ASPSU Judicial Board faces controversy over elections results

After two delays last week, the Associated Students of Portland State University released on Friday the elections results for the new student body president, vice president, Student Fee Committee members and senators.

Take Back PSU!’s Eric Noll and Rayleen McMillan were announced as ASPSU’s new president and vice president. They received 34 percent of the votes.

Disqualified candidates Marcus Sis and Erica Fuller from the Students for a Better Tomorrow, Today platform received the most student votes, with 48 percent—201 more votes than Noll and McMillan.

The votes for Sis and Fuller were nullified as a result of last week’s Elections Committee decision to disqualify them from the running, for violating PSU’s Acceptable Use Policy by sending out a mass email to PSU addresses soliciting votes.

Sis, Fuller, SFC candidate Khalid Alballaa and Landru Parker, the platform’s campaign manager, received major infractions. A major infraction results in automatic disqualification.

Every remaining member of the Students for a Better Tomorrow, Today platform received a minor infraction, which does not automatically disqualify them. Most of these candidates were voted into the SFC and senate.

The decision to disqualify Sis, Fuller, Alballaa and Parker, and issue minor infractions to the entire slate, has been highly controversial within ASPSU and caused several delays in releasing the election results, which were originally to be released May 27.

Getting here

Rulings on infractions come from the Judicial Review Board, which acts as the Elections Committee during elections.

The J-Board’s function is to hear and answer requests, and rule on issues within ASPSU, while the Elections Committee is charged with running the elections. One of their main functions is to hear and rule on infraction requests that arise during the elections.

According to the ASPSU constitution, elections candidates have the right to a fair appeals process when they’ve been issued an infraction. Previously, the J-Board acted as a body that could review the appeals of infractions decisions made by the Elections Committee.

Two years ago, the J-Board and the Elections Committee were merged by ASPSU, a move approved by a senate and student vote. The same members can serve in both bodies, though the J-Board and Elections Committee carry different responsibilities throughout the year.

As the two bodies are comprised of the same members, the possibility for appeals to be heard by a distinct body in ASPSU has been eliminated.

ASPSU Adviser Candace Avalos said the merger came after the legitimacy of the original process came to
be doubted.

“What I understood from my colleagues is that in the past, it became where people were getting infractions from the [Elections Committee], then going to the J-Board and it was bouncing back and forth between those bodies and there was no legitimacy in the process,” Avalos said.

“Someone decided to change it so it became one. This is all before we got here, and we’re still suffering from the lack of clarity of how that was supposed to work,” Avalos added.

J-Board Chief Justice Victoria Hutfilz explained how this affects the appeals process for infraction hearings.
“Having the Elections [Committee] and the J-Board be the same, they have to rule on their own ruling,” she said.

Legitimacy and responsibility

“There are two levels to it—the way it’s affected myself and members of our team,” said Sis, the disqualified presidential candidate.

“Then there’s the broader issue of legitimacy in general—whether or not the board and the organization is functioning overall and to what extent that might have contributed to the decision that affected us.”

Noll, the new ASPSU president, commented on the outcome of the election process. “Ideally, the email wouldn’t have been sent out, no university policy would have been violated and there wouldn’t have been an infraction in the first place.

“The J-Board made a decision, and who was chosen to be the student body president was the person who had the next highest number of votes,” he added.

When asked about the J-Board’s responsibility for the election’s outcome, J-Board member Adam Wunische said that the situation was complicated.

“Whether or not we’re willing to take responsibility for deciding the election—I don’t think it’s that simple,” Wunische said. “In the absence of a formal appeals process, there were still appeals that were made.”

Wunische said that the Students for a Better Tomorrow, Today slate made an appeal to the senate, but that then-ASPSU President Harris Foster decided not to hear it. Then, Wunische said, the slate “made appeals to the Dean of Student Life, and she also decided not to get involved.”

“I don’t think that was solely on us to make that decision, it was also the involvement of advisers. I think the circumstances were much bigger than us simply deciding an election,” Wunische said.

After the J-Board made the decision to disqualify candidates Sis and Fuller, Sis reached out to PSU’s Dean of Student Life Michele Toppe, asking her to delay the election results and look into the situation.

“When I talked to the Dean of Student Life, she said she didn’t have the power to delay it and told me to work with the student government,” Sis said. “That’s the route that we’ve gone down, but [Toppe] stated pretty clearly that she doesn’t have the authority to intervene with this.”

Because of Toppe’s response, Sis filed an appeal to the J-Board on behalf of Fuller and himself.

“There’s a question about how fair that appeal process would be because it’s the same members on a different board,” Sis said. “That said, there is an appeal process that’s laid out. So we were hoping to utilize that.”

The J-Board held an emergency meeting on Friday. Before they announced the elections results, they publicly revoted on their decision to disqualify Sis, Fuller, Alballaa and Parker. They did not grant Sis’ appeals request.

“Traditionally that would be the J-Board, but seeing how it’s the exact same members as the Elections Committee, it wouldn’t really make any sense to have the exact same people hear the exact same case,” Wunische said. “Going forward, we want to make sure that there’s an actual legitimate appeals process.”

J-Board under fire

After the original ruling against Students for a Better Tomorrow, Today was announced last week, four former members of ASPSU took notice of the decision. They drafted a letter to Toppe that criticized the Elections Committee for several violations.

The four signatories to the letter, Ann Coughlin, Kelly Hess, Joseph Kendzierski and Anthony Stine, are current students at PSU and have all served, in some capacity, on the Elections Committee or J-Board within the last four years.

The J-Board’s violations cited in their letter to Toppe were: failing to follow rules and procedures laid out in ASPSU constitutional elections bylaws, failure to comply with Oregon Public Meeting Law and failing to properly execute the Elections Committee’s duty to act as an impartial body of ASPSU.

“There are basic fundamental human rights being violated in this system—due process rights,” Stine said.

The letter cites these due process violations as “failing to provide a process for review and appeal,” and “failing to properly discriminate between the accused parties associated with the accused.”

“That is a core problem,” Stine said. “You have a right [to] not be lumped in with someone who did something on your behalf that you didn’t know about.”

“That’s guilt by association, which is also a violation of due process,” said Kendzierski, another of the signatories. “You can only be charged and held liable for infractions you, yourself, committed.”

“That’s been one of our biggest contentions,” Sis said. “Not only is it violating due process by not having an appeals process—they’re claiming guilt by association.”

“I’d like to remind everybody that [Fuller] was not invited to that meeting,” Sis added. “[Fuller] had no testimony on her own behalf. It’s been an issue with all the other candidates who had minor infractions that they weren’t able to be there as well.”

“For that reason alone, to have the testimony and everything behind closed doors and then to do the vote publicly, I think is disingenuous,” Sis added.

Wunische disagrees.

“It was a case filed against the slate and the slate was informed of this meeting. I assumed they brought everybody they thought needed to be there,” he said.

“We have a right as a body to hear from people that we think we need to hear from,” Wunische added. “Not everyone has to speak at these things. Given the fact the hearing was over an hour long, I don’t think we could have had any more information from [Fuller] that would have swayed our minds.”

Wunische cited the J-Board’s public revoting of the case, held at Friday’s emergency meeting, as an attempt to follow OPML.

The J-Board noted its decision to abide by OPML was a courtesy. Wunsiche issued a statement last week that read, “The Elections Committee continues to operate under the understanding that we are a judicial body, and therefore exempt from Oregon Public Meeting Law. Judicial bodies are only required to be open to the public, without the specific requirements of the OPML. However, given the gravity of the decision, we see the great importance of maintaining the highest level of transparency.”

Stine and Kendzierski say that this doesn’t quite pan out.

“At PSU it’s called the Judicial Constitution and Review Board. The [J-Board] grabs onto that judicial part, when really they should be grabbing onto the review part,” Stine said.

“There’s nothing within any sort of document that grants the J-Board judiciary status,” Kendzierski said. “They’re part of ASPSU, which is still a public body because it handles public funds—i.e. our student fee.

“They necessarily fall under the definition of OPML. This new interpretation saying, ‘We’re a judicial body’ is, in my opinion, invalid.”

A question of malice

The authors of the letter and members of Students for a Better Tomorrow, Today pointed out the use of the word “malicious” in the J-Board’s original conclusion of this case.

The written decision on the case against Students for a Better Tomorrow, Today reads, “We find that clear violations were committed of a particularly malicious intent.”

“Having looked at it from the outside, [the decision] reads very biased,” said Coughlin, another of the letter’s signatories.

The letter to Toppe refers to the legal definition of malice as, “a conscious, intentional wrongdoing either of civil wrong like libel, or a criminal act like assault or murder, with the intention of doing harm to the victim.”

The J-Board has claimed that they are not using malice in this case by its legal definition, but for the purpose of conveying the gravity they perceive this Acceptable Use Policy violation to bear.

“How can you arbitrarily use terms that don’t have any sort of definition? That’s why we have definitions,” Kendzierski said.

“I think what happened is serious,” Sis added, “but it’s disproportionate to the punishment they levied. I think it’s totally been blown out of proportion.”

“It’s easy for people to look at us as being the ones who were trying to decide this election,” Wunische said. “To a certain point, our decision may have determined an outcome, but we were put in a circumstance to make that decision.”

“As far as appeals are concerned, I think [Students for a Better Tomorrow, Today] exhausted all of their options. And that’s what we were waiting for before we made the [elections] announcement,” he added.

Wunische said, however, that despite the measured nature of the announcement, the announced results could still end up being undone.

“Since Students for a Better Tomorrow, Today essentially own the senate and SFC, it’s possible that they could seek impeachment of [Noll] and [McMillan],” he said.

Wunische said that for this to happen, an attention request would have to be filed with the J-Board. “If [the J-Board] think there are grounds for impeachment, they will file articles of impeachment and then the senate would hear the case.”

“There would be nothing that would be able to stop them. The J-Board can overrule them, but the J-Board decision can be overturned by two-thirds of the senate. They have enough of a majority to essentially do what they want.”

Sis has alluded to plans to pursue this issue further. “We have a contingency plan in place,” he said. “We’re moving onto the next step of that. You’ll have to stay tuned. It will become very clear to everyone very soon.”

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