News  Long awaited J-Board case finally heard

Eleven witnesses testify, judgement to be issued within thirty days on whether to invalidate QPIRG and CKUT referendum results

Correction appended Feb. 9, 2012

After an over four-hour hearing with testimony from 11 witnesses on Monday night, the SSMU Judicial Board (J-Board) now has up to thirty days to issue a judgment on whether to invalidate the fall 2011 referendum results for QPIRG.

Students Zach Newburgh and Brendan Steven’s petition challenges the validity of QPIRG’s fall referendum question. It cites an allegedly unclear – and thus unconstitutional – referendum question, numerous ‘Yes’ committee campaign violations, and Elections SSMU CEO Rebecca Tacoma’s failure to fulfill the duties of her position.

The McGill administration refused to recognize the results of both CKUT and QPIRG’s referenda a month ago, citing a lack of clarity in the question.

Newburgh and Steven’s petition states “this appeal in no way reflects any views on the worth of [QPIRG] as an organization,” but instead challenged Tacoma’s competence and impartiality as Elections SSMU CEO.

However, debate ensued over the role of both Newburgh – who served as SSMU president last year – and current SSMU President Maggie Knight, in Tacoma’s hiring process.

Under cross-examination, Newburgh said he was “positive that the current SSMU president was involved in the [hiring] process.”

In an interview with The Daily immediately after the hearing, Knight said that, to her recollection, her only role in the hiring process was reviewing applicant resumes.

“I did, however, participate in the hiring of many other staff members along with the former president,” said Knight. “We did conduct a lot of interviews together, so it is possible that he simply mistakes what happened.”

Newburgh also said in testimony that he had been aware of seventy campaign violations by the QPIRG ‘Yes’ committee, a number he described as “unprecedented.” Tacoma, however, said in testimony that she officially sanctioned the QPIRG ‘Yes’ committee three times.

Newburgh and Steven’s petition lists excerpts from 15 emails sent from Newburgh to Tacoma between October 31 and November 10 – to which Tacoma provided ten responses – detailing alleged campaign violations by the QPIRG ‘Yes’ committee.

The emails form part of the petitioners’ basis for the argument of a “reasonable apprehension of bias” on the part of Tacoma, and that she “did not perform her duties with due diligence and impartiality.”

The petition cited one specific example, when Newburgh submitted examples of violations that Tacoma then enforced. According to the petition, at least one ‘Yes’ committee member continued to advertise support by Kanata, “a group external to SSMU,” after the censure, and was not penalized.

“The Respondent’s definition of groups external to SSMU is based on an unworkable criterion. The decisions based on this definition are therefore unreasonable,” reads the petition.

“While the CEO is empowered to set her own procedure, whatever procedure she might have set was not applied consistently,” continues the petition.

In testimony, Tacoma said Knight had advised her to not write detailed responses to emails during the referendum period.

“I was concerned that she would spend too much time at her computer writing out detailed answers,” said Knight during her own testimony.

“Given that it was a very contentious campaign and that her judgment was so important for fair implementation of the bylaws…I suggested to her that it was important that she be as physically present [on campus] as possible,” continued Knight.

Knight admitted in testimony that SSMU’s bylaws are “convoluted.”

Furthermore, Knight described how members of the QPIRG ‘Yes’ committee had contacted her early in the referendum period “with concerns that Rebecca Tacoma was exhibiting bias in favour of the ‘No’ side.”

Further testimony was provided regarding the recent financial harm inflicted by opt-outs on QPIRG. The petition cites a QPIRG’s 2010-11 expenses, which state that opt-outs constituted 11.74 per cent of total expenses that year.

Former SSMU VP Finance and Operations Nick Drew, who was on the SSMU executive with Newburgh last year, testified that a 12 per cent loss in expenses was not enough to threaten the existence of a not-for-profit organization like QPIRG.

Faiz Lalani, advocate for the QPIRG intervener in the case, called current SSMU VP Finance and Operations Shyam Patel as a witness. Patel testified that the number of opt-outs in a semester are “difficult to predict.”

Three interveners participated in the hearing: QPIRG, CKUT, and SSMU VP Clubs and Services Carol Fraser – each of whom called witnesses.

Newburgh and Steven declined to comment after the hearing.

Vladi Ivanov, legal advocate for CKUT, drew attention to the similarities between QPIRG and CKUT’s referendum questions last semester.

“I move with my argument now on the predication that the constitutionality of the two questions is the same,” she said during the hearing. “CKUT are here as interveners to protect the constitutionality of the question in the future.”

In her closing statement, Newburgh and Steven’s advocate Carmen Barbu noted, “Tonight we have learned a lot of things, but there are also lots things that we haven’t learned.” She cited examples of confusion over the interpretation of SSMU’s campaign bylaws, as well as what constituted an “external group” at McGill.

In his closing statement, Joshee-Arnal pointed to what he perceived as “bad faith” on the part of Newburgh and Steven, with their “failure to target CKUT with these hearings, despite the similarities in questions.”

The J-Board case has been mired in controversy since it was announced on January 14.

Originally scheduled to be heard January 31, the SSMU Board of Directors (BoD) suspended the case on January 26, citing the need to clarify the constitutional relationship between the J-Board and the BoD.

During the SSMU General Assembly a week later, Newburgh and Steven introduced a motion from the floor to reinstate J-Board activities; the motion failed. Three days later, the BoD reinstated J-Board activities in an open-session, re-scheduling the case to be heard Monday.

The day before the hearing, the J-Board dismissed Tacoma’s motion for Justice Raphael Szajnfarber to be recused from the case. The motion called for Szajnfarber to excuse himself from hearing the case on the grounds that he had a conflict of interest stemming from a dispute with the Ontario Public Interest Research Group (OPIRG) during his 2008-09 term as president of Hillel Ottawa. Szajnfarber had served as spokesperson for Hillel Ottawa after OPIRG denied them funding for a campus event.

The J-Board ruled, “We find that it would be difficult to argue that comments made years ago, in a different city about a different organization, in a different capacity, and in response to specific event, could in any way be construed to translate into a bias towards an unrelated entity in a completely different role and set of circumstances.”

In an earlier version of this article, it was stated that Tacoma and Joshee-Arnal “called” three interveners for the case, and that Newburgh and Steven did not call any. In fact, interveners participate in their own capacity as interested third parties in the hearing. The Daily regrets the errors.