Who Speaks for the Senate?

Short answer: In general, the Senate does.

In our last post, we briefly mentioned how the ASUN's statement regarding alleged workers' rights violations by a manufacturer of Russell Athletic apparel, of which the ASUN Bookstore is a customer, raised some interesting issues because of who signed onto the message. Sen. Brandon Bishop (Liberal Arts), who is the Senate's parliamentarian and chairman of the Phantom Committee (Interim Operations Committee), signed on to the statement with ASUN President Eli Reilly.

The statement said that "members of the Associated Student (sic) Senate have conducted thorough research and analysis" of several reports alleging Russell Athletics' misconduct. The statement went on to say that "the Associated Students of the University have instructed the ASUN Bookstore to cease all orders of Russell Athletic merchandise. Furthermore, Marie Stewart[,] the Manager of the Associated Student (sic) Bookstore has been instructed by the Association to search for a new supplier of Wolf Pack Merchandise." The message also relays that "[a]t the instruction of the Association, the Bookstore will cease ordering from Russell, all reserves of merchandise from Russell Athletic will continue to be sold by the Bookstore as to not impact scholarship funding for the Association."

The message concludes that "[u]pon the conclusion of the Senate of the Associated Students investigation into the actions of Russell Corporation a final recommendation will be released," presumably to follow up on a recommendation request from the President of the University (a recommendation regarding what specifically is unknown).

The statement raises a few issues. First, the statement, in several places, mentions that the ASUN has directed its bookstore manager to stop ordering from Russell Athletic, to search for a new supplier of apparel, but to sell off all of the inventory in stock, and that once all Russell stock has been sold, the purchase or sale of Russell gear is banned. Under what authority, explicit or implicit, did President Reilly have to unilaterally direct to the bookstore these policies? Very little statutory law enacted by the Senate discusses the formal relationship between the bookstore and the government of the Association. What little law does exist defines reporting and budget requirements. So the question remains, does the President have authority over the bookstore?

If you're of the view that the bookstore is part of the executive branch of ASUN, and that the bookstore manager reports to the ASUN President, then it would be reasonable to assume that the ASUN President has authority to direct the manager what to do, who to use as suppliers, what to buy and sell, etc. However, the relationship isn't that simple.

In reality, the bookstore manager is just another University administrator. She reports to the Associate Vice President of Student Life services, Gerald Marczynski, the same person to whom the director of the Associated Students/Student Activities, Sandy Rodriguez, reports to. The Associated Students "owns" the bookstore, true, but more formally the relationship is closer to how the student body of the University "owns" the student union: the Board of Regents hold it in trust for the ASUN. With that understanding, the relationship between ASUN and its bookstore, and the President and the bookstore's manager, gets a little fuzzy.

Let's compare it to a similar relationship: ASUN to its director, Sandy Rodriguez. The director of ASUN is also the director of the University unit known as Student Activities. It's a fine distinction, one that even we don't have a firm grasp on--it's hard to tell where ASUN ends and Student Activities begins. We do know that ASUN foots the bill for all of it. Rodriguez reports to Marczynski in the same way that Stewart (the bookstore manager) does. However, there is an implicit understanding that the ASUN director's job is to carry out the day-to-day functions of the Association, under the direction of the Association's leadership (i.e. the elected and appointed student officers). It shouldn't be much of a stretch to believe that the relationship should work the same way with the bookstore and its manager.

More reality: historically, ASUN has left the management, operation, and policy choices regarding the bookstore to its management. Think of it like this: ASUN is the owner but leaves the management up to someone else. Thus, it should be rare for the owner to intervene in the management of the operation.

It's pretty clear that ASUN owns the bookstore. It's less clear to what extent ASUN has authority over its operation. It's not inherently unreasonable to state that the ASUN President has the authority to direct the bookstore to do certain things. However, given that the ASUN Senate has never defined the relationship, or put into law the current relationship, the ASUN President is acting in a gray area.

Now, as far as the Senate is concerned, this should be a big clue to wake up and legislate. The Senate is the policy making branch of the Association, and it should make some policy defining the relationships, especially respecting the ASUN President's authority over the bookstore.

This finally brings us to Sen. Bishop. The statement talks about how the Senate has "conducted thorough research and analysis" of the issues surrounding Russell. The message seems to imply that the Senate had some say in directing the bookstore to take the aforementioned actions regarding Russell Athletic merchandise. Notice that the statement doesn't say that "I (President Reilly)" or "we (Reilly and Bishop)" have directed the actions. It says "the Association" has.

The fact that Bishop signed off on the statement would seem to imply that the Senate was behind it, yet (as far as we can tell) the Senate has taken no action on this item. The Phantom (Interim) Committee has only discussed the matter. Keep in mind, the Interim Committee has no authority to do things on its own. It's just like any other Senate committee: it takes the Senate's action to give effect to a committee's recommendations. Since the Senate has not acted on this, it seems clear that the Senate is not behind this statement.

Thus, it would appear that Sen. Bishop was a little overzealous in attaching the Senate to it. If Bishop was merely signing onto the parts of the statement indicating that the Senate was investigating, that would be fine, but he signed onto the whole statement. In that case, it might have been better to release two statements: one defining the Senate's role and the other discussing the actions Reilly took.

Another aspect is that the Interim Committee doesn't have any inherent authority to initiate actions. Under the original authorizing resolution adopted during the 75th Senate Session (S. Res. 75-29, page 221 here), the Interim Committee has "the authority specifically to consider legislation from any Standing Committee or discharge any legislation from any Standing Committee with the consent of the Standing Committee chairperson." It appears that the Interim Committee only has authority to consider stuff the other standing committees were handling at the time the Interim Committee existed. Notice the consent of the committee chair involved is required for the Interim Committee to handle a matter. Even under a more expansive view, the Committee can only do things that other committees can do with the consent of the appropriate chair. This is to prevent the Interim Committee from unilaterally depriving a committee of its jurisdiction. Remember, the purpose of the Interim Committee, according to the original resolution, is "to conduct specific business of the Senate Committees during times of break."

Now, as we previously covered here, the Interim Committee right now has no real legal authority because it was never properly constituted. So all of this discussion is pretty much academic.

One last thing to consider, as an aside. The role of the ASUN Bookstore is to serve the university community. It isn't a profit making enterprise, at least not in the traditional sense. The revenue the bookstore generates above and beyond the cost of doing business is reinvested at the University, through scholarships and funding for campus improvements, as directed by ASUN. There used to be a profit sharing agreement with the Graduate Student Association, but it lapsed without being renewed. (Interesting question: any bets as to whether GSA is still getting its cut even though the profit sharing agreement lapsed more than a year ago?)

It's what it doesn't say that matters

Recently, the Associated Students released a statement by ASUN President Eli Reilly denouncing Russell Athletic for its alleged workers' rights violations at its recently closed Jerzees de Honduras plant. ASUN, through its bookstore, is a licensee and customer of Russell Athletic merchandise. Apparently, the ASUN Senate has been conducting an investigation into these matters, although it must've been a big secret since it never appeared on an agenda (which is interesting because Reilly's statement says that "members of the Associated Student (sic) Senate have conducted thorough research and analysis" of this issue.

The matter of the workers' rights violations isn't what is interesting to us, although it is good that the ASUN will be denouncing Russell Athletic's behavior by taking their business elsewhere. What's interesting is the fact that this joint statement between ASUN's executive and legislative branches wasn't signed on to by the Senate's leader, Gracie Geremia. Instead it was Phantom Committee chairman Brandon Bishop who joined Reilly in the statement. What, Gracie not good enough?

What's even more interesting is that the statement implies that the Senate stands behind the message, yet there's been no action by the Senate on this subject.

Is Our Senators Learning: Committee Jurisdiction

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


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

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

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

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

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

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

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

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

Executive Summary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Phantom Committee

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

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

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

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

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

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

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

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

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

Is Our Senators Learning: Retreats and the Open Meeting Law

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

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

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



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

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

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

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

Remember, "meeting" is defined as:

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

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

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

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

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

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

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

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

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

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

ASUN Summer Vacation

We here at Vis Lupi Est Grex hope that all the ASUN folks heading up to Tahoe for the retreat remember that the exciting weekend you're spending at the Lake is paid for from the pocket of the students, most of whom would just as soon elect not to pay their ASUN fees and use that money to enjoy a weekend at Tahoe themselves.

Shortest Summer Break Ever!

Perhaps I was a little premature in announcing summer break. The Senate may be in "recess" until August, but the Speaker has called a special meeting for next Friday, June 12. The Senate is scheduled to take up the nominations the Oversight Committee considered yesterday, as well as a bill authorizing the SAFE program (after the program was funded yesterday in the Senate's budget) (VLEG story).

Senate's Out For the Summer

Last night, the Senate voted to adjourn until the fall semester. Congratulations, senators! Mr. President Eli Reilly now has the authority to recess appoint all pending nominations and vacant positions until the Senate reconvenes. And how can you say no to a candidate who has been working all summer? I wonder what that means for the Oversight Committee meeting held last night to consider the nominations of several individuals to multiple offices. I suppose it was sort of held in vain, since the Senate won't be around to consider its recommendations.

And since the Senate is out for the summer, I suppose so will this blog. We'll have sporadic posts, but for now, enjoy your summer break.

Is Our Senators Learning: Beyond the Senate's Power

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

ASUN FY 2010 Proposed Budget

Publish at Scribd

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

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

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

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

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

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

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

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

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

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

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

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

When the Cat's Away...

Nevada Sagebrush, how did you drop the ball on this story?

Don't you think it would've been helpful to report the reason the meeting was postponed?

Weak sauce, Sagebrush. We expect more from you.

Seriously, What's So Hard About This?

The Open Meeting Law (Chapter 241 of the Nevada Revised Statutes) is not a hard law to follow. The law itself is only six printed pages long. The Nevada Attorney General has published a manual to assist public bodies in complying with the law, setting out best practices to follow. This is not a very complicated law.

So why is it that the ASUN Senate, seemingly at every turn, manages to engage in practices that are of questionable legality with respect to this law? Keep reading...

Facilities Must Be Reasonably Large
The Open Meeting Law informs us that "all meetings of public bodies must be open and public, and all persons must be permitted to attend any meeting of these public bodies" (NRS 241.020(1)). What exactly does it mean that meetings be "open and public" and that "all persons must be permitted to attend any meeting"?

Well, the Attorney General has discussed this in her office's manual. At section 8.03, the Attorney General advises, "Public meetings should be held in facilities that are reasonably large enough to accommodate attendance by members of the public." In an Attorney General's Open Meeting Law Opinion, the Attorney General wrote

A public body's failure to conduct an open meeting in a large enough facility, in effect, creates an improperly closed meeting. See Open Meeting Laws 2d, A. Schwing, § 5.76, at 231 (2000). Therefore, it is the legal duty of a public body to attempt to provide meeting space sufficient to accommodate the expected number of attendees including, under certain circumstances the anticipated heightened emotions of a larger number of attendees.

(OMLO 2005-14).

The ASUN Senate is scheduled to hold a meeting on June 3, 2009, in room 404 in the Mathewson-IGT Knowledge Center. A review of the facility shows that the room has a capacity of 18 persons (link). This poses a couple of problems:

1. The Senate has 22 members. Assuming all members are physically present, there won't even be enough room for the senators, much less for any members of the public who may wish to attend.
2. Even if several of the senators are not physically present (assume that just a quorum of 15 members is physically present), that leaves only three seats for the public. Add in the Senate's secretary, advisers, the President, other ASUN department heads ( the budget for the next fiscal year is being considered at this meeting), the room is woefully inadequate in size.

A room with a capacity not even large enough for all of the members and staff of a public body cannot possibly be "reasonably large enough to accommodate attendance by members of the public" because it isn't even large enough to accommodate attendance by members of the public body itself.

This meeting takes the place of the last meeting that was canceled because we pointed out that the notice and agenda for the meeting was not posted in time to take into account the Memorial Day holiday during the posting period. The meeting was canceled as the appropriate corrective response to that deficiency.

This meeting, too, should be canceled because the facilities are not reasonably large enough to accommodate members of the public. The Senate Chamber is adequate, but the reason the Knowledge Center was selected is probably because the Student Union closes at 7 p.m. (It should be noted that the Knowledge Center only stays open for an additional hour. The Student Union, however, is open until midnight on Tuesdays.)

Rooms Must Remain Unlocked During Meeting
Another meeting scheduled could pose a different problem related to facilities. An Oversight Committee meeting is scheduled for 8:30 p.m. on June 3. The meeting will be held in room 206 of the Ansari Business Building. Holding after-hours meetings usually is not a problem during the school year because the Student Union is open late. During the summer, it's a different story.

Has the Committee made arrangements to ensure that there will be public access to ABB after-hours for the duration of the meeting? Meetings have been held in the Business Building during the summer before, but often the exterior doors were locked and the access to the building nearest the meeting room had to be propped open with a chair. The State Attorney General advises that "If a citizen is denied access to a meeting because of [locked] doors, a violation of Nevada's open meeting law would occur."

Accordingly, if the exterior doors to the Business Building do not remain unlocked, and if there are not directions to an unlocked access door to the building on the locked doors, the public would be denied access to the meeting location. A violation has not occurred yet, but the potential for a violation is ripe.

A Related Note...
On a related note, this blog has been criticized of late for unreasonably attacking the Senate as a whole for the alleged violations of a few individuals, namely the Speaker of the Senate, Gracie Geremia. Our rejoinder: of course the whole Senate should be criticized. The Speaker is merely an officer of the Senate; she is responsible to the body as a whole. Her mistakes are the body's mistakes.

This is not the first alleged violation of the Open Meeting Law that has occurred during this session. This is the second meeting in a row where a deficiency has been pointed out before the meeting has occurred (link). One meeting was held this session in violation of the law (link). Almost half a dozen cases have been filed against the Senate for violating the Open Meeting Law.

This is not a new theme, as the following Sagebrush articles demonstrate:

• http://nevadasagebrush.com/blog/2008/10/01/senate-approves-stiteler-as-flipside-director/
  
• http://nevadasagebrush.com/blog/2009/02/10/senate-to-vote-on-censure-2/
• http://nevadasagebrush.com/blog/2008/09/09/asun-violates-meeting-law/
• http://nevadasagebrush.com/blog/2008/02/27/senate-votes-to-censure-todd/
• http://nevadasagebrush.com/blog/2007/11/01/asun-minute-late-agenda-post-under-review/
• http://nevadasagebrush.com/blog/2008/10/14/asun-officer-charged-for-two-constitutional-violations/
• http://nevadasagebrush.com/blog/2008/10/13/asun-leaders-need-to-show-leadership/
• http://nevadasagebrush.com/blog/2008/12/09/student-senate-criticized/

Senators have been censured for violating the Open Meeting Law. Vice Presidents have been forced to resign amid impeachment over Open Meeting Law violations. Meetings have been canceled because of Open Meeting Law violations. This law is not hard to follow, provided the officers charged with following it make the effort to do so.

Last session, Speaker Priscilla Acosta, was made an example of because of the violation of the Open Meeting Law she committed. One violation led to that. Ms. Geremia is already up to at least four violations. Will this Senate hold her accountable? Even if they don't, will Geremia make a concerted effort to become an expert on the Open Meeting Law and learn from her frequent mistakes? Only time will tell.

In the meantime, the Senate meeting should be canceled yet again, and the student's business hijacked yet again, because one individual fails to do her job and to do it well.

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.

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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.

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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.

How does a Senate defend itself?

Several of the complaints recently filed in the ASUN Judicial Council (read all of them here), in addition to naming the office of the Speaker of the Senate (the Senate's elected leader), name the Senate as a respondent (defendant in the real world). This presents a unique circumstance. How does a multi-member body defend itself?

The power of the Senate is not vested in any one member. The power of the Senate is in a majority of the votes of the members. Nobody under the Senate's Rules is authorized to represent the Senate when it is sued. The only body that can authorize representation is the Senate. In the meantime, the Senate has lawsuits to defend. If it does not authorize someone to defend its collective interests, the petitioner in all of these cases could move for summary judgment against the Senate (and win on such a motion) because the Senate does not answer the complaints and offer a defense.

Therefore, Speaker Geremia should place on the Senate agenda for next week an item authorizing appointment of counsel to represent the Senate's interests before the Judicial Council. It could authorize the Speaker to do so, but since the Speaker is named in the complaints, the Senate's interests could be adverse from Ms. Geremia's interests--differing and contrary to one another.

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

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

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

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

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

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

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

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

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

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

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

Random Number?

Quick note, maybe someone who knows can help us out.

The Senate minutes as of late have a marginal note, "AN-77-1004" for example. Looks like a serial number of sorts. Any idea what the AN stands for?

The serial number looks like a great idea to help find stuff faster.

<< POLITICIAN >> is an idiot.

Barack Obama is an idiot: http://tinyurl.com/pg26zl

George Bush is an idiot: http://tinyurl.com/q9xs3m

Harry Reid is an idiot: http://tinyurl.com/o5n3an

Dean Heller is an idiot: http://tinyurl.com/r9srbz

Students who choose to enter public service should anticipate and welcome some degree of criticism for their actions. They should also expect to be held accountable for their decisions.

What I'm noticing is that certain Senators want to have the sunny parts of public service without having any of the serious responsibilities. Any politician who thinks that way is an idiot.

Update: Summer Meetings, What?

I guess I spoke too soon. According the the agenda posted on the ASUN website Senator Kealy has submitted a resolution to recess the Senate until August.

Kealy, Get Your Head Out of Your Ass

Kealy, maybe you're a good guy, but you seem to have managed to shove your head so far up your ass being pissed off at the anonymous posters that you can't actually read anymore.

There are several posters to this blog. Two of them, Corinna and Shane, use our real names (i.e., not anonymous). If you knew anything about either one of us, you would realize that both of us can probably speak more intelligently about doing things on the internet that come back to bight you on the ass than anyone else you know.

The previous post isn't about the guy's fucking birthday or the fact that he's drinking under the age of 21. I drank every weekend from my first weekend at UNR when I was 18 until I turned 21 and then I kept drinking. You know the one thing I never did when I was under 21: I never posted a comment, a note, an event, etc. where I explicitly said I'm going to get drunk this weekend. And even now, I try to avoid it.

But even today, that is probably not enough. I don't care if the event is closed. Unless you're sure every single person on your friends list is actually a very good friend who won't burn you, don't post shit like that. Employers Google current and potential employees. They look to see if someone parties a little too hard. If someone makes a sexist comment (e.g., women flowing like salmon). If someone makes a comment about not liking work. You have to be smart about your "digital footprint".

College is, despite your beliefs to the contrary, not some magical fairyland, with a magical barrier with delightful little gnome guardians to keep out the big bad world, where you get to prance around doing whatever the fuck you want until the magical day when you graduate and get teleported to the "real" world. You and Neben, and all of your colleagues, are over 18. You are legally adults. You break the law, you get caught, you get a criminal record. If the University finds out or is involved, you're probably going to go through some disciplinary proceedings and could end up with a disciplinary note on your transcript.

I don't care if this guy drinks every night between now and when he turns 21. What I do hope, as he is supposedly a leader, is that he has the common sense not to advertise it. I hope all 22 people around that table realize it. Ask Reilly, he almost ended his ASUN career playing what he thought was a practical joke. Ask me about the real world consequences of breaking the law while in college.

You've got people who experienced the consequences of not being diligent enough giving you advice and you're getting yourself so worked up over some perceived slight you can't even comprehend the message. I would suggest you try and pull your head out of your ass and actually read, but I don't imagine that will work. You've probably already shut down and are trying to figure out a way to respond and completely ignore any value that might be derived from the post.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Diaz obviously has the right idea about bills.

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

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

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

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

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

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

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

Is Our Senators Underage Drinking?

If you're one of the elite student leaders on campus, and you choose to engage in underage drinking, do you:

a) On reconsideration, do not drink. Being caught will earn you a visit with Sally J. Morgan, and it's too risky;

b) Do so discreetly, only amongst trusted friends; and safely, by discouraging binge drinking and having appointed designated drivers; or

c) Publicly advertise a huge party with underage, binge drinking far from where any emergency services can reach if something goes seriously wrong.

Did any of us drink while underaged? Perhaps. Almost certainly. Yeah. But we didn't wave a huge flag around advertising it. That is incredibly poor judgment.

Was The Law Broken? Does it Matter?

Obviously, this is a question only a court is allowed to answer in a formal way, but sometimes another process can play out.

Because of the adversarial nature of the conflict between Corinna Cohn and the ASUN and its officers, I think something has been lost. There are a couple simple questions I hope the Senate and Speaker Geremia ask themselves before proceeding to trial against Ms. Cohn.

1. Do I think I violated the Nevada Open Meeting Law?
   
2. If so, should I try to correct my own mistake?

In the instance of a mis-posted agenda, this is pretty simple. The following might be hyperbole, but I doubt it's far from the truth. In the three years I've been involved in ASUN, probably every single committee chair and speaker has mis-posted an agenda. Think of it as a rite of passage. The difference between most of those cases (specifically when individuals and/or the body became aware of the problem) and what I see happening now (and last year) is that there doesn't seem to be very much interest in admitting error and correcting it.

In two cases (AN-001 and AN-002) the remedy is quite simple for ASUN. In the case of the meeting agendized as occurring in 2008 (it didn't occur in 2008, it has held in 2009), the remedy is perhaps stupidly simple. Agendize a meeting with all the actions that occurred during that meeting and redo the actions. It might take like 10 minutes if there is no public comment on items. It wouldn't even require seeking settlement with Ms. Cohn. If it was done properly, the Judicial Council would have no interest in the allegations because the complaint becomes moot. In cases involving inadequate notice (i.e., insufficient detail), the solution is similar, although slightly more difficult to execute. But a solution might work something like this.

1. Ask Ms. Cohn what agendas her evidence found to be deficient.
2. Find the actions items under those agendas.
   
3. Find thedocuments (e.g., bills, resolutions, minutes)
   
4. Properly agendize the items for a new meeting
   
5. Pass it all

If there are no objections to recreating the actions of previous meetings, which there shouldn't since all the people voting are operating under the assumption it all passed regardless, the meeting part should be inconsequential. The difficult part will be finding all the documentation.

But, alas, all this is premised on the assumption that the 77th Session admit the 76th Session did something wrong. And it requires the Speaker to be willing to work with Ms. Cohn and Ms. Cohn to work with the Speaker. And perhaps the animosity that has built is too much to overcome at this point. But dammit this is not hard to fix.

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Updated at 10:35 a.m. by Lupus
I added links to the referenced cases.

A Thoughtful Question

I had a conversation today with one of the ASUN advisors. She made a point that got me thinking (smacks of irony, right?). An underlying premise of a lot of the ideas of this blog is bad advising.

However, when the advisors do speak up, they are often accused of having an agenda. To start with, of course they have an agenda, but that doesn't mean it is an insidious, Sith-like agenda. More importantly, however, is this question:

If being quiet makes you a bad advisor and speaking up makes you manipulative, what is a "good" advisor to do? If I don't happen to agree with the actions (or actions through inaction) of an advisor, does that make that advisor bad?

I know how I would respond if asked the question as a hypothetical. I'm not sure I know where I stand as far as ASUN is concerned. The confluence of circumstances facing the Seventy-Sixth Session at the beginning of the last school year did a pretty good job of setting them up to fail. They had new rules that, despite the objections to the contrary this is sure to raise from some of my colleagues, were not simple. The complexity comes partly from the number of rules that were created in such a short time and partly from the style of prose I think. They had a new advisor that didn't get up to speed quickly enough to address some of the problems. And they had inexperienced, and sometimes ineffectual, leadership.

What concerns me most, right now, is that some of the errors that happened last year seem to be happening again. God help them if this session lets minutes pile up like last session did. I don't think that will happen. But I am concerned that the phrase "substantively reflect” isn’t quite understood. There is a very good, very simple reason the minutes need to reflect the substance of conversations, especially when it comes to legislation. Ms. Cohn has several examples of inadequate minutes causing problems:

• There is an enrolled bill that never passed the Senate;
• There is no evidence that the meeting where the budget for this fiscal year was passed even occurred, other than testimony from Senators. But since that meeting occurred about a year ago, I think there is no way to be sure what actually occurred during that meeting is reflected in the budget;
  
• One bill was enrolled twice.

Given that state of affairs, how can anybody be sure what is on the books after this past year is actually what was actually intended? I think it's important.  I think it's important that what the 22 people sitting around the table say they want to do is what actually gets done. Maybe it's not. Maybe the current Senators think it's stupid, laughable, and petty that I think it's important, but I do. And a lot of other people do as well.

However, back to the question. What does Yvonne need to do? Should she coddle the Senators? Should she hound them until they do it correctly? Should she let them fail and face what consequences may come? I don't know.

Big time?

You know you've hit the big time when you inspire parodies.

We welcome the newest member of the vigilant ASUN blogging community into our ranks: http://vismitchyestgrex.blogspot.com/

Good luck with your blog, guys. We're flattered.

"What the hell are you doing here?"

Wisdom from TV shows. In an episode of The West Wing called "Take This Sabbath Day," Martin Sheen's character, President Bartlett, is seeking counsel from his priest over whether or not to grant a stay of execution to a man who will be killed in minutes. The Father says

You remind me of the man that lived by the river. He heard a radio report that the river was going to rush up and flood the town, and that the all the residents should evacuate their homes. But the man said, "I'm religious. I pray. God loves me. God will save me." The waters rose up. A guy in a rowboat came along and he shouted, "Hey, hey you, you in there. The town is flooding. Let me take you to safety." But the man shouted back, "I'm religious. I pray. God loves me. God will save me." A helicopter was hovering overhead and a guy with a megaphone shouted, "Hey you, you down there. The town is flooding. Let me drop this ladder and I'll take you to safety." But the man shouted back that he was religious, that he prayed, that God loved him and that God will take him to safety.

Well... the man drowned. And standing at the gates of St. Peter he demanded an audience with God. "Lord," he said, "I'm a religious man, I pray, I thought you loved me. Why did this happen?" God said, "I sent you a radio report, a helicopter and a guy in a rowboat. What the hell are you doing here?

Speaker Gracie Geremia has unwittingly found herself in a world of hurt, being named as a respondent to several lawsuits in the ASUN Judicial Council. She has been offered help in the past. She has been offered counsel and guidance. She has declined, having faith that things will work themselves out for the best. She has declined, believing that she will escape unscathed. She has declined, believing her course of action to be correct.

Gracie, you're being sent a radio report, a rowboat, and a helicopter. We don't want to ask you this later on: Gracie, what the hell are you doing here?

Summer meetings? What?

According to the meeting minutes of the May 6th meeting of the Senate, the Senators will be holding biweekly meetings during the summer. This is ambitious to say the least. Every Senate for the last couple of years has made the same statement and didn't deliver. Last session they tried to meet only to block President Reilly from making recess appointments and could barely make quorum. On the ASUN website, it says the Senate will be meeting on 5/20 but no agenda has been posted yet.

Meeting over the summer is only good if the Senate plans on accomplishing something. Otherwise they are just preventing the Interim committee from being able to legally meet and get some work done. (We previously noted that the Interim Committee does not exist, but the Senate could reestablish the committee at any time.) However, we all know how Interim committees can turn out after the debacle of Jeremiah Todd in the 75th Session and his inability to post agendas, and the two senators turned deserters, Herman and Purney, that nearly crippled the Interim Committee of the 76th Session. The track record for interim committees is not that impressive. I will not even go into case filed by George Higgins against then president Jeff Champagne for allocating funds improperly during the summer months in the interim period (under the previous constitution through the Executive Board).

Not having an interim committee of core senators may prove to be a disastrous move for this Senate. Everyone begins with good intentions and high expectations for themselves, but based on experience, the summer weather and activities usually win out to sitting indoors debating legislation. Remember, the quorum of the Senate is 2/3 of the members, and for committees a majority. It could wind up being harder to meet and get stuff done than they realize.

I hope that the Senate will make good on its promise to meet and complete important work this summer. Both the Judicial and Executive branches are working this summer. Why not make it a crowd with all three branches attending?

Explication of a Theory on Failure to Follow the Law

In an earlier post, I gave two possibilities for why individuals ignore the laws:

    1. It is inconvenient or cumbersome to follow it,
    2. It is too complicated to follow.

Some would argue it is not because people find the law inconvenient. I believe there are several very plain examples of where this is the case:

    • Eli Reilly and the budget,
    • Jeff Champagne, Sarah Ragsdale, and Eli Reilly with a bookswap,
    • Priscilla Acosta and Gracie Geremia with posting locations,
    • Making sure minutes (more generally records of the association) are up to date (e.g., minutes, reports, legislative history).

However, if you disagree with me that the above alleged violations occurred because it was too difficult or too burdensome to follow the law, then I would ask that you prove violations don’t occur for the second reason.

But, let me take the argument from the side of those who say that the people violating the law are people who just want to do good (ignoring the resume whores), and they haven't gotten their heads around all the laws and rules (you’ll notice that this argument puts violators in my second category).  

OK. That's fine. Vis Lupi, among others, exists partly to point out the failures we are aware of. Often, the individuals targeted admit the mistake. Sometimes they don't.

Sometimes they stonewall. Sometimes they ignore the point. Sometimes they indicate we should go fuck ourselves.

But if we aren't saying, you can't do this. Or look at this law please. Or are you aware of this? Who will? If you believe one of our contributors, ASUN committed an act of age discrimination while an advisor was in the room (and even if it wasn’t illegal it was definitely poor practice). Corinna Cohn has filed 11+ lawsuits alleging violations of the law. Obviously there is a failure in the system. I've spoken to close to a dozen senators over the past two years who believe their advising was inadequate (including two incumbents this year). Part of the mission of this blog, as it has evolved, is to attempt to fill a serious performance deficiency on the part of the advisors.

To make my argument very clear: you don’t get to argue these people are trying to learn and then say we are petty for trying to help them learn.

On a side issue. I’ve personally spoken to both Speaker Geremia and Senator Hostmeyer about some of the issues this blog has brought up. I laid out a very clear strategy, to both of them, for addressing many of the minor points that both Vis Lupi and Corinna have raised. I set up a meeting between Corinna and Gracie in hopes of trying to establish a rapport, with the goal a mutually agreeable resolution to many of Corinna’s complaints. Nothing was done about the complaints. So, to make another thing clear: the authors of this blog have talked to people and have suggested solutions and have been ignored.

Rodriguez, others accused of embezzling student fees

Hundreds of thousands of dollars worth of student fees were allegedly embezzled by the Director of Student Activities and the budget coordinator.

read about it here

From the article:

"Rodriguez, prosecutors say, had a more luxurious appetite and spent hundreds of thousands of dollars on high-end brands such as Gucci and Prada."

This is the sort of thing that happens when there is insufficient oversight to the budget process. It happened at Tufts, and it could happen at UNR if those responsible for appropriating and spending the money aren't held to account when they do it illegally.

Of Age Discrimination and ASUN

Previously we blogged about the illegal acts committed by the ASUN Senate when it used age as a factor in determining whether Erin Gelmstedt should be appointed to the vacant Liberal Arts seat. One commenter noted that provisions of the Age Discrimination in Employment Act of 1967 might exempt the Senate from the prohibitions set out in that act.

Well, as it turns out, laws can be pretty complicated, and, given the whole of our research, we stand by our original claim that, from the information available to us, the Senate likely engaged in illegal age discrimination. For the reasons we'll set out below, we'll show that the commenter is wrong, but not for the reason of his comment.



The Age Discrimination in Employment Act of 1967, which is codified at chapter 14 of Title 29, United States Code (sections 621 et seq.) (references to section numbers are to the codification in the USC The chief prohibition of the act is carried in section 623 of the Act, which reads

(a) Employer practices
It shall be unlawful for an employer--
 (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age

Pretty simple, right? Employers cannot use age as a reason for failing or refusing to hire someone. Well, there's more to it than that. Section 631 sets age limits for which the Act applies.

(a) Individuals at least 40 years of age
The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.

Well damn. By the Act's provisions, it does not apply to what ASUN did, because for as old as Ms. Gelmstedt is (that's a joke, btw), she's still a long ways from ancient (i.e. 40).

Well bummer. Because the Act does not apply, I need not point out the flaws with our commenter's remark that section 630, the definitions that apply to the Act, makes the Senate exempt.

(f) The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.

I initially commented back that this definition probably does not apply to the Senate and would require further analysis in a separate post. This post isn't that post.

But the age discrimination question still isn't settled. See, federal law is pretty big, and there's another law relating to age discrimination that might apply. It's called the Age Discrimination Act of 1975.

That Act, which is codified at 42 USC 6101 et seq., states, in section 6102, "no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance. "

The definitions of that Act, set out in section 6107, go on to say that

(4) the term "program or activity" means all of the operations of--
...
(B)(i) a college, university, or other postsecondary
institution, or a public system of higher education...
...
any part of which is extended Federal financial assistance.

That means that if any part of the University of Nevada, Reno, receives federal financial assistance, the Age Discrimination Act of 1975 applies to all of its programs and activities. I can tell you right now that Nevada receives federal financial assistance. Because of that, it is illegal for the Senate to discriminate based on age.

But, there's one question left unanswered: Is ASUN part of the University? The answer is yes. The only reason ASUN gets to exist is because the Board of Regents allows ASUN to exist, and therefore is part of the University. And if ASUN is a part of the University, the Act's prohibitions apply to it.

The Age Discrimination Act of 1975 does not include the same definitional exclusion that the Age Discrimination in Employment Act of 1967 does regarding employees elected to public office of a state or political subdivision thereof. Therefore, that language does not apply under the Act that does apply to Ms. Gelmstedt's situation.

The bottom line is the Senate cannot discriminate based on age, and that is why we stand by our original comment.

PS. To "death on a triscuit": "Maybe not all the research was done before hand this time..." Right back at you, buddy.

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.

Congrats Sen. Neely!

In all the craziness of groupthink and advisors helping the Senate to violate State and Federal law, we forgot to congratulate the newest Senator from the College of Liberal Arts!

Congratulations Senator Jacob Neely!  

We have high hopes for you!