2013-2014 Academic Year Parliamentarians Opinion

STUDENT ASSOCIATION
Edits to Bylaws under 6.1.3 On Writ of Association Member Andrew Rexford 07/26/2013 Syllabus
On July 19th, the Association approved H.R. 13-01, which created the position of Legislative Director and prescribed its duties under a newly created section of the Bylaws. The duties, which formerly belonged to the Parliamentarian, were transferred to the Legislative Director and in the process the name of the Legislation and External Affairs Committee was changed to the Legislative and External Affairs Committee when it appeared in the duties of the Legislative Director. Representative Rexford was subsequently appointed to the office of the Legislative Director on July 19th, following passage of H.R. 13-01. Mr. Rexford requested that I review, under the auspices of 6.1.3, whether I could change the name of the position to Legislation and External Affairs Chair for reasons applicable under 6.1.3. I held that the proposed edit of Legislative Director would not be permissible under 6.1.3. The motion to appoint him as Legislative Director did not constitute appointing him to the position using the former title, or an attempt to rename the committee. H.R. 13-01 likewise did not constitute a deliberate modification to the Legislation and External Affairs Committee name under {C} 1.5. Thus the usage of Legislative and External Affairs Committee was an error, and can be edited under the authority of 6.1.3 for consistency. Additionally, Mr. Rexfords appointment as the Chairman of the Legislation and External Affairs Committee is only valid when the committee name used in H.R. 13-01 is interpreted as an error. In accordance with 6.1.3, an edit to the incorrect language is ordered. Held: 1. In the faithful execution of their duties, a Parliamentarians Opinion must detail the grounds under which an opinion is issued and must evaluate the legitimacy of doing so.

2. The primary questions regarding whether a Parliamentarians Opinion is properly issued are: (1) If a question of interpretation was present; (2) If the question presented is one of interpretation of the governing documents or Association Business. 3. Whenever the Parliamentarian resolves a question of interpretation of the governing documents in a way contrary to precedent or in a novel way, the Parliamentarian in the faithful execution of their duties must issue an opinion. 4. The interpretations of the governing documents and Association action made by the Parliamentarian are only reviewable if an opinion is issued and subsequently challenged through judicial review. 5. In determining whether an edit can be made under 6.1.3, the edit must pass scrutiny under the following standards: (1) The edit is done for grammatical accuracy, to correct inconsistency within a governing document or between governing documents, or to improve conciseness in either the language or meaning of the provisions of the governing documents; (2) The edit is sufficiently limited to the reasons listed under 6.1.3; (3) The edit does not constitutes a substantive change in the meaning of the governing documents as a result of the edit. 6. When determining if an opinion may be issued, a request by a member of the Association which asks whether a given action is possible under the governing documents in general, or a specific section within, are questions which are properly presented. 7. An instance where the same entity is referenced differently in the bylaws constitutes a dispute in interpretation. 8. Edits to the bylaws which constitute a substantive change are the exclusive domain of legislative action by the Association. 9. All edits to the text of the governing documents done through judicial action are subject to a review using a standard of exacting scrutiny. 10. The names of committees are generally read to be descriptive absent contrary evidence. 11. When considering the consistency of the governing documents, Association actions which do not modify the governing documents are immaterial. 12. H.R. 13-01 did not constitute an action which deliberately modified the name of the Legislation and External Affairs Committee. 13. Legislative and External Affairs Committee was used in error and contrary to the meaning of legislative as it appears in the Bylaws and can be edited under 6.1.3 for consistency. Orders: 1. That the phrase Legislative and External Affairs Committee is amended for consistency under 6.1.3 to read Legislation and External Affairs Committee.

This opinion is given under the authority granted the Parliamentarian in 1.4.21. Andy Rexford, an Association member whom was properly elected as a Representative and whom was appointed to the office of Legislative Director on July 19th asked whether I could amend the Bylaws to reconcile the appointment, and the disparate names for both the committee and its Chairman which are found throughout the Bylaws (and formerly the Charter). This opinion is given to address the question of whether such an edit is permissible, and to give limited resolution to other incidental questions raised. Before reviewing whether an edit can be made under 6.1.3, a summary of how this opinion is rendered is appropriate2. The Parliamentarians ability to rule on matters of dispute comes through {C} 1.2.3 and 1.4.2 of the Bylaws3. An opinion is the formal means of resolving a dispute and providing rationales for decisions and rulings made. Due to the construction of the Judicial process, the Parliamentarian serves as a gatekeeper for judicial questions, and their rulings are only subject to review if an opinion is issued and challenged under judicial review. The authority of the Parliamentarian to decide disputes does not require issuing an opinion, and in some instances issuing a detailed opinion can serve as a means of enhancing transparency and the accuracy of judicial actions, because by doing so they subject their rulings to the possibility of appeal and definitively express the logic underlying the decisions contained within. The Parliamentarians decisions prevail until overturned or modified via subsequent opinions, and because the Parliamentarian serves as the only entry to the judicial system, whenever an opinion is issued the Parliamentarian in the faithful execution of their duties must provide an explanation of how the opinion is rendered in accordance with the governing documents. When doing so, a Parliamentarian must interpret the authority used to issue an opinion narrowly and only to the extent required. Modifications to the ability to grant opinions are direct modifications to the authority of the position and its ability to decide questions of interpretation; explanations of how an

The Parliamentarian shall rule on all matters of procedure or other issues relevant to the business of the Association. When presented with a question of interpretation of the Bylaws or Charter, the Parliamentarian may prepare a written opinion explaining the text in question. The opinion shall be the prevailing interpretation for the purpose of the administration of the Student Association until: a. The Student Association amends the text that was interpreted; or b. Article V of the Charter is exercised and judicial review provides the final interpretation. 1.4.2 2 The Parliamentarian, with approval from the President and the Speaker, may make changes to the Bylaws for grammar, consistency, and conciseness purposes without approval from the Association. a. Any such changes will be immediately adopted into the Bylaws. b. The Parliamentarian shall notify the Association of any such changes within 14 days. c. Any such changes may be amended as described in Section 6.1.1 .-6.1.3 3 The Parliamentarian shall rule on all matters of procedure or other issues relevant to the business of the Association. The business of the Association shall, in all matters, be governed by this Charter, by By-Laws properly adopted by the Association, and meetings will be conducted using the version of Robert's Rules of Order that the Parliamentarian specifies at the beginning of his / her term. {C}1.2.3

opinion is issued must be made carefully and only to the extent a given opinion requires. The principle elements in determining whether an opinion was issued within the proper authority of the Parliamentarian involves determining if: (1) a question of interpretation was present; (2) If the question presented is one of interpretation of the governing documents, procedure, or Association Business. In this case, a member of the Association asked if I could modify the name of a position under reasons listed under 6.1.3. A request by a member of the Association which asks whether a given action is possible under the governing documents in general, or a specific section within, are questions which are properly presented. The question posed by Mr. Rexford constitutes a question of interpretation. There are few disputes in interpretation which are clearer than an instance where a particular entity is named in different ways in the text of the governing documents. The request made by Mr. Rexford properly presented a question relating to the interpretation of the governing documents, and thus an opinion may be issued. The presence of two names for the committee found in the Bylaws raises a question of interpretation, as does Mr. Rexfords request that I review whether an edit could be made to the Bylaws. A question of whether an edit could be made under the auspices of 6.1.3 would not normally warrant, or necessitate the issuing of an opinion, as issues in general can be decided without issuing an opinion. However, the facts of the matter presented here raise larger questions which much be addressed. In this specific circumstance, determining whether an edit can be made under 6.1.3 raises questions of other clauses and general principles which are not addressed in any precedent opinion. In cases where a Parliamentarian seeks to resolve a question concerning a single provision, and deciding the question entails either interpreting other provisions in a way contrary to judicial precedent or in a novel way, an opinion must be issued by the Parliamentarian. At least so far as the faithful and ethical execution of their duties requires. The circumstances present in determining whether an edit can be made to the Bylaws as requested under 6.1.3 require giving novel and limited opinions on sections where precedent has not provided guidance, and accordingly an opinion is issued. I The question of making a change in the Bylaws for the purposes of grammar, consistency, and clarity under 6.1.3 is a narrow one, and the criteria used in determining whether a particular edit can be made under the clause is threefold: (1) Whether the edit is done for grammatical accuracy, to correct inconsistency within a governing document or between governing documents, or to improve conciseness in either the language or meaning of the provisions of the governing documents; (2) Whether the edit is sufficiently limited to the reasons listed under 6.1.3; (3) Whether the

edit constitutes a substantive change in the meaning of the governing documents as a result of the edit. The first criteria stems from interpreting the authorized and enumerated reasons from the Bylaws, the second stems from the understanding that an edit made under 6.1.3 must be only for those reasons. Finally, edits which substantively alter the meaning of an individual passage, or the governing documents when taken as a whole, are the exclusive domain of legislative action. All edits to governing documents through judicial action must be subjected to an analysis on the basis of the aforementioned criteria, and they must be reviewed under exacting scrutiny. The basic facts surrounding the request to edit the Bylaws under 6.1.3 are as follows: Mr. Rexford asked whether I could edit the Bylaws by changing the title of the Legislative Director position to that of Legislation and External Affairs Committee Chair for grammar and consistency. Mr. Rexfords request implied that the name of his position was inconsistent with language referring to a Chairman of the Legislation and External Affairs Committee. Additionally, Mr. Rexford explained that the name of the committee was inconsistent with the former language in the Charter, which referred to the committee as the Legislation Committee. The bylaws however, with the exception of 1.8, dub the committee the Legislation and External Affairs Committee. The word legislative appeared once in the bylaws prior to the July 19th meeting, in a provision charging the committee with monitoring legislative items. On July 19th, to accommodate the separation of what were the Parliamentarian s duties into two distinctive positions, a resolution was approved. The resolution cut several provisions from 1.4 and pasted them into a new section (1.8). The language was modified to change the title of the committee in each clause incorporated into 1.8 to Legislative and External Affairs ; and the overall position and section title was Legislative Director. This opinion was requested days after the July 19th meeting wherein Mr. Rexford was appointed to the new position of Legislative Director . The Bylaws now contain regulations concerning a Legislative and External Affairs Committee, and a Legislation and External Affairs Committee. The Charter formerly listed a Legislation Committee. Following the ratification of the Charter in 1991, the Associations Legislation Committee operated under the name given in the Charter, and it did so until the committee was renamed by the force of resolution several years ago. The resolution added and External Affairs to the title, while simultaneously incorporating duties involving external organizations to the committees charges under 2.14. Besides the longstanding history of disputes over the name of what is now the Legislation and External Affairs Committee, the usage of legislation and legislative in the governing documents is relevant in considering whether an edit under 6.1.3
4

2.1 is the Legislation and External Affairs Committees section under Article 2: Committees

meets the criteria established earlier. The usage of the two words would inform a decision of which name, if any, may be corrected under 6.1.3. As of July 18th, the word legislative appears only in 2.1.7 of the Bylaws, as a description of governmental actions the Legislation and External Affairs Committee monitors5. The word legislation appears a total of thirteen times throughout the Bylaws. Twelve of the thirteen instances are used in the committee name; the single remaining instance comes as an example of what is meant by constituent contact. The reference does not make it clear if it refers to government, or to Association actions6. Legislation appeared once in the Charter, as part of the name Legislation Committee, legislative appears nowhere in the Charter. In summary, outside the names of the committee, the words appear only once a piece. The single instance where legislative is used, it clearly and directly refers to actions taken by the government. The sole instance where legislation is used outside the committee name is as an ambiguous descriptor in a list of examples of constituent contact. Due to a history of legislative action and dispute on the subject, and not even a hint of what was really meant in 1.2.5, I decline to consider the usage of legislation in that provision when determining the meanings of the phrases. After a review of the governing documents, I find that the word legislative is used to describe a type of external governmental action. This conclusion will prove relevant when considering which edits under 6.1.3 in this instance are permissible. Before considering the validity of Mr. Rexfords appointment, and the permissibility of an edit under 6.1.3, a review of the only instance where the Association modified the committee name is in order. II The Association changed the name of the Committee as well as assigning it several statutory duties under the Committees section in the Bylaws several years ago. The change came from a resolution, which received at least 2/3 support of the members present and voting at the time it was considered. The resolution added and External Affairs to the end of the committee name which was formerly the Legislation Committee, a number of provisions were also adopted as directives and duties for the committee, all of which can generally be described as being external in nature. The actions of the previous Association were intentional, and were not efforts to improve conciseness or to maintain the consistency of the governing documents. The committee was renamed to reflect the Associations new vision for the committee, and the
5

The Legislation and External Affairs Committee shall monitor the progress of legislative items at the local, state, and national level that affect or concern Saginaw Valley State University students 2.1.7 6 Each Representative shall contact constituents on a regular basis. Constituent contact is meant to include things such as a mailing to constituents, an open discussion with constituents, (i.e. setting up tables in high traffic student areas, hosting forums to discuss recent legislation, etc), liaison with ones college, or any similar communication. An informal discussion with friends is not a form of constituent contact 1.2.5

resolution which changed the name gave it increased responsibilities beyond those already present in the Bylaws, and which are generally beyond the scope of the term Legislation, which was the term used under the Charter. Whether the previous Association action which renamed the committee and assigned it new duties was valid depends on if the term Legislation Committee was given as the name of the committee in the Charter; or if it was given as a label or descriptor of the purpose, character, and nature of the committees work. Both interpretations confer a special status to the committee, and as long as the committee was listed in the Charter its existence was required. This is supported by the fact that nowhere else in the Charter are internal committees mentioned by name. One consequence of the removal of text from the Charter through the approval of the amendment to remove the requirement that the Parliamentarian chair the Legislation Committee was to invalidate the permanent nature of the committee arising from the Charter7. Reading Legislation Committee as a name wou ld mean its title was fixed. Reading it as a label or interpreting as being descriptive of the committee would allow modifications to the name. I am inclined to read it as a being descriptive, and it is the controlling interpretation given in this opinion for a number of reasons. The Association is empowered to exercise control over its committees through {C} 1.5 which gives the Association wide latitude to assign the authority and work of committees through resolution or other action8. The previous Association was acting directly within its enumerated powers by assigning additional work to the committee, beyond what they felt was best encompassed by the name Legislation Committee. The action which renamed the committee did substantially alter the character of the committee. However, the alteration was additive in nature, and while the character of the committee did change, the character and purpose alluded to in {C}1.2.3 remained in-tact after the use of an action permitted under {C}1.5, and therefore the action of the previous Association in renaming and adding responsibilities to the committee was valid. As a rule, the names of committees are descriptive absent contrary evidence. With the actions of the previous Association properly reviewed and some associated questions resolved, the original question of whether the committee name can be modified through the procedures in 6.1.3 may now be addressed. III Section 6.1.3 of the Bylaws allows the Parliamentarianwith the consent of the President and Speakerto amend the bylaws for purposes of grammar, consistency,
7 8

The amendment struck from {C} 1.2.3: The Parliamentarian shall chair the Legislation Committee.

The Association may, from time-to-time, create and appoint committees. The authority or work of such committees shall be granted or assigned in any action or resolution there taken. {C}1.5

and conciseness if proper notice is given. Under the criteria in deciding whether an edit under 6.1.3 is valid, the criteria established earlier in this opinion is controlling. The first issue is whether the edit would qualify as being made for one of the three reasons listed in 6.1.3. Changing the committee name cannot be made in the name of grammar. An edit however can be read as being made for purposes of consistency. Consistency is a criteria used under 6.1.3 to edit the governing documents, and it entails that the edit improves consistency within or between the governing documents. External Association action, such as appointing an individual as the Chairman of the committee under a different title, is not sufficient grounds to rename a committee for consistency. This is because the intent of the Association intent must be carefully scrutinized and read narrowly, and because when considering the consistency within or between governing documents, actions which do not modify or declare positions towards the documents are immaterial. H.R. 13-01 modified the bylaws by splitting one position into two, and by virtue of the text incorporated into the Bylaws, a problem of consistency in the governing documents arose. Before examining whether an edit on grounds of conciseness is permissible, and whether an edit for consistency in this instance passes the additional criteria set forward earlier, H.R. 13-01 must be evaluated for intent to change the name of the committee as an exercise of authority under {C} 1.5. With two competing names for the same entity, it is necessary to determine if any relevant Association action constituted an attempt to rename the committee. H.R. 13-01 does not constitute an action to modify a committee through {C} 1.5. The text of the resolution and the content of the discussions on the motion do not suggest that renaming the committee was the intent, or an effect of the resolution. The resolutions entire purpose appears to be limited to its title. The resolution makes changes in 2.1, and contains all its contents yet doesnt modify any of the uses of the name Legislation and External Affairs Committee contained within. Its far more likely that the name of the committee was stated improperly in 1.8 and was not an intentional change to the committee name. Its difficult to support an analysis which concludes the resolution meant to modify the name yet failed to modify the remaining uses of the older name found in the Bylaws. This is supported by the fact that the resolution used Legislation and External Affairs Committee in a new clause added to 1.4. The editing power in 6.1.3 arose to correct outdated portions of the bylaws, to easily and efficiently make changes in format, and primarily out of a need to correct occasional errors and inaccuracies incorporated into the Bylaws. This appears to be one such instance. Mr. Rexford was installed to his position through a motion to Appoint a Legislation Director. It is sufficient to say that the motion to appoint a Legislative Director which by all accounts was an attempt to appoint Mr. Rexford to the position synonymous with the Chairman of the Legislation and External Affairs Committeean action only valid when legislative is read descriptively, and the motion is viewed as an appointment to

the chairmanship of the Legislation and External Affairs Committee with a respect for both ritual actions, and the clear intent of the voting membership cannot be read as the Association intentionally renaming the committee 9. H.R. 13-01 does not constitute an action to modify a committee through {C} 1.5. The previous analyses regarding the terms legislation, legislative and the analyses of the committees history under various names are now complete and are the basis for evaluating the documents under 6.1.3. As stated earlier, editing the committee name under 6.1.3 could constitute an edit for purposes of consistency. With one of the three criteria for editing under 6.1.3 satisfied, the edit must be evaluated for compliance with the second and third prongs of the standard laid out earlier in this opinion10: that the edit is sufficiently limited to the reasons listed under 6.1.3, and that the edit does not constitute a substantive change. I hold that editing the name of the committee throughout the Bylaws to the Legislative and External Affairs Committee would satisfy the second criteria, but fail the third. Legislative and legislation are given distinctive meaning in the bylaws, and editing the committee name to legislative would constitute a substantive change in the governing documents. Evaluation of the language in the Bylaws yields the conclusion that legislative is used as a reference to external governmental processes, and this would make the name of the committee redundant. Judicial intervention in a matter of legislative dispute such as this would be unwise, and would hold that the judicial opinion on the matter has greater weight than the Associations legislative action. While there are many scenarios where the legislative actions of the Association in regards to a certain issue can be modified or invalidated I decline to explore them here. Absent a compelling reason I am hesitant to definitively settle an issue in earnest legislative contention in a way that departs from the current understanding of language in the governing documents11. An edit for purposes of consistency to section 1.8, to change the name of the committee within that section to Legislation and External Affairs would pass the second and third prongs of the criteria12.The third prong is satisfied when Legislation and External Affairs
9

The motion intended to appoint Mr. Rexford to the chair of the Legislation and External Affairs Committee by virtue of holding the office of Legislative Director is only valid if legislative as used in the committee the position chairs was used in place of legislation in error. The motion appoints Mr. Rexford to the position of Legislative Director, a new position. The motion can be seen as an appointment to the chairmanship of the Legislation and External Affairs Committee only if the committee name used in that section is incorrect and can be edited under 6.1.3. Any other finding would make the meaning of legislative, legislation, and external all meaningless or hopelessly ambiguous and subject to review under 6.1.3 10 Page 1, paragraph 3 11 It should also be noted that using legislative as the committee name would make the usage of legislative throughout the bylaws inconsistent as its place in the committee name would imply a meaning directly opposite to established usage. 12 Section 1.8 was introduced by H.R. 13-01, is entitled Legislative Director, and gives duties for the director.

Committee is regarded as the name, and the alternative wording is therefore inconsistent with the committees name in the Bylaws. This holding stems from a reading of the intent of the Association, the text of H.R. 13-01, and the motion to appoint Mr. Rexford. H.R. 13-01 was interpreted as lacking any intent to modify the name of the committee, and accordingly the name used in H.R. 13-01 must be read as incorrect. A committee cannot have two names unless explicitly authorized and a review of the facts has established that one of the names was used in error. An edit is the appropriate solution. The original request which Mr. Rexford made was for me to edit the name of the position of Legislative Director , and it is that issue which I turn to now. I read Legislative Director as a general descriptor in the same sense that legislation was used descriptively when it appeared in the Charter as part of the committee name. As a significant number of the duties of the committee are external and related to governmental legislative activity, the title is reasonably related to its duties and editing it would not satisfy the first criteria of edits under 6.1.3 and is not permissible. Editing in the name of consistency or conciseness would constitute a substantive change and an edit for grammar is not applicable. The Association has a history of changing the name and provisions concerning the committee. Unintended change on a ripe topic from judicial action is at risk here. Finally, there is no compelling interest present to motivate a change. Any change to the name of the position will have to come through legislative action by the Association. With the consent of the President and Speaker, I hereby order that any use of Legislative and External Affairs Committee is replaced with Legislation and External Affairs Committee.
It is so ordered.