How Many Infractions Do You Count In BUSU’s “Unfair” Engagement Levy Referendum?


Bylaw 400.pdf vs Student Engagement Levy Investigation.pdf re: Referendum unfairness

Yes campaign gets Two Class B Infractions — ‘failed to seek approval’

The BUSU Election team’s report says the Yes campaign received two Class B infractions because they “failed to seek approval” before utilizing practically the entirety of BUSU Inc’s communication reach, and scheduling meetings with clubs.

If it had been three Class B infractions, or just one Class A infraction, the Yes campaign, run by two BUSU executives, would now be disqualified. 
The penalty the Chief Returning Officer (CRO) gave the Yes campaign is a weekend off of campaigning.

“It is, however, the recommendation of this investigation to charge the Governance Elections and Nominations Committee to revisit the potential biasness [sic] that can arise from these referendums”, the report says.

The elections team claims, “We do see the need for change” and promises to “work arduously” to “make sure that Bylaw 400 is updated”. (Again?)

“To try and reestablish a level of equity,” the CRO has “requested” that the No campaign be provided 1) a “similar segment” produced by BrockTV, 2) “the same clubs email list, and 3) “ access to a television screen for their campaign stations”.

The report was issued quietly on Friday afternoon. The debates are Monday and Voting begins Tuesday.

“Our team feels that these requests and penalties will help to rectify most of the issues that have been presented, and restore a level of balance to the campaigns”

It appears that the elections committee report does not consider multiple contraventions to bylaw 400 to be infractions. 
It provides an admission of an “unfair advantage“ for the ‘Yes’ campaign, but shirks the responsibilities laid out in the bylaws 400: “Visions and Principles” (400 3.1) by claiming, “this has been the precedent set in past referendums, and the Elections team does not feel that we can change that precedence in the middle of a campaign period.”

“Precedent” disputed by past BUSU governance staff

“The ‘precedent’ of BUSU using those resources last year ignored decades of actual precedent. That’s a garbage rationale. Win fair.” tweeted former BUSU Government Operations Manager (GOM) Josh Doan. Scroll down for more.

past referendums also unfair, ehh?

The Student Engagement Levy (SEL) was initiated by BUSU through BUSAC who allowed BUSU President Aidan Hibma to be designated to chair the campaign.

The $100-per-first-year-student fee is worth half a million dollars for BUSU’s event programming, primarily benefiting the VP Student Services portfolio.

This is the third attempt at the referendum; In 2016 BUSU’s ‘Yes’ campaign — then called a ‘Programming’ levy — lost by just 154 votes.

CRO: Yes campaign ‘failed to seek approval’

Oct 19 — late Friday afternoon — BUSU very quietly released a statement from Brock University Students Union (BUSU) Chief Returning Officer (CRO) James Hall. The statement claims the Yes campaign “failed to seek approval for the use of campaign material on the BUSU website, Facebook page, and emails sent to BUSU Clubs”, which collectively earned a singular Class B infraction.

The Yes campaign “also failed to seek approval before speaking in front of student clubs and lectures”, which is a new revelation that was not included in my article on Thursday nor in the email I sent BUSU on Wednesday
This second infraction is also described in the plural, as if it occurred more than once, but again earned a singular Class B infraction.

Two strikes, not out
If the Yes campaign had received three Class B Infractions, it would be “assessed as a Class A infraction for non-compliance” (400 19.6) and therefore “be immediately disqualified [and] cease to actively campaigning” (400 19.3d).
 An infraction which is Class B is “not deemed seriously detrimental to either the elections and can be corrected through the application of a sanction.” (19.2b).

The combined penalty of the two Class B infractions — for “failing to seek approval” — is the for the ‘Yes’ side “to close their campaigning at 2:00 PM on Friday, October 19th, 2018 and also to not campaign until 11:30 AM on Monday, October 22, 2018.”

Yet, the bylaw describes a “sanction” as an action that “ shall serve to rectify any favour, position, or advantage gained by a candidate for their committing of an infraction” (19.4d i). Does a weekend off rectify unfairness?

Email infraction glossed over

The seriousness of the email issue was glossed over by providing the ‘No’ side with the list of “the same clubs email list that was used to send out any un-approved emails and a list of clubs that have been presented to.”

While the CRO’s role does not include commenting on a blatant ethics violation of an executive using BUSU property (Article XIV:6 re: email and clubs list while on leave of absence) to conduct Yes campaign business — bylaw 400 does clearly state in“Visions and Principles: Equality” : “no candidate may exploit a current or recently held position to gain unequal access to any part of the student body.” (3.1bii)

The CRO claims “The infractions of not seeking preapproval was not deemed seriously detrimental”, but says nothing about the VPSS using BUSU to send emails to clubs as an example of a contravention of the bylaw forbidding an exec to “exploit a current or recently held position to gain unequal access.”


‘Yes’ campaigns on BUSU’s Twitter one day in to penalty
Despite the CRO admitting on Friday “utilizing material from BUSU does, in our opinion, provide [the Yes campaign] unfair advantage”, another social media post appeared on BUSU’s Twitter account.
Saturday afternoon, less than 12 hours after receiving notice of sanction and penalty to cease campaigning for the entire weekend, BUSU published a new Yes campaign video on Twitter.
“We’ve read your tweets, heard your concerns from O-Week and now we have solutions! Make the right choice and for our incoming students and vote YES to the Engagement levy,” the tweet read. 
The video had the BrockTV logo in the corner, which adds the total number of BrockTV videos produced for the Yes campaign to three. 
The post was subsequently deleted. 
According to the No campaign, the CRO had to clarify to the Yes campaign that they had been sanctioned from all forms of campaigning, not just on campus.

Weekend penalty
The penalty to the Yes campaign of a weekend off of campaigning does little to, as the report said, “restore a level of balance to the campaigns”. 
The Yes campaign has just come off of five full days in the halls for campaigning; the video has already been on Facebook for five days and gained thousands of views. A weekend off is not a penalty.
BUSU did not announce the infraction on its social media, drawing criticism from a former BUSU governance manager who said, “There’s an infraction on your own President for using BUSU resources without permission and you don’t use BUSU resources (Twitter) to tell people. But you DO use the account to promote the Yes side of a campaign.”
None of the admittedly-unfair social media posts and videos were included in the sanction; no immediate guidelines to return BUSU to an appearance of neutral arbiter. The Yes campaign will continue to be permitted to use BUSU’s social media.
The first acknowledgement of the existence of a No campaign on BUSU’s social media was on Sunday Oct 21 to inform students of the debates Monday Oct 22. Voting is conducted online via BrockU email Oct 23–25.

‘Try to reestablish a level of equality’
The ‘No’ campaign did receive, and did utilize, the list of about 90 BUSU clubs. The list itself is probably the private property of Brock University Students Union Inc. and should not ever have been exposed to the public, but now it’s out; because ‘Yes’ blasted clubs with campaign advocacy, ‘No’ was given the same opportunity.
The list being provided to ‘No’ is an admission by the CRO that it was the sending of the emails, not the failure to “seek approval”, that was the clear unfairness. 
If sending the list to the ‘No’ campaign “serve[s] to rectify any favour, position, or advantage gained by a candidate for their committing of an infraction” (400 19.4d i), that’s one Class B infraction settled; and requesting BrockTV make a campaign video, that’s another Class B infractions settled— what about everything else?

Using the BUSU logo/branding, web server/web domain, social media, paid BUSU and BrockTV staff (and therefore going overbudget), are all waved away by Hall’s interpretation which exonerates the ‘Yes’ campaign from wrongdoing by building an argument which claims (speciously): “In the past, when BUSAC approves BUSU to run a referendum, BUSU has made full use of their social media and personal material to help aid in their campaign”.

Bylaw misreading: ‘BUSAC approved BUSU to run the SEL’

Hill states, “ BUSAC approved BUSU to run the “Student Engagement Levy” referendum, and also approved Aidan Hibma, BUSU President to run this referendum at the September 12, 2018 meeting.” The Sept 12 council motion reads, “[be it resolved that] BUSAC tasks BUSU to run the YES side of the Student Engagement Levy with Aidan Hibma as Campaign Manager.”

However, let’s read bylaw 400 7.9 carefully: “ For any referendum, BUSAC shall pass a motion indicating whether they allow the Brock University Students’ Administrative Council to run either a ‘YES’ or ‘NO’ Campaign Team and may designate one (1) member of the Brock University Students’ Union Executive to act as the Chair of the Campaign Team.”

‘Allow BUSAC to run’ (400 7.9)
That’s BUSAC, not BUSU, whom can designate an BUSU exec to chair the campaign team. This is just an executive chairing a committee: not an entire corporate entity being being granted unfair, unconstitutional and bylaw-breaking powers.

7.9 works in tandem with 12.3d, 3.1bi and 3.1b ii. The bylaw’s Vision and Principles are thrown in the garbage if it was true that “BUSAC approved BUSU to run SEL”.
This means the motion at council on Sept 12 was, at best, poorly worded, or, at worst, a violation of bylaw 400 and overreach by BUSU.
The word “precedent” does not appear in bylaw 400.

Neither “precedent of past referendums”, nor a council’s poorly-worded motion, should be at all relevant to a CRO who is obligated through his or her job description (bylaw 301) to follow bylaw 400 — and through the BUSU Constitution, which states, “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.”

The issue of the “Yes” side utilizing material from BUSU does, in our opinion, provide them with an unfair advantage over their competitors; however, this has been the precedent set in past referendums campaigns, and the Elections team does not feel that we can change that precedence in the middle of a campaign period.

‘the precedent set in the past’
While admitting “unfair advantage” of ‘Yes’ campaign — chaired by BUSU’s president Aidan Hibma — the CRO waves this away by stating, “this has been the precedent set in past referendums campaigns, and the Elections team does not feel that we can change that precedence in the middle of a campaign period.”

This is obviously false, but it is also verified by experts quoted for this report: 
From former BUSU governance employees —

“When I was CRO, despite BUSU exec being in favour of the Yes side, official BUSU channels and resources were not permitted to be used,” former CRO Adam Marshall told me for public statement.

Josh Doan, Former BUSU Government Operations Manager and BUSU Elections veteran — who was involved for at least five years the modern construction of the BUSAC bylaw system and oversaw multiple elections — said, “precedent” is “garbage rationale” and claimed (correctly), “using those resources last year ignored decades of actual precedent.”

He chided BUSU to “win fair”. (In other words, this is cheating).

Former Deputy Returning Officer (DRO) and then CRO Mauricio Galko spoke up on a Facebook thread on my referendum unfairness story: “That’s crazy, this is a violation of the bylaws! Videos with BUSU’s logo and the use of the BUSU office is forbidden.”

“How can a ‘No’ campaign stand up to a multi-million dollar corporation?” — Galko (former DRO, CRO)

Use of BUSU’s logo and office are understood to be forbidden specifically because of issues of fairness, equal access, and market value. Multiple BUSU campaigns have come and gone, many of them unfair for other reasons, but yet maintained social media neutrality.
A quick search on BUSU’s Twitter for “Vote Yes” shows us, prior to the Engagement Levy, the singular instance of BUSU using its own social media for referendum campaigning was the Bus pass in 2017
Prior to that, nothing? One (or two, the Zone) campaigns define the Election teams definition of “precedent”.

“In our opinion, in concurrence with past referendums run under the same conditions, BUSAC’s approval gives the referendum team the ability to use the resources available to them from BUSU”: CRO

‘Same conditions’?
In 2017, the bus pass did not have a No side. In 2018, The Social Justice Centre and The Zone did not have a No side, and therefore no one who can complain. 
Early this year BUSU was criticized for flubbing its bylaws and failing to provide timely due notice.
In 2016, the Programming levy referendum did have a No side; run by campaign manager and BUSAC veteran Calvin Eady who told me, “[The 2016 ‘Yes’ Campaign] didn’t use [BUSU’s social media] to my knowledge”.
He said he filed an infraction complaint against the 2016 Yes campaign for off campus campaigning which lost on appeal.

“Precedent” in compromised “integrity and fairness”
In 2014, the BUSU Elections team made the (controversial) decision to cancel the Student Senate race because a professor sent an email. 
The report said the prof emailing students about the race “compromised the integrity and fairness of the race.” 
“The Committee determined that these actions and circumstances have compromised By-Law 650 Section 6;(i)(b)(e) and thus has created a disadvantage to the three (3) unendorsed candidates in which the Elections Committee is unable to repair or remedy” the 2014 Elections committee, chaired by CRO Galko, said. In 2014 the Vision and Principles of referendum was defined by Bylaw 650 (Elections) circa 2014:

“Equal opportunity” referenced by CRO bad decision in 2014, ignored by CRO bad decision in 2018

A different precedent: Cancellation
In 2012, BUSU cancelled the Women’s Centre Referendum (a third party fee), citing bylaw 675 (Referendums) circa 2012. CRO Norman told council on March 27, 2012, “we have had multitudes of cases that have breached the code of conduct of bylaw 675 to the point where it was hard to govern the election.”

March 27, 2012

Engagement Levy’s ‘Unfair advantage’

A Class A infraction — as is the titular focus of my previous report — would be something “ seriously detrimental to either the elections process or the public perception thereof” which confers “unfair and irreparable advantage” (400 19.2a). Although Hall admits that a campaign “utilizing material from BUSU does, in our opinion, provide them with an unfair advantage over their competitors”, he stops short of recognizing the serious determent to both “the election process” and “the public perception thereof”.

“All social media accounts and websites must not be made public or active until the commencement of the campaign period.” (400 13.11b)

Hall’s reading of bylaw 400 appears to gloss over section 13.11 which focuses on social media. It articulates a vision of campaigns conducted from new accounts: “All social media accounts and websites must not be made public or active until the commencement of the campaign period” (400 13.11,b).
“Prior to the commencement of the campaign period, candidates are only permitted to add or display their accounts to registered members of their campaign team” (400 13.11b,ii) 
These two sections are impossible to adhere to when utilizing BUSU’s pre-existing social media accounts.
Regardless, bylaw 400’s “Equality” language declares “each candidate will have an equal opportunity to access the student body during the campaign period to communicate their campaign platform” : 
The Yes campaign using BUSU’s pre-existing social media is, obviously, not granting the No campaign an “equal opportunity”(400 3.1b i), while the Yes campaign does “exploit a current or recently held position to gain unequal access” (400 3.1b ii).

No recognition of ‘$500 limit’
BUSU referendums have expenditure limits “to ensure equality” (400 12.1), but Hill’s report sidesteps the questions asked of the ‘Yes’ campaigns budget.
Expenses incurred in “purchase, production, or procurement of any campaign materials” (400 12.1) are limited for campaigns to “$500” (400 12.3d).
The CRO’s role, according to the job description, is to “assess the monetary value of all candidate and referenda campaign materials and apply a fair market value” (bylaw 301 6g).

By including BUSU’s pre-existing social media, webdomain, servers, email addresses, these are intangibles the make a market assessment impossible, and can not be given “equal opportunity” for the No campaign. 
The Yes campaign has a video (BrockTV) and web production (BUSU) team — paid by BUSU outside of referendum — while the No campaign has, as they note, “just a meme generator.”

I made this meme to explain this report.

How many infractions can you count?

There are multiple instances of Class A-level unfairness. That’s unfairness which is serious and cannot be rectified by a penalty. The unfairness is admitted to by the CRO in the investigation report, but is justified with the notion of “the precedent of the past”.
As we have shown, ‘precedent’ is bunk — “a garbage rationale” said Doan.

There are multiple contraventions to the bylaw which are, at minimum, Class B Infractions. A fair and litigious CRO and elections team could dole-out each contravention as a separate infraction: 
Posted Campaign video as BUSU on Facebook, Ding. 
Posted “Vote Yes” as BUSU on Twitter, Ding. 
Sent 90 emails as VPSS without permission to an exclusive list, Ding ding ding. BUSU posts another video Tweet during the campaign penalty, Ding ding ding!

Did all that — AND “failed to seek approval”, ding ding ding!

As explained, the only thing that makes an infraction Class B, not A, is if it can be rectified. Most of what has taken place here cannot be rectified, but each respective “requested” rectification is an admission of a respective infraction. 
There are three requests: A BrockTV video, an email list, and to place videos a TV. But who’s counting?

The first infraction of sending emails to a restricted list — ostensibly rectified by providing the list to the ‘No’ campaign.
The second infraction, producing a BrockTV video, is ostensibly rectified by producing a video for the ‘No’ campaign. 
(If it wasn’t an infraction then it wouldn’t be a request made “to try to reestablish a level of equity.”) 
However, this second rectification is moot. It’s too little, too late; It isn’t fair (or within the CRO’s power) to ask BrockTV to produce referendum campaign materials.

“The Elections team has also requested that the ‘No’ side have access to a television screen for their campaign stations, as per their request”.

Is this an admission that BUSU was also unfairly placing ‘Vote Yes’ on these TVs? Is it a viable request in the middle of campaign week — or even at all?

AND they “failed to seek approval” 
The CRO’s claim that the Yes campaign failed to seek approval is an infraction according to the bylaws: “Campaigns must inform the CRO of all social media or electronic components of their campaign and grant access to view such accounts prior to the commencement of the campaign period.”(400 13.11)
“Campaign materials must be approved by the Chief Returning Officer prior to their use in a campaign” (400 13.8)

The question is when did Hall and the Elections team realize that the infraction of not seeking approval took place? One might think it would be on the day it was posted that would Hall would know he hadn’t approved it yet.

Hall: “Further, there is no specific bylaw that specifies BUSU must aid the ‘No’ side of a referendum with access to their social media or any other organizational material”

There aren’t bylaws that say BUSU must aid the No side, but plenty of “specific bylaws that specifies” the Vision and Principles (400 3.1), rules for Social Media (400 13.11), a budget limit of $500 (400 12.3d) and that its the CRO’s job to assess campaign materials fair market value” (301 6g).

The only reason a ‘No’ campaign would ever want access to BUSU’s social media is if the ‘Yes’ campaign had already exploited their position to give themselves unequal access to the student body — such as in this case.

“Revisit the potential biasness”

It is, however, the recommendation of this investigation to charge the Governance Elections and Nominations Committee to revisit the potential biasness [sic] that can arise from these referendums and make the necessary changes to create a higher level of equality in the future. The Elections team will work arduously with the necessary committees to make sure that Bylaw 400 is updated to reflect these necessary changes, and to make the referendum and elections process more equitable in the future. (Chief Returning Officer James Hill, Oct 19, 2018)

Feb/March 2018: Students Concerned on Referendum Fairness
The last time BUSAC was under pressure for violating its referendum bylaws, council ignored a motion by councilor Geoffery Verrier which called for BUSAC to task its committee to produce a report “reviewing inconsistencies of fairness within BUSU’s referendum process” as he attempted to have council reject the results of the Student Justice Center referendum because the referendum was conducted in contravention of bylaws.

The bylaws that Verrier and Students Concerned On Referendum Fariness (SCORF) specified, which I had outlined in my previous reporting, were “expunged” in September. BUSU (or BUSAC? or the Board?) through the Governance committee moved most of bylaw 401 in to a new version of bylaw 400, leaving behind the bylaws BUSAC had been breaking (401 5.12abc) — and also granting the Executive ability to campaign without taking a leave of absence, itself an inherent (and new) unfairness of bylaw 400.

As I exclusively reported in Bylaw 400 was passed it’s second On Sept 12. 
Yet, on Oct 19 the Elections team has already declared: “we do see the need for change”, promising to “work arduously with the necessary committees to make sure that Bylaw 400 is updated”.

We do see the need for change, and as stated, will work diligently to make this happen for the future — Hill

CLARIFICATION: My Oct 18 report claimed the CRO approved campaign materials which are in contravention of the bylaw, however the CRO claims the Yes campaign “failed to seek approval”. This question — if CRO Hill had approved them — was submitted by email on Oct 17 but received no reply.
 I regret having made a incorrect assumption which the CRO has now clarified.

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 is The Brock University Gadfly. brockbug

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