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Constitutional Amendment is a power shift but no one in power is concerned because it’s being done to “comply with law”

A new order is dawning for Brock University Students Union (BUSU) where all legislative and most oversight powers of Brock University Students Administrative Council (BUSAC) will be removed and given to the BUSU Board of Directors (BOD) — if the Constitutional Amendment referendum passes next week.

This may have a negative impact on opportunities for Accountability, Transparency, and Representation at BUSU, but the amendment is said to be required to comply with Provincial law — and to avoid fiduciary liability.

Under the presupposition that amendment is a requirement to “comply with law”, current representatives are not concerned it may negatively affect student democratic representation.

“It just changes the way operations work. It changes the way who decides what, and at the end of the day students still get to have a say in that,” Sethumadhavan said.

Councilor Ben Johnson said, “Members of the Board and especially Mr. Khan, have been very clear about the spirit and the whole purpose and motivation for this constitutional referendum, and they presented all that information”

“Everything seems extremely in-line with the purposes of BUSU as whole, as it pertains to the constitutional referenda,” Johnson said, during question period on Oct 23.

See full report: Amendment will give Board of Directors power over BUSU legislation which is currently held by BUSAC

Currently, BUSAC has 31 voting Councilors and four voting Officers (Executives) — a total of 35 elected representatives — while the BOD has just seven voting members.

Under the amendment, BUSAC councilors would continue to be elected, but with fewer powers:

Under current rules, Officers (Executives) are required to “report” to BUSAC, and Officers “shall be accountable” to BUSAC, but under the amendment these powers shift to the BOD.
Officer’s reports will be submitted to BOD, not BUSAC. If there are Exec reports to BUSAC in the future, it will be out of courtesy. BUSAC as a governing body will no longer be required to hold Officers “accountable”. Also removed from BUSAC’s powers are: committees, and oversight of election legislation.

Currently, BUSAC meetings are broadcast on Facebook by BrockTV, but BOD meetings are not. BOD meetings often deal with sensitive topics and necessarily go off the record (“in camera”) more often than BUSAC meetings. They have frequent meetings at an irregular schedule, whereas BUSAC has a predictable and routine bi-weekly meeting schedule.

More details on the “legal advice”
Asked during question period when did BUSU received the legal advice, BUSU president Bilal Khan said that legal advice was received “on multiple occasions”.

Which BUSU officials met with BUSU to receive the legal advice? BUSU’s legal team met with General Manager (GM) Robert Hilson and Director of Government Operations Ron Bauman, Khan said on Oct 23.

Hilson and Bauman are staff, not elected nor have a vote in a BUSU governing body. Bauman is in the role temporarily while the full time Director of Government Operations is on maternity leave, Mr. Hilson told me at another time.

“We were getting advice on two fronts: One, that it’s not a best practice today — under the current Corporations Act; And then two, the information we are receiving is that under ONCA — if ONCA comes in — it’s actually no longer permissible” Hilson said.

ONCA is the Ontario Not-For-Profit Act which was passed back in 2010, received royal ascent in 2013, and has been in some sort of legislative limbo ever since then. It is expected to come into effect early in the new year.

When asked about the potential of ONCA being repealed instead of enacted, Hilson said, “what we have heard through our advocacy channels is that it will come into effect” — specifying a time period of January or Feburary 2020. He said the law would thereafter have a grace period of a year or two before being fully enforced.

In an exchange of emails which followed up on the question of citation of the relevant laws, Mr. Hilson said: “Section 17 of ONCA gives directors power to make amend and repeal by-laws. Section 36 places limits on the ability of the directors to delegate by-law making power.”

“By-law making power is specifically the power and responsibility of the board of directors, and it is by implication non-delegable under the current Act, except to an “executive committee” of directors (see section 70 of the Corporations Act)”, Mr. Hilson said by email.

“Best Practice” and Fiduciary Liability
Even if ONCA was a maybe, the BOD has fiduciary liability. Currently, BUSAC as an elected governing body is empowered to create, amend and rescind by-laws for the non-profit corporation of BUSU. But whatever happens as a result is the responsibility — the liability — of the Board.

BOD “has the responsibility, legally, for the fiduciaries”, said Hilson.

That’s not just the financials, but also “risk management”.

“Forget about ONCA. Right now it is not exactly a best practice”, Hilson said, referring to BUSAC writing by-laws which BOD is ultimately liable for.

“If there’s undue risk that’s put on the actual corporation, it is the responsibility of the seven Directors on the board, currently, to actually assume the risk for that,” Hilson said.

In short, BUSAC is a risk and liability to the Board of Directors.

In recent years, as I have documented on various occasions, BUSAC has had deficiencies in following its own by-laws.

While BUSU has not suggested that their own missteps has created the liability, the implication exists; Multiple cases of broken by-laws in BUSU referendums may be a liability for BUSU — for the Board of Directors.

By-laws are kind of like a contract with the members; if the corporation doesn’t accurately enact its by-laws and those deficiencies can be shown to have caused harm of a member, a lawsuit could result.

For example, the referendum of Oct 2018 resulted in a large levy being created, but the levy was acquired in an (admittedly) unfair process. Despite promises to “work arduously” to address the referendum unfairness, nothing was done. Regarding the broken by-laws of the Oct 2018 Engagement Levy referendum, I was advised by a knowledgeable source that a lawsuit could have been filed by an affected member (but that was before the Student Choice Initiative which allowed opt-out of certain ancillary fees).

The Constitutional Amendment referendum was itself timed incorrectly according to the requirements of the by-laws which say voting must be complete by Oct 31, but voting will be complete Nov 7.

In the future, BOD will be in control of the BUSU referendum legislation and process as Bylaw 400 will become something like “Board Procedure 400”. This doesn’t mean referendums will necessarily be conducted more fairly in the future; it means the by-laws could be rewritten by the BOD pursuant to not being liable for lawsuit.

For example, in Sept 2018 BUSAC combined the elections and referendum by-laws and in doing so removed the portions they had been prior been breaking.

There may be other past (or potential) examples that I am not aware of; such as cases where BUSAC failed in its duties to hold Officers accountable, or other deficiencies pertaining to BOD’s fiduciaries.

“At least we can stop expecting BUSAC to stand up to the executive and hold them accountable, because now we’re taking away their ability to do so”, said former BUSAC councilor (2013–2016) Calvin Eady, in a discussion with me on the amendment. “I’ve come to the conclusion that BUSAC won’t ever hold anyone accountable because they can’t even hold themselves accountable.”

“Now BUSAC is going to be a useless body on paper instead of just in practice”, Eady said.

I asked Robert Hilson if the amendment was a power shift.

“I think it’s fair to say that the responsibility for approving by-laws, there is less students making those decisions”, he said, “but that doesn’t preclude on a go-forward basis, something else changing to that.”

“[BOD] might say, this is it, and this is the final decision, but they might decide that we need to look at this, as well,” Hilson said.

BOD chair Ahuja said during BUSAC on Oct 23, “As promised, a review will be done to ensure that student representation will be held at top priority”.

A promise is only a promise. Within the organization, there is very little momentum — political willpower — in following up on a promise like this. It’s a lot easier to make the promise than it is to make it happen.

In recent BUSU history, the BUSU elections team (Governance, Elections and Nomination committee) also made a promise, to “work arduously” to address referendum unfairness, but couldn’t show later they had done the work.

Enough experience with student union promises — and really any political promises — justifies a healthy amount of political nihilism. Believe it when you see it.

A “review” is a generic phrase that means nothing substantive. If a review is done, its terms will be designed, its objectives will be set, and its enforcement will be enacted by those in power — the Board.

As was evident in the reaction to last year’s promises from the Elections team, there is very little — if any — pressure from students or the media to ensure promises are kept.

If the students want to reclaim the prior level of representation — which they had already squandered — they will have to wiggle, struggle, show up, and vote their way back into the conversation.

As has often been my lament, BUSU failed to deliver adequate publicity of the proposal for constitutional amendment. While the subject matter may be difficult and the general student body apathetic, BUSU systematically under-performed its due diligence in informing the public.

The referendum was announced in a presentation by BOD chair Ahuja on Sept 25, when it was put to the Referendum Quality Assurance (RQA) committee. RQA returned the next meeting with a Question and an Appendix.

It was officially initiated on Oct 9 — in violation of multiple sections of By-law 400. As reported previously, according By-law 400, a referendum cannot be initiated after the opening of Nomination period (which opened Sept 31, but the referendum was initiated Oct 9), and voting must be complete by Oct 31 (which concludes Nov 7).

When initiating the referendum on Oct 9, BUSAC extended the deadline for the No side to sign up from Oct 11 — when Nomination Period closed — to Oct 21 (which happened also to be the same day as the Federal election.)

In the meantime — the mere 11 days between Oct 9 and Oct 21 — BUSU showed no urgency in announcing the referendum.

The Appendix was uploaded to the BUSU website on Friday Oct 11 — the first time the public had the chance to see the changes, but you’d have to have been visiting the Elections page of the BUSU website to know.

There was no post about it on BUSU social media until one week later on Oct 16. In the posts, BUSU didn’t even try to explain the context. The student body who is not already tuned-in to BUSU though BrockTV would have no way of knowing why this is happening or what the changes mean.

Each student would need to engage in hours and hours of research — reading the Appendix without much of an idea what it means — to even begin to understand it, let alone to form an opinion about it.

Making proposals takes time if they are made in public. In this case — as in practically all recent BUSU referendums — the proposal was completely rushed through the process: a process that was itself so rushed, in this case — as in previous cases — that it defied the existing bylaws which specify the appropriate timing of initiating and running referendums.

This could be the consequence of novice, immature, biased BUSU officials who simply don’t recognize their responsibility in reaching out to the public — and a political culture which refuses to learn from past mistakes. Or it could be a tactic to avoid negative attention and to squelch opportunity for opposition.

The proposal for amendment was made in council on Sept 25, and initiated in council on Oct 9, but the entire month went by without Brock Press even so much as mentioning it. There was zero reporting until Oct 29 — well after the Oct 21 No campaign sign up deadline.

Late to the party

Brock Press opinion piece

Nickel points out that “BUSAC would no longer have the power to act independently of the Board of Directors”, saying, “They will be a surface level seal of approval and nothing more.”

“This has major implications for the future of democratic representation for students in their student union, something that should be troubling to everyone. To only guarantee BUSAC as much power as the Board of Directors is willing to give them doesn’t really inspire hope in me as a student that BUSU will be entirely representative of the student body,” writes Nickel.

Nickel also laments the lack of a No side, suggesting that BUSU “should have taken the mantle themselves, or, for the sake of fairness, not been allowed to run a ‘Yes Side’ campaign.”

The Nov 5 piece mistakenly states that BOD members are “unelected”, an error the author tells me will be corrected.

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 — since 2013.

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