J_LS_2023A 08/09/2023 02:02:50 PM Committee Summary PUBLICSTAFF SUMMARY OF MEETINGJOINT COMMITTEE COMMITTEE ON LEGAL SERVICES Date 08/09/2023 Attendance Dickson X Gardner E Mabrey X Moreno X Roberts X Van Winkle X Weissman X Wilson X Soper X Gonzales X Time 02:02:50 PM to 04:43:47 PM Place SCR 357 This Meeting was called to order by Gonzales This Report was prepared by Courtney Dunaway Hearing Items Action Taken hRetention of counsel for pending and potential litigation. Committee Discussion Only hSelection of applicants to be interviewed for the position of Director of the OLLS Committee Discussion Only hOther business Committee Discussion Only Retention of counsel for pending and potential litigation. - Committee Discussion Only 02:04:10 PM Jerry Barry, Office of Legislative Legal Services (OLLS), explained that the committee has been informed a lawsuit has been filed against the House of Representatives, the Speaker of the House, the Senate, the Senate President, Representative Marshall, Senator Bridges, Senator Hansen, and Andrew Lindinger, and that the committee is to decide whether to appoint them counsel. 02:06:21 PM Motion I move the committee go into executive session pursuant to 24-6-402 (3)(a)(II), C.R.S., for the purpose of conducting attorney-client discussions regarding pending or imminent court action, specific claims or grievances, or for the purpose of receiving legal advice on specific legal questions related to a lawsuit recently filed in the Denver district court and retention of counsel to represent legislative defendants in the pending or potential litigation. Moved Soper Seconded Dickson Yes Gardner Yes Mabrey Yes Moreno Excused Roberts Yes Van Winkle Yes Weissman Yes Wilson Yes Soper Yes Gonzales Yes YES: 9 NO: 0 EXC: 1 ABS: 0 FINAL ACTION: PASS 02:07:44 PM Senator Gardner expressed his opposition to the motion. 02:09:00 PM Representative Weissman expressed support of the motion and his belief that the question fit squarely within the statute. 02:10:49 PM Senator Gardner found Representative Weissman's argument compelling and withdrew his opposition to the motion. 02:11:38 PM The committee entered executive session. 02:56:30 PM The committee returned from executive session. 02:57:07 PM Representative Soper, vice chair, asked what the precedence is for the committee to retain counsel outside of the list of approved counsel maintained by the OLLS. 02:58:36 PM Jerry Barry, OLLS, explained that the usual process is to select an attorney from the list of approved counsel but that he is aware of at least one instance in the past where someone requested counsel outside of the list and the committee chose to retain them. So while it is unusual, it is not unprecedented. 02:59:59 PM Senator Roberts asked Representative Marshall if he had consulted the list of approved counsel and if not if he would like to review the list. 03:00:26 PM Representative Marshall explained that no, he had not reviewed the list because he consulted with attorneys in the sunshine community to find a specialist but that he is open to reviewing the list though he doubts he will know any of the attorneys on the list. 03:03:01 PM Senator Roberts asked if Representative Marshall was aware that hiring separate counsel would result in additional costs to the taxpayers. 03:03:25 PM Representative Marshall explained that, yes, he was aware. 03:04:22 PM Senator Gardner brought up that the committee needs to discuss counsel for the other defendants as well. 03:05:31 PM Representative Weissman expressed that it is the appropriate course for the committee to appoint counsel to all the other defendants too. 03:07:00 PM Motion I move that the committee appoint Ed Ramey as the attorney to represent the House of Representatives, the Speaker of the House, the Senate, the Senate President, Senator Bridges, Senator Hansen, and Andrew Lindinger in the lawsuit filed in the Denver district court. Moved Soper Seconded Dickson Yes Gardner Yes Mabrey Yes Moreno Yes Roberts Yes Van Winkle Yes Weissman Yes Wilson Yes Soper Yes Gonzales Yes YES: 10 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS 03:08:38 PM Senator Gonzales, chair, turned the discussion back to counsel for Representative Marshall. 03:08:56 PM Representative Weissman explained his belief that nonconflicted, nondelayed representation is important for all parties and stated that he is in favor of separate counsel for Representative Marshall but wants to not set a precedent on the committee for choosing attorneys outside of the approved list. He also stated that, in this case only, he is supportive of retaining counsel outside the list in the interest of the institution. 03:14:57 PM Senator Gardner explained that he has consistently supported retaining counsel for members sued in their official capacity but opposes appointing counsel for Representative Marshall in this case. 03:20:15 PM Representative Soper, vice chair, noted that there are many situations in which a person does not get to choose their attorney and that he believes the committee should stick to the approved list as part of the typical process. 03:22:52 PM Representative Weissman expressed that he doesn't want to see the committee go down the road of deciding when a member should or shouldn't be appointed counsel by the committee when sued in their official capacity and that if anyone on the committee believes the list of counsel isn't broad enough then the list can be reopened again. He also stated that the committee should let all legislators know how the retention of counsel process works as a reminder in the future. 03:27:08 PM Representative Soper explained that he will be a no vote on the motion because he believes the committee should not establish a precedent to go outside of the approved list. 03:28:57 PM Representative Soper, vice chair, clarified that he does not intend to impugn anyone's motive. 03:29:25 PM Representative Mabrey explained that because the counsel outside the list agreed to the same rate of pay of the attorneys on the list, he doesn't share in the concerns. 03:30:15 PM Senator Gonzales, chair, asked if there is a separate paralegal rate for attorneys on the approved list. 03:30:55 PM Jerry Barry, OLLS, explained that there is not a set paralegal rate and that he has seen counsel on the approved list charge 100 dollars an hour for paralegal work. 03:31:15 PM Senator Gonzales, chair, requested that there be a differentiation in paralegal rate in the future. 03:31:31 PM Senator Roberts explained that he doesn't know if the committee is prepared to vote on the motion today until they have further information. 03:32:48 PM Representative Weissman explained that his understanding is that the hourly rate stands as it is and that any paralegal rate or other is the business of the practice how it decides to set that pay. 03:34:15 PM Jerry Barry, OLLS, agreed that the 250 dollars is the cap on all hourly rates but that the attorneys on the approved list have also charged less for paralegal work. 03:34:51 PM Senator Roberts explains that because they just received the information of Representative Marshall's choice of counsel this morning, he needs more time. 03:35:56 PM Representative Weissman explained that the 250 dollars operates as a ceiling rather than a floor. 03:37:02 PM Jerry Barry, OLLS, agreed. 03:37:09 PM Senator Moreno asked if they can include in the motion that they will pay the same hourly rate to any attorney retained as those on the approved list. 03:38:40 PM Senator Gardner pointed out that he believes the motion does not include paralegal rate which concerns him. 03:39:48 PM Senator Moreno explained that the motion includes all who are working with the outside counsel including paralegals. 03:40:05 PM Senator Gonzales, chair, agreed. 03:40:31 PM Senator Roberts asked if Representative Marshall wants to review the approved list. 03:41:03 PM Representative Marshall stated that he is more than willing to look at the list but in the interest of time would like to have an attorney retained as soon as possible. 03:42:32 PM Senator Roberts asked Jerry Barry if Representative Marshall was informed of the list. 03:42:50 PM Jerry Barry, OLLS, explained that Representative Marshall was not sent the list but may have been aware of it in communications with Sharon Eubanks. 03:43:26 PM Senator Roberts asked Representative Marshall again why he didn't review the list. 03:43:38 PM Representative Marshall explained that he knew the list existed but immediately went to his contacts in the sunshine law field to find a specialist and that he favors having an attorney referred to him by someone he knows and trusts. 03:45:17 PM Senator Roberts explained that the difference in deciding on if Representative Marshall should have his own attorney compared to a different scenario is that this attorney will be paid for by the state of Colorado. 03:45:36 PM Senator Gonzales, chair, explained that she wants to give Representative Marshall a chance to review the list. 03:46:55 PM Representative Marshall explained that it's a concern to him that the attorneys on the list are a tight-knit community. 03:48:09 PM Senator Gonzales, chair, explained that from her perspective the issue is not about forcing anything or making assumptions. 03:49:37 PM Representative Marshall asked at what level he is expected to review the list. 03:50:30 PM Representative Weissman explained that it may only take a few minutes to review the attorneys' websites and that staff will then inquire of their availability and suggested that the committee should be quick about appointing counsel after Representative Marshall reviews the list by being polled early next week. 03:54:06 PM Jerry Barry, OLLS, explained that the usual process is for staff to contact the attorneys to see who is available and then will inform Representative Marshall which of them are options and then poll the committee after. 03:55:38 PM Senator Gonzales, chair, asked about the timeline. 03:55:55 PM Jerry Barry, OLLS, explained that he will work on it as soon as possible. 03:56:16 PM Senator Gonzales asked Representative Marshall if that was an okay solution. 03:56:33 PM Representative Marshall explained that, yes, it is. 03:57:35 PM Senator Gonzales, chair, explained that the committee will proceed with that process. 03:58:27 PM Jerry Barry, OLLS, brought up a separate point, asking the committee to approve the OLLS to be retained on behalf of any legislatuve defendant in any potential action against the Blue Book later this year. 04:00:29 PM Representative Soper asked a clarifying question about if it will be the OLLS or outside counsel retained. 04:00:56 PM Jerry Barry, OLLS, explained that it will be the OLLS retained as counsel, not outside counsel. 04:01:53 PM Motion I move to authorize the Office of Legislative Legal Services to represent the legislative defendants if there is a lawsuit against the Blue Book later this year. Moved Soper Seconded Dickson Gardner Mabrey Moreno Roberts Van Winkle Weissman Wilson Soper Gonzales YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection 04:04:06 PM The committee took five 04:11:19 PM The committee returned Selection of applicants to be interviewed for the position of Director of the OLLS - Committee Discussion Only 04:11:36 PM Senator Gonzales, chair, reviewed the agenda item and asked the vice chair to make a motion to enter into executive session to discuss applicants to be interviewed. 04:12:00 PM Motion I move the committee go into executive session in accordance with section 24-6-402 (3)(a)(III), C.R.S., for the purposes of conducting a discussion on matters required to be kept confidential by section 24-72-204 (3)(a) and (11)(a), C.R.S., that denies the right to inspect records submitted by or on behalf of an applicant or candidate for an executive position, with a state agency, who is not a finalist. Moved Soper Seconded Dickson Gardner Excused Mabrey Moreno Excused Roberts Van Winkle Weissman Wilson Soper Gonzales YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection 04:12:54 PM The committee entered executive session. 04:30:03 PM The committee returned from executive session. 04:30:39 PM Motion I move the committee invite candidates 3, 5, 6, and 7, to be interviewed on August 22nd in-person by the committee. Moved Soper Seconded Dickson Gardner Excused Mabrey Moreno Excused Roberts Van Winkle Weissman Wilson Soper Gonzales YES: 0 NO: 0 EXC: 2 ABS: 0 FINAL ACTION: Pass Without Objection 04:31:48 PM Representative Weissman asked the committee if they could illicit input from staff of the OLLS on what they'd like to see in a director through an appropriate, anonymous survey before August 22nd. 04:34:47 PM Jerry Barry, OLLS, said that he is happy to meet with Mr. FitzSimons of the Office of Legislative Workplace Relations to see if he can create a survey if the committee decides they want that. 04:35:22 PM Jennifer Gilroy, OLLS, asked a clarifying question on the survey on if it would just include particular qualities. 04:35:43 PM Representative Weissman explained that the survey would not have personality specifics in order to remain neutral. 04:36:57 PM Representative Wilson explained that he believes it is the candidates' responsibility to form relationships in the office and that the survey may be skewed. 04:38:02 PM Representative Soper, vice chair, agreed. 04:39:49 PM Representative Weissman agreed and explained that he doesn't want the survey to turn into a competition so rescinded the idea. Other business - Committee Discussion Only 04:43:32 PM No other business. 04:43:47 PM The committee adjourned.
