Mitchell files complaint contesting Marrero's executive order (1 of 2 Articles)

Trinity junior Sarah Mitchell, Duke Student Government executive vice president, filed a complaint Tuesday night with the DSG Judiciary disputing the legality of the executive order allegedly used by Trinity senior Lino Marrero, DSG president, and Trinity senior Jason Barclay, DSG chief of staff, to proceed with their "Beer on Points" proposal.

The investigation request submitted to Trinity junior Josh Schaffer, chief justice of the judiciary, alleges that the executive order process employed was illegal on three counts:

¥ Cabinet members never voted to approve the use of the order-a step mandated by the DSG constitution;

¥ If the cabinet members had voted on the order, Marrero and Barclay still failed to present it to the full legislature in the form of a by-law or resolution for another vote-also mandated by the DSG by-laws;

¥ Any legislative approval garnered by the order would have been void because of alterations made to the proposal following the initial approval, Mitchell's complaint reads, that "may have changed the intent, benefits and/or ramifications of the policy so drastically that it could be considered a new and separate proposal." The "new" policy would have been devised while the legislature was in session, thereby rendering the use of an executive order both unnecessary and illegal.

In a statement released to The Chronicle and the DSG cabinet, Schaffer called on Marrero and Barclay to respond to the allegations by Oct. 14 at 10 p.m.. Schaffer also mandated that DSG Attorney General and Trinity senior Blair Greber-Raines participate in the investigation-by virtue of his position's responsibilities-on behalf of Marrero and Barclay.

The trio must provide information documenting the date of the cabinet meeting at which the executive order was allegedly passed, the minutes from that cabinet meeting, the vote count of the cabinet when its members allegedly approved the order, a written copy of the executive order and written copies of both the original and modified Beer on Points proposals.

If the judiciary rules in favor of Marrero, Barclay and Greber-Raines, the proposal will maintain its current trajectory.

"I'm very aware that I need to go through the legislature," he said. "But why present something that is in its middle state?"

Yesterday afternoon, Marrero contacted Dickerson and requested that she delay consideration of the Beer on Points proposal.

The Sept. 24 DSG general body meeting marked the first time Marrero announced that he had used an executive order to approach the administration with a proposal allowing students to purchase beer on food points. In doing so, he claimed, he had fulfilled a campaign promise.

The extent to which Marrero had fulfilled the promise, however, soon fell into dispute; now, many DSG members have begun to scrutinize the process by which he may have accomplished it.

According to the DSG by-laws, "Executive orders are interim or temporary decisions made by the President's cabinet during a recess of the Legislature, usually under emergency circumstances, that can be repealed by the Legislature upon its reconvening...."

The first issue Mitchell raises about the executive order's legality pertains to the cabinet vote needed to give Marrero and Barclay the liberty to proceed with the policy without the legislature's approval.

Marrero and Barclay formulated the proposal during the summer, when many cabinet members were not present at the University. But some of those who were present said they never voted to approve an executive order-despite Marrero's assertion that a vote did indeed take place among the cabinet members who were in town.

DSG Vice President for Student Affairs and Trinity junior Bianca Motley, for example, was at the University this summer and said she never voted on the policy nor did she vote to approve the alleged executive order.

Barclay declined to comment on whether such a vote took place. He did say, however, that "it would have been a disservice to the students not to proceed with the policy" because he and Marrero wanted to include a trial semester in the proposal to evaluate the success of the policy. Such an inclusion, he said, would have been impossible had they waited for the legislature to convene at the end of September.

"It's just that Lino was ambitious and had an aggressive agenda," he added. "DSG doesn't stop when the legislature is not here."

But whether or not the full cabinet is at the University, Mitchell said in an interview with The Chronicle, is a moot point. "A quorum of cabinet could have been reached during the summer, either via e-mail, mail or telephone," she said.

For example, immediate-past DSG President Takcus Nesbit, Trinity '97, said that during his administration last year he once gained cabinet quorum via e-mail to approve an executive order.

The absence of a full cabinet may have provided an obstacle during the summer, but all members were on campus and active for three weeks before the legislators were sworn into their positions at the first full-body meeting Sept. 24.

Barclay said he and Marrero presented the Beer on Points policy to the cabinet at its first full meeting Sept. 7. Barclay said, however, that because the meeting was closed, he could not release the minutes of the meeting.

Many cabinet members disagreed with Barclay's claim that they had been presented with the policy at that time. Some said they still have not seen the proposal, while others said they did not see the proposal until their Sept. 30 cabinet meeting.

"Not that I can recall this semester did we ever discuss Beer on Points," said DSG treasurer and Trinity senior John Shadle, but he added that he was not certain if the policy had been discussed within the past 10 days. Trinity sophomore Nancy Kennedy, DSG director of University services, said she has never seen the proposal.

Mitchell's second complaint addresses the presentation of the executive order to the full legislative body. If an order is approved by the cabinet, the constitution dictates that it must then be presented to the legislature in the form of a resolution or a by-law. Mitchell contends that Marrero and Barclay neglected to follow this step as well.

Regardless of whether a cabinet quorum had approved the executive order, Marrero admitted that a resolution or a by-law indicating the approval was never presented to the legislature.

But Marrero blamed Mitchell for not informing him that he was required to follow such a procedure.

"She never told me that the legislature needed to vote on an executive order, and that's where the fault lies. She has been doing this for three years," he said. "That's what my executive vice president should be telling me. That's called teamwork."

Marrero said, therefore, that he had inadvertently violated the by-law mandating the legislature's vote on an executive order; Barclay, on the other hand, maintained that no by-laws had been broken.

Upon receipt of the requested information from Marrero, Barclay and Greber-Raines, Schaffer will make a ruling based on the evidence provided to him. If either party chooses to appeal the ruling, the case will then go before the six other justices on the judiciary. Schaffer would abstain from voting unless his vote is necessary to break a tie.

"This [case] will show the strength of DSG to recognize where they're going, monitor themselves, correct themselves when it is deemed necessary and carry on from that point," Mitchell said. "This is not about whether or not Beer on Points is a good policy. It's about making sure things are done correctly."

Filing the request for the Judiciary review, she continued, is part of her role as executive vice president.

"It is a role that isn't necessarily one you readily identify with because my main responsibility is [to] the 50 people who were elected," she said. "So I am voicing my concerns and things I feel are affecting the people I feel accountable to."