COI Mark II

SillyString

SillyString

TNPer
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I am proposing the following bill, which has some changes from RPI's vetoed version.

Section 3.2 of the Legal Code will be amended to read:
Section 3.2: Recusals and Hearing Officers
4. A conflict of interest occurs when a Justice or Hearing Officer has a vested interest in a matter before the Court, or when they are otherwise unable to rule in a fair and unbiased manner.
5. Justices and Hearing Officers are required to recuse themselves from matters where they have a certain or potential conflict of interest.
6. If one or more Justice positions are vacant, or any Justice is absent or has recused themselves, the remaining Justices will promptly appoint replacements from among available citizens to participate as temporary Hearing Officers.
7. If all Justices are vacant, absent, or have recused themselves, the Delegate will promptly appoint the needed Hearing Officers from among available citizens with the agreement of the Speaker.
8. Any recusal or absence of a Hearing Officer will be treated as a vacancy.
9. The Court may recuse any Justice or Hearing Officer by majority vote.
10. The Court must hold a vote on whether to recuse a Justice or Hearing Officer when publicly requested by the prosecution, defense, or petitioner in any matter before the Court.
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Changes: I tweaked some of the clause ordering a bit, just for preference. More substantially, I changed "demonstrable material interest" to "vested interest", for two reasons. One, if a COI isn't demonstrable, then there's no way to credibly assert that it exists - it's merely allegation, and the court can still choose to act on it or not. Two, given that this is an online game, "material" has never sat right with me. Nothing is material. But people can certainly be invested in decisions here, and in my opinion it's clearer.

Changed the wording a little on potentiality recusal, since the non-parallel phrasing of that clause bugged me.

I also removed part of the original clause 6, since the constitutional amendment that passed made it unnecessary. I also removed the bit about RA override - I think that merits its own discussion and its own up and down vote.
 
Question:

Since the Speaker did not give special permission to have the previous bill be an omnibus vote, it would have required separate votes for each section, correct?

Since that did not take place then the previous vote, regardless of the standing of the veto, is null and void (or at least should be), therefore shouldn't you include the provision for appointments again as well?

I am not particularly interested in the arguments about whether or not the Delegate can or cannot veto Constitutional changes, but it does seem clear that the Speaker failed to acknowledge the ramifications of this vote and its impact on multiple documents prior to the vote, thereby potentially invalidating the results. RA Standing Procedures should be followed if they are still on the record. If the Speaker wished to change them then they should have been changed prior to the vote in question.

Unfortunately, I do not personally have time file a Request for Review with the Court but I believe there should be some level of inquiry into whether or not the entire bill should be invalidated because of the Speaker's failure to follow posted procedure before a replacement is proposed.
 
Beware of the principle of unintended consequences. (If you don't believe this, just ask the states of Indiana and Arkansas, who learned the hard way.)

Edited to add:

In the thread on the earlier bill I made the following observation:

The typical test for recusal by a judicial officer is whether a set of facts presents an actual or potential conflict of interest. I would feel much better about this is that "actual or potential" phrasing were included in the bill. ATM, there is the biggest flaw I see in the bill in its current form. I think it is important not to assume that concept, it is far safer if it is expressly included as part of the element where a recusal ought to occur.
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This bill suffers from the same flaw as the earlier bill because of the way "potential" is used in proposed Clause 4 and 5.

4. A conflict of interest occurs when a Justice or Hearing Officer has a vested interest in a matter before the Court, or when they are otherwise unable to rule in a fair and unbiased manner.
5. Justices and Hearing Officers are required to recuse themselves from matters where they have a certain or potential conflict of interest.
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The way Clause 4 is currently drafted makes the use of "potential" almost meaningless; to accomplish the real result that is needed, these two clauses would be better if they read:
4. An actual or potential conflict of interest occurs when a Justice or Hearing Officer has a factually identifiable vested interest in a matter before the Court, or when they may be are otherwise unable to rule in a fair and unbiased manner.
5. Justices and Hearing Officers are required to recuse themselves from matters where they have an actual certain or potential conflict of interest.
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My problem with the current language is that it weakens the concept of avoiding even the appearance of bias or conflict of interest by a judicial officer in a matter before the Court. The basis of the existence of facts that indicate a potential for bias or conflict of interest is just as important in this context as the actual existence of bias or conflict, and any legislation needs to be very clear. As currently drafted, this proposal, like the vetoed bill, does not. I believe my suggestions would make the intent to treat potential conflicts and bias at the same level as actual conflicts and bias much clearer, and avoid the unintended consequences that would occur sooner or later with the current language.
 
Gracius Maximus:
Question:

Since the Speaker did not give special permission to have the previous bill be an omnibus vote, it would have required separate votes for each section, correct?

Since that did not take place then the previous vote, regardless of the standing of the veto, is null and void (or at least should be), therefore shouldn't you include the provision for appointments again as well?

I am not particularly interested in the arguments about whether or not the Delegate can or cannot veto Constitutional changes, but it does seem clear that the Speaker failed to acknowledge the ramifications of this vote and its impact on multiple documents prior to the vote, thereby potentially invalidating the results. RA Standing Procedures should be followed if they are still on the record. If the Speaker wished to change them then they should have been changed prior to the vote in question.

Unfortunately, I do not personally have time file a Request for Review with the Court but I believe there should be some level of inquiry into whether or not the entire bill should be invalidated because of the Speaker's failure to follow posted procedure before a replacement is proposed.
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The primary effect of "omnibus clauses in the past were to require a sufficient vote to adopt of all parts in order for any part to take effect.

The Constitutional amendment seems to stand independently of the statutory changes, and this would imply, IMHO, in the absence of an omnibus clause, that if more than 2/3rds voted to approve that majority applied to all parts of the bill.

I don't take the position that the Delegate could have vetoed the Constitutional Amendment. Had the bill without an omnibus clause passed with less than 2/3rds approval, then it seems to me that only the statutory amendment would have gotten through the R.A., and the Delegate would still have been able to sign or veto that portion.

And it akso seems to me that the statutory part, since it was not in the form of language to implement the constitutional change, per se, could have stood independently of the constitutional amendment. Usually, that is not the case in an omnibus bill.
 
Gracius Maximus:
I am not particularly interested in the arguments about whether or not the Delegate can or cannot veto Constitutional changes, but it does seem clear that the Speaker failed to acknowledge the ramifications of this vote and its impact on multiple documents prior to the vote, thereby potentially invalidating the results.
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The onus is on the speaker's office to enforce its rules. That office gave permission for an omnibus when it put the omnibus to vote. If it did not intend to do that, more attention must be paid in the future. Lack of attention does not invalidate the action or its results.

Grosse, I am happy to replace certain with actual in clause 5, but I do not llike the change in clause 4.
 
SillyString:
Grosse, I am happy to replace certain with actual in clause 5, but I do not llike the change in clause 4.
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What is the problem with the suggestion (other than it came from me)?

I've explained as clearly as it is possible to do, the real serious definitional problem the current language is clause 4 presents. It really needs to be cleaned up. What I suggested is a definition for both actual and potential conflict of interests and giving both prongs equal weight. The problem with Clause 4 in its current form, as I said before, is that it makes the concept of a "potential" conflict almost meaningless since "vested" requires a greater level of existence than what would be needed for a "potential" conflict.

What is important here is to make sure that when there is even the appearance of an actual or potential conflict of interest, there must be a recusal. Anything less defeats the whole object of having this legislation.
 
I have the same problem with it as iI had with wording in the old draft - factually identifiableexcludes conflicts of interest that are more speculative or unprovable (such as if Itold you in an uunrecorded phone call that I would rule that durk is not guilty no matter the charge or evidence. You can identify it, but can't establish it as fact.

I do not see any problem of the sort you are suggesting with the current language. It defines a conflict of interest as a specific actual thing, and then mandates recusal in the case of that actual thing or a potential case of it. Yours establishes a coi as either an actual or potential thing, then doubles down by mandating recusal in the event of an actual or potential coi. That's unnecessary doubling, and breeds confusion. When a coi can be potential bias, what, exactly, is a potential coi (aka, potential potential bias)?

Grosseschnauzer:
What is the problem with the suggestion (other than it came from me)?
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I have always and only objected to legislative language based on its own merits. I have never opposed a bill you wrote simply because it was written by you - when I have opposed them, it has been because I thought they were just plain bad.
 
(such as if Itold you in an uunrecorded phone call that I would rule that durk is not guilty no matter the charge or evidence. You can identify it, but can't establish it as fact.
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As far as I can tell that would be a sufficient indication of a factual basis to support a recusal for a potential conflict of interest. I'm looking for a standard that avoids even the appearance of impropriety, you're looking for definite proof. And that is why it negates the very intent of a potential conflict of interest formulation. To have that level of proof you seem to want effectively mandates an actual proven conflict and ignores the potential and the appearance of impropriety.

So I stand by my position that the definition in clause 4 is flawed and does not adequately address the need to have recusals due to the appearance of a potential conflict of interest. That is why what I am suggesting is clearer, cleaner and more appropriate on this topic than what you have proposed so far.
 
I'm actually not looking for definite proof - I'm pointing out that allegation is insufficient to establish a conflict of interest. Without evidence of me making any such phone call, for example, saying I've made it is simply baseless insinuation - you could just as easily accuse me of saying the opposite, or something unrelated. And saying that anybody accusing a justice of a COI automatically creates a COI where none exists would grind the court to a complete halt - anybody could force the recusal of any justice for no reason at all under that logic. So no... "factually identifiable" is not language that works for me.

In terms of actual/potential, you are failing to look at the actual language I've used. Both actual and potential conflicts are, in fact, covered by the bill.
 
SS, I have read the draft, see my first post on this current draft. Clause 4 is my problem because the language simply precludes any potential conflict of interest in its scope. That is what neuters Clause 5 (in the animal neutering sense of meaning) as far as a potential conflict of interest because there is no statement to explain what a potential conflict of interest is. And there's certainly nothing in the current draft that makes clear an intent to have judicial officeholders avoid the appearance of a potential conflict of interest so as to trigger recusal.
Show me how you specifically address the standard to measure a potential conflict of interest and the appearance of a potential conflict of interest. I do not see anything in the current bill that gets this to that point. Which, if left unresolved will trigger the unintended consequences that need to be avoided if the aim is in fact to avoid the appearance of a potential conflict of interest.
 
If I understand correctly, your concern is that the current language doesn't define when a potential conflict of interest specifically occurs, and leaves some room for interpretation as to whether a given situation qualifies as potential. Honestly, I'm okay with that being open. COIs are almost never straightforward, and I think it's reasonable to leave determination of it up to the individual justice or THO, and to the Court. If the Court doesn't think a justice or THO might be at all unable to rule fairly, I think we're okay.

So the current draft is:

Section 3.2 of the Legal Code will be amended to read:
Section 3.2: Recusals and Hearing Officers
4. A conflict of interest occurs when a Justice or Hearing Officer has a vested interest in a matter before the Court, or when they are otherwise unable to rule in a fair and unbiased manner.
5. Justices and Hearing Officers are required to recuse themselves from matters where they have an actual or potential conflict of interest.
6. If one or more Justice positions are vacant, or any Justice is absent or has recused themselves, the remaining Justices will promptly appoint replacements from among available citizens to participate as temporary Hearing Officers.
7. If all Justices are vacant, absent, or have recused themselves, the Delegate will promptly appoint the needed Hearing Officers from among available citizens with the agreement of the Speaker.
8. Any recusal or absence of a Hearing Officer will be treated as a vacancy.
9. The Court may recuse any Justice or Hearing Officer by majority vote.
10. The Court must hold a vote on whether to recuse a Justice or Hearing Officer when publicly requested by the prosecution, defense, or petitioner in any matter before the Court.
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I would like to move this draft into formal debate.
 
No, SS, my problem is that Clause 4 simply makes the entire bill inapplicable to potential conflicts of interest. That is not what ought to be intended, or ought to be the result. The COI process should apply whenever the facts indicate the appearance of a potential conflict of interest, whether or not one has actually already occurred or not; that is to say, such situations should always be "nipped in the bud," as the expression goes, before they ripen.
 
This bill is now in formal debate. This will last for five days and then be scheduled for a vote.
 
I object to this bill being in formal debate or being scheduled for a vote. There is a fundamentally serious flaw in the bill that needs to be fixed first, and it should not proceed to a vote until that flaw is fixed.
 
Gracius Maximus:
I still oppose this bill entirely. The recent Court ruling regarding COI pointed out that the current system works.
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This doesn't really change that system, though - it takes the current ACR and enshrines it in law. I think that's a good thing, because the Court by itself can always amend the ACRs to take away the power to recuse a justice by vote.
 
Grosseschnauzer:
I object to this bill being in formal debate or being scheduled for a vote. There is a fundamentally serious flaw in the bill that needs to be fixed first, and it should not proceed to a vote until that flaw is fixed.
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Seconded.
 
Formal debate has ended on this bill, and it will go to vote in about two days. The bill may not be edited further.
 
I am not in favour of the objection to moving this bill to formal debate, but since it has been seconded should it just be ignored by the Speaker?
 
flemingovia:
I am not in favour of the objection to moving this bill to formal debate, but since it has been seconded should it just be ignored by the Speaker?
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Three citizens objecting to the scheduled vote is required to stop a scheduled vote. Only two have objected.

Thank you for your concern, though, flem. :)
 
after some thought, i voted in favour. I understand (i think) Grosse's concern, but I think that on balance this change improves the law.
 
I object. An amended bill fixing the primary problem with the current bill would be more likely to pass.

Since the bill failed, regardless of the reason, it should go through the same process as any other bill that failed.
 
Since quorum is significantly lower now, I will allow this to go to vote once more. But, I will be more reluctant should it fail again because of quorum; it'd best wait until we can amend the law regarding quorum if it happens again. This bill will go to vote in two days.
 
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