In an unprecedented move last week an independent arbitrator stripped Jo Moore of the 2009 Otago University Students’ Association (OUSA) Presidency and the position was subsequently accepted by Edwin Darlow, who placed second to Moore in the election.
After the election, various complaints were made against Moore’s campaign practices. According to Otago University’s student magazine, Critic, Returning Officer Kyle Matthews considered those complaints and found that, while Moore had breached some rules, she deserved no sanction.
Current Clubs and Societies Rep Tim Grigg, who also ran for 2009 President, then appealed this decision to independent arbitrator Professor Paul Roth, of the University’s Faculty of Law. Roth could have ruled to uphold Matthews’ decision, docked votes from Moore, or called a by-election, but in a decision released 1 September, he chose to disqualify her completely.
Moore was not told that Matthews’ report was being appealed before the decision, in what has been described as an “oversight” by OUSA. Once the decision was made, she was called into the OUSA offices for a meeting that afternoon and was told that she had been disqualified and would no longer be President next year.
Not being informed that an appeal was proceeding against Matthews’ report is a source of anger for Moore. “[I was] pretty upset really. I think it was their duty to tell me, inform me. Even Abe [Gray] knew…. If they comply with natural justice, they should have told me.”
2008 OUSA President Simon Wilson says that Moore was told about another appeal that wasn’t upheld, but it was unfortunate no-one told her about the second appeal. “The appeal came in late – about an hour before the deadline for appeals closing on Thursday night. Jo should have been sent an email on Friday, but she wasn’t and we had a decision on Monday.” Despite the error, Wilson says that the rules did not obligate OUSA to inform Moore that an appeal had been lodged.
After being told she was disqualified, Moore immediately contacted lawyers, began claiming that natural justice had been breached, and indicated that she could call for a judicial review. She told Critic that her lawyer advised her to start a petition, which she intends to present at the next SGM, calling for another independent arbitrator to look into the matter.
At the 2 September OUSA exec meeting, OUSA’s lawyer Jackie St John from law firm Anderson Lloyd told the Exec that OUSA had not breached natural justice. She also said that OUSA has no legal ability to overturn Roth’s decision. This contradicts the advice that Moore seems to have received, as she is proceeding with the petition.
If the matter did go to court, judicial review is known to be a very expensive process and could cost tens of thousands of dollars for both OUSA and Moore. Moore says that she would seek repayment legal costs from OUSA if she won. “Obviously, I would sue for court costs…. Ultimately, they would have to pay.”
On 11 September, Darlow officially accepted the 2009 Presidency. If he had declined, OUSA’s constitution states that a by-election would have taken place.
Grigg told Critic that he made the appeal because Moore’s campaign tactics had wronged him, as a presidential candidate. He says that Matthews’ report was “legally inadequate.”
“I didn’t do anything as an Executive member. I’ve done it as someone who was running [against] Jo in the campaign and was wronged by this other candidate. And so I complained. I called her up on the rules.”
Roth agreed that the rules had been broken, and said in his report that he thought Moore had gone over her $1000 spending limit for her campaign. Moore says that she spent $908, including $50 on a keg party on Castle St.
The party, on the Wednesday night of the voting period, was mainly paid for by her friend Jos Hadfield, who successfully ran for 2009 Education Officer. Moore also maintains it was a “thank you party” to supporters. Roth disagreed, saying that on Facebook the party was advertised as “jo and jos ousa campaigns party [sic].” Roth ruled that as the party was part of the campaign, the full costs associated were to be treated as campaign costs for each candidate, which would have put Moore over her $1000 limit.
The other major issue that Roth’s report addressed was “private polling booths.” Since OUSA moved to online voting, “polling booths” have not been redefined in the rules, and this year it has created a problem. Roth said that Matthews’ definition of “polling booths” as computers made available by OUSA for that purpose was too literal. Roth says that private computers constitute polling booths and because Moore was within twenty metres of people voting on the computers she supplied at her party, at Unicol and at Knox College, she broke the rules.
Roth said that the best remedy would be to take away the votes that Moore received from her polling stations, but said he did not believe there was a way to determine this beyond doubt. Given this, and the other minor rule breaches, Roth ruled that he saw “no just alternative to disqualification.”
“I appreciate the inconvenience and possible disappointment that this decision may cause, but this is one of the hostages that is given to fortune when one is not mindful of the rules and principles governing the fairness and proper conduct of elections,” Roth said,.“I realise that a decision to disqualify in this case means overriding an electoral result whereby Jo Moore has obtained a majority of votes cast for President, but it is clear that the candidate was involved in attempting to massage the vote through her breaches of electoral rules.”
Moore, still fuming that her fate was being decided unbeknownst to her, isn’t buying it. “The student body of OUSA would not be pleased to learn that their election decision could be overturned by a secret, behind-closeddoors process. What has happened here has been a secret appeal brought to overturn the election outcome, and it has been decided in secret and in breach of the rules of natural justice.”
Grigg says Roth’s decision surprised him. “It is not the outcome I was expecting. I didn’t think an outside arbitrator would do something like that, but it is legally the right decision.”
Darlow told Critic he is keeping out of the fracas. “I’ve stayed out of it and I have no intention of getting involved in it now. I’ve tried to shy away from it as much as possible, but obviously it is not ideal for anyone involved.”
Darlow says he is getting ready to lead OUSA next year and says the most important thing to come out of this process is an awareness that the rules are inadequate and they need to be “put right.” Wilson says the exec will be looking into them.
Wilson also says, as he said about Moore after she was elected, that Darlow has his full confidence.
Moore told Critic that if her battle fails she would support Darlow next year. “He’s probably one of the most legit people in this whole situation. I think everyone else is very dodgy. He’s a good guy, and I’ll help him if he needs help.”