Did BUSU give itself “unfair and irreparable advantage” in this referendum?

Is the ‘Yes’ campaign’s Video, Website, & Emails an unfair use of BUSU property and staff? Yeah, the CRO approved it. So what?

(Update: BUSU CRO has produced a statement ‘Student Engagement Levy investigation — Oct 19, 2018). Updated report coming soon.

Does ‘yes’ campaign break the $500 limit?
To keep referendums campaigns fair, expenditures are limited to $500. However, BUSU has granted much more to the ‘Yes’ campaign of the Student Engagement Levy than its respective ‘No’ campaign.

Specifically, employing marketing materials that are owned by BUSU and/or BrockTV; webdesign and videography created by BUSU employees; use of BrockBUSU.ca webserver and domain; use of BUSU Facebook page to promote the video; and use of BrockBUSU.ca email addresses and email lists.

Marketing materials are to be assessed by the Chief Returning Officer who must “apply a fair market value” (301 6g), discussed later.

Pursuant to “Fairness” (400 3.1a), could it be fairly understood that the competitor campaign could create something similar for less than or equal to $500?

BUSAC may designate an Exec to chair campaign (400 7.9), but it is not able to grant permission for the ‘Yes’ campaign Chair to use BUSU’s staff or pre-existing resources. The ‘Yes’ campaign Chair is President Aidan Hibma.
Property
Equipment, photos and videos, website/webserver, and email server/lists, are property that does not belong to the ‘Yes’ campaign nor can be shared with the ‘No’ campaign.
Staffers and officers are expressly forbidden in the BUSU Constitution from using BUSU property “other than normal BUSU activities” (Constitution XIV6). 
Even if a campaign were a normal BUSU activity, any resources available to one campaign would need to be available to the other (400 3.1a).

BUSU Constitution

These are web and marketing properties that are not equally accessible to both campaigns: both campaigns should be starting from scratch the first day of Prep week, using no prior resources that the competitor campaign would not have access. (400 3.1b ii). 
BUSU’s imagery and resources do not belong to the ‘Yes’ campaign; usage of this property is both unfair as defined bylaw 400 as it is unconstitutional as defined in Article XIV : 6.

Unequal access to clubs and brockbusu.ca emails 
VP Student Services Joyce Kouzam evidently emailed BUSU clubs to advocate the fees — from her official BrockBUSU.ca email address. She mentions “I am also chair of the Clubs Policy Committee” — which controls the clubs’ purse strings. In the email she advocates for the fee, requests meeting times so that she can talk to club members, and writes, “please vote yes and encourage you [sic] clubs to vote yes.”
The emails were sent to me by a student not directly affiliated with either campaign, who said, “It’s unfair that BUSU is allowed to email clubs. The no side has no access to that email list.” 
— Nor, I might add, does it have an “at” BrockBUSU.ca email address.

Further, and most egregious, is that Khouzam is on leave of absence for campaign period. This means she is potentially in a serious ethics violation.
Is it appropriate for her to be campaigning from a busu email address? Not likely.

So how appropriate is it to use a brockbusu email address, invoking the title and power of the VPSS, while on a leave of absence?

BYLAW 400 : 3.1 i, ii

Class A Infraction? — For BUSU?

“Class A” infractions shall be considered a contravention of the provisions of this by-law that are deemed seriously detrimental to either the elections process or the public perception thereof. Class A infractions shall include any action performed by a candidate or a member of their campaign team, or a referendum campaign team, that confers upon them an unfair or irreparable advantage over their competitors. (400 19.2a)

The Yes campaign for the Engagement fee is rife with campaign materials which “confer them an unfair and irreparable advantage over their competitors”. (400 19.2a).

The publication of the Video on BUSU’s Facebook page (“The video”), and the Website on BUSU’s webserver (“the website”) both represent contraventions to 400 3.1b “Equality”, namely (i) “equal opportunity to access the student body” and (ii) “no candidate may exploit a current or recently held position to gain unequal access” (and this point on “equal opportunity” applies to the emails, discussed earlier).

Regardless if the material value of the campaign exceeds $500, or not (and it certainly does), the issue is of “Equal opportunity to access the student body”. The Facebook page has been built by years and years of BUSU’s social media history; should the video be directly posted by the BUSU Facebook page? Would a fair campaign allow it?
This contraventions is serious enough that it can not be “corrected through the application of a sanction” (Class B: 400 19.2b). 
BUSU is the originator of the fee and the overseer of the process; this campaign’s unfairness is deeply “detrimental to [both] the elections process [and] the public perception thereof”. (400 19.2a)

CRO’s Job is to enforce fairness and equality
The Chief Returning Officer (CRO) is responsible “to assess the monetary value of all candidate and referenda campaign materials and apply a fair market value” (301 6g).
 The CRO is responsible for “enforcing all elections/referenda rules and regulations” (301 6e) “as per Bylaw 400” (301 6a). 
This means the CRO is not properly doing their job if her or she interprets campaign materials outside of accordance with the referendum bylaw.

Upon being informed of an infraction, the CRO shall pursue an investigation and Infraction Hearing (400 19.3c). If ratified, a Class A Infraction causes a campaign to be “immediately disqualified” requiring them to “cease to actively campaigning.” (400 19.3d).
However, the CRO already approved these campaign materials; that doesn’t suddenly make them fair and equitable, it just means issuing an infraction against the ‘Yes’ campaign for the Video and Website is not likely.

The CRO should have told the ‘Yes’ Campaign at the onset not to over-reach, but didn’t. So now what?

“Brock University Students’ Union employees should strive to serve the member interest by upholding both the letter and the spirit of the law. When the law is unclear or permits the exercise of discretion, employees should serve the member interest over any narrow, private, personal or selfish interest.” (BUSU Constitution , XIV:3)

Does this tip the scales?
This same fee proposal went to referendum in 2016, but BUSU lost by merely 154 votes. See my previous report for some context on that campaign. 
The ‘Yes’ campaign’s video on Facebook has ‘2.9K views’ as of its fourth day online. The like page for the ‘No’ campaign has 12 likes. 
The corporate entity responsible for ensuring that Bylaw 301, Bylaw 400, and the BUSU constitution is upheld … is the same entity vying for millions.

Questions

On Oct 17, I emailed BUSU’s CRO with the following exhibits and questions:
As of Oct 18, there has not been a response.

Exhibit A: The Video
 https://www.facebook.com/brockbusu/videos/2020191514684053/

1a) What equipment was used to film this video? 
1b) Was the camera operator an employee of BUSU?
1c) Was filming part of the camera operators paid duties?
2a) What equipment was used to edit this video?
2b) Was the video editor paid

2c) Was the video editing part of the paid duties? 
3a) What is the inherent value of the B-roll footage? 
3b) Who shot the footage for the B-roll; what were they paid? 
3c) Whose property is the B-roll video?
4a) Did the No campaign have equal access to these staff resources?
4b) Does the No campaign have equal access to publishing on the Facebook page?
4c) Does the usage of Facebook.com/brockbusu comply with “Equality” (400 3.1b i, ii)?

Exhibit B — The Website
brockbusu.ca/engagement

1a) What equipment was used to make this website?
1b) Was the webdesigner an employee of BUSU? 
1c) Was creation of the website part of the staff’s paid duties?
1d) How many hours did the website take to make? 
2a) What equipment was used to capture the photographs?
2b) Was photography part of paid duties?
2c) What is the inherent value of the photography?
3a) What is the value of a website domain? 
3b) What is the value of website hosting? 
3c) Whose property is the website domain and what is its value?
4a) Did the No campaign have equal access to these staff resources?
4b) Does the No campaign have equal access to domain and website hosting?4b) Does the usage of brockbusu.ca comply with “Equality” (400 3.1b i, ii)?

Exhibit C : The Emails

1a) Did the VPSS send them from brockbusu email address?
1b) Did she use an email list she had prior access to?
2a) Does the No campaign have access to sending emails from BrockBUSU email addresses?
2b) Does the No campaign have access to the email list which was used to send to campaigns?
3) Is the usage of BrockBUSU email and pre-existing email lists in compliance with “Equality” (400 3.1b i, ii)?

CRO’s responsibility
“Campaign materials must be approved by the Chief Returning Officer prior to their use in a campaign.” (400 13.8)

1) Was the video approved by the CRO? 
2) Was the website approved by the CRO?
3) Were the emails approved by the CRO?

“It is the responsibility of the Chief Returning Officer to ensure compliance with the rules and regulations stipulated by this or any other applicable by-law. The Chief Returning Officer is empowered to sanction, penalize, and disqualify candidates for contraventions of this by-law in accordance with the Visions and Principles contained within this by-law” (400 19.1)

1) Given Exhibit A, Exhibit B, and Exhibit C, Has the CRO fulfilled this responsibility ?
2) Given the sum of the case made, has the CRO fulfilled the requirements of Bylaw 301 6a and 6g?

Sources:
Bylaw 400 https://www.brockbusu.ca/wp-content/uploads/Bylaw-400-Elections-and-Referenda.pdf
Bylaw 301 https://www.brockbusu.ca/wp-content/uploads/Bylaw-301-The-Chief-Returning-Officer.pdf
Busu Constitution https://www.brockbusu.ca/wp-content/uploads/Brock-University-Students-Union-Constitution-May-2014.pdf

Update:

Sandor Ligetfalvy is a graduate of Niagara College Journalism-Print, a former student of Brock University Interactive Arts and Science, a former member of BrockTV/BUSU, and The Brock University Gadfly. brockbug