J_LS_2023A 06/29/2023 09:14:27 AM Committee Summary PUBLICSTAFF SUMMARY OF MEETINGJOINT COMMITTEE COMMITTEE ON LEGAL SERVICES Date 06/29/2023 Attendance Dickson E Gardner X Mabrey X Moreno X Roberts X Van Winkle X Weissman X Wilson X Soper X Gonzales X Time 09:14:27 AM to 12:45:36 PM Place SCR 357 This Meeting was called to order by Gonzales This Report was prepared by Courtney Dunaway Hearing Items Action Taken hReview of Social Media Guidelines in light of HB23-1306 Committee Discussion Only hUpdate on pending litigation Committee Discussion Only hSelection and appointment of Director of the OLLS Committee Discussion Only hPresentation concerning legislative agency director appointment processes in other states Committee Discussion Only hCommittee discussion concerning search process for Director of the OLLS Committee Discussion Only hNext Meeting Dates for OLLS Director Search Committee Discussion Only hOther business Committee Discussion Only Review of Social Media Guidelines in light of HB23-1306 - Committee Discussion Only 09:15:41 AM Ed DeCecco, Office of Legislative Legal Services (OLLS), gave an update on the social media guidelines and summarized the committee's previous discussion on the topic. 09:17:50 AM Ed DeCecco, OLLS, explained the reasoning behind why the guidelines may need to be changed because of the passage of HB23-1306. 09:18:00 AM Ed DeCecco summarized what the previous recommended social media guidelines were. 09:18:57 AM Ed DeCecco, OLLS, explained that HB23-1306 changed the law in a way that possibly creates the need for new guidelines. 09:22:25 AM Ed DeCecco clarified that the new state law may not necessarily be the direction the supreme court goes. 09:23:50 AM Representative Weissman commented on HB23-1306 and stated his belief that state law will not have weight against federal law in the courts on the issue and expressed his view that the committee be extremely careful with new guidelines to err on the side of caution. 09:26:39 AM Ed DeCecco, OLLS, responded by saying he is not aware of any state law the court has used in the determinations on the issue and agreed that a state law would not be controlling over federal law. 09:27:41 AM Representative Soper commented on how no one will know what the guidelines should actually be until the court makes its decision. 09:28:47 AM Ed DeCecco, OLLS, explained the different outcomes that could happen and the timeline they could happen in. 09:31:34 AM Ed DeCecco, OLLS, asked what the committee would like to do with the guidelines, summarized the letter the committee previously sent out, and asked if the committee would like to rescind the previous guidance in light of HB23-1306, replace the guidance with similar guidance in light of HB23-1306, or provide completely new guidance and recommend caution. 09:35:35 AM Ed DeCecco, OLLS, mentioned what the new law could mean for the section of the guidelines on retaining counsel. 09:38:13 AM Representative Weissman commented on how he believes the committee should address the guidelines on retaining counsel and emphasized that the guidelines should make clear that, regardless of state law, there is still legal risk. 09:41:20 AM Senator Gardner discussed the legal risk of private social media and that until the supreme court makes their decision, legislators need to be extra careful and recommended that the committee suggest for legislators to receive guidance from an attorney before blocking someone on social media. 09:44:50 AM Representative Soper brought up the supreme court's decision in an online stalking case and how that might affect the guidelines to make sure legislators have the most tools possible for a defense against threats on social media. 09:47:12 AM Ed DeCecco, OLLS, explained that the social media guidelines purposely don't touch on the first amendment because it's not a legislator's job to determine whether something is protected speech in their limited duties in running their social media accounts. 09:52:07 AM Senator Gonzales, chair, asked the committee to decide how they want to move forward with the guidelines. 09:52:57 AM Represenative Soper, vice chair, suggested the committee send an updated notice or letter that explains that the general assembly has adopted a change in law but that the legislators should exercise an abundance of caution while the supreme court decides related cases. 09:53:53 AM Representative Weissman added that the committee should withdraw the memo as official guidance since it has been somewhat superseded and asked the chair and vice chair to take the lead on drafting the new letter and then allowing the committee to review it after. 09:55:46 AM Senator Gardner added that the committee should make express notices in the guidelines to state that there is still legal risk if followed. 09:58:24 AM Senator Gonzales, chair, added that the cover letter should note that the guidance is time-limited in nature and will be subject to change in the future as the committee will provide new guidance after the supreme court's decisions. 09:59:58 AM Represenative Weissman agreed with Senators Gardner and Gonzales. 10:00:57 AM Ed DeCecco, OLLS, addressed all of the final points that the committee brought up. 10:02:52 AM Motion I move that the chair and vice chair work with the OLLS to draft a letter that will be circulated to the members of the general assembly and update the memorandum to include within the summary of guidelines that there is legal risk in following the guidelines. Moved Soper Seconded Dickson Excused Gardner Yes Mabrey Yes Moreno Yes Roberts Yes Van Winkle Yes Weissman Yes Wilson Yes Soper Yes Gonzales Yes YES: 9 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS Update on pending litigation - Committee Discussion Only 10:05:33 AM Jerry Barry, OLLS, reviewed the pending litigation, summarized what has happened in the case, and gave an update that the plaintiffs have filed a notice of appeal. He also discussed whether it would be worth filing a motion for attorney fees and costs and explained that since the plaintiffs do not have resources to cover the costs it is likely not worthwhile to file the motion. 10:07:52 AM Senator Gonzales, chair, asked if the outside counsel is keeping track of their billable hours on their portion of the case and, if so, she would like the see the number. 10:08:18 AM Jerry Barry, OLLS, replied that yes, the outside counsel are tracking their hours. 10:08:39 AM Senator Gardner commented on going after the attorney fees and how even if they end up never being able to collect it may still make a difference in changing behavior in the future in serving as a deterrent but will cost more money. 10:10:51 AM No further discussion. Selection and appointment of Director of the OLLS - Committee Discussion Only 10:11:06 AM Jerry Barry, OLLS, went over the legal requirements for selecting a new Director of the OLLS and explained how the committee has gone about the process the last three times they have had to select a new director in the past. 10:13:08 AM Jerry Barry, OLLS, explained that the committee may make changes to the updated job description if they wish to and asked if the committee has questions. 10:14:18 AM No questions from the committee. 10:14:28 AM Jerry Barry, OLLS, went, step-by-step, through how past searches have gone, what the applicant pools looked like, where the job description was advertised, and what the timelines were for past searches. 10:20:09 AM Senator Gardner asked if during the last search the committee interviewed an out-of-state applicant remotely and if that can be done again this time. 10:21:27 AM Representative Soper, vice chair, asked what the committee is meant to decide today. 10:22:07 AM Jerry Barry, OLLS, stated the committee should decide on the logistics of the scope of the advertisement, where they want to place the advertisement, and how and when they want to choose and interview candidates. Presentation concerning legislative agency director appointment processes in other states - Committee Discussion Only 10:22:40 AM Natalie Wood, National Conference of State Legislatures (NCSL), gave an overview of NCSL and what her presentation will include, which she stated will be that strong staff and strong management make for strong legislatures, there is no one correct way to hire a director, and hires tend to be a reflection of the culture of what a legislature values. 10:26:49 AM Natalie Wood, NCSL, explained that NCSL has been doing a lot of work on retention and turnover and have discovered that managers play the most key role in retaining staff. 10:27:57 AM Natalie Wood, NCSL, went into detail about what other states have done to select new directors and how other states have set up their hiring processes. 10:30:55 AM Natalie Wood, NCSL, explained that in other states where a committee selected a candidate, they often used a subcommittee to review resumes and bring the top ones before the whole committee. She also explained that having a set timeline and set interview questions ready to go helps the process. 10:32:37 AM Natalie Wood, NCSL, mentioned how important it is to have a solid job description and discuss key features to look for in candidates such as prioritizing legislative experience. 10:33:50 AM Natalie Wood, NCSL, explained that all the legislatures she talked to did both an internal and national search for candidates. 10:35:48 AM No questions from the committee. 10:35:57 AM Natalie Wood, NCSL, explained the pros and cons of hiring internally versus externally and that most legislatures hire externally when they are looking for a cultural shift in the office and the legislative institution is ready to accommodate that sort of cultural shift. 10:37:00 AM Natalie Wood, NCSL, brought up that a new major concern for candidates in today's world is work-life balance and time-off flexibility and capabilities to work from home. 10:38:15 AM Natalie Wood, NCSL, mentioned that it's important to listen to and consult with your HR director during the process and also brought up possibly thinking about having a probation period or check-in with the candidate a bit after hiring. 10:39:24 AM Senator Gardner asked about her thoughts on having legislators outside of the committee as part of the interviews. 10:40:14 AM Natalie Wood, NCSL, explained that they should first evaluate the strengths of the committee members and that it is an asset that the committee has members with legal experience. 10:41:36 AM Senator Moreno asked if she knows of any experiences where there weren't many applicants that applied and what should be done if that happens. 10:42:00 AM Natalie Wood, NCSL, explained that candidate pools have been smaller in the last few years but that the legislatures have been satisfied with the quality of candidates and that it's important to have a hiring timeline where you won't lose applicants to other offers. 10:43:17 AM Representative Soper, vice chair, asked if the other legislatures had processes for deciding how many candidates they wanted to interview before moving to next steps. 10:43:58 AM Natalie Wood, NCSL, stated that the other legislatures did not and instead just based their processes on how many candidates ended up applying. 10:45:28 AM Representative Weissman commented on Mrs. Wood's point that legislatures tended to hire internally and emphasized the value of having external candidates as comparisons to internal candidates. 10:46:35 AM Natalie Wood, NCSL, answered that the interview process can help people think about long-term goals for the institution and that external candidates can bring valuable ideas for future visions for the organization as a fresh perspective while new internal candidates can hit the ground running as they know exactly how things operate already. 10:51:51 AM Senator Gonzales, chair, thanked Mrs. Wood for her presentation. Committee discussion concerning search process for Director of the OLLS - Committee Discussion Only 10:52:43 AM Senator Gardner commented on the topic of narrowing the advertisement to only people licensed in Colorado with legislative experience. 10:53:09 AM Representative Soper, vice chair, asked if the timeline to have a new director by September 1st is doable. 10:53:46 AM Jerry Barry, OLLS, explained that, yes, he thinks it is still doable as long as the committee has time in their schedules and added that the executive committee is scheduled to have a meeting on August 31st where they could appoint the candidate. 10:54:44 AM Senator Gonzales, chair, asked if the process for hiring a new is Joint Budget Committee (JBC) director is concurrently underway. 10:55:42 AM Jerry Barry, OLLS, explained that the JBC has made recommendations to the executive committee and they are appointing a candidate on July 13th. 10:56:03 AM Senator Gonzales, chair, asked the committee to discuss any changes to the job description and hiring timeline they have. 10:57:29 AM Representative Soper, vice chair, asked how soon they need to have a candidate to recommend so the executive committee has time to interview the candidate(s) too. 11:01:17 AM Senator Gonzales asked if Senator Moreno has any recommendations on timeline. 11:01:50 AM Senator Moreno stated that the executive committee had two weeks for the JBC candidates. 11:02:42 AM Representative Weissman commented on the timeline. 11:03:54 AM Senator Gardner commented on how the committee should narrow down the candidates they decide to interview. 11:07:04 AM Representative Weissman stated that he thinks the committee is small enough size to all review resumes and interview together and discussed his idea on how the process should go through the use of a matrix to narrow down candidates. 11:10:04 AM Representative Soper, vice chair, agreed on Representative Weissman's ideas of how the process should happen and added that interviews and recommendations to the executive committee should all happen on one single day. 11:13:13 AM Senator Gonzales, chair, supported the entire committee being involved in reviewing resumes and asked if tomorrow is doable to put out the job description or if that would be too soon. 11:15:37 AM Senator Gardner asked if deciding who to interview by a matrix rather than in executive session is okay open-meetings-wise. 11:17:10 AM Jerry Barry, OLLS, explained that the matrix works but that in the past the committee has always discussed who they want to interview in executive session and recommended the committee do so too after using the matrix. 11:18:32 AM Senator Moreno commented that determining the scope of the applicant pool will organically help the committee decide on timeline. 11:19:05 AM Senator Gonzales, chair, asked the committee who they want to open up the application to, aside from just internally. 11:20:33 AM Representative Soper, vice chair, explained that he doesn't believe the committee needs a recruiter but can open up the pool nationally through the American Bar Association, NCSL, and LinkedIn. 11:21:47 AM Representative Weissman agreed that there should be a meeting after using the matrix to choose candidates to interview and gave thoughts on where the job advertisement should be posted. 11:24:42 AM Jennifer Gilroy, OLLS, explained what the scope can be and what the scope has been in the past. Then she asked about direction on what the matrix would look like so they can get started on it and asked the committee to define their scope clearly first. 11:28:04 AM Representative Soper, vice chair, commented the he believes the committee should have the scope open nationwide but should focus most effort on posting the job within the state. 11:30:09 AM Representative Wilson discussed limiting the job postings for now and then widening the net if not enough applicants come in. 11:30:45 AM Senator Gonzales, chair, discussed adding to the job requirements that the candidate be an attorney-at-law barred in Colorado, which would limit the national candidate pool. 11:34:18 AM Representative Soper, vice chair, agreed the applicants should be licensed in Colorado and there should be a strong preference given to someone with experience with the Colorado legislative process. 11:35:19 AM Senator Moreno supported the direction the committee is headed and agreed that the requirement to be barred in Colorado will act as a good filter to limit candidates. 11:36:26 AM Representative Weissman agreed it should be limited to those licensed in Colorado and that having legislative experience in Colorado also makes sense. 11:38:19 AM Jennifer Gilroy, OLLS, explained the downside of limiting the scope to being licensed in Colorado and that stating it as a strong preference rather than a requirement might be good. 11:39:38 AM Senator Gardner commented on insights from a previous hiring process for Legislative Council Staff (LCS). 11:42:04 AM Jennifer Gilroy, OLLS, brought up the point that the committee may not want to conduct a nationwide search if they are satisfied with how the OLLS currently operates. 11:43:25 AM Senator Gonzales, chair, expressed that she personally would like candidates who understand the particulars of the Colorado legislature since the job is so niche. 11:46:04 AM Senator Gonzales, chair, asked the committee to decide on the final scope. 11:47:02 AM Motion I move that the committee set the scope of the director search as being nationwide and advertise through NCSL, CSG, and the American Bar Association but that the focus of the search be in the state of Colorado advertised through the General Assembly's website, in our sister-branches of government, the Colorado Bar Association, and the other associations listed in the 2017 director search including the Asian and Pacific Bar Association, the Colorado Hispanic Bar Association, and the Women's Bar Association, that the job description and job advertisement include a strong preference for a Colorado licensed attorney with Colorado legislative experience, and that the postings be online rather than in print. Moved Soper Seconded Dickson Excused Gardner Yes Mabrey Yes Moreno Yes Roberts Yes Van Winkle Yes Weissman Yes Wilson Yes Soper Yes Gonzales Yes YES: 9 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS 11:49:20 AM Committee discussed the motion and revisions to the motion. 11:53:24 AM Senator Gonzales, chair, moved on to discussing process and timeline. 11:54:05 AM Representative Soper, vice chair, asked Senator Moreno if there is wiggle room to cut into the two weeks given to the executive committee for interviews. 11:54:30 AM Senator Moreno explained that there is likely flexibility. 11:55:12 AM Senator Gonzales, chair, asked if the committee were to extend the deadline for applications to the 21st of July if that would work for the timeline. 11:56:02 AM Senator Gardner clarified that there will need to be two meetings after the application deadline and asked when those will happen. 11:56:54 AM Representative Soper, vice chair, asked how long it will take to get the package of resumes of applicants. 11:57:58 AM Jerry Barry, OLLS, stated that the office will add resumes to the box account as they come in and added that the office will be able to get the job advertisement out by July 7th. 11:59:30 AM Representative Soper, vice chair, asked if the committee believes two weeks of having the application period open is adequate for the posting for a position as large as this. 12:01:13 PM Representative Wilson commented that he agrees that the committee should review resumes and add them to the matrix as soon as they come in to stay on top of things. 12:01:58 PM Representative Weissman agreed that the committee should have one meeting to choose who to interview and a second meeting to do all the interviews and choose their candidate(s) to recommend and that the job application deadline should be pushed out a week. 12:04:47 PM Senator Gonzales, chair, agreed with pushing out the application deadline by a week. 12:05:50 PM Senator Moreno agreed with the timeline being discussed and asked staff if the timeline is logistically workable. 12:06:15 PM Jerry Barry, OLLS, stated he believes the timeline is doable and that the office can make candidates anonymous if they would like. 12:07:30 PM Motion I move that the timeline for the hiring process be as follows: the job advertisement will be posted the week of July 4th, the application window will close July 28th at 11:59 p.m. MDT, the committee will meet August 9th at 2:00 p.m. to discuss who to interview, and the committee will meet on August 22nd at 9:00 a.m. to interview their chosen candidates and make recommendations to the executive committee. Moved Soper Seconded Dickson Excused Gardner Yes Mabrey Yes Moreno Yes Roberts Yes Van Winkle Yes Weissman Yes Wilson Yes Soper Yes Gonzales Yes YES: 9 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS 12:08:36 PM Committee discussed the motion and revisions to the motion. 12:13:49 PM The committee recessed. 12:20:10 PM Senator Gonzales, chair, circled back to discussing the job description. 12:20:34 PM Senator Moreno discussed adding, to the job description, being able to interpret legislative rules and the role of presenting the office's budget to the executive committee. 12:21:28 PM Jerry Barry, OLLS, pointed out that there is currently no salary range for the position and that they're required to have one by state law. 12:22:09 PM Representative Weissman summarized the state law regarding posting salaries on job advertisements and stated the he believes a broad range satisfies the requirement. 12:24:12 PM Jennifer Gilroy, OLLS, explained that the office has salary ranges they can use as a guide. 12:30:51 PM Senator Moreno stated it might be helpful to have LCS advise on what they did for their job posting salary range. 12:32:30 PM Senator Gonzales, chair, asked if there is any further discussion. 12:32:41 PM Jerry Barry, OLLS, asked if the committee would like anonymization of resumes. 12:32:55 PM Senator Gonzales, chair, asked if the resumes are anonymized, when they'll receive the candidates' names before the interviews. 12:33:19 PM Jerry Barry, OLLS, stated that the names will be revealed for the interviews to the members but not to the public until the recommendations to the executive committee are made. 12:34:20 PM Senator Moreno supported the anonymization. 12:35:03 PM Jennifer Gilroy, OLLS, explained that the anonymization is just to remove unconscious bias rather than redact all personal information. 12:35:56 PM Representative Soper, vice chair, commented on the anonymization and what would be redacted. 12:38:02 PM Jennifer Gilroy, OLLS, explained that not all personal information in a cover letter is redacted. 12:38:50 PM Jerry Barry, OLLS, added that the redactions would include year of graduation or anything that indicates age. 12:39:05 PM Senator Gonzales, chair, clarified that at the August 9th meeting they also need to notify candidates who they aren't going to interview that the process is over for them and thank them for applying. 12:40:34 PM Representative Weissman asked if the office will draft a rubric for narrowing down candidates. 12:40:52 PM Jennifer Gilroy, OLLS, stated that yes, the office can make them a rubric. 12:41:32 PM Representative Weissman asked that the rubric be circulated in advance so they can review it and asked that there be a rubric for interviews too. 12:43:09 PM Representative Soper, vice chair, agreed on the rubric. Next Meeting Dates for OLLS Director Search - Committee Discussion Only 12:45:05 PM No discussion. Other business - Committee Discussion Only 12:45:11 PM No other business. 12:45:36 PM The committee adjourned.