JComm tri-pub ban ruled unfair

Citing unfair treatment by the AMS Judicial Committee (JComm), the University Student Appeal Board (USAB) has overturned a tri-pub ban imposed on Kelsea Fitzpatrick, ArtSci ’09, in late November.

Fitzpatrick, who had originally received the ban for violating the All Ages Access (AAA) program when she did not retrieve her student card from StuCons at Alfie’s, said she was ecstatic about the appeal board’s decision.

“I am extremely happy,” she said. “I believe it was really fair. My case was read [by] someone else. It was an outside perspective different from the AMS perspective. It was relieving when I found out.”

Prior to the AAA program’s indefinite suspension on Dec. 7, the program granted special access to campus bars for underage students.

Fitzpatrick learned on Monday that JComm’s Nov. 24 decision was quashed by USAB. The board, which is composed of a faculty chair, a faculty senator and a student senator, is the highest level of appeal in the University. Fitzpatrick’s case marks the first time an AAA ruling has been overturned.

Outgoing AMS President Ethan Rabidoux said he is disappointed with the decision.

“Overall, I think fundamentally the biggest problem we have with the ruling is that it focused in on bits and pieces, here and there,” Rabidoux said. He added that he felt the board didn’t keep in perspective the broader view of the AAA program.

“When you boil it all down, what you have is a contract that was signed and, whether deliberately or accidentally, was broken,” he said. “That wasn’t even recognized, it seems.”

Rabidoux said he felt the privilege of being given an appeal by the AMS was also not given enough credit.

“The appeal process of the Judicial Committee that the AMS put in place was an attempt to give students one extra appeal process,” he said. “To be very blunt, the whole appeal process was a privilege that the students have been given. It’s not a right.”

According to the report submitted by board, “the Judicial Committee failed to follow its own rules and violated the basic rules of fairness…”.

Rabidoux disagreed.

“Obviously, we accept the ruling and we have to abide by it,” he said. “At the end of the day … what the board ruled on was about the lack of a prosecutor being present.”

The choice not to have a prosecutor present was due to the AMS’s decision not to be adversarial in regards to AAA, he said.

“We never viewed AAA as non-academic discipline,” he said. “It was a different category unto itself.” Rabidoux added that the choice to abstain from having a prosecutor was also because of the fragile nature of the liquor license.

“There was no need for a prosecutor because there was no attempt to prove guilt,” he said. “Essentially, it was the Latin philosophy of ‘the act speaks for itself.’ [If] you forgot your student card, we have to treat it as though you had been drinking.”

According to the board’s report, Fitzpatrick’s counsel at the JComm hearing believed a prosecutor should have been present.

Originally, the JComm clerk sent Fitzpatrick a non-academic discipline notice which explained that a prosecutor would be present, instead of an AAA notice.

“The JComm clerk made an honest mistake and sent out the regular notice instead of the AAA notice,” Rabidoux said, adding that the AAA notice explained there would be no prosecutor present.

The mistake was corrected and the proper notice was sent to Fitzpatrick, he said.

Still, the board criticized the AMS for not being clear in the AAA policy about prosecution.

“The point that the AMS was not clear enough is legit,” he said. “We never once said in policy that there wouldn’t be a prosecutor there at AAA hearings.”

The board ruled that a reasonable person could read the policy and assume there would be a prosecutor there, Rabidoux said.

He said the board’s other concern with the lack of prosecutor was whether this made JComm both the prosecutor and the judge.

“In our opinion, the answer is ‘absolutely not’, because there [are] countless tribunals where the decision makers ask the questions,” Rabidoux said. “In [the board’s] ruling, they said, ‘We don’t believe that there was bias, but definitely the perception of bias.’ ”

Fitzpatrick said she forgot to obtain her student card when she participated with the Queen’s Dance Team in the Charity Ball Genie Auction at Alfie’s on Nov. 3.

Fitzpatrick retained legal counsel at her own cost and filed an appeal with the board on Dec. 6. the board gave the AMS until Jan. 23 to submit a response. After retaining counsel, the AMS filed a response on March 9. The date for the hearing was originally scheduled for March 14, but rescheduled for March 28.

Fitzpatrick said she felt the whole process was overly protracted.

“The [AMS] had a date to file things and they didn’t make that,” she said. “Everything was delayed, even the hearing date was delayed.”

In its report, the board criticized the AMS for “displaying a lackadaisical and even cavalier attitude to the [appeal]…”

Rabidoux said they received a brief from Fitzpatrick’s attorney on Dec. 6. It came as a shock, because they had been negotiating with Fitzpatrick’s parents to reach a settlement without an appeal, he said.

“We don’t deny it—we should have responded sooner, and we should have gotten involved from the moment we got the briefing,” he said. “We still thought we were dealing with Fitzpatrick and her parents.”

The board also recommended that the AMS provide more training to JComm members. The JComm for 2005-06 underwent one training session in spring 2005.

Rabidoux agreed.

“What I can tell you is the general consensus is that there needs to be more [training],” he said.

This would include extensive training by the Office of Dispute Resolutions and creating a training policy.

“Right now, I don’t believe there is a bare minimum of training sessions that are required,” Rabidoux said. “But a codified training from one year to next—that, more than anything else—will ensure consistency and it will ensure fairness.”

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