UPDATE: An earlier version of this article failed to sufficiently clarify the responsibility of SGA and the SGA Election Commission with regard to the Florida Sunshine Laws. This has been corrected.
UPDATE 2: Added information concerning First Amendment allegations.
The Student Government Association has received a lot of fire recently due to former student body presidential candidate Jacob Milich’s lawsuit against UCF regarding his closed-door election violation hearings.
Milich is suing UCF’s Board of Trustees, Vice President of Student Development and Enrollment Services Maribeth Ehasz as an individual and in her official capacity, SGA, current SGA President Cait Zona as an individual and in her official capacity, SGA Supervisor of Elections Whitney Barnes as an individual and in her official capacity, and the SGA Election Commission for making his election violation hearings closed — and open.
U.S. District Judge Janet C. Thorpe ruled against Milich, which allowed the disciplinary hearing to proceed. What hasn’t yet been adequately reported or fully understood, however, is why Judge Thorpe ruled against Milich.
Milich maintains closed-door hearings are unconstitutional under Florida’s sunshine laws, which aim to promote a transparent government by making most governmental meetings accessible to the public and press.
Milich claims SGA’s Elections Commission held a closed meeting to discuss his alleged election violations prior to holding any public meetings. He bases this on an email from Barnes warning Milich that it was brought to the attention of the Election Commission that Milich was actively campaigning before declaring his candidacy and the violations will appear once Declaration of Candidacy begins.
The court states that Milich provided no evidence demonstrating a meeting was held regarding the aforementioned complaints.
“The language in Barnes’ email merely informs Milich that the Commission received affidavits accusing him and his running mate of election violations,” documents state. “The fact that Barnes was speaking on behalf of the Commissions, as persons in supervisory positions often do, does not indicate that members of the Commission had privately convened.”
Court records of Milich v. UCF show that Milich himself claimed that open election violation hearings would violate his FERPA rights but simultaneously alleged that having closed hearings would violate Florida’s sunshine laws.
Earlier this year, in the case Knight News, Inc. v. The University of Central Florida Board of Trustees, U.S. District Judge Frederick J. Lauten upheld a previous court decision stating it was found that UCF’s disciplinary hearings did not constitute “meetings” and therefore are not required to be open.
David Oglethorpe, communications coordinator for both SGA and the Office of Student Involvement, said that the SGA Election Commission is not beholden to obey Florida's open meeting laws because neither it nor SGA are state agencies.
“The SGA Election Commission is not a state agency board or commission," Oglethorpe said. “Therefore, a hearing conducted by the SGA Election Commission does not fall under Chapter 286 of Florida Statutes. In fact, SGA is not a state agency, so unless SGA is performing a function delegated to it by UCF or law, such as the Activity and Service Fee allocation process, it is not subject to Chapter 286.”
Prior to Milich's lawsuit, election violation hearings were open to the public. The lawsuit, coupled with the recent ruling in the Knight case, has caused the university to reevaluate its position.
“Previously, SGA election violation hearings have been open to the public,” Oglethorpe said. “However, at the request of the current SGA presidential candidate, the university has reviewed the hearing procedures in light of new legal rulings, and we’ve determined that to protect student information, hearings should be closed to the public.”
FERPA, the Family Educational Rights and Privacy Act, is a federal law that aims to protect the privacy of U.S. students’ educational records.
According to court records, election violation affidavits count as disciplinary records, making them private under FERPA.
“Milich attaches an election statute entitled, ‘Student Government in the Sunshine Act’ and attempts to argue that that statute demonstrates that his anticipatory disciplinary hearing will be open to the public. Such statute refers only to student government meetings and does not mention disciplinary proceedings,” court records state.
However, the court continues to say there there is nothing in SGA statutes that suggests the disciplinary proceedings will be open to the public.
“Indeed, all of the Commission’s Election statutes to which Milich refers are silent as to who is permitted in the hearings and refer only to the Commission members, the accused, the affidavit filer and any witnesses,” court records state.
Milich could have signed a waiver to his rights and given SGA permission to conduct the hearings in the open, according to court case’s public records. Milich claims he did not know this. Email records prove this to be untrue.
“I have not waived my rights under FERPA and do not wish for my personally identifiable information or information in my education records to be orally or physically disclosed at the disciplinary hearings,” Milich said in an email sent on March 3. “Should these hearings remain scheduled, it is my intent to seek an injection [sic] from the circuit court which will prohibit these disciplinary hearings from taking place in violation of my FERPA rights.”
When asked why he didn’t waive his FERPA rights so that SGA would have the option to keep he meetings open, Milich said he wants SGA to change its rules and that he was never approached by UCF with that option. Additionally, he feels he shouldn’t have to sign a waiver for the hearings to be open.
“I think they should be open, but I wanted them to solve their own internal procedures,” he said. “Ideally I want them to change the rules. Their rules state they have to be closed. I think they should be open.”
In the end, Judge Thorpe ruled that Milich was trying to entrap the defendants in a “catch-22.”
“In [an] attempt to trap defendants in a catch-22, Milich maintains that the SGA cannot conduct his disciplinary hearing without opening it to the public because that would violate Florida's sunshine laws,” court records state. “On the same token, Milich claims, if the SGA opens the hearing to the public, it is disclosing his education records in violation of FERPA.”
When asked about the catch-22 statement, Milich explained that he considers UCF’s rules inconsistent.
“And that’s the whole problem, hearings should be open, but UCF’s interpretation of FERPA is that they need to be closed,” he said. “So UCF has put itself in a situation where either way, it’s going to be breaking the law and that’s where the whole problem was in the first place — that their own rules are inconsistent. So regardless of how they do something, they’re going to breaking one law or the other.”
The court ruled that “Milich’s circular logic, although clever, does not entitle him to injunctive relief on the facts present in this record.”
Milich claimed the university violated his First Amendment rights. The First Amendment protects citizens from the U.S. government intruding on their freedom of religion, speech, press, petition and to peaceably assemble, according to the Constitution.
According to court records, Milich said UCF violated his right to free speech by enforcing regulations regarding the scope of Milich's campaign.
Court documents refer to the 1989 case Alabama Student Party v. Student Govn't Ass'n of the Univ. of Alabama where the United States Court of Appeals dealt with a similar situation involving the constitutionality of student government election procedures. In that case, the court drew a distinct line between "free speech claims in a regular, real word setting and those in an educational setting."
"In Alabama Student Party, the court held that the record reflected that the university's regulations of student government association elections were reasonable given the university's underlying effort 'to minimize the disruptive effect of campus campaigning,'" court documents read.
Milich also claimed UCF violated his First Amendment rights because the university's regulations regarding campaigning are "vague," allowing for arbitrary and discriminatory enforcement.
Milich claimed he did not understand the term "active campaigning." The court said the statute regarding active campaigning defines the term "without limitation, as '[a]ny display or distribution of tangible items or electronic media for a candidate/ticket for an elective office of the student body.'"
The court continued on to say the provided election statutory definition of "active campaigning," along with the common dictionary definition, adequately informed Milich of what constituted active campaigning.
"As is commonly the case, Milich fails to demonstrate a substantial likelihood of success on the merits," the court document read. "As a result, this court need not address the remaining factors and denies Milich's motion for preliminary injunctive relief."
Students might wonder why SGA kept silent about the matter rather than defend themselves against the negative media coverage. SGA President Cait Zona says she refused to comment for personal reasons and was also advised not to get in a fight with media publications on SGA’s social media, so she decided to drop hints in her personal social media posts in order to shed light on the situation.
In one of Zona’s posts, she shared a screenshot of a public record regarding the Milich vs. UCF case.
“Here, you can find what a judge has to say about the biased, political media that has been posted lately,” Zona wrote. “In specific, the end of page nine when the judge states that the plaintiff uses a Catch 22 regarding FERPA.”
Zona hoped sharing the public records would help students fully understand the situation that she is forbidden to directly comment on.
“It’s been a frustrating time for a lot of people who feel unnecessarily and unjustly harassed,” Zona said. “I spoke out on social media in hopes people would connect the dots.”
Gabby Baquero is the Entertainment Editor for the Central Florida Future. Follow her on Twitter at @Gabby_Baquero or email her at MariaB@centralfloridafuture.com
Alissa Smith is the News Editor for the Central Florida Future. Follow her on Twitter at @thealissasmith or email her at AlissaS@centralfloridafuture.com.