16CABA63455C7DAF872583070052F1C0 Hearing Summary

The meeting was called to order.  A quorum was present.  A meeting agenda was distributed to the committee [Attachment A].

Chairwoman Duran made opening remarks and reiterated that the committee has not been authorized to request bill drafts.  She explained that the committee will present a report to the Executive Committee of the Legislative Council, who in turn may adopt any or all of the recommendations in it or request bill drafts.   She emphasized that the report should highlight areas of consensus and note any differences of opinion. 

Jeremiah Barry, Office of Legislative Legal Services, discussed the final report.  Amanda King, Legislative Council Staff, noted that the Task Force on 911 Oversight, Outage Reporting, and Reliability did not have the authority to request bills and distributed a handout of its final report for reference [Attachment B]. 

Attachment B

Mr. Barry facilitated the ensuing discussion and referenced a discussion guide handout prepared by OLLS staff that was distributed to the committee [Attachment C]. The handout outlined areas of committee consensus and delineated the remaining questions by subject matter.  He began by recapping areas of consensus regarding human resources (HR) functions and addressed remaining unanswered questions in this area. 

In response to a question about office location, the committee agreed that two HR office locations, one in the Capitol and one at 1525 Sherman, would be optimal.  Members also agreed on the need for the locations to provide confidentiality and be accessible.   

The committee discussed the number of employees needed for the newly formed HR office.  Committee members deferred to Ben FitzSimons, Legislative Human Resources Administrator, and he suggested two full-time employees, one of who would serve as administrator, while the other would conduct trainings and other organizational functions.  The committee reached consensus on two full-time employees for the office. 

The committee discussed an anonymous hotline for reporting complaints.  Mr. FitzSimons talked about the advantages and disadvantages of anonymous hotlines generally and also pointed out that it could be web-based.  Members discussed the hotline, including the importance of lodging complaints at any hour, identifying behavioral patterns, confidentiality, privacy, and follow-through. 

The committee debated the hiring, or contracting out, for an ombudsperson or victim advocate.  Committee members discussed the differences between an ombudsman and victim advocate.  They also questioned whether both the claimant and respondent should have access to the services provided by either of the positions.  Members brought up the possibility of HR staff providing ombudsman services, such as informing involved parties about the complaint and resolution process.

The committee agreed that advocacy services are needed in some capacity, but asked for staff recommendations to better define the role. 

The committee returned to the hotline discussion and raised issues about anonymity, confidentiality, operation, and expense.  Committee members requested a cost estimate for a web-based hotline. 

Committee members discussed the informal complaint process and whether a supervisor or a designated position in leadership should be notified if there is a pattern of harassment-related behavior by a respective legislator or employee.  Committee members agreed that supervisors or leadership should be confidentially notified by the HR administrator in such cases. 

There was also concensus among committee members that the HR administrator prepare an annual report about informal complaints and that it be distributed to the newly formed committee on workplace harassment and the General Assembly. 

The committee discussed the length of time records should be maintained upon conclusion of an informal complaint.  Mr. FitzSimons discussed the contents of an informal complaint record and also noted that it is common practice to keep records for the duration of employment.  After discussing various time periods, the committee agreed that records should be kept for the duration of employment for all parties involved in a complaint, whichever is longest, with a minimum of ten years.  The committee also recommended that the HR administrator have the discretion to keep records even longer, if deemed necessary. 

The committee discussed confidentiality and the formal complaint process in relation to standards for community safety.  Members were provided policies from University of Colorado and Colorado State University [Attachment D and E].   Committee members discussed situations in which it may be necessary to override a complainant's request for no action or investigation, such as the possibility of repeat offenses, age of victim, and the seriousness of the alleged misconduct. 

Committee members agreed that there are community safety situations in which a complainant's request for no action or investigation may be overridden by the HR administrator in consultation with the Executive Committee. The committee also agreed that the HR administrator should define the override factors.   

The committee addressed whether a supervisor or members of leadership should be notified of an employee's or legislator's harassment-related behavior patterns in a formal complaint process.  Similar to informal complaints, the committee agreed that HR staff should have the discretion to confidentially notify a supervisor or leadership in certain circumstances.  

The committee unanimously agreed that it be incumbent upon the HR administrator to discuss the informal and formal complaint process in general terms when there is new leadership. 

The committee took a brief recess. 

The committee was called back to order.

The topic of the anonymous hotline was revisited.  Ms.King referenced the August 10, 2018, Legislative Council memo concerning the fiscal estimates for the Office of Legislative Culture that was presented at a prior meeting,  The memo estimated the cost of a web-based, vendor-managed hotline at $12,000 per year.  Expressing concerns about confidentiality, vendors, and anonymous reports in general, the committee did not agree about the need for a hotline.  The chair asked for this disagreement to be reflected in the final report. 

The committee addressed participation in the complaint process for third parties.  Committee members acknowledged the difficulty of mandating participation by third parties, especially as a respondent.  There was agreement that third-parties be expected, but not required, to participate in an investigation. 

Committee members reitereated that participation in a complaint proceeding should be a mandatory condition of employment for staff.  Regarding legislators, the committee members agreed that mandating an elected official to participate is problematic and discussed inferences of a non-response. 

The committee addressed formal complaints against nonpartisan staff and the role of the agency directors.  The committee agreed that directors should be able to receive a full copy of an investigation report involving his or her staff.  

The committee also clarified that HR staff may inform a nonpartisan staff director of a policy violation by an employee, as well as recommend possible disciplinary actions, but that the director has authority in making a final determination.  As an added safeguard, the committee agreed that HR staff may report a director to the Executive Committee if there is disagreement or deviation from the recommended disciplinary actions.  

The committee discussed the appropriate standard for finding that an action is a violation of a policy.  The committee was referred to a memorandum prepared by OLLS regarding standards used under Title VII of the Civil Rights Act of 1964 [Attachment F].  The committee also referenced Equal Employment Opportunity Commission policies that were presented at an earlier committee meeting.

The committee agreed that the standard should be based on both subjective and objective evidence, as well as preponderance of the evidence. 

The committee discussed membership of the new committee or panel that will oversee formal workplace complaints against legislators, and two different options were presented for consideration.  One recommendation proposed a seven member committee that would serve both chambers.  The membership would be comprised of four legislators, with one from each caucus and chamber, and the remaining three members consisting of an HR specialist, victim advocate, and employment law expert. 

The other recommendation proposed a six member committee for each chamber, with three members appointed from the majority party and three from the minority party.  These two committees would be empowered to consult wtih experts, but would not allow non-legislators as voting members.

Committee members discussed the advantages and disadvantages of the proposals, including terms, standards for recusal, gridlock, committee composition, how appointments would be made, use of expert testimony, differences and similarities between the two chambers, and attempts at de-politicizing the process.  Members also discussed the overall limitations of this new panel and noted that nothing would prevent a legislator from sponsoring a resolution for censure or expulsion against another member.  Another proposal was briefly discussed that suggested there be one panel for both chambers but comprised only of legislators.  

The committee recessed for lunch. 

The committee was called back to order.

Committee members returned to an issue discussed earlier in the meeting regarding nonpartisan staff and director responsibility.  Discussion ensued about whether the overseer of the investigation should make the final determination for a policy violation and associated discipline instead of placing that responsibility with a department director.  Mr. FitzSimons clarified that HR staff generally acts as more of a consultant in matters of imposing disciplinary action.  The committee did not come to consensus on who should make the final determination about the discipline of nonpartisan staff.  Further discussion followed about the HR office, disciplinary recommendations, and flexibility. 

The discussion about the new committee membership resumed.  The committee did not reach consensus about membership composition and suggested that both options be presented to the Executive Committee. 

Members agreed that the new committee, regardless of the composition, should consider objective and subjective evidence, as well as the preponderance of the evidence, in determining if an action is in violation of a policy. 

The committee discussed who or what body should make the final determination if a policy has been violated by a legislator and also addressed accountabiility, sanctions, respondents who ignore disciplinary recommendations, and the appeals process.

The members agreed that the new committee should have the authority to inform leadership of their findings concerning a legislator, and these findings should include written recommended sanctions (i.e. training or removal from a committee).  Further, if the new committee finds that a constitutional sanction, such as censure or removal, should be taken against a legislator, it will be incumbent upon one of the new committee members to sponsor the resolution. The new committee will also have the authority to recommend a constitutional sanction if leadership or the legislator, whichever more apppropriate, ignores the report and its findings and recommendations. 

Committee members discussed confidentiality in relation to the report and executive summary.  While committee members agreed that the new committee should received a copy of the full report and not just an executive summary, they did not agree if names should be redacted or not. 

The committee discussed partisan staff and the appeals process.

Committee discussion ensued about confidentiality and leadership responsibility.  The committee did not reach a conclusion about how to best address partisan staff who dispute a finding.  

The committee discussed complaints against a lobbyist.  Ms. King distributed Joint Rule 36 regarding lobbying practices [Attachment G], and the committee agreed that harassment should be added to the list of prohibited practices.  

The committee discussed how to best address unanswered questions before the next meeting on October 11, and it was decided that OLLS staff would contact members regarding outstanding issues.

The chair made closing remarks.