O_EthicsComm_2021A 06/25/2021 09:00:00 AM Committee Summary PUBLICSTAFF SUMMARY OF MEETINGOTHER COMMITTEE COMMITTEE ON ETHICS COMMITTEES Date 06/25/2021 Attendance Cooke X Hansen X Lundeen * Winter E Gonzales X Time 09:00:00 AM to 10:27:34 AM Place SCR 352 This Meeting was called to order by Gonzales This Report was prepared by Elizabeth Burger Hearing Items Action Taken hIntroduction and Opening Remarks Committee Discussion Only hReview of Procedures, Standards, Criteria Pursuant to Senate Rule 43 Committee Discussion Only hReview of Committee Time Line Committee Discussion Only hConsideration of Rules of Procedure Committee Discussion Only hDiscussion of Next Steps Committee Discussion Only Introduction and Opening Remarks - Committee Discussion Only Attachment Tag File Name Attachment http://www2.leg.state.co.us/CLICS/CLICS2021A/commsumm.nsf/0/02B5E90B067C...$File/Attachment A Merged Meeting Materials (Notebook).pdf?OpenElement Attachment A Merged Meeting Materials (Notebook).pdf 09:02:19 AM Senator Gonzales called the meeting to order and reviewed the meeting agenda. She noted that Vice-Chair Winter is not able to particiapte today. She reviewed the timeline for reviewing the complaint. A notebook of materials were provided to the committee, which can be found in Attachment A. 09:04:22 AM Jennifer Berman, Office of Legislative Legal Services (OLLS), reviewed the services available to the committee from OLLS. Review of Procedures, Standards, Criteria Pursuant to Senate Rule 43 - Committee Discussion Only 09:05:58 AM Senator Gonzales explained that the committee was initially formed on June 9, but the committee was re-formulated on June 17. The timelines that apply to the committee are based on the June 17 date. Ms. Berman described the provisions of Senate Rule 43 and explained that a complaint filed in April was not dismissed by Senate leadership and an ethics committee was formed. The person who is subject to the complaint may file a response, and Ms. Berman noted that Senator Gardner had done so within the applicable timeframe. Ms. Berman explained that Senate Rule 43 provides a two-step process. The first is a preliminary investigation that must be concluded within 30 days of the appointment of the Ethics Committee. The second step is an evidentiary hearing that only happens if the committee determines that there is probable cause to proceed. The preliminary investigation cannot consider testimony or other evidence from other sources, including any materials that were volunteered to the committee and were not provided to the committee upon its request. The committee is determining whether there is probable cause that there was a violation. If there is no probable cause, the committee must dismiss the complaint. If there is probable cause, the committee must notify Senator Gardner. 09:11:11 AM Ms. Berman discussed the probable cause standard. She described the evidence that the committee may consider during its review. 09:13:26 AM Senator Lundeen asked about the timeline specified by Senate Rule 43, and Ms. Berman provided information about initial review of the complaint by Senate leadership, explaining that the investigation portion commenced when the committee was formed. Senator Lundeen asked if the committee could make a determination about the complaint at today's meeting, and Ms. Berman noted that it is an option for the committee to determine at today's meeting whether probable cause exists. Alternatively, the committee could request additional evidence. 09:18:23 AM Senator Cooke noted that the complainant submitted a response to Senator Gardner's response, and Ms. Berman noted that the complainant's document is not permitted to be considered under the process outlined in Senate Rule 43. Senator Cooke asked if witnesses can be called if the proceedings enter an evidentiary phase, and Ms. Berman responded that the committee may call witnesses. 09:20:20 AM Bob Lacker, OLLS, gave an overview of the process if the committee makes a determination that probable cause exits to go forward. If that determination is made, Senator Gardner may request a hearing within seven days, and appear, cross examine witnesses, and be respresented by counsel. The committee may take testimony under oath, issue subpoenas, and hire counsel. Mr. Lacker noted that the committee is subject to the provisions of the Colorado Open Records Act (CORA) and the Colorado Open Meetings Law (OML). He discussed the notice provisions of the OML. He discussed the requirements related to executive session, noting that the pertinent rules regarding executive session do not appear to apply to the committee's proceedings. 09:24:19 AM Mr. Lackner considered by discussing CORA. He noted that records discussed in the meeting may become public records. He noted that OLLS is maintaining a notebook of materials that are public records and available to the media. Review of Committee Time Line - Committee Discussion Only 09:26:38 AM Ms. Berman continued by discussing the draft proposed timeline for the committee's work. She highlighted important deadlines for the committee, noting the committee has 30 days to complete a preliminary investigation. This date falls on Monday July 19. 09:29:25 AM Senator Gonzales asked for committee discussion on the proposed timeline. Committee members commented on the timeline. The committee discussed scheduling additional meetings, and Senator Gonzales asked if the committee members would like to request additional evidence. Ms. Berman clarified that evidence is requested by the committee, and the committee does not issue subpoenas for evidence. Senator Gonzales asked if committee members would like additional evidence, and she asked about reaching out to the State Court Administrator to determine how many requests the office receives from legislators. Senator Lundeen stated that he may have conclusive information on how to proceed without seeking additional information. Senator Cooke asked whether there was information in writing about the reasons why Senate leadership choose not to dismiss the complaint, and Ms. Berman and Mr. Lackner responded. Senator Lundeen asked if leadership had any additional information other than the complaint to make their decision, and Ms. Berman discussed the provisions of Senate Rule 43. 09:38:37 AM Senator Lundeen discussed the process of Senate leadership review of ethics complaints. Ms. Berman explained that leadership review of the complaint is essentially a screening device, noting that the role of leadership is not to determine whether there is merit to the complaint, but to determine whether a proper violation has been alleged. Senator Lundeen commented on the ethics complaint process outlined in Senate Rule 43. 09:45:57 AM Senator Gonzales returned to the issue of committee timeline and the evidence to be requested by the committee. She asked for information on how often the State Court Administrator receives communications from the legislature, and specifically from members of the House and Senate Judiciary Committees to have as context for consideration of the complaint. She requested that the Ethics Committee receive this information by July 2. Senator Hansen asked for information on non-legislative requests of the State Court Administrator. Ms. Berman noted that OLLS would request the number of annual contacts, and ask the State Court Administrator to categorize them. Senator Lundeen noted that public interaction with the Judicial Branch could occur in a number of different ways. He asked for information on the number of efforts to contact the Judicial Branch through whatever means. 09:51:35 AM The committee requested that the information be provided by July 2. Senator Lundeen asked if it was necessary to have future meetings. Ms. Berman noted that the decision of the committee must be made at a public meeting. Senator Hansen shared his view that the committee should schedule another meeting, and Senator Gonzales concurred. Senator Gonzales noted that remote participation in Senate Ethics Committee was not permitted. The committee discussed scheduling a meeting for July 12 at 9 am. The deadline for providing additional evidence was moved to July 7. The committee discussed holding July 12 and 13 at 9 am for potential meeting dates and at 1 pm on on July 14. Senator Gonzales asked if Senator Winter was able to request additional information, and Ms. Berman replied that the committee, not individual members of the committee, must request the evidence. Consideration of Rules of Procedure - Committee Discussion Only 10:07:30 AM Senator Gonzales explained that while Senate Rule 43 outlines the process, it does not outline rules of procedure. She asked the committee should adopt rules of procedure, and referenced the rules of procedure of the Independent Ethics Commission (IEC). Ms. Berman noted that it may adopt rules of procedure but is not required to do so. She noted the sample of IEC rules provided to the committee would only apply if the committee proceeded to the evidentiary hearing stage. Senator Gonzales noted that she sent a letter to the members of the Senate asking them to refrain from talking to the committee members about the ethics committee proceedings. Senator Hansen asked about ex parte communications between members of the committee, and Mr. Lackner responded that ex parte restraints would not apply to the members of the committee, but the open meetings law would continue to apply. 10:15:47 AM Senator Gonzales asked if there was a desire to adopt rules of procedure, and the members of the committee declined to do so. Discussion of Next Steps - Committee Discussion Only 10:16:36 AM Senator Lundeen commented on the information provided to the committee and its sufficiency to make a decision on the complaint. Senator Gonzales asked that the committee hold off on discussing the complaint until all members of the committee are present. Senator Hansen commented on the process for the next meeting, and the review of the evidence requested by the committee. Senator Cooke expressed his desire to discuss the matter at today's meeting. Senator Lundeen discussed his desire to move the proceedings forward. 10:27:34 AM The committee adjourned.