To shamelessly borrow a phrase from the secret society involved, "for the betterment of the University of Nevada," Vis Lupi Est Grex rises from the
Showing posts with label ASUN Constitution. Show all posts
Showing posts with label ASUN Constitution. Show all posts
Sunday, May 4, 2014
They finally did it. They broke ASUN. Or: what a mighty fine constitutional crisis you've created.
This blog has been sitting in mothballs for nearly 4 years. Its contributors, long since graduated from the University of Nevada and the halls of student government, have moved on to bigger and better things. To get a little biblical, we moved on to helping souls that wanted to be saved. It seems in our absence the youthfully exuberant officers, senators, and justices in the Associated Students of the University of Nevada have managed to create quite a constitutional crisis--and only two weeks into the Senate's 82d Session. What promise! There's scandal, intrigue, raw exercises of power, allegations of corruption and intimidation, a secret society is involved, a newly-elected president only two weeks into his term is facing possible removal from office. And, sadly, though perhaps not surprisingly, very little actual reason is being flung around the Joe Crowley Student Union in the ASUN offices in the weeks before summer break.
To shamelessly borrow a phrase from the secret society involved, "for the betterment of the University of Nevada," Vis Lupi Est Grex rises from theashes mothballs and offers its considered, detached, dispassionate, and reasoned view on the recent goings-on in ASUN. I thought long and hard about whether to publish this post. I am taking this opportunity to make my comments public for two primary reasons: (1) I believe the leaders in ASUN would benefit from having access to these thoughts and (2) I'm growing tired of repeating them on a person-by-person basis. Although I have offered below significant criticisms of how this process has unfolded and whether Pereira is deserving of impeachment, I am not a person with a vote and my only desire is to give those who do have the vote some outside perspective and reliable information. How those with the power ultimately choose to use it is up to them, though I hope they'll exercise their power better informed as a result of this blog post. For those with the intestinal fortitude, or perhaps the slightly masochistic leanings to read a post of 6,542 words, click on. But you were warned.
To shamelessly borrow a phrase from the secret society involved, "for the betterment of the University of Nevada," Vis Lupi Est Grex rises from the
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Wednesday, June 2, 2010
A committee of the Senate is not the Senate
The 78th Session senators have now had a few weeks' taste of summer, which means it's time for the Senate to recess until August and leave those poor souls who are in Reno (and who volunteer) to handle the Senate's business.
What usually occurs (at least in every interim period since 2007) is the Senate establishes an interim committee that has the authority to consider legislation within the jurisdiction of the standing committees and report it to the Senate by the time the Senate reconvenes from its break. Below is the model resolution establishing an interim committee (S. Res. 75-29).
Associated Students Statutes at Large Volume 75--Unofficial
When the Senate adopts rules of the Senate at the beginning of a session in the model fashion, readopting this type of resolution is unnecessary (sort of discussed here and here). Anyway, that's sort of off topic.
Enter Sen. Jesus Palma, who has introduced S. Res. 78-25 (thanks for numbering legislation!), scheduled to be considered at today's Senate meeting. The resolution would create an interim committee that is "entrusted with the full power and duties of the Senate," including the authority to pass legislation. That legislation would automatically sunset when the Senate reconvenes following a recess. The resolution is creative, no doubt about that, but it is fatally unconstitutional. Before I get to the constitutional concerns, a couple nitpicky points.
The proposed committee also deprives the students of their representation because the full Senate is not considering the legislation before it goes to the President for him to sign or veto. Those senators who are not on the committee will have no vote, and thus the students who those senators represent will be unrepresented.
The proposal also leaves some questions unanswered. Does legislation the committee "passes" have to be presented to the President for approval? If so, what if the President vetoes a bill? Does it go to the committee for an override? What about the constitutional provisions governing veto overrides by the Senate, ASUN Const. art. II, sec. 4(b)-(e)? Does this committee obliterate the President's power to make recess appointments, ASUN Const. art. III, sec. 2(c)? If the committee truly has the "full power" of the Senate, can it expel senators from the Senate under article II, section 2(c) of the ASUN Constitution? And the list goes on. This alone should be sufficient evidence that this "committee with full power" proposal is a bad idea.
Finally, the Senate cannot delegate to a committee the constitutional powers that are explicitly vested in the body as a whole (e.g., enacting legislation, confirming executive appointments, proposing constitutional amendments). To do so would circumvent the exclusive processes laid out in the constitution.
This proposal reminds me of a couple of proposals that were considered during the 74th Senate Session (selected documents here). Assuming this proposal is based on one of those, a critical point that Sen. Palma seems to be unaware is that the previous ASUN constitution did not explicitly dictate how legislation became law; the present one does. That single difference precludes this proposal.
Rarely does the Senate need to take immediate action during the summer. If the need does exist, however, convening a special meeting with distant senators teleconferencing or video-conferencing should not be much of an impediment to achieving quorum.
In short, the model interim committee established during the 75th Session should be adequate, and it carries with it none of the constitutional concerns as does this proposal, since it is a committee of the Senate just like any other. Sen. Palma's proposal is certainly creative, but the constitutional concerns make it unworkable.
What usually occurs (at least in every interim period since 2007) is the Senate establishes an interim committee that has the authority to consider legislation within the jurisdiction of the standing committees and report it to the Senate by the time the Senate reconvenes from its break. Below is the model resolution establishing an interim committee (S. Res. 75-29).
Associated Students Statutes at Large Volume 75--Unofficial
When the Senate adopts rules of the Senate at the beginning of a session in the model fashion, readopting this type of resolution is unnecessary (sort of discussed here and here). Anyway, that's sort of off topic.
Enter Sen. Jesus Palma, who has introduced S. Res. 78-25 (thanks for numbering legislation!), scheduled to be considered at today's Senate meeting. The resolution would create an interim committee that is "entrusted with the full power and duties of the Senate," including the authority to pass legislation. That legislation would automatically sunset when the Senate reconvenes following a recess. The resolution is creative, no doubt about that, but it is fatally unconstitutional. Before I get to the constitutional concerns, a couple nitpicky points.
- The legislation says the committee (called the "Summer Session" in the legislation, but let's call a spade a spade) is to have a number of members "not to equal or exceed a majority of the full Senate; but must consist of at least twelve Senators." With a 22-member Senate, a majority is 12. The reason staying below a majority is critical is because generally under the Open Meeting Law, whenever a quorum (defined as majority) of a public body meets, it must be noticed and conducted under the OML.
- Ignoring that this committee would have power to pass legislation, it's exceedingly rare for the presiding officer of the parent body to also chair a committee (a continuing problem for the Oversight Committee) because a presiding officer should maintain the appearance of impartiality; the chair of a committee must advocate for the committee's positions, creating an inherent conflict.
The proposed committee also deprives the students of their representation because the full Senate is not considering the legislation before it goes to the President for him to sign or veto. Those senators who are not on the committee will have no vote, and thus the students who those senators represent will be unrepresented.
The proposal also leaves some questions unanswered. Does legislation the committee "passes" have to be presented to the President for approval? If so, what if the President vetoes a bill? Does it go to the committee for an override? What about the constitutional provisions governing veto overrides by the Senate, ASUN Const. art. II, sec. 4(b)-(e)? Does this committee obliterate the President's power to make recess appointments, ASUN Const. art. III, sec. 2(c)? If the committee truly has the "full power" of the Senate, can it expel senators from the Senate under article II, section 2(c) of the ASUN Constitution? And the list goes on. This alone should be sufficient evidence that this "committee with full power" proposal is a bad idea.
Finally, the Senate cannot delegate to a committee the constitutional powers that are explicitly vested in the body as a whole (e.g., enacting legislation, confirming executive appointments, proposing constitutional amendments). To do so would circumvent the exclusive processes laid out in the constitution.
This proposal reminds me of a couple of proposals that were considered during the 74th Senate Session (selected documents here). Assuming this proposal is based on one of those, a critical point that Sen. Palma seems to be unaware is that the previous ASUN constitution did not explicitly dictate how legislation became law; the present one does. That single difference precludes this proposal.
Rarely does the Senate need to take immediate action during the summer. If the need does exist, however, convening a special meeting with distant senators teleconferencing or video-conferencing should not be much of an impediment to achieving quorum.
In short, the model interim committee established during the 75th Session should be adequate, and it carries with it none of the constitutional concerns as does this proposal, since it is a committee of the Senate just like any other. Sen. Palma's proposal is certainly creative, but the constitutional concerns make it unworkable.
Read more...
Friday, March 19, 2010
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.
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.
Read more...
Tuesday, March 9, 2010
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.
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.
Read more...
Tuesday, March 2, 2010
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.
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.
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.
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.
- ASUN is an association composed of every undergraduate student at Nevada.
- 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.
- 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.
- ASUN is governed under a rule of law.
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
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.
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...
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...
Sunday, November 1, 2009
Power, authority and JV 2017
The ASUN Constitution establishes an executive branch with limited powers. The executive power is vested in the ASUN President and his subordinates that the Senate may create by law. The President's power, while absolute (in the sense that no other branch holds the executive power), does have limits. Expressly, the Constitution states the President's power extends to enforcing the laws as the Senate writes them ("The President shall take care that the laws be faithfully executed"). This is a limited view of executive power. It is what we had in mind when crafting the current ASUN Constitution. The President does have some constitutionally inherent powers that the Senate can't intrude upon, but most of what the President can do must be prescribed in the laws the Senate passes.
This structure has implications for ASUN President Eli Reilly's Joint Vision 2017 document. Under what authority did the ASUN President create this plan, attach ASUN's name to it (and thus imply institutional support where none exists), and lobby others (the Regents) as if ASUN was behind it? If you view presidential power as George W. Bush does, then you don't need a law authorizing executive activities. Unfortunately, that does not comport with the constitutional realities in ASUN.
Under the correct, limited view of presidential power, a law must authorize the plan's creation. Last I checked, no law authorized the ASUN President to create a plan, much less then attach ASUN's name to it without first consulting with the Senate. JV 2017 represents a lapse in lawful authority.
Now enter Senator Haley Anderton's bill to prohibit individuals from doing what President Reilly did. The bill would do two things: (1) require Senate approval before proposals are presented to the Regents on behalf of "any member of [ASUN] [1]; and (2) require a direct student vote on any proposal presented to the Regents that "could potentially increase student fees." This bill represents the first formal reaction from the Senate. But the mere existence of the bill, much less its passage, presents some problems.
If this bill were to become law, it would imply that, before the bill became law, the activities the bill prohibits were legal. Why write a law to prohibit something if it was never legal in the first place? This could have the effect of giving retroactive approval to Reilly's conduct here. That clearly doesn't seem to be what Sen. Anderton and others have in mind. Also, this bill probably can't apply to JV 2017 because the plan existed before this law was passed.
Current ASUN law provides adequate remedies to this situation, without necessitating the passage of a new law. There's the inherent constitutional limitation I discussed above. You could argue illegal spending in creating JV 2017 under sections 221 and 224 of the Association Budget and Finance Act. You could ask the President to point to which law authorized these activities, likely a difficult task. New law should be created only when existing law is inadequate. An example is when one can properly attach ASUN's name to something. But it isn't the case here; this case deals with views of executive power vis-a-vis the Senate.
I'm glad to see the Senate has sprung into action, but this bill has unintended consequences, and the senators should consider other reasonable options that won't compromise the Senate's position on this issue.
Footnotes.
This structure has implications for ASUN President Eli Reilly's Joint Vision 2017 document. Under what authority did the ASUN President create this plan, attach ASUN's name to it (and thus imply institutional support where none exists), and lobby others (the Regents) as if ASUN was behind it? If you view presidential power as George W. Bush does, then you don't need a law authorizing executive activities. Unfortunately, that does not comport with the constitutional realities in ASUN.
Under the correct, limited view of presidential power, a law must authorize the plan's creation. Last I checked, no law authorized the ASUN President to create a plan, much less then attach ASUN's name to it without first consulting with the Senate. JV 2017 represents a lapse in lawful authority.
Now enter Senator Haley Anderton's bill to prohibit individuals from doing what President Reilly did. The bill would do two things: (1) require Senate approval before proposals are presented to the Regents on behalf of "any member of [ASUN] [1]; and (2) require a direct student vote on any proposal presented to the Regents that "could potentially increase student fees." This bill represents the first formal reaction from the Senate. But the mere existence of the bill, much less its passage, presents some problems.
If this bill were to become law, it would imply that, before the bill became law, the activities the bill prohibits were legal. Why write a law to prohibit something if it was never legal in the first place? This could have the effect of giving retroactive approval to Reilly's conduct here. That clearly doesn't seem to be what Sen. Anderton and others have in mind. Also, this bill probably can't apply to JV 2017 because the plan existed before this law was passed.
Current ASUN law provides adequate remedies to this situation, without necessitating the passage of a new law. There's the inherent constitutional limitation I discussed above. You could argue illegal spending in creating JV 2017 under sections 221 and 224 of the Association Budget and Finance Act. You could ask the President to point to which law authorized these activities, likely a difficult task. New law should be created only when existing law is inadequate. An example is when one can properly attach ASUN's name to something. But it isn't the case here; this case deals with views of executive power vis-a-vis the Senate.
I'm glad to see the Senate has sprung into action, but this bill has unintended consequences, and the senators should consider other reasonable options that won't compromise the Senate's position on this issue.
Footnotes.
[1] This language doesn't proscribe the conduct Sen. Anderton probably thinks it does. Do you really want to require Senate approval of any plan presented to the Regents on behalf of any ASUN member (i.e., any undergraduate student)?
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Friday, March 20, 2009
Another BoR meeting, constitutional amendment still pending
The Board of Regents April 2009 meeting will have one agenda item noticeably missing: the ASUN constitutional amendment from 2008 that is still pending. More than one year after it was ratified by the students, it still has not climbed the administrative ladder from student passage to Board of Regents approval. We have previously discussed this issue here and here.
In an effort to move this along a little more quickly, as the Senate might find great use in the contents of the amendment in the near future, below is a specimen certificate that Sean Driscoll can use to certify the amendment to UNR President Glick so that it might appear on the Regents' next agenda (June), more than one full year after it happened.
Specimen Certificate to UNR President on ASUN Constitutional Amendment, 2008
We should also note that this issue was raised directly to Sean Driscoll, the Chair of the Election Commission. In fact, we transmitted to him a copy of the specimen certificate above. It would appear that he has not acted on our (humbly) well-researched--dare we say accurate and competent--advice.
Could you guys maybe get on this? It is the Constitution and all, so it is kinda important. Sort of. Yeah.
In an effort to move this along a little more quickly, as the Senate might find great use in the contents of the amendment in the near future, below is a specimen certificate that Sean Driscoll can use to certify the amendment to UNR President Glick so that it might appear on the Regents' next agenda (June), more than one full year after it happened.
Specimen Certificate to UNR President on ASUN Constitutional Amendment, 2008
We should also note that this issue was raised directly to Sean Driscoll, the Chair of the Election Commission. In fact, we transmitted to him a copy of the specimen certificate above. It would appear that he has not acted on our (humbly) well-researched--dare we say accurate and competent--advice.
Could you guys maybe get on this? It is the Constitution and all, so it is kinda important. Sort of. Yeah.
Read more...
Wednesday, February 18, 2009
Oh, That Constitutional Amendment
The Nevada Sagebrush has finally woken up to the fact that things are not very peachy in ASUN. The Sagebrush reports, as we and others did last week, that a constitutional amendment has not yet made it to the Regents. (Granted the Sagebrush is a weekly publication, but it is also no secret that the constitutional amendment went nowhere--fine investigative reporting, Sagebrush. I guess we have Coltrain to thank.)
Also of note is that the draft impeachment resolution, which we posted here first (and somebody else added to), was printed and placed in senators' mailboxes, according to the Sagebrush. Although we cannot claim credit for most of the resolution--we do take credit for "borrowing" a resolution considered during the 75th Senate Session and doing the hard work of substituting Reilly's name for Ragsdale's--we can state that nobody affiliated with this blog is the author of the additional three articles of impeachment, nor are we responsible for distributing the draft to the senators.
We do not disagree with the contents of the draft resolution.
"Fact" check.
To the Sagebrush, a minor factual error in your story. Let's cite the relevant portion of Mr. Balagna's article and see if you can spot it.
While technically correct that this occurred during Ragsdale's term, 10 months of Reilly's term has lapsed during which the amendment has been pending, waiting to be acted upon. It is misleading to suggest this is Ragsdale's fault, although she most certainly played a role. It is also misleading to suggest Reilly is entirely at fault, as Mr. Taycher has suggested on his blog.
Not my job.
So whose job was it to shepherd the amendment along to the Board of Regents? Could something possibly provide us the guidance, the direction, the wisdom, to tell us who on earth is supposed to move the amendment from student ratification to Board of Regents approval? Why, yes, my dear Virginia, there is. An ASUNlaw suggestion. ASUN Public Law 75-40, the Constitutional Amendments Procedure Act of 2008 as it's popularly known, available on none other than ASUN's OWN FRICKIN' WEBSITE, spells out exactly whose duty it is (or was) to certify the amendment's ratification.
The law (at section 3)--which at two pages long is clearly too long for anybody in ASUN to read and comprehend--makes it the duty of the Chair of the Commission on Association Elections to certify to the University president that an amendment has been ratified pursuant to the proper, legal, and constitutional process IMMEDIATELY after an amendment has been ratified. The Chair on March 13, 2008, the date the amendment was ratified in a general election, was Nicole Nelson. She simply failed to do her job as expressed in the law...err suggestion.
The relevant text of the law follows:
Real tough stuff. It was never done.
Former president Ragsdale is not blameless in this. She had a constitutional duty to ensure the laws were faithfully executed, including the "stupid" ones calling for certifications of things. One month passed from the election to April 16, 2008, the date the new officers took office. That was one month within which Ragsdale should have ensured the Election Commission chair was doing her job. But she didn't. Ragsdale must have had some carpet samples to look at.
Eli Reilly took office as president of the Associated Students on April 16, 2008. From that point until now, Eli had a constitutional duty to ensure that the laws were faithfully executed. He still has that duty. Nicole Nelson was technically in her office until her successor, Sean Driscoll, was confirmed by the Senate on October 15, 2008 (ASUN Public Law 75-25, section 2(a)(2)(B)). It then became Sean's duty to certify the amendment. During all that time, nothing happened.
Disconnect.
In fairness, things get forgotten through transitions. Sean was appointed likely not knowing that his predecessor's duty went unperformed. Eli was probably too busy worrying about Homecoming than focusing on other parts of his job. Sarah was already dreaming of Boston by the spring semester of her senior year. The 75th Senate was too focused on the election fuck-ups, which seriously threatened a constitutional crisis and was not resolved until literally the day they left office (April 16, 2008). (See this Nevadawiki.org page for general information about the 2008 election, and the linked Sagebrush articles at the bottom of this post.) And once they left office, it was no longer their problem. Lots of people share in this, but doesn't the buck stop someplace?
A common element.
In all of this, there is one common element: Sandra Rodriguez, director of ASUN/Student Activities. Call her the institutional memory. Her job, above all else, is to make sure the student leaders do not break the playground rules. She, throughout all of this time, was adviser to the ASUN president. What exactly was she advising Eli to do? One wonders if this was ever brought up. Clearly if anybody could know what the law is, it is Sandy. This doesn't absolve others of their duties, but Sandy should have played the grown up to the immature ASUN officers.
No consequences.
The larger undergraduate student body (read the vast majority who don't give a flying fuck about ASUN) think ASUN is a joke. When duties constantly are neglected, when senators do not respect themselves or their roles, when a president doesn't get what it means to be president, it's no wonder it's a joke. A bad one, at that.
Yes, this is a student government. And yes, this is supposed to be a learning experience. And yes, this doesn't matter all that much in the grand scheme of things. But whatever happened to there being consequences for negligent acts?
The senators may laugh this off, but this is serious business. You are university students. You are adults. Start acting like it.
Election stories.
http://nevadasagebrush.com/blog/2008/03/18/mistakes-plague-asun-election/
http://nevadasagebrush.com/blog/2008/03/20/official-asun-election-results-put-on-hold/
http://nevadasagebrush.com/blog/2008/04/01/asun-election-results-remain-unofficial/
http://nevadasagebrush.com/blog/2008/04/08/official-asun-election-results-still-pending-judicial-ruling/
http://nevadasagebrush.com/blog/2008/04/11/judicial-council-oks-asun-presidential-results/
http://nevadasagebrush.com/blog/2008/04/15/council-upholds-election-results/
Thank you, thank you, thank you Sagebrush (seriously) for keeping year-old stuff online and accessible.
Also of note is that the draft impeachment resolution, which we posted here first (and somebody else added to), was printed and placed in senators' mailboxes, according to the Sagebrush. Although we cannot claim credit for most of the resolution--we do take credit for "borrowing" a resolution considered during the 75th Senate Session and doing the hard work of substituting Reilly's name for Ragsdale's--we can state that nobody affiliated with this blog is the author of the additional three articles of impeachment, nor are we responsible for distributing the draft to the senators.
We do not disagree with the contents of the draft resolution.
"Fact" check.
To the Sagebrush, a minor factual error in your story. Let's cite the relevant portion of Mr. Balagna's article and see if you can spot it.
The [constitutional] amendment the resolution refers to was passed through the 75th session of the ASUN Senate in April 2007, during former president Sarah Ragsdale’s term and nearly 11 months before Reilly was elected president.Senate Resolution 75-45, which proposes a constitutional amendment, was agreed to by the Senate on February 20, 2008. The April 2007 date reported is the date on which the Senate's 75th Session began. (We can understand how the date printed on the resolution could be misleading, but a careful reading will show that it says that the 75th Session was "begun and held at the City of Reno on the eighteenth day of April, two thousand and seven.")
While technically correct that this occurred during Ragsdale's term, 10 months of Reilly's term has lapsed during which the amendment has been pending, waiting to be acted upon. It is misleading to suggest this is Ragsdale's fault, although she most certainly played a role. It is also misleading to suggest Reilly is entirely at fault, as Mr. Taycher has suggested on his blog.
Not my job.
So whose job was it to shepherd the amendment along to the Board of Regents? Could something possibly provide us the guidance, the direction, the wisdom, to tell us who on earth is supposed to move the amendment from student ratification to Board of Regents approval? Why, yes, my dear Virginia, there is. An ASUN
The law (at section 3)--which at two pages long is clearly too long for anybody in ASUN to read and comprehend--makes it the duty of the Chair of the Commission on Association Elections to certify to the University president that an amendment has been ratified pursuant to the proper, legal, and constitutional process IMMEDIATELY after an amendment has been ratified. The Chair on March 13, 2008, the date the amendment was ratified in a general election, was Nicole Nelson. She simply failed to do her job as expressed in the law...err suggestion.
The relevant text of the law follows:
SEC. 3. CERTIFICATION TO PRESIDENT OF THE UNIVERSITY OF RATIFICATION OF AMENDMENT BY MEMBERSHIP OF ASSOCIATION; DUPLICATE CERTIFICATES.
(a) CERTIFICATION TO THE UNIVERSITY PRESIDENT.—Whensoever an amendment to the Constitution has been ratified by the membership of the Association, pursuant to the provisions of Article V of the Constitution, the Chair of the Commission on Association Elections shall forthwith certify to the President of the University that the amendment was ratified pursuant to the provisions of the Constitution.
(b) DUPLICATE CERTIFICATES.—The Chair of the Commission on Association Elections shall cause to be filed with the Secretary of the Senate, the Archivist of the Associated Students, and the President of the Associated Students a duplicate of the certificate as provided for in subsection (a).
Real tough stuff. It was never done.
Former president Ragsdale is not blameless in this. She had a constitutional duty to ensure the laws were faithfully executed, including the "stupid" ones calling for certifications of things. One month passed from the election to April 16, 2008, the date the new officers took office. That was one month within which Ragsdale should have ensured the Election Commission chair was doing her job. But she didn't. Ragsdale must have had some carpet samples to look at.
Eli Reilly took office as president of the Associated Students on April 16, 2008. From that point until now, Eli had a constitutional duty to ensure that the laws were faithfully executed. He still has that duty. Nicole Nelson was technically in her office until her successor, Sean Driscoll, was confirmed by the Senate on October 15, 2008 (ASUN Public Law 75-25, section 2(a)(2)(B)). It then became Sean's duty to certify the amendment. During all that time, nothing happened.
Disconnect.
In fairness, things get forgotten through transitions. Sean was appointed likely not knowing that his predecessor's duty went unperformed. Eli was probably too busy worrying about Homecoming than focusing on other parts of his job. Sarah was already dreaming of Boston by the spring semester of her senior year. The 75th Senate was too focused on the election fuck-ups, which seriously threatened a constitutional crisis and was not resolved until literally the day they left office (April 16, 2008). (See this Nevadawiki.org page for general information about the 2008 election, and the linked Sagebrush articles at the bottom of this post.) And once they left office, it was no longer their problem. Lots of people share in this, but doesn't the buck stop someplace?
A common element.
In all of this, there is one common element: Sandra Rodriguez, director of ASUN/Student Activities. Call her the institutional memory. Her job, above all else, is to make sure the student leaders do not break the playground rules. She, throughout all of this time, was adviser to the ASUN president. What exactly was she advising Eli to do? One wonders if this was ever brought up. Clearly if anybody could know what the law is, it is Sandy. This doesn't absolve others of their duties, but Sandy should have played the grown up to the immature ASUN officers.
No consequences.
The larger undergraduate student body (read the vast majority who don't give a flying fuck about ASUN) think ASUN is a joke. When duties constantly are neglected, when senators do not respect themselves or their roles, when a president doesn't get what it means to be president, it's no wonder it's a joke. A bad one, at that.
Yes, this is a student government. And yes, this is supposed to be a learning experience. And yes, this doesn't matter all that much in the grand scheme of things. But whatever happened to there being consequences for negligent acts?
The senators may laugh this off, but this is serious business. You are university students. You are adults. Start acting like it.
Election stories.
http://nevadasagebrush.com/blog/2008/03/18/mistakes-plague-asun-election/
http://nevadasagebrush.com/blog/2008/03/20/official-asun-election-results-put-on-hold/
http://nevadasagebrush.com/blog/2008/04/01/asun-election-results-remain-unofficial/
http://nevadasagebrush.com/blog/2008/04/08/official-asun-election-results-still-pending-judicial-ruling/
http://nevadasagebrush.com/blog/2008/04/11/judicial-council-oks-asun-presidential-results/
http://nevadasagebrush.com/blog/2008/04/15/council-upholds-election-results/
Thank you, thank you, thank you Sagebrush (seriously) for keeping year-old stuff online and accessible.
Read more...
Wednesday, February 11, 2009
What Constitutional Amendment?
A howl to our friend over at ASUN Watchdog for the scoop on a constitutional amendment passed by the students in the 2008 general election that is still pending ("Public Information Request").
Voters may remember that they agreed to a constitutional amendment nearly a year ago. What they may not know is after the voters agree to one, it must be approved by the Board of Regents. To ensure that it was clearly expressed as someone's duty, the Senate enacted the Constitutional Amendments Procedure Act of 2008. That law (or suggestion) states whenever "an amendment to the Constitution has been ratified by the membership of the Association, pursuant to the provisions of Article V of the Constitution, the Chair of the Commission on Association Elections shall forthwith certify to the President of the University that the amendment was ratified pursuant to the provisions of the Constitution" (section 3(a), ASUN Public Law 75-40).
The voters approved the amendment by nearly 73 percent (election results). Unfortunately, the Election Commission chair, Nicole Nelson, apparently never got the memo that her job wasn't over when the election was. Now, nearly one year later, it takes a candidate for the Senate to set things straight. Kudos to Tim.
But nothing but condemnation to the Senate. Some of the senators knew about this pending amendment--and they all should have, assuming they all voted for themselves in the last election. Shame on them for failing to conduct proper oversight on the executive. With the elections as bad as they were last year (VLEG: "It's like golf"), if they were to do one thing worthwhile all year, it would have been make sure elections this year didn't suck.
To the incumbent senators running for reelection--Jessica Purney, Brice Esplin, Gracie Geremia, and Patrick Kealy--shame on you. For this one reason alone, the voters should seriously question whether you deserve to hold office for another term. Constitutions are not things to be trifled with. A problem with the ASUN Constitution and the poor process got former president Sarah Ragsdale in a hot water last year. This year, there's simply no excuse.
UPDATE
Just realized that it might be a good idea to include a copy of the amendment. A little ironic, given the subject matter.
S. Res. 75-45, Constitutional Amendment, 2008
Voters may remember that they agreed to a constitutional amendment nearly a year ago. What they may not know is after the voters agree to one, it must be approved by the Board of Regents. To ensure that it was clearly expressed as someone's duty, the Senate enacted the Constitutional Amendments Procedure Act of 2008. That law (or suggestion) states whenever "an amendment to the Constitution has been ratified by the membership of the Association, pursuant to the provisions of Article V of the Constitution, the Chair of the Commission on Association Elections shall forthwith certify to the President of the University that the amendment was ratified pursuant to the provisions of the Constitution" (section 3(a), ASUN Public Law 75-40).
The voters approved the amendment by nearly 73 percent (election results). Unfortunately, the Election Commission chair, Nicole Nelson, apparently never got the memo that her job wasn't over when the election was. Now, nearly one year later, it takes a candidate for the Senate to set things straight. Kudos to Tim.
But nothing but condemnation to the Senate. Some of the senators knew about this pending amendment--and they all should have, assuming they all voted for themselves in the last election. Shame on them for failing to conduct proper oversight on the executive. With the elections as bad as they were last year (VLEG: "It's like golf"), if they were to do one thing worthwhile all year, it would have been make sure elections this year didn't suck.
To the incumbent senators running for reelection--Jessica Purney, Brice Esplin, Gracie Geremia, and Patrick Kealy--shame on you. For this one reason alone, the voters should seriously question whether you deserve to hold office for another term. Constitutions are not things to be trifled with. A problem with the ASUN Constitution and the poor process got former president Sarah Ragsdale in a hot water last year. This year, there's simply no excuse.
UPDATE
Just realized that it might be a good idea to include a copy of the amendment. A little ironic, given the subject matter.
S. Res. 75-45, Constitutional Amendment, 2008
Read more...
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