I'm Just A Bill Redux

We've all seen the Schoolhouse Rock animation "I'm Just A Bill," an elementary explanation of how a bill becomes a law. This post will provide a collegiate-level explanation of how a bill becomes a law within the context of the ASUN.

The basic steps are pretty much the same in any legislative body. A bill starts as an idea. The idea is put to paper--the bill. The bill gets introduced and referred to committee. The committee considers the bill and, if it agrees with the bill, reports it favorably back to the full house. If the full house agrees with the bill, the bill is passed. Then, in a bicameral (two house) legislature, the process starts again, with the bill as it passed the first house. In ASUN, this step is omitted, as there is no second house. When the bill has passed the legislature, it is sent on up to the chief executive, be it the president or the governor. If he agrees, it becomes law. If not, it is sent back to the house of origin together with his objections. If the legislature decides to override the veto, the bill becomes law; if not, the bill does not become law, and it continues to sit up on capitol hill. Simple, right? Well, let's add some detail. (Fair warning, this is a beast of a post.)

A Bill is an Idea

The Schoolhouse Rock song tells us that a bill starts as an idea. This post will use a prototypical bill that addresses a policy issue the Senate should take up. In April 2009, the Board of Regents changed its policy regarding the approval of student government constitutions. The new policy delegates the power of approval to the Chancellor of the Nevada System of Higher Education. Previously, amendments to a student government's constitution required Board of Regents approval. This policy change makes an act of the ASUN Senate obsolete as written. The draft bill below proposes to change the ASUN policy to conform to the System policy. Desiring to do that, a draft bill might be put together, such as the one below.

Sample Discussion Draft Bill

Is Our Senators Learning: The Reach of the Open Meeting Law

It's been some time since our last post, which must mean the Senate has not been doing much lately. We did notice one item of interest on the next Phantom Committee agenda, however: "a resolution reiterating the requirement of the ASUN Executive Board to comply with [the] Nevada Open Meeting Law." This got our attention because there is no requirement for the Executive Board to comply with the Open Meeting Law. Hell, there isn't even an "Executive Board."

We need to begin by dealing with two unfounded assumptions on which this agenda item is based. First, there is no Executive Board. There used to be one, but that was under ASUN's previous constitution. There is something called the President's Advisory Cabinet, established under Title VII of the Executive Branch Act of 2007 (ASUN Public Law 75-7; 75 ASUN Stat. 13). Second, there is nothing in ASUN law to require this group to abide by the Open Meeting Law.

With those two assumptions out of the way, we can now look to the Open Meeting Law for guidance. The Open Meeting Law (Chapter 241 of NRS) requires public bodies to conduct their business openly, in view of the public. The OML applies to student governments because the Nevada Legislature has required the Board of Regents to adopt regulations equivalent to the OML for student governments and to provide for their enforcement (NRS 241.038). The Regents have done that, and the policy is codified in the Board of Regents Handbook, Title 4, Chapter 20, Part B, section 3 (link). The Board of Regents policy essentially says that student governments must comply with the OML.

The Open Meeting Law applies only to public bodies. The law defines a public body as "any administrative, advisory, executive or legislative body of the State or a local government which expends or disburses or is supported in whole or in part by tax revenue or which advises or makes recommendations to any entity which expends or disburses or is supported in whole or in part by tax revenue, including, but not limited to, any board, commission, committee, subcommittee or other subsidiary thereof" (NRS 241.015(3)).

The Nevada Attorney General advises us that in order for a body to be a public body, it "administrative, advisory, executive or legislative body of the State or a local government," meaning that it "must (1) owe its existence to and have some relationship with a state or local government, (2) be organized to act in an administrative, advisory, executive or legislative capacity, and (3) must perform a government function" (Open Meeting Law Handbook, link). If any one of the elements are missing, the body is not a public body. Applying these elements to the President's Cabinet, condition 1 is only partly satisfied. Although the Cabinet does owe its existence to the Senate (only because it enacted a law establishing the Cabinet), it does not have any relationship with the Senate. Condition 2 is satisfied because it acts in an advisory capacity. Condition 3 is not satisfied because it is only advising the President, who himself is not a a public body.

The law also requires that the body be collegial in nature, meaning that the members share equal power through their votes. The members of the Cabinet have no collective power; the ASUN President is not bound by its advice. Therefore, under the OML, the President's Cabinet is not required to obey the OML.

However, the language the Regents used in applying the OML to student governments is a little grayer. It says that the OML applies to "[t]he meetings of any multi-member executive or legislative body, committee, subcommittee, commission or subsidiary thereof" (Handbook, Title 4, Chapter 20, Part B, section 3(3)). Even under this broader application, the OML does not seem to apply. The President's Advisory Cabinet is not an executive body. It has no collective decision-making power of its own, it has no collective ability to execute policy, etc. Its members each possess decision-making and executive powers in their own departments, but it is the President in this case who possesses all the power.

This language also suffers from circular reasoning. Assume it says the Cabinet must follow the OML according to the OML's provisions, but the OML, according to its provisions, says it does not. Even if you assume the Cabinet is covered within the term "multi-member executive body," the OML says that it doesn't apply to a body such as the Cabinet.

For those reasons, we believe the Cabinet is not required to obey the OML. Now, that's not to say that the Senate could not pass a law requiring the Cabinet to abide by the OML's provisions, but it would be subject to constitutional challenge in the Judicial Council on the grounds that it violates the separation of powers doctrine, that it prevents the President from receiving candid advice from his department chiefs, and that it abuses the deliberative process privilege enjoyed by executives.

Now, there may be more to this story than we are aware. Perhaps a university attorney has disagreed with our interpretation of the OML and Regents policy. Even if that were the case, it would take a disciplinary action to test that interpretation. Unfortunately, under federal law disciplinary actions cannot be disclosed by the university, so we'd likely never know about it, unless a subject of such an action were to speak out.

But given the fact that this is a nonbinding resolution the Phantom Committee is deliberating, and given the phrasing that it would "reiterate" a requirement that is presumed to already exist, we think this is coming from some senators who are misinformed on the reach of the OML, and whose motivation is probably that they don't like that President Eli Reilly and his cronies are allegedly meeting behind closed doors to share their mutual disdain for Gracie Geremia and discussing how to undermine her every move, starting with elevating Sen. Brandon Bishop's status.

Is Our Senators Learning: Committee Jurisdiction

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


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

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

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

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

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

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

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

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

Executive Summary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Phantom Committee

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

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

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

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

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

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

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

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

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

Is Our Senators Learning: Retreats and the Open Meeting Law

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

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

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



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

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

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

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

Remember, "meeting" is defined as:

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

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

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

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

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

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

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

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

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

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

Is Our Senators Learning: Beyond the Senate's Power

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

ASUN FY 2010 Proposed Budget

Publish at Scribd

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

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

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

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

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

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

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

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

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

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

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

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

Is Our Senators Learning: Holidays, Counting, and the Open Meeting Law

Update: May 27, 2009 at 10:26 a.m.
The University Affairs meeting has now been canceled. Once again, we wish to express our appreciation for the officers involved for taking the appropriate corrective action in these cases.

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Update: May 27, 2009 at 9 a.m.
So is the University Affairs meeting scheduled for today or tomorrow. The agenda says Thursday, but the date and website both say today. Yet another reason why that meeting should be canceled.

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Update: May 26, 2009 at 9 p.m.
It appears, from the website, that two of the meetings have been canceled and rescheduled (Senate and Oversight). We appreciate the officials owning up to their errors and correcting them.

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The Open Meeting Law requires that agendas be posted by 9 a.m. on the third working day prior to a meeting (NRS 241.020(3)(a)). Excluded in the count are weekends, holidays, and the day of the meeting (OML Manual, section 6.05).

Example:
A meeting for Wednesday must have its notice and agenda posted before Friday at 9 a.m.

However, when a holiday falls during the posting period, as Memorial Day did yesterday, you need to add a day.

Example:
A meeting noticed for Wednesday, May 27, 2009, must have its notice and agenda posted no later than Thursday, May 21, 2009, at 9 a.m.

Well, guess what, my friends. Looks like some of the senators need a refresher. The University Affairs and Oversight Committees and Senate meetings scheduled for tomorrow, according to the postings on the ASUN Web site, were not posted in time to take into account yesterday's holiday. The University Affairs and Senate agendas were posted on Friday, May 22, and the Oversight agenda was posted around 9 p.m. on Thursday, May 21 (Oversight was posted on the correct day, but after the 9 a.m. deadline).

Accordingly, the meetings should be canceled. If the meetings proceed anyway, a violation of the Open Meeting Law will occur. Given the fact that several cases against the Senate are pending in the Judicial Council for violations of the Open Meeting Law, the senators would be wise to heed this warning.

I'm going to guess the "Senate training" or "chair training" didn't go over this no-so-minor nuance. And how about the Senate "adviser"? Did she go over this point? Does she even know that this law exists and the senators must follow it? Did the senators know and figure no one would catch them? Did they know and just not care? The violations of the law that this blog reports about (way better than the Sagebrush, by the way) are becoming so systemic it's suggestive of a massive problem.

Is Our Senators Learning: When Two Bills Do the Same Thing

In this edition of Is Our Senators Learning, we take a look at the legislation on today's Senate agenda. The theme of our post will be apparent once you reach our brief review of the last bill.

Senate Bill 77-1
This bill changes the structure of the Department of Programming (aka Flipside Productions) by eliminating the ability of Programmers to appoint Assistant Programmers. The bill disrupts the hierarchy in the Department. The committee report indicates that they want to create a step below the director but above programmers.

The bill creates two positions directly under the Director of Programming to take on a variety of duties, of which were somewhat small duties to be assigned specifically to one programmer. This bil would allow for the Director of Programming to eliminate an unnecessary programmer position, and the elimination of such would allow for the funding of these higher paid assistants.

Unfortunately, the bill does not do what it purports to. The programmers are already under the director. Under section 303(a) of ASUN Public Law 75-7, the Director gets to "nominate" (the term "nominate" versus "appoint" is used inconsistently in this law) programmers to assist the director. In turn, the programmers get to appoint assistant programmers, under subsection (b) of section 303.

This bill (77-1) only allows the director to appoint both programmers and assistant programmers. It sounds like the Senate really wants to have something like assistant directors below the director. This makes entirely no sense when taken together with the companion bill, S.B. 77-2, which creates the compensation for these new assistant programmers.

Senate Bill 77-2
This bill amends the Executive Compensation Schedule to add a new tier for the Assistant Programmers created by S.B. 77-1. The bill does not appear to mesh with the stated intent of the Government Operations Committee that the Director of Programming be allowed to have "higher paid assistants." In fact, these new assistants, under this bill, will be paid less than programmers.

The bill adds a Tier VI to the compensation schedule. Rather than keep the order of descending dollar figures intact, the bill adds the new tier at the end, thusly:

(4)Level IV: $3,000.00, to be disbursed in equal increments at the end of each semester.
(5) Level V: $1,000.00, to be disbursed in equal increments at the end of each semester.
(6) Level VI: $1,500.00, to be disbursed in equal increments at the end of each semester.

It would make more sense to make the new $1,500 tier Tier V and change the current Tier V to become Tier VI. A bill that does that would look something like this:

Section 2(b) of the Executive Compensation Act of 2008 (ASUN Public Law 75-48; 75 ASUN Stat. 124) is amended by striking paragraph (5) and inserting the following:
"(5) Level V: $1,500.00, to be disbursed in equal increments at the end of each semester.
"(6) Level VI: $1,000.00, to be disbursed in equal increments at the end of each semester.

You'd do essentially the same thing for adding new offices to each tier.".

Senate Bill 77-3
This bill changes existing law that requires ASUN to maintain a reserve fund of 5 percent of the fee revenues in each fiscal year. After consulting with University budget officers, it was determined that 2.5 percent is sufficient. This bill would make the President's current budget proposal for this reserve fund to be in compliance with the law. Only they will have done the steps in reverse (President takes action, Senate enacts legislation authorizing action). It usually works the other way around.

Senate Bill 77-4
This bill modifies the amount of money ASUN will contribute to a general scholarship program it created back in 2007. The bill reduces the contribution by $50,000 in this fiscal year to $100,000. It is unclear whether this bill violates contract rights. This bill might in fact be unconstitutional under the ASUN Constitution.

Senate Bill 77-5
This is perhaps one of the better written bills we've seen since the 75th Session. This bill creates a Diversity Commission chaired by the Vice President. Some specific language and technical language in the bill is not quite correct, but the bill has a clear and understandable message. The bill would be well to coordiate with current ASUN Law on the subject, such as the Diversity Week Creation Act of 2008, as amended by S.B. 76-1. (S.B. 76-1 repealed the creation of the Director of Diversity but didn't entirely clean up all references in law to that director.) We would recommend holding off on passing this bill intil some of the technical stuff is fixed.

Senator Diaz obviously has the right idea about bills.

Senate Bill 77-6
Oh, damn, looks like we may have spoken too soon about Senator Diaz. This bill creates compensation for the diversity commissioners created by S.B. 77-5. This probably isn't her fault, but this bill does not take into account S.B. 77-2, which makes almost the exact same amendments to the Executive Compensation Schedule. Under S.B. 77-6, Tier VI would be $500 for the diversity commissioners. But, under S.B. 77-2, Tier VI would be $1,500 for Assistant Programmers. Thus, we finally get to the theme of our post.

When two bills make similar amendments to the same provision of law, only one can survive. Thus, one of the bills should be amended to fix the conflict.

Other Things
The enacting clause in all of the bills still appears to be erroneous ("students" should be capitalized, as it is part of the official title of the Senate of the Associated Students). If the enacting clause is not exactly correct, the bill could be held to be invalid (See ASUN Public Law 75-39, section 2).

When referring to sections subordinate elements of other laws, parentheses are used. So when you want to refer to subsection (b) of section 2 of ASUN Public Law 75-48, you write it as "section 2(b) of ASUN Public Law 75-48. Also, "Sec.306.g.3" is not the same thing as "section 306(g)(3)." We all know what you are talking about, but the law doesn't. Think of this like a computer program: if it is not exactly right, it will not compute.

The formal cites to the laws being amended by all of the bills is off, too. The laws can be cited by their popular titles (e.g. "Executive Compensation Act of 2008") but also need to include the formal cite (ASUN Public Law 75-48; 75 ASUN Stat. 124).

On a happy note, we are glad to see that bills are finally getting numbered. Now if we can do the same for committee reports.

Some of our senators are beginning to learn. Now let's see if we can keep this heading in the right direction.

Is Our Senators Learning: Cause and Effect, Separation of Powers, and Verbs

In this edition of Is Our Senators Learning, we explore cause and effect, the separation of powers doctrine, and, everyone's favorite topic, bill drafting. But first, our executive summary.

Executive Summary

• Because the Senators did not pass a proper resolution adopting rules, the Interim Committee does not exist.
• Senate Bill No. 77-[???] violates the separation of powers doctrine.
• The same bill does not actually amend ASUN Public Law 75-7.

Come on over across the jump for the full post.

As we explained back in this post, the Senate did not adopt a proper resolution adopting the rules of the Senate. To refresh your memory, this is what a proper rules resolution would have said.

Resolved,That the Rules of the Senate of the Seventy-Sixth Session, including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate, are adopted as the Rules of the Senate of the Seventy-Seventh Senate.

This is what they actually passed.

Resolved, that the Senate has adopted the Rules of the Senate pursuant to Article II sec. 2(c) of the Constitution of the Associated Students.

At the time, we ignored the language stating "including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate." Today we're going to explain the effect of that language.

Rules May Exist Outside of the Rules
Previously we have explained that there may be reasons for putting provisions that are basically rules of the Senate into public law, such as permanence beyond a session, to make them harder to amend, etc. However, just because those rules are in statute doesn't mean that they automatically have effect beyond a session of the Senate. The Senate's constitutional power in Article II, section 2(c) of the ASUN Constitution to adopt rules is exclusive and absolute. "The Senate may determine the rules of its proceedings." The power is exclusive in that it belongs to the Senate and only the Senate. Thus, even though the Senate may have enacted them into law, the Senate can change the rules without passing a new law. When a rule is in law, that law constitutes a rule. That is why it was critically important for the Senate to use the specific language in the model resolution.

There are examples of the Senate adopting things in other resolutions, that do not amend the codified Rules, that also constitute a rule of the Senate. An example of that is S. Res. 75-29 (which was subsequently amended). That resolution created an Interim Committee of the Senate. It looks like a rule, smells like a rule, etc., but it is not included in the Rules of the Senate. Don't believe us? Do a search for "interim" in the codified rules.

Resolutions do not have permanence beyond a session of the Senate. What the 75th Session adopts has no effect in the 76th Session, unless the 76th Session readopts those provisions. Thus, that is why a proper resolution adopting rules includes the language "including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate." What that means is, the stuff that constitutes rules that we put elsewhere besides the codified Rules, that stuff is effective during the 77th Session.

Because the Senate did not readopt that stuff, there is no Interim Committee. And because this item is not on today's Senate agenda, they cannot pass a resolution recreating the committee, unless the senators want to violate the Open Meeting Law. Cause and effect: because the Senate did not adopt a proper resolution, the Interim Committee no longer exists.

When A Bill Amends Law, Have It Say That
Today the Senate is scheduled to consider a bill that putatively amends ASUN Public Law 75-7 to add a duty to the Presidential Assistant on Public and Campus Relations (PAPCR). Before mentioning the merit of such a change in duties, first the language of the bill.

A Bill
Expanding the duties of the Presidential Assistant on Public and Campus Relations; Amending Public Law 75-7.

Be it enacted by the Senate of the Associated students,
Amending Public Law 75-7 Sec.402 , by inserting line I after line h, “i.) To be a public and media relations advisor to the Speaker of the Senate and all Committee Chairpersons.”

Aside from the enacting clause not being in the proper form--"students" should be capitalized--(yes, that is in law), the bill does not amend the law. The bill must be drafted in the present tense (i.e. "the ABC Act is amended by..."). Thus, a properly drafted bill would say, after the enacting clause

Section 402 of ASUN Public Law 75-7 is amended by adding at the end the following:
"(i) To be a public and media relations advisor to the Speaker of the Senate and all Committee Chairpersons.".

Instead of saying "inserting," the word "adding" is used, but only when something is being inserted at the end of something else. To insert implies putting it in between something; to add implies putting it at the end. And yes, that double period at the end of the sentence is proper. The period on the inside of the closing quotation mark indicates to include a period to the language that is being added by the amendment. The period mark on the outside of the quotation mark indicates that is the end of the sentence beginning with "Section 402...". Bills must be drafted in incredibly literal terms. No period within the quoted material, no period gets enacted into law.

The title should also be rephrased. Bill titles typically are phrased in infinitive form (e.g. to amend, to establish, to provide, etc.) Thus, the title of this bill should probably read "To amend ASUN Public Law 75-7 to expand the duties of the Presidential Assistant on Public and Campus Relations."

One more thing, is there is a reason the reports and bills aren't being numbered? Is it really that hard to assign a serial number (starting from #1) based on the order in which the various documents are filed? We know the 76th Session had that particular counting deficit, but you guys too?!

One last thing, there is a specific hierarchy to bills. This style was consistently used during the 75th Session. Section, subsection, paragraph, subparagraph, clause, subclause, item, subitem--thus...

Sec. 402. THIS IS A SECTION.
  (a) This is a subsection.
    (1) This is a paragraph.
      (A) This is a subparagraph.
        (i) This is a clause.
          (I) This is a subclause.
            (aa) This is an item.
              (AA) This is a subitem.

Notice that each level in the hierarchy is enumerated with a different style:

• Subsections are enumerated with lowercased alpha characters.
• Paragraphs are enumerated with Arabic numerals.
• Subparagraphs are enumerated with uppercased alpha characters.
• Clauses are enumerated with lowercased Roman numerals.
• Subclauses are enumerated with uppercased Roman numerals.
• Items are enumerated with doubled lowercased alpha characters.
• Subitems are enumerated with doubled uppercased alpha characters.

All enumerations are within parentheses: (##). They are not done like this "##)." or "##)"

Separation of Powers and the PAPCR
Surprisingly, this is something the Government Operations Committee has already noticed in its report: this bill likely violates the separation of powers doctrine. The Committee states, "The Committee on Government Operations...questions the idea of giving an executive position additional duty which lies in the Legislative Branch."

Good job, Committee! So then why didn't you kill this bill in committee? Executive branch officers work for the executive branch. To be subject to two masters, the Senate and the President, would be a bad idea. For that reason alone, if this bill should pass, the President should veto it. His officers should work for him and the government (the executive branch), not for anybody else.

We also note that the Committee recommends an amendment. This is interesting because in original legislation reported from committee (meaning it came straight from committee without being introduced and read the first time in the Senate and referred), there cannot be any amendments. What the committee orders reported to the Senate gets sent to the Senate. Thus, if the Committee amended that language in the bill before reporting it, that language should be carried in the bill.

Of course the senators wouldn't know anything about this form and process stuff because nobody is teaching it to them, not to mention that their so-called advisers are not capable of teaching it.

So far, are senators does not seam to be learnings much. Of course, our expert bill drafters would be willing to assist the senators, but we can't force it upon them. All we can do is write about it here and hope it benefits someone.

Is Our Senators Learning: Phantom Amendment

As a follow-up to our IOSL post on simple resolutions, we find that the Senate tonight is going to be considering yet another "simple" resolution to make an amendment to a set of rules that does not legally exist.

Executive Summary

• The language used in resolutions needs to be exceedingly clear.
• If a resolution is to amend something, the resolution needs to use the word "amend", and not just in the title.
• There are only two types of legislation in the Senate, Bills and Resolutions.
• Resolutions that leave the inner sanctum of the Senate (i.e. are directed to the outside world) need to be polished to perfection. Outsiders will judge you when your resolutions don't look proper in form.
  

The resolution reads as follows:

A BINDING RESOLUTION
To amend Senate Rule XXII, relating to a senator’s absence during the ASUN Senate Transition and Rules Training.

Resolved, That Rule XXII b(3) “Absence will result in an immediate conduct hearing for disciplinary sanctions” from Attendance requirement of the Senate.

We'll ignore the false designation as a binding resolution for a moment. The title of this resolution states that the amendment is to amend a Senate rule. The resolution, however, does not actually do anything except state something. See, a very important word is missing--a verb in fact. How about "amend", like this:

Resolved, That Rule XXII(b)(3) of the Rules of the Senate is amended to read: "Absence will result in an immediate conduct hearing for disciplinary sanctions.".

As is, the resolution doesn't do anything, a common problem early in this session, it seems. If the resolution is to amend something, have the resolution actually say that. The title of the resolution isn't a part of the resolution; it is used merely to help identify one from the next.

"Binding" Resolutions
Setting aside the issue of whether or not there are Senate rules, which is very much in doubt, even assuming that Rule XIV exists, the binding part of that rule provides only that

Types of Legislation
(a) The Senate shall recognize two types of legislation, which shall be known as Bills and Resolutions.

So this "binding" resolution stuff is a designation that the Rules do not call for, even though the Rules go on to say that there are "binding" and "expressed" resolutions. Under the Rules and practice, there are only two types of legislation: "Bills and Resolutions." Calling them "binding" and "expressed" just confuses things.

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There is a second resolution on the Senate agenda tonight, a resolution "To express the condolences of the Associated Students concerning the death of Robert Weems, the founding dean of the College of Business at the University of Nevada, Reno." This is a good thing to do, to be sure, but it has problems, as well. The printed resolution, which is the official document under the Senate's rules, indicates that a former Senator has introduced it. Problem: only actual Senators can introduce legislation.

Second, the resolving clause "Resolved," isn't of the proper form.

Third, the resolutions' preamble (all the "Whereas" clauses) is supposed to come before the resolving clause, not after.

Fourth, the resolution doesn't actually resolve anything except that the Secretary transmit copies of it to several individuals and entities.

Compare the proposed resolution on Weems with this one that was adopted during the 74th Senate Session on Reynolds School of Journalism Dean Cole Campbell.

If you're going to pass a resolution mourning the loss of someone, the least you could do is make sure it follows good form.

Suggestion
Our suggestion is to send both resolutions to committee so two committees can learn about the nuances of resolutions.

Is Our Senators Learning: Simple Resolutions

When the Senators were asking questions of the three candidates for Speaker last week, they asked some really good questions. We were impressed with the quality of the questioning having listened to that meeting's recording. They were focused on the task at hand, stayed on topic, paid attention to detail. They did a singularly magnificent job.

In part four of our series (part 1 and part 2), "Is Our Senators Learning," we will start to examine some of the nuts and bolts of legislation.

Executive Summary
Our Reader's Digest, condensed version:

• The resolutions adopted during the Senate's first meeting on April 15 all suffer from the same problem: they are not clear and specific
• The resolutions also don't do what they were supposed to.
• English verbs have many tenses; they are not equivalent.
  
• This wouldn't be so bad had the first meeting not been scripted.
  

Legislation comes in two flavors in the Senate (despite what the Senators may think given their "maybe" Rules [turns out that the Senate may not have actually adopted rules at its first meeting]). There are bills and resolutions. Only bills create law.

Resolutions are far more varied. The dictionary tells us that a resolution is "A formal statement of a decision or expression of opinion put before or adopted by an assembly." The ASUN Senate is an assembly. Resolutions can adopt Senate rules, state the position of the Senate on some issue, evidence many Senate decisions, elect officers, memorialize the Senate granting consent to an presidential appointment, discipline members, impeach officers, petition other governing bodies to do something--if you can think it, it probably can be a resolution.

At its first Senate meeting, the Senate adopts several resolutions. What distinguishes one resolution from another is what is in that resolution. Each resolution begins the same way. It can have a title, many (but not all) have preambles (Whereas...), and all begin the meat of the resolution with the resolving clause ("Resolved").

First Three Resolutions of a Session
Some of the simplest resolutions the Senate will adopt are during its first meeting. In fact, a law governs what the Senate must do at its first meeting (ASUN Public Law 75-49). They adopt a resolution electing a Secretary, a resolution directing a committee to inform the President that the Senate is organized and ready to proceed to business, and a resolution directing the Secretary of the Senate to notify the President of the election of a Speaker and a Secretary. The Senate literally copies and pastes, with appropriate changes, what the last session did.

Below is the text of three specimen resolutions that were prepared for the 77th Session to use. All they had to do was literally fill in the blanks, so to speak (we've already done that with what the Senate apparently decided).

RESOLUTION
Electing a Secretary of the Senate.

Resolved, That Alejandra Reyes be, and is hereby, chosen Secretary of the Senate.


RESOLUTION
Providing for a committee to notify the President the Senate is organized and ready to proceed to business.

Resolved, That a committee of two Members of the Senate be appointed by the Speaker to notify the President of the Associated Students that a quorum of the Senate has assembled and the Senate is ready to receive any communication that he may be pleased to make.


RESOLUTION
Authorizing the Secretary to inform the President of the Election of the Speaker and the Secretary of the Senate.

Resolved, That the Secretary be instructed to inform the President of the Associated Students that the Senate has elected Gracie Geremia, a Senator from the College of Liberal Arts, Speaker; and Alejandra Reyes, a student from the Reynolds School of Journalism, Secretary of the Senate of the Seventy-Seventh Senate.

What the Senate Actually Adopted

A Resolution
Electing the Speaker of the Senate

Resolved, that Gracie Geremia was elected and will serve as the 77th Session Speaker of the Senate.

Short Title
This Resolution may be cited as the "Election of the Speaker of the Senate"


A Resolution Electing the Secretary of the Senate
Resolved, that Alejandra Reyes was elected and will serve as the 77th Session Secretary of the Senate.

Short Title
This Resolution may be cited as the "Appointment of the Secretary of the Senate"


A Resolution
Announcing readiness of the Senate

Resolved, that the 77th Session of Senate is now organized and ready for business

Explanation
The first resolution is unnecessary. The Senate elects a Speaker by roll call vote under the precedents and law. They don't consider one by resolution. Nominations are taken and a vote is had. The candidate who is first to a majority wins.

The second resolution, the one electing a Senate Secretary, is not in proper form. It is titled "Electing the Secretary of the Senate" but doesn't actually elect a Secretary. It says that a Secretary "was elected". Again, "was" is not the same as "is" or "be".

The third resolution ignored the precedents and practice of the Senate as well. It also ignored the law. It was supposed to direct the Speaker to appoint a committee (like the second specimen above) to inform the President that the Senate is organized. Speaker Geremia still appointed the committee, but the resolution under which she imagined that power didn't say that at all.

We recognize this are all really picky points, but the point we are trying to impress upon the Senators is that the process and form of matters is just as important as what is being done.

What Makes This All Worse...
The whole first meeting was scripted. We obtained a copy of the script that was prepared for the first meeting. All they had to do was read the lines and fill in the blanks. Below are links to the specimen resolutions provided to accompany the script.

(S. Res. 77-1 specimen)
(S. Res. 77-2 specimen)
(S. Res. 77-3 specimen)
(S. Res. 77-4 specimen)

Basically, if they had followed what the last session did and the session before that did, everything would've been peachy and we wouldn't have had the opportunity to write these posts.

Is Our Senators Learning: Rules? What Rules?

After nearly a week, through a close friend of the blog, we have obtained copies of the resolutions the Senate adopted at its first meeting of the session. They are, um, interesting. Yeah, that's the word. In this part of our "Is Our Senators Learning" series, we examine whether the Senate adopted rules of its proceedings at its first meeting of the session.

First of all, it looks like the Senators have the right idea behind all of this. But where their enthusiasm and good intentions abounds, their attention to form and detail lacks.

Executive Summary
For those who want our points in quick-and-dirty form, here they are. For those who want a more detailed explanation, keep reading. We will do these quick summaries on our more complicated IOSL posts. We would strongly encourage all Senators to read the full posts, but certainly the Speaker and the committee chairs, who will need to be experts in legislation to do their jobs well.

• The resolution does not adopt rules; it says that rules have been adopted
• The resolution is too vague
• The rules of one senate do not continue with force into the next Senate unless they are adopted by that senate
• Precision in language is very, very important
  

Below is a copy of S. Res. 77-4, a resolution purporting to adopt rules for the Senate.

S. Res. 77-4: Adoption of Senate Rules

Publish at Scribd

There's just a slight problem. That resolution doesn't actually adopt rules. Below is a specimen version of what a proper resolution adopting rules would have looked like.

S. Res. 77-4: Adoption of Rules--specimen

Publish at Scribd

Can you tell the differences between the two yet? This is why the use of precise and clear language is incredibly important in the Senate. Let's first examine what the Senate passed this session (77th).

A Resolution
Adoption of the Senate Rules

Resolved, that the Senate has adopted the Rules of the Senate pursuant to Article II sec. 2(c) of the Constitution of the Associated Students.

Short Title
  This Resolution may be cited as the "Appointment of the Secretary of the Senate"

We'll ignore the stylistic concerns for now (which are considerable) and look only at substance.

"Has adopted" Does Not Equal "are adopted"
This resolution does not adopt Rules of the Senate; it merely says "that the Senate has adopted the Rules of the Senate" (emphasis added). In other words, all this resolution does is say to the world that the Senate did something. The problem is they never actually did that something. Reading the resolution, which rules are adopted?

The form of the resolution in the specimen is exactly the same as the resolution the 76th Session adopted at its first meeting (except for the designation of which session). The specimen states more specifically,"That the Rules of the Senate of the Seventy-Sixth Session, including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate, are adopted as the Rules of the Senate of the Seventy-Seventh Senate."

Ignoring the business about "applicable provisions of law", the resolution states "That the Rules of the Senate of the Seventy-Sixth Session ... are adopted as the Rules of the Senate of the Seventy-Seventh Senate."

Now you tell me, which resolution is clearer and will provide better information to people looking back at what the Senate did? I am sure the 21 Senators sitting around the table one week ago today all thought that they were adopting rules, but the instrument they passed that actually represents the formal, legal action does not do what they thought they did.

As a legal matter, it appears the Senate did not adopt rules. As a practical matter, since the Senate is the only body who gets to judge its rules, this is likely just an academic exercise. But why shouldn't it be? This is a university and this is a student government. This is a learning opportunity.

The Rules are not continuing in nature
Why is it that the Senate can't simply say that they have adopted rules and just use the rules from the previous session without specifically saying so? The Rules of one Senate session do not continue in force beyond a session. They are not considered to be continuing in nature. Laws have continuing force beyond Senate sessions. They are permanent. However, what one senate does with respect to itself cannot bind future senates. Thus, the rules cannot continue from one session to another.

The legal and parliamentary way around that is to have the new senate adopt the previous senate's rules as its own. Thus the specimen says, basically:

• We are adopting rules
• We are using the last session's rules
• Those rules are adopted as our session's rules

What the 77th Session did is okay in that it presents a learning opportunity. To take advantage of that learning opportunity, the Speaker should place the item back on the agenda so the Senate can have the mistake explained, so they can learn from that mistake, and correct the error.

Is this nitpicky? Hell yes. Does it matter? Absolutely. The Senate is a legislative body and the words it uses matter a great deal. Do we fault them for the error? No---so long as they correct it. It should be fun when some devious senator discovers that the rules are not actually in force, as a legal matter, and tries to take advantage of that fact. Fun indeed.

Is Our Senators Learning: First learning opportunity--Agendas, Deadlines, and Appointments

Being elected to ASUN office is something like being handed a scalpel and told to perform emergency surgery. Stuff must be done quickly and done reasonably well or the patient will be injured or worse. The Speaker has it 10 times worse, easily. Little more than one day after being elected as Speaker, she must draft an agenda for the next meeting, make sure it complies with the Nevada Open Meeting Law, Senate rules, and ASUN law, and be sure it is posted before Friday at 9 a.m., all with hardly any support or guidance. Mistakes are bound to be made, and that's okay. But mistakes are only okay when we learn from them, grow, and don't repeat them.

That is the state of affairs Gracie Geremia was thrown into shortly before 7 p.m. Wednesday when she was elected to be the Senate's leader. It's hard work and you don't really realize how hard it is until you have to do it. As a sign of her dedication to her new job, she was in the office past 11 p.m. last night, as the ASUN website entry for the next Senate meeting demonstrates.

At first glance, the Senate agenda for April 22 looks pretty good. But when you dig a little bit deeper, some opportunities for growth are apparent. Now, please stick with us through the entirety of these posts. These things are complicated and require deliberate exposition. I know it's frustrating, but if you stick with us, you might learn something and become better Senators because of it.

Senate Rule XX and ASUN Public Law 75-37 govern the process of handing presidential appointments to office. (We cite to the 75th Session's rules because the 77th Session's rules are not published yet, but the rule is the same. There is also some doubt about whether the Senate actually adopted rules at its meeting on Wednesday--a problem of form and specificity--but we'll withhold commenting further until we've gathered the documentary evidence to be sure.)

ASUN Pub. L. 75-37 requires that an appointing authority, that's President Reilly for all of the nominations submitted Wednesday, must submit nominations in writing in a specific manner. It must follow a specific form, be transmitted to the Secretary, and sent in a sealed envelope. Our guess is the form was not followed. But that's a fault of the President, not of the Senate.

Senate Rule XX states

(a) (1) The appointing authority shall file written notice with the Secretary of the intention to present an appointee to the Senate no later than 9 a.m. on the Wednesday prior to the Wednesday for which the meeting is scheduled.
(2) The Speaker shall place the appointee, with name and position of appointment, on the agenda for referral to the appropriate committee at the aforementioned Wednesday meeting.

Let's break down the rule and tie it together with the ASUN law. We'll use a specific example. The Committee on Oversight, which has jurisdiction over appointments to office, is scheduled to hold a meeting on April 22 to consider several presidential appointments (agenda--.doc). One of the items on the agenda is the consideration of Patrick Delaplain to be Director of Clubs and Organizations. Section 202(a) of the Executive Branch Act of 2008 (ASUN Pub. L. 75-7) creates that office.

Problem: nominations should not yet appear on the Oversight Committee's agenda. Remember that Senate rule? It says that "the appointing authority [President Reilly] shall file written notice with the Secretary of the intention to present an appointee to the Senate [in the form prescribed by ASUN Pub. L. 75-37] no later than 9 a.m. on the Wednesday prior to the Wednesday for which the meeting is scheduled."

The rule goes on to say "the Speaker shall place the appointee, with name and position of appointment, on the agenda for referral to the appropriate committee at the aforementioned Wednesday meeting." The meeting referred to above can only be the Senate because only the Senate can refer things to committee.

So, the rule states that nominations transmitted by the President must appear on the Senate agenda, listing the person and office of the appointment, so that it can be referred to the Oversight Committee. The flaw with the Senate and Oversight agendas is that it appears the the proper order was skipped.

The process says that the nomination is received by the Secretary and it gets placed on the next possible Senate agenda for reading and referral to committee. So, in the proper order:

1. President submits to Senate Secretary nomination: "I nominate Patrick Delaplain to be Director of Clubs and Organizations, vice Jason Entsminger, term expiring."
2. The Secretary receives the nomination.
3. The Speaker places the nomination on the next Senate agenda if it was submitted before 9 a.m.; otherwise another week must elapse.
4. The item is on the agenda. During the meeting, the nomination is read, and it is referred to the Oversight Committee.
5. Once it has been formally referred, then the item can appear on the Oversight agenda.

Following that example, the time line as it should work for this Senate is as follows:

• Nomination submitted on April 15, after the Senate was organized--that was after 7 p.m. on that day.
• Secretary receives nomination same day.
• Speaker schedules nomination to be read for the April 29 Senate meeting because it was not submitted before 9 a.m. on April 15.
• Nomination gets read and referred to Oversight on April 29.
• After the formal nomination is referred to the committee, only then may it be scheduled for consideration in committee and placed on the committee agenda.

That is how it works.

Now, a couple questions the process should raise: Why cannot the President submit nominations by one week prior to the first Senate meeting so they can be read and referred the night he takes office? Why can't the deadline be ignored?

The Deadline and Its Implications
Rule XX(a) of the Senate Rules sets a deadline for nominations to be received in order to be read at the next Senate meeting. So, why can't the nominations be submitted before the first Senate meeting of a Session? There are several reasons why.

First, the 77th Session did not exist until it convened and was organized on April 15. In order to be organized, the Senate needed to elect a Speaker and inform the President that a quorum was assembled, they had elected officers, and were ready to receive any communication he may be pleased to make (See Item 6(a) on the April 15 Senate agenda--.doc). Constitutionally, the Senate cannot proceed to business unless it has organized. Also, the President needs to be given formal notice that the Senate has convened so he knows he can send them business. I know it seems strange because everybody knew what was going to happen and what needed to happen, but this is a legal process, and it must play out in a very particular order in a very particular way.

Second, the President did not take office until 6 p.m. on April 15 and did not qualify to enter on his office until he was sworn in (ASUN Const., Art. III, sec. 1(f)). Thus, he cannot submit nominations until the executive power to make nominations has been conferred on to him by virtue of entering office by taking the oath. Thus, the soonest he can transmit nominations is April 15, 2009, right after he's been sworn in. The fact that it was an incumbent president being reelected is immaterial because the first point set out in the paragraph above prevents him from sending the nominations to the right Senate. (Remember, the 76th Session ended on April 8 and the 77th Session had not yet been formed.)

Why the Deadline Matters
The deadline is certainly inconvenient when viewed from the perspective that the Senate should move with incredible speed in considering the President's nominations to office. But that's not what the rule is designed to do. It is designed to slow the process down. "Why?" you may ask. Several reasons:

• to prevent quick, rash decisions;
• to allow the Oversight Committee to properly vet nominees;
  
• to allow Senators enough time to gather outside information and perspective to weigh the merits of the nominations;
• to allow members of the Association at large to weigh in and persuade their representatives to vote to conform or not to confirm; and
  
• to slow things down, etc.

When the rule requires a full week to lapse before the nomination can even be read for the first time in the Senate, it puts people on notice to gear up for the nomination process. When another four days must pass for the item to appear on the Oversight Committee agenda, it allows the committee members to begin drafting questions for the nominee. All of this time allows everybody time to think about the nominee instead of just jumping before preparing to jump.

Besides, there really is no rush to confirm nominations. In most of the high executive offices, ASUN Law provides that the terms of office do not end until "Dead Day" in May. Further, even if a successor has not been confirmed and sworn into office by then, the person currently holding the office, in may cases, stays in office until a successor has been appointed and qualifies (ASUN Pub. L. 75-50).

Pressure to act quickly is unwarranted
Put simply, the President wants things to be considered quickly because quick decisions will benefit him (this applies to any president, not only Reilly). Instead, if the Senate has time to really think about whether a person is qualified for office, that could lead to undesirable results for the President.

The Senators will feel compelled to act. The President will pressure them to act quickly. The fact of the matter is the purpose of the Senate is to put a huge damper on moving quickly. The Senate is a deliberative body. Deliberation takes time. The Senate is designed to move slowly on purpose. The President can act quickly, and that makes sense since he is in the branch that executes policy. The legislative branch, however, creates policy, and policy needs to be fully considered before actions are taken.

Yes, the rules can be inconvenient, but only depending on your perspective. Senators, you are elected to be a check on the President. You get to consider and determine the wisdom of the President's acts on behalf of your constituents. Nobody else gets to do it in the same way you do.

Learning the rules also requires thinking about what things would be like if the rule did not exist, or was not followed. Imagine if the Senate was allowed to make a decision on the appointments as soon as they were submitted. Some of the Senators might feel compelled to act because they were being asked for a decision that night. But do you think that would have led to a good result? Hardly hours into their offices, could they really have made a reasonable decision on nominations without taking time to think about it? Important decisions require time to fully consider.

The learning opportunity
The error on the agendas has already been made. The beauty is the error can be contained and corrected in the future. This will take the Speaker acknowledging the error herself and holding off on improper consideration or it will take a Senator to point out the error and object to considering an item in a manner contrary to the rules. The rules are not self-enforcing. It takes a senator to raise an objection, call out an activity as being contrary to the rules, and demand that it be enforced.

A nitpicky, but important, point
The language used by the Senate must be specific, sometimes to the point of absurdity. One such example is on the Agendas posted. The reasons specificity to the point of anal-retentiveness is required is so matters are very clear. Again, this is a legal process ASUN exists in, and legal processes require precise language. The agendas drafted by Speaker Geremia all have one common error: it's not the "IGT Knowledge Center" but rather the "Mathewson-IGT Knowledge Center." Big deal? Probably not, but it matters.