To whomever had the brilliant idea to scrub the ASUN website of history:
Please stop pretending it never happened. Yes, I know the Senate repealed all legislation and reintegrated it into a comprehensive codification, but those documents exist. They happened. Repealing them doesn't make them go away; it just means they don't have present force or effect. By scrubbing the website, you're making historical research next to impossible to conduct solely on the web.
K thx.
Showing posts with label Legislation. Show all posts
Showing posts with label Legislation. Show all posts
Tuesday, May 18, 2010
Sunday, April 18, 2010
So what all is now void, and what remains?
Bringing order to chaos once again will be a difficult task for the 78th Session of the Senate. As I recently pointed out, the first thing they should do is get their bearings. As a gesture of good will, the fine folks at VLEG have compiled a couple of documents that might prove helpful. They are linked below.
Acts Voided Under Judicial Council Cases
Legislative Acts Invalidated
One caveat: I am applying the ruling's findings to all items the petitioner complained against, even if the Council did not specifically address it. My reasoning is two-fold. First, for consistent application and in hopes of finding a holistic solution, logic demands it. The fact is insufficient practices persist, and the rulings give instruction.
Second, procedurally, the defending parties in the cases all admitted liability and did not dispute any material facts. Thus, petitioner was entitled to the judgment she sought in her complaints.
One last point: these documents advocate for corrective action. The Senate is on abundant notice that, as a matter of ASUN law, the standards in the state's open meeting law apply internally and are judicially enforceable. The Senate should now seek to avoid new harm and mitigate past harm by curing it. Indeed, I am merely an observer providing my two cents, but I hope I have demonstrated I am a knowledgeable observer.
Acts Voided Under Judicial Council Cases
Legislative Acts Invalidated
One caveat: I am applying the ruling's findings to all items the petitioner complained against, even if the Council did not specifically address it. My reasoning is two-fold. First, for consistent application and in hopes of finding a holistic solution, logic demands it. The fact is insufficient practices persist, and the rulings give instruction.
Second, procedurally, the defending parties in the cases all admitted liability and did not dispute any material facts. Thus, petitioner was entitled to the judgment she sought in her complaints.
One last point: these documents advocate for corrective action. The Senate is on abundant notice that, as a matter of ASUN law, the standards in the state's open meeting law apply internally and are judicially enforceable. The Senate should now seek to avoid new harm and mitigate past harm by curing it. Indeed, I am merely an observer providing my two cents, but I hope I have demonstrated I am a knowledgeable observer.
Read more...
Wednesday, April 7, 2010
What happens to an office when it is repealed?
Tonight the ASUN Senate will consider a bill to create an ASUN Department of Traditions. Overall, the reorganization of the existing Homecoming Programming Department to include other large events seems to be an interesting idea, although there still isn't a clear reason why there needs to be two programming departments in ASUN.
One thing, though, caught my eye in the bill. It repeals the act establishing the Homecoming Programming Department and the Director of Homecoming Programming without dealing with those who hold office with unexpired terms.
It appears that someone holds the office of director right now. The current officer's term, under the act, expires November 30, 2011. So what happens to this officer should this bill become law?
To me, the critical issue is whether an incumbent has a vested right in continuing to hold office until the natural termination of the term. I really don't know the answer to this question. It seems reasonable to me that the Senate has the unfettered power to abolish the offices it creates, but it also seems reasonable that an officer has some sort of contract right in her appointment to an office.
Thoughts?
One thing, though, caught my eye in the bill. It repeals the act establishing the Homecoming Programming Department and the Director of Homecoming Programming without dealing with those who hold office with unexpired terms.
It appears that someone holds the office of director right now. The current officer's term, under the act, expires November 30, 2011. So what happens to this officer should this bill become law?
To me, the critical issue is whether an incumbent has a vested right in continuing to hold office until the natural termination of the term. I really don't know the answer to this question. It seems reasonable to me that the Senate has the unfettered power to abolish the offices it creates, but it also seems reasonable that an officer has some sort of contract right in her appointment to an office.
Thoughts?
Read more...
Wednesday, March 24, 2010
Senate should abandon laws revision
Given the recent revelations about the cases filed against the Senate and other ASUN officials challenging their legal sufficiency, the Senate might want to wake up and take notice about what is happening.
Just today the Judicial Council informed the parties that it intends to grant summary judgment against ASUN on all remaining cases in light of two ASUN officers admitting liability in the cases.
Sen. Sean Hostmeyer's project to revise and codify all ASUN law is in serious jeopardy given these cases. Practically, the Senate should scrap this project so it can get its bearings in light of the Judicial Council decisions. Much of what ASUN has done during the 76th Senate Session is now invalid, and the application of the precedents could invalidate much of what the 77th Session has done.
The biggest problem at this point is it is entirely unclear what is the law and what is not the law given the decisions against ASUN. Sen. Hostmeyer's project only works if what is being revised and codified is in fact currently law. But under the Open Meeting Law (OML), any action taken in violation of that law is void. The Judicial Council has now ruled that the Senate has engaged in countless OML violations. This is fatal to the revised statutes (now called the revised code) project.
Although in three of the cases the Judicial Council declined to declare the ASUN actions invalid under the OML, ASUN should nonetheless treat them as invalid for a couple of reasons. First, it is the right thing to do. Second, the University and Board of Regents could later step in and invalidate the acts with much more severe consequences. And if some other entity invalidates the underlying acts, the revised statutes would instantly become worthless. There would be no ability to rely on it, defeating its very purpose. The safest thing to do is treat any actions taken as invalid, within the scope of the considered cases, and fix them. Therefore, the senators should scrap the revision proposal, at least until they determine where everything stands. This will take some time.
Most of my previous concerns with the project still apply. I have new concerns about the implementation bill because it creates an inherent conflict in what is the law. The original enactment and the codification? This isn't how codification works. Since ASUN's law and constitution borrows much from the federal system, the Senate would be well advised to borrow the code style the feds use. This would promote consistency and stability, as well as promote the ability for students to learn the styles because many resources are readily available.
Update: For anyone who cares, this is our 200th post. Yay us!
Just today the Judicial Council informed the parties that it intends to grant summary judgment against ASUN on all remaining cases in light of two ASUN officers admitting liability in the cases.
Sen. Sean Hostmeyer's project to revise and codify all ASUN law is in serious jeopardy given these cases. Practically, the Senate should scrap this project so it can get its bearings in light of the Judicial Council decisions. Much of what ASUN has done during the 76th Senate Session is now invalid, and the application of the precedents could invalidate much of what the 77th Session has done.
The biggest problem at this point is it is entirely unclear what is the law and what is not the law given the decisions against ASUN. Sen. Hostmeyer's project only works if what is being revised and codified is in fact currently law. But under the Open Meeting Law (OML), any action taken in violation of that law is void. The Judicial Council has now ruled that the Senate has engaged in countless OML violations. This is fatal to the revised statutes (now called the revised code) project.
Although in three of the cases the Judicial Council declined to declare the ASUN actions invalid under the OML, ASUN should nonetheless treat them as invalid for a couple of reasons. First, it is the right thing to do. Second, the University and Board of Regents could later step in and invalidate the acts with much more severe consequences. And if some other entity invalidates the underlying acts, the revised statutes would instantly become worthless. There would be no ability to rely on it, defeating its very purpose. The safest thing to do is treat any actions taken as invalid, within the scope of the considered cases, and fix them. Therefore, the senators should scrap the revision proposal, at least until they determine where everything stands. This will take some time.
Most of my previous concerns with the project still apply. I have new concerns about the implementation bill because it creates an inherent conflict in what is the law. The original enactment and the codification? This isn't how codification works. Since ASUN's law and constitution borrows much from the federal system, the Senate would be well advised to borrow the code style the feds use. This would promote consistency and stability, as well as promote the ability for students to learn the styles because many resources are readily available.
Update: For anyone who cares, this is our 200th post. Yay us!
Read more...
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...
Wednesday, January 20, 2010
Trying to solve the wrong problem
Tonight the Senate will resume consideration of a bill to create a codified version of ASUN law, the ASUN Revised Statutes. I have previously discussed the bill here. In light of the President and Senate's joint failure to follow the ASUN Constitution and laws on reapportioning the Senate (discussed here), it has become ever more clear to me that Sen. Sean Hostmeyer's bill is unnecessary.
The bill is in fact trying to solve the wrong problem. And, beyond that, the bill will exacerbate the problem that does exist: no one knows the law, and no one is willing to invest the time and energy required to acquire a basic understanding of just what is governed by the law, much less the nuances. Until that problem is solved, everything else is just ugly window dressing.
When the President outright fails to do the duty clearly outlined in statute to report to the Senate the population figures in each college and school and, based upon those figures, the number of seats each college and school is entitled, it indicates he either had no clue a law existed giving him that duty (worst case) or he willfully decided to ignore it (best case). I call willful negligence best case because at least it wasn't willful ignorance. Worse, no senator has, to our knowledge at least, caught this oversight (an overly charitable term, given the circumstances).
The problem isn't that the law is scattered all over the place in several different acts. The problem isn't that bills amending prior law make it difficult to keep the law up-to-date. The problem isn't that all law should be in one place. The problem isn't that the law is inaccessible. No, the problem is much more fundamental. If you don't take the time to find out what law exists, you are in a hopeless position. It's like trying to explain how to tie a shoe to a person who has no conception of what a shoe is, or like asking a blind person to tell you what the color blue looks like. Without a conceptual understanding of the world surrounding them, the best we can expect the senators to do is muddle along.
The problem is the senators and other ASUN officials do not take the time necessary to survey the law for themselves, to take notice of what is spelled out in law, and what is not. After all, with respect to government, the law is just an instruction manual. It tells you what, when, and how to do something. But if you're ignorant of the law, that something will never get done until enlightenment occurs. This reapportionment debacle is case in point.
Before creating another level of complexity, which is all this codification bill really does, the senators and officers need to go back to the basics. Only when the players in this game have mastered the basic skills should they attempt to tackle more complex issues. Listen to any Senate meeting and it is readily apparent that no one has mastered the basics, yet they all share a duty to represent the students, and representing the students implicitly means knowing the basics.
The Senate is not only an extracurricular activity, not only is it something one volunteers to do, but it is essentially a job, a public job. The voters gave them their trust that they'd do a good job. As with any job, a good employee needs to make an effort to be minimally competent at the job. The fact is no senator is, despite all their self-aggrandizing talk about how much good they do for students.
This is a cyclical problem. It has happened in years before I was a senator, it has happened in years since I was a senator, and it will continue to happen until the powers that be make revolutionary changes to how senators are orientated, how they learn what their job is, and how they learn the special skills necessary to be successful senators.
The perennial defense of my criticisms is that I expect too much of them; after all, they are only students. That is true, they are students. So why don't they act like students and start learning?
The bill is in fact trying to solve the wrong problem. And, beyond that, the bill will exacerbate the problem that does exist: no one knows the law, and no one is willing to invest the time and energy required to acquire a basic understanding of just what is governed by the law, much less the nuances. Until that problem is solved, everything else is just ugly window dressing.
When the President outright fails to do the duty clearly outlined in statute to report to the Senate the population figures in each college and school and, based upon those figures, the number of seats each college and school is entitled, it indicates he either had no clue a law existed giving him that duty (worst case) or he willfully decided to ignore it (best case). I call willful negligence best case because at least it wasn't willful ignorance. Worse, no senator has, to our knowledge at least, caught this oversight (an overly charitable term, given the circumstances).
The problem isn't that the law is scattered all over the place in several different acts. The problem isn't that bills amending prior law make it difficult to keep the law up-to-date. The problem isn't that all law should be in one place. The problem isn't that the law is inaccessible. No, the problem is much more fundamental. If you don't take the time to find out what law exists, you are in a hopeless position. It's like trying to explain how to tie a shoe to a person who has no conception of what a shoe is, or like asking a blind person to tell you what the color blue looks like. Without a conceptual understanding of the world surrounding them, the best we can expect the senators to do is muddle along.
The problem is the senators and other ASUN officials do not take the time necessary to survey the law for themselves, to take notice of what is spelled out in law, and what is not. After all, with respect to government, the law is just an instruction manual. It tells you what, when, and how to do something. But if you're ignorant of the law, that something will never get done until enlightenment occurs. This reapportionment debacle is case in point.
Before creating another level of complexity, which is all this codification bill really does, the senators and officers need to go back to the basics. Only when the players in this game have mastered the basic skills should they attempt to tackle more complex issues. Listen to any Senate meeting and it is readily apparent that no one has mastered the basics, yet they all share a duty to represent the students, and representing the students implicitly means knowing the basics.
The Senate is not only an extracurricular activity, not only is it something one volunteers to do, but it is essentially a job, a public job. The voters gave them their trust that they'd do a good job. As with any job, a good employee needs to make an effort to be minimally competent at the job. The fact is no senator is, despite all their self-aggrandizing talk about how much good they do for students.
This is a cyclical problem. It has happened in years before I was a senator, it has happened in years since I was a senator, and it will continue to happen until the powers that be make revolutionary changes to how senators are orientated, how they learn what their job is, and how they learn the special skills necessary to be successful senators.
The perennial defense of my criticisms is that I expect too much of them; after all, they are only students. That is true, they are students. So why don't they act like students and start learning?
Read more...
Wednesday, December 16, 2009
ASUN Revised Statutes: An interesting idea, but poorly executed
Tonight, the ASUN Senate is set to take up Sen. Sean Hostmeyer's ASUN Revised Statutes bill. The bill is an attempt to create a single volume codification of ASUN law of a general and permanent nature. The bill, while an interesting and even anticipated idea, is poorly executed.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
Read more...
Monday, September 14, 2009
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
Read more...
Wednesday, July 8, 2009
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
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.
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.
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:
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'!
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,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.
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.
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 BILLWe've discussed other points of bill drafting convention in other posts.
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.
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'!
Read more...
Friday, May 29, 2009
Updated: Falling on Deaf Ears
Update: May 31, 2009 at 7 p.m.
The whole issue is now moot. The Assembly overrode the Governor's veto. S.B. 283 is now law.
Update: May 31, 2009 at 10 a.m.
Looks like the whole issue of this ASUN Senate resolution might become entirely moot. Last night, the Nevada Senate overrode the Governor's veto to S.B. 283. The bill is in the Assembly today for an attempt at an override. On passage in the Assembly, the measure fell two votes short of the two-thirds required to override the Governor's veto. That means the Assembly will need to find two more yes votes in order to override the veto.
VLEG has obtained exclusively a copy of a memo said to have been prepared for the ASUN Senate.*
M E M O R A N D U M
To: Senate of the Associated Students, UNR
From: Nevada Legislature
Re: S.B. 283
In case you haven't heard, the Nevada Legislature will adjourn no later than June 1, 2009. That comes before June 3, 2009. The resolution (E. Res. 77-__) you will be considering to encourage us to override the Governor's veto on S.B. 283, the domestic partner legislation, won't get to us in time. (By the way, what the hell is an E. Resolution anyway?)
As you may not be aware, the Nevada Constitution requires us to adjourn no later than 120 days after convening(art. 4, sec. 2(2)). That day is Monday, June 1, 2009, during this legislative session. Because of that, should your "E. Resolution" pass, no one will be here to receive it, read it, care anything about it, etc.
It is commendable that you are taking an interest in our business, but taking up a resoltuion urging us to do something and not bothering to look at a calendar--the expression "falling on deaf ears" comes to mind, but it's much, much worse. It's like showing up to a party several weeks late. Where were you guys back when this bill was being heard? This resolution should've been ready for presentation during the hearings on this bill, which were over a month ago, not after we've already adjourned for the biennium.
We'd say "nice try," but this has "FAIL" written all over it. In the future, we recommend that you learn about the legislative process before you do something as embarrassing as misrepresent your Association. (And your I. Res.'s and E. Res.'s--the hell?)
*Not really, but it sure would be hilarious.
The whole issue is now moot. The Assembly overrode the Governor's veto. S.B. 283 is now law.
Update: May 31, 2009 at 10 a.m.
Looks like the whole issue of this ASUN Senate resolution might become entirely moot. Last night, the Nevada Senate overrode the Governor's veto to S.B. 283. The bill is in the Assembly today for an attempt at an override. On passage in the Assembly, the measure fell two votes short of the two-thirds required to override the Governor's veto. That means the Assembly will need to find two more yes votes in order to override the veto.
VLEG has obtained exclusively a copy of a memo said to have been prepared for the ASUN Senate.*
M E M O R A N D U M
To: Senate of the Associated Students, UNR
From: Nevada Legislature
Re: S.B. 283
In case you haven't heard, the Nevada Legislature will adjourn no later than June 1, 2009. That comes before June 3, 2009. The resolution (E. Res. 77-__) you will be considering to encourage us to override the Governor's veto on S.B. 283, the domestic partner legislation, won't get to us in time. (By the way, what the hell is an E. Resolution anyway?)
As you may not be aware, the Nevada Constitution requires us to adjourn no later than 120 days after convening(art. 4, sec. 2(2)). That day is Monday, June 1, 2009, during this legislative session. Because of that, should your "E. Resolution" pass, no one will be here to receive it, read it, care anything about it, etc.
It is commendable that you are taking an interest in our business, but taking up a resoltuion urging us to do something and not bothering to look at a calendar--the expression "falling on deaf ears" comes to mind, but it's much, much worse. It's like showing up to a party several weeks late. Where were you guys back when this bill was being heard? This resolution should've been ready for presentation during the hearings on this bill, which were over a month ago, not after we've already adjourned for the biennium.
We'd say "nice try," but this has "FAIL" written all over it. In the future, we recommend that you learn about the legislative process before you do something as embarrassing as misrepresent your Association. (And your I. Res.'s and E. Res.'s--the hell?)
*Not really, but it sure would be hilarious.
Read more...
Wednesday, May 20, 2009
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.
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:
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.
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.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:
(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.
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:You'd do essentially the same thing for adding new offices to each tier.".
"(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.
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.
Read more...
Thursday, May 7, 2009
Why Barry Belmont's Single-mindedness Indicates a Useless Philosophy
Barry Belmont of the UNR Students for Liberty recently took time to comment on a recent post on Vis Lupi about illegal redaction of personal information be done to applications for the open College of Liberal Arts Senate seat. It is his opinion that "dumb" laws need not be followed. Here is one reason why he is wrong.
If a society agrees to, and forms around, the idea that it should be governed by laws, to allow any individual to arbitrarily choose what laws are "bad" or "dumb" means the rule of law is consequentially dead. Perhaps this particular violation cited by Vis Lupi and commented on by Belmont is ultimately meaningless but what Vis Lupi is attempting to report on is a trend in ASUN.
The individuals in ASUN have shown an inclination to ignore laws they find inconvenient or cumbersome. They also like to claim ignorance because the system is too complicated for them to understand. This is not fair to those that create expectations and behave in a manner befitting the rule of law. This behavioral asymmetry will lead to a culture that eventually places no value in following the rules of the law, and that culture will descend into anarchy.
While I'm sure the UNR Students for Liberty would love that, it is a scenario that if allowed to proceed apace will destroy any efficacy ASUN has. ASUN is partly a deliberative body. Deliberative bodies need rules so all members can participate on a level playing field. While I’m not particularly concerned if ASUN implodes or not, I would rather they succeed if they are going to be taking $5/credit hour from every undergraduate student. It’s not the law itself, it’s the idea that any person gets to choose what laws are worth following, that is a serious problem in ASUN.
If a society agrees to, and forms around, the idea that it should be governed by laws, to allow any individual to arbitrarily choose what laws are "bad" or "dumb" means the rule of law is consequentially dead. Perhaps this particular violation cited by Vis Lupi and commented on by Belmont is ultimately meaningless but what Vis Lupi is attempting to report on is a trend in ASUN.
The individuals in ASUN have shown an inclination to ignore laws they find inconvenient or cumbersome. They also like to claim ignorance because the system is too complicated for them to understand. This is not fair to those that create expectations and behave in a manner befitting the rule of law. This behavioral asymmetry will lead to a culture that eventually places no value in following the rules of the law, and that culture will descend into anarchy.
While I'm sure the UNR Students for Liberty would love that, it is a scenario that if allowed to proceed apace will destroy any efficacy ASUN has. ASUN is partly a deliberative body. Deliberative bodies need rules so all members can participate on a level playing field. While I’m not particularly concerned if ASUN implodes or not, I would rather they succeed if they are going to be taking $5/credit hour from every undergraduate student. It’s not the law itself, it’s the idea that any person gets to choose what laws are worth following, that is a serious problem in ASUN.
Read more...
Wednesday, May 6, 2009
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
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.
This is what they actually passed.
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.
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:
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.
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.
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 BillAside 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
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.”
Section 402 of ASUN Public Law 75-7 is amended by adding at the end the following: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.
"(i) To be a public and media relations advisor to the Speaker of the Senate and all Committee Chairpersons.".
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.
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.
Read more...
Friday, May 1, 2009
Putting the cart before the horse
Does anybody in ASUN follow the law? An e-mail from the newly-confirmed (we hope sworn, too) Director of Programming:
Hmm. "Chairpersons" and "Co-Chairpersons," with those "Co-Chairpersons" being paid $1,500 per year. Hmm. I wonder if that's been authorized in law.
Nope.
So calling them "chairs" and "co-chairs" seems to be just made up. Totally out of thin air. So what about the pay? Turns out that's not authorized either.
ASUN Public Law 75-48 sets out the compensation for most executive officers of ASUN. Nowhere do I find "co-chairs" or "Assistant Programmers."
As it turns out, just kidding.
Oh, real nice of you to include the Senate as an afterthought. Typically, the executive branch goes to the Senate to get permission in law first before executing it, but maybe you didn't get that memo yet.
This isn't real hard folks. Until there is authorization in law, you cannot act like there is. Thus, these "co-chair" positions don't have compensation. It's more legally questionable where there is authority for "chair" or "co-chair" designations to be made in the first plcae, given ASUN Pub. L. 75-7.
From: Casey Stiteler <directorprogramming@asun.unr.edu >
Date: Thu, Apr 30, 2009 at 5:01 PM
Subject: [clubs] 2009-2010 Flipside Productions Applications
To: "flipside@lists.asun.unr.edu" <flipside@lists.asun.unr.edu>, "senate@lists.asun.unr.edu" <senate@lists.asun.unr.edu>, "clubs@lists.asun.unr.edu" <clubs@lists.asun.unr.edu>, "flipside_volunteers@lists.asun.unr.edu " <flipside_volunteers@lists.asun.unr.edu >To Whom It May Concern:
Attached is the 2009-2010 Flipside Productions application. Please feel free to distribute these applications to anyone in your organizations that may be interested in applying.
Flipside Productions Program Chairpersons are paid $3,000 a year and Co-Chairpersons are paid $1,500 a year.
Respectfully,
Casey Stiteler
Associated Students of The University of Nevada
Director of Programming
directorprogramming@asun.unr.edu
775.722.3216
"Try not to become a man of success but rather to become a man of value. " -Albert Einstein
ASUN Clubs & Orgs | clubs@lists.asun.unr.edu | 775-784-6589 | www.asun.unr.edu
Hmm. "Chairpersons" and "Co-Chairpersons," with those "Co-Chairpersons" being paid $1,500 per year. Hmm. I wonder if that's been authorized in law.
Nope.
SEC. 303. NOMINATION OF PROGRAMMERS; NOMINATION OF ASSISTANT PROGRAMMERS.(Section 303 of ASUN Public Law 75-07)
(a) There is to be nominated by the Director not more than 8 Programmers to assist the Director with the proper execution of his or her office.
(b) Each Programmer may nominate a number of Assistant Programmers as he or she may deem necessary to carry out the functions and duties of the Programmer’s office.
So calling them "chairs" and "co-chairs" seems to be just made up. Totally out of thin air. So what about the pay? Turns out that's not authorized either.
ASUN Public Law 75-48 sets out the compensation for most executive officers of ASUN. Nowhere do I find "co-chairs" or "Assistant Programmers."
As it turns out, just kidding.
From: Casey Stiteler
Date: Thu, 30 Apr 2009 17:17:06 -0700
To: sentate@lists.asun.unr.edu<sentate@lists.asun.unr.edu >; clubs@lists.asun.unr.edu<clubs@lists.asun.unr.edu >; flipside@lists.asun.unr.edu<flipside@lists.asun.unr.edu >; flipside_volunteers@lists.asun.unr.edu <flipside_volunteers@lists.asun.unr.edu >
Subject: [clubs] 2009-2010 Flipside ApplicationI apologize for not attaching the application to the last email. Please note that the creation of the Flipside Productions Co-Chairperson position will be created pending ASUN senate approval and the number of applicants.
Respectfully,
Casey Stiteler
Associated Students of The University of Nevada
Director of Programming
directorprogramming@asun.unr.edu
775.722.3216
"Try not to become a man of success but rather to become a man of value. " -Albert Einstein
ASUN Clubs & Orgs | clubs@lists.asun.unr.edu | 775-784-6589 | www.asun.unr.edu
Oh, real nice of you to include the Senate as an afterthought. Typically, the executive branch goes to the Senate to get permission in law first before executing it, but maybe you didn't get that memo yet.
This isn't real hard folks. Until there is authorization in law, you cannot act like there is. Thus, these "co-chair" positions don't have compensation. It's more legally questionable where there is authority for "chair" or "co-chair" designations to be made in the first plcae, given ASUN Pub. L. 75-7.
Read more...
Tuesday, April 28, 2009
Can the ASUN Attorney General? Part Two.
Updated to include Executive Summary
As we stated in our last post in this subject, we said we'd give our readers the first chance to comment on this item. In an e-mail to us, Senator Purney was grateful that we withheld our comments.
Brief Recap
As a recap, Senator Jessica Purney (Education) is introducing a bill Wednesday to eliminate the the ASUN Attorney General position, currently held by Lindsey Sanford. President Reilly has renominated Sanford for a third term as AG. A similar bill was introduced in the last hours of the 76th Session, but was quickly killed.
Executive Summary
The ASUN Attorney General has been something of a controversial position ever since it was created. Practically forever ago (2007), then ASUN President Sarah Ragsdale decided to create the Attorney General position without any legislative action whatsoever. Senators at the time decried the action of the President as bypassing the Senate's constitutional role. The new constitution's taking effect intervened and the Senate later enacted the position into law.
President Ragsdale nominated Lindsey Sanford to be the first AG. The nomination was made days after the Senate rejected Sanford's petition to be seated to a vacant Senate seat (Sagebrush). She didn't receive a single vote to be a Senator. Seeing that the Senate was clearly satisfied with her qualifications, Ragsdale nominated Sanford to be AG. The Senate ended up confirming her, despite the objections of a single senator. It was later revealed that the decision to nominate Sanford was made after the Senate soundly rejected her for the vacant Senate seat because Ragsdale "felt bad for her."
Since that time, Sanford has been reappointed to a second term. She is now nominated by Reilly for a third term as AG.
Role of the AG
There are many good reasons for eliminating the position. Sanford has been the subject of much criticism about giving poorly reasoned opinions (will be the subject of a future post), taking government pay while vacationing in Washington, D.C., and not being around when needed.
However, too much focus shouldn't be placed on Sanford when looking to eliminate the position; the bill is about the office, not Sanford.
Under the law, the ASUN Attorney General has essentially three duties:
The AG also has some duties related to elections, as expressed throughout the Election Code. Generally speaking, for elections the duties are:
Merits of Eliminating the Position
Senator Purney, apparently for herself and former senator Jennifer Richards, proposes to eliminate the position altogether. We can see several reasons for eliminating the position.
First, the AG position is unnecessary. There is not enough demand within ASUN to necessitate the executive branch having an official who specializes in ASUN law. Further, not enough cases are filed in the Judicial Council to warrant having a designated representative to argue the case for the executive branch.
Second, since the Senate must represent itself in the Judicial Council, so too should the executive.
Third, the Election Commission is capable of prosecuting elections cases in a more nonpartisan manner. The AG is not going to be willing to prosecute cases. For instance, is it likely that Sanford would file charges against Reilly when Reilly intends to reappoint her if reelected? This is what happened in this past election.
Fourth, other areas in ASUN can pick up the slack created by eliminating the position. The Archivist already has primary responsibility to do one of the AG's duties. Other agencies can pick up the rest of the slack.
Those would be reasonable grounds to base a decision to eliminate the AG. However, that probably isn't the real reason behind all of this. This is (probably) what is:
That would be a good reason to not confirm Sanford as AG for a third term, but not for eliminating the office.
Merits of Keeping the Position
The biggest reason for keeping the position is also the biggest reason for preventing the incumbent from having it for a third term:
Is the problem with the position? Or is it with the person who is the only one to have held the position since it was created? A comparison: The 76th Session senators decried the Election Code as being too complicated and that it was the problem with Nicole Nelson administering a horrible election in 2008. Then Sean Driscoll came along in 2009 and ran a pretty good election cycle--all with the SAME code! Before eliminating the position, the senators need to look closely at whether it is the position or the person. We argue it's the person.
Merits of the Bill
If Senator Purney still believes that AG position should be eliminated, perhaps her beliefs will change when we examine, in detail, the provisions of her bill.
Some Language Gets Left Behind
The bill does not eliminate all references in statutory law relating to the Attorney General. In fact, section 4 bill strikes the wrong compensation provision from the law. The law cited in section 4 of the bill was an appropriations bill. As such, those provisions only had effect for a single fiscal year. The provision that needs to be stricken is in section 2(c)(3) of ASUN Public Law 75-48, the Executive Compensation Act of 2008, which contains the permanent law relating to the AG's compensation. The bill also fails to repeal section 10 of ASUN Public Law 75-50, which sets the term of office for the AG.
Unnecessary Provision
Section 2 of the bill is unncessary. Section 2 of the bill would assign the constitutional amendment duties of the AG to the Archivist. But, as we explained above, the Archivist already has that duty.
Bad Ideas
Sections 3 and 5 of the bill cause the most concern. Those sections would reassign the remaining duties of the AG, including the election duties, to the Director of the Legal Services agency in ASUN. There are several problems with this approach. First, the Legal Services agency is not established in ASUN law. It's something the 75th Session senators never got around to doing.
Second, the Director of Legal Services is beyond the reach of the Senate's disciplinary powers. He is not an officer of the government so much as he is an employee of the administrative aparatus headed by the Director of ASUN. He does not take an oath to support the Constitution. Further, the Director of the program is not accountable to the executive. He is not accountable to the ASUN government; he is accountable to his employer--Sandy. He is beyond the ASUN government.
Third, the Legal Services program is designed to be separate from the "partisan" function of the ASUN government. Making the Director of the program subject to partisan, political influences would compromise his ability to provide impartial services to clients.
Fourth, an inherent conflict would be created by reassigning the election duties to the Director of Legal Services. One of the election duties is to essentially act as a prosecutor, going after candidates who violate the Election Code. But, under ASUN Public Law 75-41, there is an office of Student Advocate within the Legal Services program. The Student Advocate is empowered to represent students being prosecuted by the ASUN government. In essence, the same office would be at once prosecuting and defending the same case. That is a massive conflict no matter how you slice it.
We heard a rumor that it was the Legal Services director who approached Purney about getting the AG's duties reassigned to him. If that's the case, this person probably does not deserve to be Legal Services Director, as he would willingly compromise his office's ability to provide impartial, nonpolitical services to its clients.
Eliminating the AG position seems to be a solution in want of a problem. The real issue is the current AG is not cut out for the job. But rather than address what seems to be a "personal" issue (it's really professional issue), the senators seem keen on avoiding the real problem by simply eliminating the office.
The AG position is not a bad position. It certainly has room to grow, could benfit from having its duties more clearly defined, and could benefit from better guidance on the part of the "advisers." Eliminating the postion is an extreme and unnecessary step. Just like we learned with the Election Code, many times it's the person and not the office that is the problem. In short...
Matters of Form
For the geeks who care about how to write bills, continue reading.
Although the effect is the same, there is a difference between "striking" part of a law and "repealing" part of a law. Repealers are usually reserved for larger segments of a law (section, title, etc.); striking language is usually reserved for smaller segments of a bill (a subsection, paragraph, etc.) When you strike a provision, the provisions that follow need to be redesignated. Example: an amendment that says "section 6 of the ABC Act is amended by striking subsection (c), the law would look like this:
A problem with the langauge in the bill is it doesn't actually strike anything. When you say "Title VI shall be stricken.", all that really means is it should be at some future point. But bills amend law, so the bill should be phrased in the active, present tense.
Thus, in section 1 of the bill, Title VI and section 706 of Title VII should be repealed. Also, material in the section heading is not binding. Thus, the first section of the bill should read
A more complete version of the first section would read
The remaining sections of the bill suffer from the same phrasing problem.
As we stated in our last post in this subject, we said we'd give our readers the first chance to comment on this item. In an e-mail to us, Senator Purney was grateful that we withheld our comments.
I just wanted to thank you for posting the proposed bill on your website and not scrutinizing it. I like that you're using your blog as a means to gather constituents opinions. I know I have my grievances toward the AG position but now I can read others' views. Thanks!Any time, Senator. Unfortunately, this blog is about scrutinizing the actions (or inaction) of ASUN. So, without further adieu, we present our analysis of the bill to eliminate the ASUN Attorney General position. Follow us across the jump for the rest of the post.
Brief Recap
As a recap, Senator Jessica Purney (Education) is introducing a bill Wednesday to eliminate the the ASUN Attorney General position, currently held by Lindsey Sanford. President Reilly has renominated Sanford for a third term as AG. A similar bill was introduced in the last hours of the 76th Session, but was quickly killed.
Executive Summary
- Lindsey Sanford SUCKS AT HER JOB.
- The bill suffers from critical drafting errors.
- The bill, if passed, would create more problems than it would solve.
- The problem is with the occupant of the office, not with the office itself.
The ASUN Attorney General has been something of a controversial position ever since it was created. Practically forever ago (2007), then ASUN President Sarah Ragsdale decided to create the Attorney General position without any legislative action whatsoever. Senators at the time decried the action of the President as bypassing the Senate's constitutional role. The new constitution's taking effect intervened and the Senate later enacted the position into law.
President Ragsdale nominated Lindsey Sanford to be the first AG. The nomination was made days after the Senate rejected Sanford's petition to be seated to a vacant Senate seat (Sagebrush). She didn't receive a single vote to be a Senator. Seeing that the Senate was clearly satisfied with her qualifications, Ragsdale nominated Sanford to be AG. The Senate ended up confirming her, despite the objections of a single senator. It was later revealed that the decision to nominate Sanford was made after the Senate soundly rejected her for the vacant Senate seat because Ragsdale "felt bad for her."
Since that time, Sanford has been reappointed to a second term. She is now nominated by Reilly for a third term as AG.
Role of the AG
There are many good reasons for eliminating the position. Sanford has been the subject of much criticism about giving poorly reasoned opinions (will be the subject of a future post), taking government pay while vacationing in Washington, D.C., and not being around when needed.
However, too much focus shouldn't be placed on Sanford when looking to eliminate the position; the bill is about the office, not Sanford.
Under the law, the ASUN Attorney General has essentially three duties:
- to issue advisory opinions concerning the law, legislation, or any other Act of the Association;
- to attend all meetings of the Select Committee on Rules (obsolete provision); and
- to publish the Constitution of the Associated Students when amended.
The AG also has some duties related to elections, as expressed throughout the Election Code. Generally speaking, for elections the duties are:
- to verify petitions for placement on the ballot; and
- to prosecute Election Code violations in the Judicial Council.
Merits of Eliminating the Position
Senator Purney, apparently for herself and former senator Jennifer Richards, proposes to eliminate the position altogether. We can see several reasons for eliminating the position.
First, the AG position is unnecessary. There is not enough demand within ASUN to necessitate the executive branch having an official who specializes in ASUN law. Further, not enough cases are filed in the Judicial Council to warrant having a designated representative to argue the case for the executive branch.
Second, since the Senate must represent itself in the Judicial Council, so too should the executive.
Third, the Election Commission is capable of prosecuting elections cases in a more nonpartisan manner. The AG is not going to be willing to prosecute cases. For instance, is it likely that Sanford would file charges against Reilly when Reilly intends to reappoint her if reelected? This is what happened in this past election.
Fourth, other areas in ASUN can pick up the slack created by eliminating the position. The Archivist already has primary responsibility to do one of the AG's duties. Other agencies can pick up the rest of the slack.
Those would be reasonable grounds to base a decision to eliminate the AG. However, that probably isn't the real reason behind all of this. This is (probably) what is:
Lindsey Sanford sucks at her job.
That would be a good reason to not confirm Sanford as AG for a third term, but not for eliminating the office.
Merits of Keeping the Position
The biggest reason for keeping the position is also the biggest reason for preventing the incumbent from having it for a third term:
Lindsey Sanford really sucks at her job.
Is the problem with the position? Or is it with the person who is the only one to have held the position since it was created? A comparison: The 76th Session senators decried the Election Code as being too complicated and that it was the problem with Nicole Nelson administering a horrible election in 2008. Then Sean Driscoll came along in 2009 and ran a pretty good election cycle--all with the SAME code! Before eliminating the position, the senators need to look closely at whether it is the position or the person. We argue it's the person.
Merits of the Bill
If Senator Purney still believes that AG position should be eliminated, perhaps her beliefs will change when we examine, in detail, the provisions of her bill.
Some Language Gets Left Behind
The bill does not eliminate all references in statutory law relating to the Attorney General. In fact, section 4 bill strikes the wrong compensation provision from the law. The law cited in section 4 of the bill was an appropriations bill. As such, those provisions only had effect for a single fiscal year. The provision that needs to be stricken is in section 2(c)(3) of ASUN Public Law 75-48, the Executive Compensation Act of 2008, which contains the permanent law relating to the AG's compensation. The bill also fails to repeal section 10 of ASUN Public Law 75-50, which sets the term of office for the AG.
Unnecessary Provision
Section 2 of the bill is unncessary. Section 2 of the bill would assign the constitutional amendment duties of the AG to the Archivist. But, as we explained above, the Archivist already has that duty.
Bad Ideas
Sections 3 and 5 of the bill cause the most concern. Those sections would reassign the remaining duties of the AG, including the election duties, to the Director of the Legal Services agency in ASUN. There are several problems with this approach. First, the Legal Services agency is not established in ASUN law. It's something the 75th Session senators never got around to doing.
Second, the Director of Legal Services is beyond the reach of the Senate's disciplinary powers. He is not an officer of the government so much as he is an employee of the administrative aparatus headed by the Director of ASUN. He does not take an oath to support the Constitution. Further, the Director of the program is not accountable to the executive. He is not accountable to the ASUN government; he is accountable to his employer--Sandy. He is beyond the ASUN government.
Third, the Legal Services program is designed to be separate from the "partisan" function of the ASUN government. Making the Director of the program subject to partisan, political influences would compromise his ability to provide impartial services to clients.
Fourth, an inherent conflict would be created by reassigning the election duties to the Director of Legal Services. One of the election duties is to essentially act as a prosecutor, going after candidates who violate the Election Code. But, under ASUN Public Law 75-41, there is an office of Student Advocate within the Legal Services program. The Student Advocate is empowered to represent students being prosecuted by the ASUN government. In essence, the same office would be at once prosecuting and defending the same case. That is a massive conflict no matter how you slice it.
We heard a rumor that it was the Legal Services director who approached Purney about getting the AG's duties reassigned to him. If that's the case, this person probably does not deserve to be Legal Services Director, as he would willingly compromise his office's ability to provide impartial, nonpolitical services to its clients.
Eliminating the AG position seems to be a solution in want of a problem. The real issue is the current AG is not cut out for the job. But rather than address what seems to be a "personal" issue (it's really professional issue), the senators seem keen on avoiding the real problem by simply eliminating the office.
The AG position is not a bad position. It certainly has room to grow, could benfit from having its duties more clearly defined, and could benefit from better guidance on the part of the "advisers." Eliminating the postion is an extreme and unnecessary step. Just like we learned with the Election Code, many times it's the person and not the office that is the problem. In short...
It's not the position but Lindsey Sanford who sucks.
Matters of Form
For the geeks who care about how to write bills, continue reading.
Although the effect is the same, there is a difference between "striking" part of a law and "repealing" part of a law. Repealers are usually reserved for larger segments of a law (section, title, etc.); striking language is usually reserved for smaller segments of a bill (a subsection, paragraph, etc.) When you strike a provision, the provisions that follow need to be redesignated. Example: an amendment that says "section 6 of the ABC Act is amended by striking subsection (c), the law would look like this:
Section 6. Blah blah blahWhen the amendatory language says "section 6(c) of the ABC Act is repealed, it would look like this:
(a) Text.
(b) Text.
(d) Text.
Section 6. Blah blah blahThe first result looks like a drafting error. The second result tells the reader exactly what happened.
(a) Text.
(b) Text.
(c) Repealed.
(d) Text.
A problem with the langauge in the bill is it doesn't actually strike anything. When you say "Title VI shall be stricken.", all that really means is it should be at some future point. But bills amend law, so the bill should be phrased in the active, present tense.
Thus, in section 1 of the bill, Title VI and section 706 of Title VII should be repealed. Also, material in the section heading is not binding. Thus, the first section of the bill should read
(a) Title VI and section 706 of the Executive Branch Act of 2007 (ASUN Public Law 75–7; 75 ASUN Stat. 17) is repealed.Notice the complete formal citation--(ASUN Public Law 75–7; 75 ASUN Stat. 17)--is included in the law. Amendatory langauge must be very literal so it is abundantly clear what is being talked about.
A more complete version of the first section would read
SECTION 1. REPEAL OF THE CREATION OF THE OFFICE OF THE ATTORNEY GENERAL.Notice none of the operative language is in the section heading and the language is abundantly clear.
(a) Title VI and section 706 of the Executive Branch Act of 2007 (ASUN Public Law 75–7; 75 ASUN Stat. 17) are repealed.
(b) Section 4(c)(1) of the Presidential Succession Act of 2008 (ASUN Public Law 75–38; 75 ASUN Stat. 107) is amended by striking “Attorney General,”.
(c) Section 2(c)(3) of the Executive Compensation Act of 2008 (ASUN Public Law 75–48; 75 ASUN Stat. 124) is amended by striking “, the Attorney General”.
(d) Section 10 and paragraph (5) of section 11 of the Executive Officer Term Limits Act of 2008 (ASUN Public Law 75–50; 75 ASUN Stat. 129) are repealed.
The remaining sections of the bill suffer from the same phrasing problem.
Read more...
Friday, April 24, 2009
Can the ASUN Attorney General?
Updated at 5:40 p.m. to include compensation info.
Senator Jessica Purney (Education) is introducing a bill next Wednesday to can (read eliminate) the ASUN Attorney General position, currently held by Lindsey Sanford. President Reilly has renominated Sanford for a third term as AG. This bill was introduced in the last hours of the 76th Session, but was quickly killed.
Before we discuss the merits of this particular bill (and the bill itself), we wanted to give our readers a first shot. What are your ideas? Is the AG position worth keeping? Is it a problem with the position or the person holding the position?
We have supplied laws relating to the AG below.
Compensation
The Attorney General makes $5,000 per year, according to the Executive Compensation Act of 2008.
Resources
Executive Branch Act of 2007 (Title VI)
Election Code (sec. 4, generally, and secs. 10, 11, 14, 15)
Judicial Rules of Procedure (various provisions)
Senator Jessica Purney (Education) is introducing a bill next Wednesday to can (read eliminate) the ASUN Attorney General position, currently held by Lindsey Sanford. President Reilly has renominated Sanford for a third term as AG. This bill was introduced in the last hours of the 76th Session, but was quickly killed.
Before we discuss the merits of this particular bill (and the bill itself), we wanted to give our readers a first shot. What are your ideas? Is the AG position worth keeping? Is it a problem with the position or the person holding the position?
We have supplied laws relating to the AG below.
Compensation
The Attorney General makes $5,000 per year, according to the Executive Compensation Act of 2008.
Resources
Executive Branch Act of 2007 (Title VI)
Election Code (sec. 4, generally, and secs. 10, 11, 14, 15)
Judicial Rules of Procedure (various provisions)
Read more...
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