Constitutional Problem

Hello,

As many of you know I have recently been nominated as a candidate for the Scientific Council which is the Philosophical Branch of the Government of Neualtenburg. I was told that the SC's selection (myself and FlyingRoc) was supposed supposed to be "confirmed" or approved at the next meeting of the RA (this past February 1st assembly).

I see from the transcript of said meeting that my name was not approved in that I was not present at the meeting "so that (I) can be questioned" (Pendari Lorentz) and that perhaps some special arrangements can be made at a later date (special meetings etc.), since the usual RA meeting is at a time that I cannot attend. I also see that FlyingRoc who *was* at the meeting and *was* confirmed was asked questions regarding what he would do or not do in certain situations regarding upholding the constitution and ending up more or less with this statement "the *main* duty of the SC is to uphold the constitution as it currently stands." (Pendari Lorentz). This is not technically true as the duty of the SC members is to interpret not enforce the constitution but that's just a quibble.

Since I was terribly flattered to be asked (really!), and since its a long time since I actually read the constitution and the founding documents, I thought nothing much of the confirmation process until I read the transcript where it some of the talk started to seem a bit unseemly IMO. Because of my reaction, I went back to the documents to find out what was actually the right thing to do in this situation and I immediately came upon a problem.

A candidate to the Philosophical Branch (the SC), does not (by our constitution have to submit themselves to a meeting of the RA for questioning at all. In fact the RA is specifically given only the power to have a "vote of confidence" on the candidate "in regards to their perceived likelihood to uphold the constitution."

Since as a possible future member of the SC it would be my job to interpret the founding documents, I must say that it seems quite clear to me that the intent of the "vote of confidence" section is clearly that the RA can simply say "yea" or "nay" on a candidate. If the RA members are to be grilling prospective members of the SC in the house then they are in effect "deciding" on the candidates based on their answers and involving themselves in the selection process not merely confirming the selection. The selection of candidates is clearly stated as being solely the purview of the SC itself (it is a "self-selected body".

There is no provision for candidates to present themselves at an RA meeting, nor to answer any questions from the assembly, merely that the assembly may confirm or not confirm a candidate based on their perceptions of said candidate. Additionally, the candidate must also be confirmed by the "Leader of the AC" (Guildmeister) to be considered selected.

Since I take the (proposed) job seriously then, I unfortunately *cannot* in good faith present myself at any further meeting of the RA for confirmation, nor will I answer questions in front of the assembly by any member of the assembly. My reading of our constitution prohibits me from doing so.

I ask that if any member of Neualtenburg wishes help in determining whether I am fit for this position or needs to ask me anything or question me to help in forming your perception of my "fitness" please just come and talk to me.

I am always available to answer your questions in private. Most people know where I live and I would be happy to discuss constitutional matters with anyone (as always), regardless of whether you are currently serving on the RA or not. If you have any questions in your mind at all regarding my fitness for the position I would be more than happy to talk about it, but I will not "be present for questioning," at any future meetings of the Representative Assembly over this issue.

The provision in question sounds comparable to the right of the Senate of the United States to "advise and consent" to the nominations of the President to certain positions. This short phrase has been the foundation of extended debates and political struggles, as recently as last week in the case of a controversial U.S. Supreme Court nominee and threats of a filibuster to prevent an "up or down" vote at all.

Past and recent history has shown that the public hearings preceding the Senate's decision can be a difficult time for nominees and their families, and often are used primarily for political grandstanding by Senators relishing the free media attention. It is an unfortunate side effect of a balance of powers measure generally regarded as an important foundation of the democratic republic in the US.

Has the RA considered alternatives to the face-to-face "everybody talks at once" events that have characterized the "real time" meetings of which I've read transcripts? Such as the submission of a limited number of written questions to which the nominee can respond in writing, in public, after a reasonable time to consider the question and his or her answer?

Such an alternative might serve the purpose of allowing the RA sufficient information to make an informed decision, without disenfranchising the members and candidates who may be unable to join the "real time" meeting. It would also reduce the likelihood of the proceedings being "hijacked" by disruptive spectators or grandstanding politicians.

Hi,

I think I confused and surprised some people by this post so I am going to try to clear up my position as I think some have taken it quite the opposite way from which I intended.

When I read the minutes of the last RA meeting and the questioning of FlyingRoc it very much reminded me of those awful Senate confirmation meetings that Frank mentions below. This was partly what caused my negative reaction and to reverse my previous position of agreeing to show up at a later RA meeting. In fact I *did* agree to show up at an RA meeting initially and if I was clearly told that this was a requirement and if the meeting was at a time that I could attend I would have been there with FlyingRoc and none of this would have happened anyway. But so much for spilt milk.

The second thing that changed my mind however was a reading of the founding documents themselves which I believe requires that I not show up. I believe that regardless of my personal feelings and whether it eventually screws up me even getting the job, that I have to follow what I interpret the constitution and other founding documents as meaning.

(Which ironically seems to answer Pens biggest question).

First to answer Franks factual criticisms here:To me the central phrase here is "advise and consent." Advising certainly does imply asking questions and having knowledgeable input on the selection process even if the final decision resides with (in the case of the Supreme court appointments) the executive branch.

The Nburg constitution however, merely refers to "a vote of confidence" on the selected members and all references I can come up with from perusing the web on votes of confidence are merely yes/no affairs where there is no provision for "advice" on the question. Knowing also, what Ulrikas position has been historically on the SC, I think this is a reasonable interpretation I am making. Ulrika knows all about the "advise and consent" part of the confirmation hearings and also has drawn direct parallels between the SC and the Supreme Court in the past so I believe the wording is different here for a specific reason. I could be wrong but that is my honest assessment of the written documents.

As to the fact that I am "acting dictatorial" when I have expressed in the past I believe the unelected SC has perhaps too much leeway in that regard, that was intended as a sort of illustrative and overly clever showpiece and for that I apologise. I was perhaps momentarily inhabited by the spirit of our dear departed Ulrika.

It seemed humorous to me to indicate the fact that there is very little democratic oversight of the SC written into the constitution by dictatorially indicating that I was actually not required to show up.

For the record:

- I *am* in favor of more democratic oversight at least of the appointments to the Scientific Council.
- I am in favor of a more democratic style of government in general.
- I am not in any way dictatorial nor do I want to be.
- I will defend the constitution to the letter until such time as we can change it (regardless of my personal feelings).
- If faced with a horrific conflict between the constitution and my personal beliefs I would (like FlyingRoc said) immediately resign.
- If I found my interpretations of things like the constitution to be constantly and repeatedly in conflict with the majority views on the subject, I would also likely resign.
- I am not a crook.

I think this is a reasonable suggestion that Frank is making here and look forward if confirmed to changing the proceedings to reflect if not this process then something similarly democratic as long as it does not too seriously hobble the whole basis of the three-lobed government structure.

If anyone wants to talk about this feel free to post here or come talk to me in person at Cosy Cove.

Dianne

As with many Neualtenburg procedures, practical matters have often overridden the letter of the law; this being a big reason to revise that law. I believe your reading of things is correct; the current questioning process is more a "courtesy" than strictly required. If you do not wish to answer questions, we cannot force that; it has been assumed that the RA would want to ask questions and the candidate would answer or not as they please.

(Similarly, there's nothing in the constitution covering the situation the SC found itself in, given technically neither me nor Gwyn could vote. We resolved the issue by treating the SC as having the composition before the election and Gwyn formally resigning from the RA, then both of us casting the vote to make her Dean.)

With that, next RA meeting I shall move for an immediate vote on your nomination.

Whew! Thank god!

Sudane

I must admit that I second Dianne's interpretation of the "vote of confidence" on SC nominees: it should be a simple "aye" or "nay" vote.

What this means is that the RA, as part of their internal procedures — which they can clearly set up as they see fit — can, or not, have a "public hearing" be part of the "cerimony" for casting their vote of confidence. However, they cannot demand that the nominee answers the questions. The nominee is in no way compelled to either attend or accept to be questioned.

So, there is, in fact, a slight constitutional problem here. Technically, the SC cannot tell the RA how they should devise their own internal procedures (since it's up to them); but technically, also, the RA cannot "force" nominees to attend the "questioning", or, even worse, "threaten" to cast a negative vote of confidence if the SC nominee doesn't appear in person to answer questions. This is obviously an issue here.

Since democracy is all about compromise, I have the following suggestion. Former internal procedures of the RA have been approved by the RA itself (I'm thinking about the way the meetings are organized and how the vote-after-a-week-by-email system works). Thus, there is a precedent, that internal procedures of the RA are a bill that has to be voted upon to become "law". And it only makes sense to be done that way.

In that sense, and since we have established from the very beginning that Neualtenburg Law would be based on precedents, it's not unfair to demand from the RA that the procedures for casting a vote of confidence are, indeed, a new internal procedure that should be made into a bill, and approved as law. (BTW, if no RA member proposes a bill to the effect, I will gladly propose one — since any citizen can submit a bill to the RA )

Now here comes the fun, backstage politics bit By requiring to make a law out of a bill, the SC will certainly have a power to veto the bill, if they feel it is overstepping the letter and spirit of the Constitution. This means that the SC will watch carefully the proposed internal procedures for casting votes of confidence on SC nominees, and gently nudge the RA members to get a reasonable compromise on the procedures, so that everybody is happy (both SC and RA).

To make matters more interesting, and to prevent the RA to effectively block the growth of the SC by refusing to cast votes of confidence, we'll get into another nice bit of backstage politics here The SC would kindly suggest — not as an amendment to the Constitution, but as a simple law — that the RA has a week's time to cast the vote of confidence, or else the SC nominee will be automatically approved. We don't want to have a lazy RA Of course, since only the RA can approve that law, it means entering into compromise with the SC again

To summarize:

1) The RA should vote a law to approve internal procedures regarding the vote of confidence (if they don't, no public hearing/questioning will be done to SC nominees before the vote of confidence, although, of course, RA members can ask private questions...).

2) The SC will very likely have nothing against that new law, provided Dianne's position as described on the above posts, and Aliasi's suggestion, are guaranteed under that law: that the "public hearing" is not a requirement for the vote of confidence, but eventually a courtesy, and that the subsequent vote of confidence does not take into account the availability or the willingness to be publicly questioned. (Private questioning will be outside the scope of this law)

3) The SC would like to propose a bill for the RA to consider (4-10 I believe), suggesting that the "vote of confidence" is cast in the subsequent week after the SC announces a new nominee. If there is no voting after this period, the SC nominee is automatically accepted. If one week is not enough (I'm thinking about the holiday period) we could extend it to one month — more than enough, since, according to the Constitution, the RA is required (and so is the SC and the AC!) to meet at least once per month.

This should be enough for starters. Whew.

This is actually quite a bit to think about. I'd like to see the time limit be a bit longer than a week. Stuff happens, and the RA sometimes can't pull together a quorum every seven days, especially given that the SC itself only meets once a month.

The question of oversight is thornier. I understand and support a nominee's right to decline to appear for "live" questioning. If they do so, however, on what is the RA supposed to base its decision?

Perhaps the problem here is that there is not yet a sense of what the RA is supposed to do when evaluating SC nominees.

Well, the way I see it...

1) One month for the approvall is also fine, I think that the SC survived so long with a reduced number of elements, it should be able to deal with the "delay" of a month for new members to get the vote of confidence.

2) The "vote of confidence" should obviously be based on the perceived merit of that particular person regarding its reputation and goals in Neualtenburg. The SC is an almost pure meritocracy, and "merit" is the criteria for the SC's nomination process, as follows:

1. Good standing/reputation in the city, held for several months;
   
2. Interest in discussing the Constitution, and doing it publicly, in-world, in Civic Classes, on the forums;
   
3. Good promotion of the City of Neualtenburg by discussing it thoroughly with well-fundamented opinions (either positive or negative, of course), either in the N'burg forums or in-world, a willingness to explain how the City works and why Neualtenburg is so different.
   

These are the rough guidelines for the SC to nominate a new member...

3) The RA does not "evaluate" SC nominees. As the Constitution states, the SC is a self-appointed meritocracy; it's the SC's task to do the evaluation, not the RA's. The "vote of confidence" is just a confirmation of the RA that the SC is growing with new members that reflect the whole city's feelings and not a particular "trend" of the SC's wishes. Thus, with the "vote of confidence", the idea is to prevent the SC to grow with a clique of "close friends" that might be unaligned with the spirit of the rest of the City. Thus, the RA, being elected by the citizens, reflects more correctly the wishes of the current population, and gets this measure of "control", since the RA can't "appoint" or "nominate" members of the SC.

It's, again, a double-compromise issue. If the RA nominated the SC's members (similar things occur on other countries), there would be a tendency for the current elected body to appoint "similar-minded" people for the SC, and thus effectively "dominate" the only "regulatory" body of Neualtenburg. On the other hand, the reverse is even more worrying: a "clique-ish" SC, a "friends' group", self-appointed and without recourse, could become an effective "blocker" of the RA's work, and this is plain silly: one thing is "overseeing", the other is "effective control". We wish the former to be the norm, while eliminating the latter.

While the RA could always impeach members after the SC's appointment (this was always true), a further measure was introduced: the idea of a priori "approval" by the RA, instead of a posteriori impeachment. Thus, this means that the SC should be careful in nominating new members — if they are widely contrary to the current spirit of the Neualtenburg's citizens, the RA (since they're elected by that "current spirit" will almost certainly not pass a vote of confidence on them. It's up to the SC to select appropriate members — the RA just to confirm that appointment with an "aye" or "nay".

This means broadly that positive membership is encouraged: instead of doing "public hearings" through impeachment of SC members, the RA gives a "positive vote of confidence" in advance, without the need of a public hearing. In a sense, this measure should provide the SC with a steady growth attracting members that are much less likely to be subject to impeachments further down the road. I think it's a good measure.

Also, the reason I wish for more members on the SC, with full voting privileges, is just because the previous situation was a bit too muddy: there was just one voting member, and no "balances & checks" internal to the SC, meaning that the SC, effectively, was reflecting just one person's view of Neualtenburg, and could, based on that view

1. Veto any bill of the RA on account of personal preferences, without consulting with other SC members (who had no voting power);
   
2. Refuse to grow the SC, on the assumption that new members with voting powers could contest that decision.
   

This is a situation I'm very uncomfortable with, since the SC effectively has no "minimum" quorum to work and to be able to pass decisions. Currently, we have again 3 confirmed members (one pending), but just one (myself) has voting powers. We haven't improved that situation That's why I'm really pushing this forward: I wish more people with full voting powers on the SC, preferably newer citizens, which reflect the current spirit of Neualtenburg's citizens (untied to a remote, idyllic past) and would thus meet with the RA's "vote of confidence" more easily, while being active members at the SC, able to vote there in a way that reflects the current City spirit much better.

Of course, the criteria for appointing new members of the SC are much higher than for the RA (the RA just needs a citizen's vote ). This means that the number of candidates for the SC are quite few. Beyond Dianne, I can only propose two further citizens at the moment — Diderot Mirabeau and Justice Soothsayer. Both are very "young" in the history of Neualtenburg, so, the SC should meet first and think a bit about if they're good candidates or not. From the "veteran citizens", we hardly have anybody available that meets the criteria and is willing to serve.

Last but not least — and this is, obviously, my personal opinion (I might be "out-voted" in the SC!) — I think that the SC should, at all times, have a group of people that certainly fullfill the requirements, but that not necessarily share the same thoughts and opinions about certain aspects of Neualtenburg or its Constitution.

Well, the way I see it...

1) One month for the approval is also fine, I think that the SC survived so long with a reduced number of elements, it should be able to deal with the "delay" of a month for new members to get the vote of confidence.

2) The "vote of confidence" should obviously be based on the perceived merit of that particular person regarding its reputation and goals in Neualtenburg. The SC is an almost pure meritocracy, and "merit" is the criteria for the SC's nomination process, as follows:

1. Good standing/reputation in the city, held for several months;
   
2. Interest in discussing the Constitution, and doing it publicly, in-world, in Civic Classes, on the forums;
   
3. Good promotion of the City of Neualtenburg by discussing it thoroughly with well-fundamented opinions (either positive or negative, of course), either in the N'burg forums or in-world, a willingness to explain how the City works and why Neualtenburg is so different.
   

These are the rough guidelines for the SC to nominate a new member...

3) The RA does not "evaluate" SC nominees. As the Constitution states, the SC is a self-appointed meritocracy; it's the SC's task to do the evaluation, not the RA's. The "vote of confidence" is just a confirmation of the RA that the SC is growing with new members that reflect the whole city's feelings and not a particular "trend" of the SC's wishes. Thus, with the "vote of confidence", the idea is to prevent the SC to grow with a clique of "close friends" that might be unaligned with the spirit of the rest of the City. Thus, the RA, being elected by the citizens, reflects more correctly the wishes of the current population, and gets this measure of "control", since the RA can't "appoint" or "nominate" members of the SC.

It's, again, a double-compromise issue. If the RA nominated the SC's members (similar things occur on other countries), there would be a tendency for the current elected body to appoint "similar-minded" people for the SC, and thus effectively "dominate" the only "regulatory" body of Neualtenburg. On the other hand, the reverse is even more worrying: a "clique-ish" SC, a "friends' group", self-appointed and without recourse, could become an effective "blocker" of the RA's work, and this is plain silly: one thing is "overseeing", the other is "effective control". We wish the former to be the norm, while eliminating the latter.

While the RA could always impeach members after the SC's appointment (this was always true), a further measure was introduced: the idea of a priori "approval" by the RA, instead of a posteriori impeachment. Thus, this means that the SC should be careful in nominating new members — if they are widely contrary to the current spirit of the Neualtenburg's citizens, the RA (since they're elected by that "current spirit" will almost certainly not pass a vote of confidence on them. It's up to the SC to select appropriate members — the RA just to confirm that appointment with an "aye" or "nay".

This means broadly that positive membership is encouraged: instead of doing "public hearings" through impeachment of SC members, the RA gives a "positive vote of confidence" in advance, without the need of a public hearing. In a sense, this measure should provide the SC with a steady growth attracting members that are much less likely to be subject to impeachments further down the road. I think it's a good measure.

Also, the reason I wish for more members on the SC, with full voting privileges, is just because the previous situation was a bit too muddy: there was just one voting member, and no "balances & checks" internal to the SC, meaning that the SC, effectively, was reflecting just one person's view of Neualtenburg, and could, based on that view

1. Veto any bill of the RA on account of personal preferences, without consulting with other SC members (who had no voting power);
   
2. Refuse to grow the SC, on the assumption that new members with voting powers could contest that decision.
   

This is a situation I'm very uncomfortable with, since the SC effectively has no "minimum" quorum to work and to be able to pass decisions. Currently, we have again 3 confirmed members (one pending), but just one (myself) has voting powers. We haven't improved that situation That's why I'm really pushing this forward: I wish more people with full voting powers on the SC, preferably newer citizens, which reflect the current spirit of Neualtenburg's citizens (untied to a remote, idyllic past) and would thus meet with the RA's "vote of confidence" more easily, while being active members at the SC, able to vote there in a way that reflects the current City spirit much better.

Of course, the criteria for appointing new members of the SC are much higher than for the RA (the RA just needs a citizen's vote ). This means that the number of candidates for the SC are quite few. Beyond Dianne, I can only propose two further citizens at the moment — Diderot Mirabeau and Justice Soothsayer. Both are very "young" in the history of Neualtenburg, so, the SC should meet first and think a bit about if they're good candidates or not. From the "veteran citizens", we hardly have anybody available that meets the criteria and is willing to serve.

Last but not least — and this is, obviously, my personal opinion (I might be "out-voted" in the SC!) — I think that the SC should, at all times, have a group of people that certainly fullfill the requirements, but that not necessarily share the same thoughts and opinions about certain aspects of Neualtenburg or its Constitution.

This makes some sense. If the question for the RA is,"Does this person's SC appointment reflect the spirit of the city?", the follow up questions is, "On the basis of what shall the RA determine that?" In the case of Dianne, for example, she's been around a while and made a number of forum postings which can be 'studied' With someone who's newer, what do you go on?

I think there's a flaw here in that , if we accept your understanding of the process, the RA's affirming an SC nominee or not is more a 'vote of confidence' in the overall direction the SC is going than a validation of any particular candidate. Or can there even be such a thing? Is not a nomination ratification of one person inevitably about that person, at least at some level? Let me add quickly that this is not something I have a solution for.

Maybe another issue is the real role(s) of the SC. What I mean is that I tend to pigeonhole the SC as a "judicial branch", since I'm from a Western democracy. I have a vague sense that that's not all the the SC is supposed to be, but I can't make concrete in my own mind what their other role or roles are. Please help.

You can, loosely, describe the SC as judicial, and the RA as legislative (and the Guild as a sort of housing authority/trade union), but the key difference is we have no executive branch, those powers being split amongst the three branches.

Specifically, the actual focus of the SC is less on judicial (interpretive) matters, and more on advisory matters; the job of the SC is to be experts on the laws of the city, and notify the RA of conflicts. The judicial role flows from this, rather than the SC explicitly being a "Supreme Court".

I would like to say that I agree basically with almost everything Gwyn has said on this matter and would like to apologise for creating so much copy by my simple refusal!

If it wasn't my interpretation that the kind of questioning FlyingRoc had to go through was liken to that of the Supreme court confirmation hearings (ie. argumentative and personalised), I possibly would never have thought to look it up and to object in the first place. For this reason to have set procedures in palce inthe RA for asking candidates questions (if that is waht is wanted) would be a good thing. Personally I would prefer keeping things as they are with the candidates being available for private questions and the vote being merely a reflection of general agreement on a particular candidates fitness for the job.

I had one slight disagreement with Gwyn's reasoning which Claude picks up on here which is that there is a problem selecting "newer" residents to the SC in that neither the SC itself, nor the RA has no basis on which to determine if the candidate is indeed worthy until they have been around for a while. While I agree with Gwyn that more people on the Scientific Council is a good thing, I don't think there is any way to swell it's numbers at this point without admitting people that are so new as to not really qualify. Even with the speeded up time we live under in SL, these cnadidates have no "history" with Neualtenburg and have not themselves demonstrated a sufficiently deep understanding of the constitution or the structure of the government.

If we are going with precedent, the precedent for the SC in the past is that members have to be around for a great deal of time to be considered for membership and not only have to understand the constitution but to have had the pleasure of disecting it and arguing portions of it either in the forums or in the house. Fairly early in my stay here undertook to disect and analyse the language of all of our founding documents after being invited by Ulrika to do so and tried to discuss it in the forums in just this way. We all know what a big flop that was, but my point is I did try to "undertake a detailed analysis of constitutional documents" as she often put forward as a requirement for admission to the SC, and yet even that was not considered enough for my nomination. To be clear, I did not actually want to be nominated for the SC at the time, nor did I undertake the anlysis for that reason. That aside however, based on that example, I believe that the bar for membership was perhaps set far too high at that time, but I worry about lowering this bar so far as to simply pad the council with bodies.

I think that the confirmation vote by the RA *is* a yay/nay thing only. I believe that( as it implies in the founding documents), it is a vote on an *individual* and not on the SC as a whole.

Each individual member of the RA, in what might be termed a "free vote," or vote of concience, needs to determine whether or not they see a particular individual nominated for the SC as capable, based on their personal estimation of the candidates constitutional "savy" or knowledge. That's the way I read it.