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75TH SESSION REPORT

20072008 7536
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ASUN SENATE
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE
ASSOCIATED STUDENTS REGARDING THE IMPEACHMENT OF
OFFICERS AND JUSTICES


FEBRUARY 13, 2008.Reported to the Senate and ordered printed



Mr. ANDERSON, from the Committee on Government Operations,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. Res. 7545]

The Committee on Government Operations, having had under con-
sideration S. Res. 7545, by a nonrecord vote, report the same to the
Senate without recommendation that the resolution be agreed to and
the constitutional amendment contained therein proposed to the
members of the Association for consideration during the 2008 General
Election.
BACKGROUND AND CONTEXT
The resolution proposes an amendment to the Constitution of the
Associated Students regarding what type of conduct constitutes an
impeachable offense for officers and justices.
The amendment is in response to the fact that the Constitution as
agreed to by the Regents differs from the Constitution as was agreed
to by the Students.
On June 21, 2007, legal counsel to the University requested that
certain language in Article III, sec. 4(a), and in Article IV, section
4(a), be deleted. The section as proposed by the Senate and approved
by the Association in general election was in the following words and
figures, to wit: (a) The President, Vice President and all other execu-
tive officers of the Associated Students shall be removed from office
on impeachment for, and conviction of, malfeasance, failure to dis-
charge the powers and duties of office, or other offenses. See Letter,
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Re: Amendments to ASUN Constitution, Mary Dugan to Sandy Ro-
driguez, dated June 21, 2007. The President of the Association or-
dered that the language be deleted. See Memorandum of the
President to the Senate, dated June 22, 2007. The Regents subse-
quently agreed to the document as modified. In each instance, the
language that was deleted was , or other offenses.

MEMORANDUM FROM THE PRESIDENT
OFFICE OF THE ASUN PRESIDENT, June 22, 2007.

To: ASUN Senate, Executive Officers
Re: ASUN Constitution

Per the advice of University of Nevada, Reno General Counsel, the
proposed constitutional amendment of the Associated Students will
not move forward for approval by the Board of Regents without the
deletion of what was deemed as offending language.
Appearing twice in the document, when referring to discipline, is
the language other offenses (Art III, Sec 4(a); Art IV Sec 4(a)). This
clause implies too much ambiguity which allows for abuse and ex post
facto judgment. Attached is the statement from UNR General Coun-
sel. [Omitted.]
After exploring several options, I have agreed to the General Coun-
sels request that this language be stricken before the document can
move forward.
Please let me know if you have any questions/concerns.


The effect of the change is that the intent of the original language
is no longer clear. The intent was to have three separate and distinct
grounds for impeachment. With the changes, it looks like that the
second ground for impeachment (failure to discharge the powers and
duties of office) is really a clarifying definition for the term malfeas-
ance. That was not the expressed intent of the Senate during the
consideration of the revision to the Constitution. (See generally Se-
nate Report 7425.)
The proposed amendment would correct the change and provide ne-
cessary clarification and grounds to cover all potential misconduct
that could be impeachable. The Committee wanted to maintain that,
generally, it is an impeachable offense for an officer to engage in con-
duct that is not sanctioned by law, to fail to execute ones office, or to
perform an otherwise legal act improperly. The Committee is confi-
dent that the language proposed can be applied to acts committed
outside of an official context given the expansive definition of mal-
feasance.
SUMMARY OF COMMITTEE PROCEEDINGS
The Committee met on February 1, 2008, to consider amendments
to the Constitution of the Associated Students. The Chairman laid
before the Committee the following language for consideration: [of-
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ficer/justice] shall be removed from office on impeachment for, and
conviction of, malfeasance, misfeasance, nonfeasance, or other of-
fenses against the Associated Students as the Senate may set by law.
The Chairman communicated the proposed amendment to Legal
Counsel and sought the advice on the subject. The series of communi-
cations that followed is provided below. The Committee, acting as the
client requesting advice, through publication of the communications
contained below, hereby waives any privilege to the confidentiality of
the communications.

E-mail to Mary Dugan from Sen. Anderson dated Jan. 25, 2008.

COMMITTEE ON GOVERNMENT OPERATIONS,
SENATE OF THE ASSOCIATED STUDENTS,
January 25, 2008.
MARY DUGAN
General Counsel, UNR

MS. DUGAN: The Committee on Government Operations within the
ASUN Senate will be looking at amending the constitution in the
coming weeks. The purpose of this is to clarify the language that was
stricken by the Regents. Currently, with the language stricken, it
reads, shall be removed from office on impeachment for, and con-
viction of, malfeasance, failure to discharge the powers and duties of
office. We will be looking for a way to clarify just what an elected
official can be removed for. There is a concern that the current ver-
sion sounds more like a definition of malfeasance instead of two sepa-
rate charges. The committee will begin our discussions today, but will
not report anything until next Friday at the earliest. My hope is that
your office can provide us some feedback and or direction before the
legislation goes before the Senate. To get the amendment on the bal-
lot for the upcoming election the Senate would have to vote on it by
the February 27th meeting at the latest. If you have any ideas about
what the language should read please let me know, Sen. McDonald
has proposed the following language to replace it. If you would like to
attend our next meeting it will be on Friday February 1st at 12:00 in
room 405 of the JCSU. If not, I would appreciate a written response
to the proposed language and or a suggested language of your own.
-Proposed Language-
officers of the Associated Student shall be removed from office
on impeachment for, and conviction of, malfeasance, misfeasance,
nonfeasance, or other offenses against the Associated Students as the
Senate may set by law.
Thank you for your time.
Sincerely,
TAYLOR ANDERSON,
Chairman.

CC: SANDRA RODRIGUEZ, GERALD MARCZYNSKI, THE SPEAKER, MEM-
BERS OF THE COMMITTEE.
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E-mail to Sen. Anderson from Mary Dugan Dated Jan. 26, 2008.

GENERAL COUNSEL,
UNIVERSITY OF NEVADA, RENO,
January 26, 2008.
TAYLOR ANDERSON
Chairman, Committee on Government Operations, Senate of the Asso-
ciated Students

TAYLOR: I understand your concern about the current language.
My question is, what do you mean by malfeasance and misfeas-
ance? Do you have definitions for these?
Thanks,
MARY DUGAN,
General Counsel.

CC: GERALD MARCZYNSKI, THE SPEAKER, MEMBERS OF THE COMMIT-
TEE, SHANNON ELLIS, AMY KOECKES, THE PRESIDENT, ASUN.


E-mail to Mary Dugan from Sen. Anderson dated Jan. 26, 2008.

COMMITTEE ON GOVERNMENT OPERATIONS,
SENATE OF THE ASSOCIATED STUDENTS,
January 26, 2008.
MARY DUGAN
General Counsel, UNR

MARY: Thank you for your expedient response, I would say that
malfeasance and misfeasance are defined in the following terms:
Malfeasance: intentionally doing something that either legally or
morally wrong which one had no right to do. Intentionally or kno-
wingly exceeding authority for improper reasons.
Misfeasance: Management of a public office in which there are er-
rors and an unfortunate result through mistake or carelessness, but
distinguished from malfeasance by lack of intent.
If you have any more questions or concerns please let me know. On
a side note SGA (the student government at Great Basin College) re-
cently (Sept. 2005) amended their constitution also and the im-
peachment clause approved by the Board of Regents is similar to our
proposed language.
A. Grounds for impeachment
1. SGA Officers shall be subject to impeachment and re-
moval by the SGA on the grounds of malfeasance (wrong
doing or misconduct).
2. SGA Officers shall be subject to impeachment and re-
moval by the SGA on the grounds of misfeasance (the doing
of a lawful act in an unlawful or improper manner, so that
there is an infringement on the rights of another or others).
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3. SGA Officers shall be subject to impeachment and re-
moval by the SGA on the grounds of nonfeasance, (failure to
do what duty requires to be done).
I would prefer that we didn't explicitly define these terms in the
constitution as SGA did because they have pretty well established
definitions. But if some kind of loose definition within the constitu-
tion is necessary it would be something the committee would need to
take into consideration.
Thanks,
TAYLOR ANDERSON,
Chairman.

CC: GERALD MARCZYNSKI, THE SPEAKER, MEMBERS OF THE COMMIT-
TEE, SHANNON ELLIS, THE PRESIDENT, ASUN, SANDRA RODRI-
GUEZ.


E-mail to Sen. Anderson from Mary Dugan Dated Feb. 1, 2008.

GENERAL COUNSEL,
UNIVERSITY OF NEVADA, RENO,
February 1, 2008.
TAYLOR ANDERSON
Chairman, Committee on Government Operations, Senate of the Asso-
ciated Students

DEAR TAYLOR: Are the definitions going to be included in the Con-
stitution? The reason I ask is that those descriptions of what the
words mean may be what you think they mean, but they aren't neces-
sarily what other people think they mean. You will eventually gradu-
ate and go on to great things. Then who will be here to tell people
what they mean?
In addition, what is morally right is many times difficult for
people to agree on.
My advice would be to use the actual definitions of malfeasance,
etc., in the Constitution itself, with or without the terms. That way,
everyone knows what type of behavior could lead to their impeach-
ment.
I havent looked at GBCs language. I would recommend that you
keep in mind that what is acceptable to one group of students may
not be acceptable to another group of students. The approach I sug-
gest is that you try to get the best language you can for your organi-
zation, rather than settling for what you can get approved. I say that
fully recognizing that I believe you are trying to get the best. That
can be difficult and take time, but its much more satisfying than the
alternative.
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I hope this is helpful. I appreciate all the hard work you are putting
into this. It actually is very important. Removing someone from office
is no small thing.
Have a great week-end!
MARY DUGAN,
General Counsel.

CC: GERALD MARCZYNSKI, THE SPEAKER, MEMBERS OF THE COMMIT-
TEE, SHANNON ELLIS, AMY KOECKES, THE PRESIDENT, ASUN.


The Committee, and its Chairman, have not received any subse-
quent communication. The language being proposed in the resolution,
although not explicitly cleared by Counsel, does seem to be acceptable
given Counsels last communication, saying that it would be useful to
define the terms in the Constitution. Because Counsel has not expli-
citly cleared the language, the Committee hesitates to report favora-
bly on the resolution. Recognizing, however, the limited time
remaining to get a constitutional amendment on the ballot, the Com-
mittee does report the resolution for the Senates consideration with-
out recommendation.
The Committee must also note that, in furtherance of expediting
the process, Senator McDonald provided notice to the Committee that
he filed a resolution for first reading and fast-tracking for the Febru-
ary 13 Senate meeting containing identical language as is being re-
ported by this Committee. Depending on whether the Senate takes
action on Senator McDonalds resolution, further action on this report
may or may not be required.
NOTES ON PROCEDURE
The Constitution of the Associated Students mandates a specific
procedure for the proposal, adoption, ratification and assent of pro-
posed constitutional amendments.
The ASUN Constitution at Article V reads, in pertinent part, as fol-
lows:

SECTION 1. AMENDMENT.
(a) The Senate, whenever two-thirds shall deem it necessary, shall propose amend-
ments to this Constitution, or, on the petition of 10 percent of the membership of the
Association, shall place an amendment on the ballot.
(b) In either case, an amendment shall be valid as part of this Constitution when
ratified by two-thirds of the students voting on the question in an election and when
assented to by the Board of Regents of the Nevada System of Higher Education.

Furthermore, the Committee finds that since an amendment to the
Constitution does not fall within the gamut of legislation under the
presentment clause of the Constitution (Art. II, sec. 4(a) et seq.), the
resolution is not to be presented to the President for approval. The
amendment goes directly to the members of the Association for their
consideration during the general election.

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CONSTITUTIONAL AUTHORITY STATEMENT
The Committee finds that the Constitutional authority for this leg-
islation is provided in Article V, section 1(a) which grants the Senate
the power to propose amendments to the Constitution.



(8)
ADDITIONAL VIEWS OF SEN. SEAN MCDONALD
This amendment represents the correction to the Constitution that
became necessary when the Regents agreed to make changes contrary
to the expressed will of the members of the Association. Much has
been said on the events that transpired that have led us to this point,
and I will not rehash those points here, except to say that we now
have an obligation to ensure that the intent of the Senate and the
people voting in 2007 is not lost to the pages of history.
Having served as chairman of the committee which originally pro-
posed the revision which is now the Constitution of the Associated
Students, I believe I speak from some authority when I say the
amendment proposed by the Committee is the best fix to the problem
while maintaining the original intent of the original language.
It is critically important to the security of the Association that the
Senate be able to hold members of the executive and judiciary ac-
countable for misconduct that occurs both in an official and private
context. The language proposed in this amendment does just that.
The Senate needs to have full latitude to consider the conduct of offi-
cials and to determine whether it rises to the level warranting im-
peachment.
For those reasons, I am in full support of the amendment proposed
by this report and I urge my fellow Senators to vote to propose this
amendment to the members of the Association.
SEAN MCDONALD.