J-Board hears case regarding referendum

Madeline Richards
Madeline Richards.

Last night, the SSMU Judicial Board (J-Board) heard a case submitted by former SSMU President Zach Newburgh and co-founder of the Prince Arthur Herald Brendan Steven, against respondent Rebecca Tacoma in her function as Chief Electoral Officer (CEO) of Elections SSMU. (Full disclosure: Newburgh sits on the Tribune Publication Society’s Board of Directors.) The petitioners requested that the results of the fall referendum question regarding QPIRG’s existence be invalidated, citing violations during the campaign period, the CEO’s alleged inability to fulfill her functions and the unconstitutionality of the question posed by QPIRG

The case had been originally scheduled for Jan. 31 but was postponed for a week due to concerns that the structure of the J-Board conflicted with provincial laws. In the SSMU’s interpretation of provincial law, the Board of Directors will have to ratify the J-Board’s decision for it to be effective.

The hearing opened with introductory statements by Newburgh and Steven’s advocate, Carmen Barbu, and Tacoma’s advocate, Gabriel Joshee-Arnal.

The case then proceeded with the examination of witnesses by both parties. Barbu first examined former SSMU VP Finance Nicholas Drew, who analyzed a pie chart illustrating QPIRG’s finances. The chart showed that 11.74 per cent of QPIRG’s expenses are formed by opt-outs. When asked by Barbu if such an amount would constitute a threat to an organization’s existence, he said that, from his experience, over 50 per cent constituted a threat.

Barbu also called Eliana Schwartz to the witness stand, who was on CKUT’s mailing list and received an email regarding QPIRG’s referendum question.

“It struck me as inappropriate to use the listserv to [endorse QPIRG],” Schwartz said.

Barbu then cross examined Newburgh, who said that he had sent emails to Tacoma which noted that there had been over 70 campaign infractions. The grievances included the conflict of interest of SSMU Council members who participated in ‘yes’ campaigns, the unsanctioned support of external organizations, and the unsanctioned publication of endorsement letters by both the Tribune and the McGill Daily.

“I expected that they would be considered, that each of the matters would be dealt with appropriately,” Newburgh said, referring to lengthy emails he sent to Tacoma that were not answered.

During cross examination, Joshee-Arnal questioned why, if he had complaints during the referendum period, Newburgh had not appealed to the J-Board until after the referendum results were released.

“At no point did I ever consider [going to J-Board] until after the results,” Newburgh said. “There was no doubt in my mind [that the infractions would be addressed.]”  

After Newburgh’s testimony, Joshee-Arnal called the respondent’s first witness, Tacoma. She testified that Steven had initially contacted her about forming a ‘no’ committee for the fall referendum questions. Tacoma also explained the reason for not replying to Newburgh’s emails.     

“[This was a] very contentious referendum, I was receiving a lot of emails [and] couldn’t reply to all of them,” she said. “It would have taken a lot of my time to adequately respond to [the emails]. I didn’t feel it was part of my duties to provide a written response, though I was open to other forms of discussion.”

Tacoma added that Newburgh did not visit her office hours to address his concerns. Barbu then cross examined Tacoma, questioning her fulfiment of her duties. Tacoma testified to interpreting the by-laws differently from the previous CEO, by not monitoring Facebook pictures and statuses, claiming she could not realistically monitor such campaigning.   

Tacoma further explained that there was much illegal ‘no’ campaigning, including three Facebook groups. Barbu asked why there were no comments on the violations by the ‘yes’ committee on the ballot, and Tacoma stated that those sanctions were communicated via email. She noted that the illegal ‘no’ campaigning was on the ballot because even though she closed down some Facebook groups, others could reappear. 

Barbu then questioned Tacoma about her working relationship with SSMU president Maggie Knight, and Tacoma testified that as CEO of Elections SSMU, she works under Knight’s portfolio but makes decisions independently. In their factum, Newburgh and Steven questioned the fact that Tacoma consulted with Knight at some points during the fall referendum period because, according to SSMU  elections by-law article 2.2, Tacoma should have consulted VP University Affairs.

Joshee-Arnal concluded Tacoma’s examination by confirming that there is no mention of Facebook in the by-laws and that Tacoma is not bound by the decision of past CEOs. Joshee-Arnal then called Knight to the stand for examination, asking her if Tacoma was bound by any advice Knight gave. 

“It is very clear in the by-laws that the CEO has ultimate authority,” Knight said. “I was very clear that, ultimately, we hired her so that the SSMU president doesn’t run elections.”

Knight further testified that she had recommended that Tacoma was physically present across campus to enforce election by-laws. 

“It wasn’t necessary for her to provide written reasoning for every email she received because of her other duties,” Knight said.  

When asked if she was contacted during the fall referendum regarding the CEO’s role, Knight said that she was addressed by the QPIRG ‘yes’ committee. 

“I received some complaints from the ‘yes’ committee who were concerned that the respondent was exhibiting bias [against] them.”

Following the cross-examination of the witnesses, the justices heard additional witnesses who had been called by three interveners, third parties who have entered the suit for their own interests. 

The advocate for the QPIRG intervener, Faiz Lalani, emphasized the need to ensure the referendum’s adherence to the constitution. 

“This appeal is about student democracy and how we conceive of it,” Lalani said. We want to ensure that students have the right to participate … and when they meet the constitutional safeguards that are in the constitution [such as the number of signatories], their democratic will ought to be respected.”

Lalani called on SSMU VP Finance Shyam Patel to confirm that the loss of opt-out-able fees would have severe negative implications for a student body such as QPIRG. He also questioned Anna Malla, a member of QPIRG, who said that many alternative aven
ues had been explored to maintain the organization without switching to non-opt-outable student fees. 

“We didn’t come to this question easily,” Malla said. “It took us years to get to this understanding that we actually cannot continue to exist under the current circumstances.”

Adam Wheeler, a co-chair of the QPIRG Yes Committee, said that although they consulted Tacoma frequently to ensure that they were in compliance with the bylaws, QPIRG never considered her to be biased in their favour. 

“At various times throughout the campaign we were actually concerned that she could be biased against us, because … the sanctions that we received … were quite significant … especially in comparison with previous years’ [referenda],” Wheeler said. 

The advocate for the CKUT intervener, Vladi Ivanov, emphasized the fact that organizations like CKUT are hurt by “blanket opt outs”  that “do not reflect any kind of democratic will regarding the actual value of services by CKUT.” Because students simply choose to opt out of all possible services online, they do not take the time to learn about the work done by the organization. 

The financial harm that this kind of a system means to an organization, Ivanov said, shows that the issue of opt-out fees is instrumentally linked to the issue of the organization’s survival. If the two issues in the question were inseparable, she claimed, the referendum was constitutional, unlike Newburgh and Stevens’ allegations. 

The hearing was concluded by  Barbu asking the board to invalidate the referendum. Joshee-Arnal concluded by asking the board to consider why Newburgh and Steven did not raise the issue over the referendum question until after it took place. He also restated the concern of why the petitioners only sought to target QPIRG and not CKUT when both referendum questions were the same.

The J-Board will release its ruling of the case within 30 days.  

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