In the Matter of a Concern Filed under Article 26.8 of the AASUA Bylaws
As Against Ricardo Acuña, Candidate for President
Decision of the AASUA Electoral Officer
As Electoral Officer for the AASUA I received a concern (the Concern) filed by a member in relation to a post on the AASUA’s Members’ Forum posted by Candidate for President Ricardo Acuña. Mr. Acuña is currently the Treasurer on AASUA’s executive and thus an Executive Member of the Association. The post was made Sunday, March 15, 2020. It was also automatically emailed to all current members of the Association. The Concern raises a possible violation of AASUA’s Bylaw 26.8.2
AASUA’s Bylaw 26.8.2 reads:
"The Electoral Officer shall approve, according to policy set by Council, any communication of Executive or an Executive member in his or her capacity as Officer or Director to be issued during the electoral period to prevent the advantaging or disadvantaging of any candidate."
Mr. Acuña did not seek nor receive my approval to make the post on the Members’ Forum.
Mr. Acuña submits his post is allowed pursuant to the AASUA’s Elections Policy which provides an exemption for Executive Members posting on the Members’ Forum. The relevant section of the Elections Policy provides:
"Communications during the Balloting Period
To minimize the appearance of conflict of interest during elections, and to prevent the advantaging or disadvantaging of any candidate, there will be a moratorium on the use of AASUA communication mechanisms from the opening of nominations to the close of balloting for each stage in the elections and by-elections of Officers, Councillors and Directors and for each stage in the election of Alternates. Communications by the Executive or by an Executive member in their capacity as an Officer or Director must first be approved by the EO. The moratorium shall not be in effect for communications regarding the ratification of a collective agreement. The Members’ Forum is exempt from the moratorium and remains open for any and all discussions about any and all matters including election issues. (Emphasis added)."
The stated intention of both the Elections Policy and Bylaw is to prevent the advantaging or disadvantaging of any candidate. Both the Bylaw and Policy restrict Executive Members from using AASUA communication tools to communicate to members during an election period so that they are not seen or perceived to be using their current positions to gain an advantage or disadvantage another candidate. While the Elections Policy provides an exception allowing for Executive Members to post comments relating to election issues on the Members’ Forum, the Bylaw makes no such reference. In this manner, the Elections Policy attempts to amend or add to the Bylaw.
The Bylaw is clear. There shall be no communication by an Executive Member acting in their capacity as an Executive Member using AASUA communication tools during an election period. I take AASUA communication tools to include Igloo and listservs, emails, website, or any other vehicle that has AASUA’s registered trademark on it (acronym and/or logo). There is no doubt Mr. Acuña communicated on an AASUA communication tool during the election period.
While Mr. Acuña tried to distinguish himself as a candidate as opposed to an Executive Member by signing off as a Candidate for President, he is known to be a sitting member of the Executive and cannot step away from that role simply by stating his candidacy for another position. That is akin to any sitting politician saying they are just an ordinary member of the public as opposed to a sitting politician. People are known by the positions they hold. Mr. Acuña spoke of issues Executive is dealing with and must be viewed as having inside knowledge of the positions, policies and procedures being advanced at Executive levels. I am satisfied his comments violated the intent and spirit of the Bylaw.
While the Policy suggests an exemption for Executive Members in relation to posting on the Members’ Forum during an election, the exemption does not appear in the Bylaw. The Association Bylaws do not allow such communication without the approval of the Electoral Officer. Bylaws are the will of a large majority of the entire membership as opposed to the will of the Council. The Bylaws were ratified by the general membership; the Election Policy was a document passed by the Council. Policies do not over-rule or trump bylaws when in contradiction. I find the Election Policy does not allow an Executive Member to post comments on AASUA’s communication tools during the electoral period.
I find Mr. Acuña violated Bylaw 26.8.2.
By way of remedy, I am directing Mr. Acuña’s post be removed from AASUA’s Members’ Forum by the Executive Director of AASUA. I will post my Decision on the Announcements of the Electoral Officer page on Igloo for the benefit of all members. This will not be disseminated by a broadcast email.
Dated this 16th day of March, 2020