cases are still viable.)
If anything, since record keeping is so abysmally poor from the 76th Session forward, good luck trying to determine what is law and what is not. Heck, even the government won't publish an accurate, up-to-date compilation of the Election Code (that link is now two elections old and no active links point to it--it took a Google search to unearth it).
And don't even get me started on the constitutional amendment that the voters ratified but still hasn't been included in the document.
Any bets on whether the Sagebrush has picked up on any of this. Or maybe they've made it policy to ignore ASUN entirely.
So if the goal is to out-do (in a bad way) past elections, this election is off to a commendable start.
Peace and love.
Read more...
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