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FAA05ABFF93EF1CF872582F90052F0DD Hearing Summary


Date Aug 30, 2018      
Location HCR 0112

Committee Discussion Facilitated by Legislative Staff of Initial Drafting Concepts Regarding Formal Investigations and Resolution Process - Committee Discussion Only

09:05:58 AM  

Jerry Barry and Ben FitzSimons, Office of Legislative Legal Services (OLLS), facilitated a conversation with the committee about drafting concepts for the complaint process and distributed a list of questions [Attachment B].  The committee discussed whether anyone in the legislative environment should be a mandatory reporter for harassment.  Committee discussion ensued about the impact mandatory reporting would have on the process and allowing the complainant to make a report.


09:10:00 AM  

The committee discussed whether the proper standard for discriminatory or sexual harassment should be subjective, which is an action that has the effect of being offensive; objective, which is an action that a reasonable person in the recipient's position would find offensive; or both.  The committee discussed how recommendations on page 136 of the Investigations Law Group (ILG) report were both subjective and objective. The committee also discussed how this reflected current law and if the General Assembly should use the same legal standard outlined in Title VII of the Civil Rights Act of 1964 and case law.

09:17:20 AM  

The committee discussed whether additional protections should be given to aides in the complaint process. The committee discussed the differences between different employee classifications, and power structure that exists in the legislature.  The committee discussed that while the complaint process should not offer special protections, however the training may be different depending on employee classification.


09:22:49 AM  

The committee discussed whether there should be a prohibition of relationships between members and aides.  Committee members raised the issue that many spouses are also aides and suggested that the policy may need to address this nuance. Discussion followed on how corporations handle these relationships, including disclosing relationships or not allowing relationships between supervisors and subordinates. The committee also discussed putting a definition of consent in the policy but some committee members expressed concern about adding a definition. The committee asked what other legislatures have done. Mr. Barry stated he would review other state policies and provide the committee with additional information. The committee then discussed to whom relationships should be disclosed and it was suggested to disclose such relationships to the human resources (HR) administrator and legislative leadership.

09:33:53 AM  

The committee discussed who should oversee the investigation of formal complaints. The committee discussed keeping the process consistent and that every complaint go to the HR administrator, especially for nonpartisan staff.  The committee discussed the complexities if leadership or their staff are the ones being investigated and therefore, the investigation may need to be outsourced to a third-party investigator.  The committee then discussed the idea of an independent panel to oversee the investigation of a legislator. There was disagreement amongst the committee about whether there should be a panel, and if there was one, who would serve on it. The committee decided to continue to discuss the matter at a future time.

09:50:37 AM  

The committee discussed how complaints against lobbyists or other third parties should be handled. The committee discussed lobbyists and third parties as customers and vendor relationship.  The committee discussed with Mr. Barry issues of liability with regard to lobbyists and other third parties.  Mr. Barry discussed what other legislatures have done regarding lobbyists.  He referenced parts of other state constitutions similar to section 12 of Article V of the Colorado Constitution, which allows each chamber to adopt rules providing punishment of its members and other persons for certain conduct. The committee again stressed that there be one contact person, but for there to be a different process for lobbyists than employees. The committee discussed whether it was possible to prohibit a third party from doing business in the Capitol and to include stakeholders when deciding on consequences. The committee agreed to continue discussions on this topic in the future.  

10:08:26 AM  

The committee discussed who would oversee formal investigations.  The committee discussed what triggers a formal investigation and other factors related to a formal investigation.  Committee discussion ensued about the role of the HR administrator and of a legislative committee in investigations involving a legislator.  The committee further discussed the composition of the new committee, including whether there should be non-legislative members, and the committee operations.  The committee discussed building trust in the process.  The committee agreed to continue discussion of this topic at a later time. The committee recessed.














10:40:25 AM  

The committee came back to order.

The committee discussed the potential role and composition of an independent equal employment opportunity (EEO) advisory panel.  Committee discussion included how the HR administrator would interface with the EEO advisory panel.  

11:10:15 AM  

The committee discussed who would conduct the investigations of formal complaints. The committee agreed that for nonpartisan staff, the HR administrator could conduct the investigation or contract with a third-party investigator.

The committee then discussed who would investigate complaints against third parties.  The committee determined that more information was needed on this topic.

The committee discussed contracting out investigations of complaints against partisan staff.









11:10:16 AM  

The committee discussed who would make the determination of a policy violation.  Mr. Barry explained that investigators just find fact, and do not decide on whether there was a policy violation. The committee asked whether the HR administrator could decide a policy violation.   Mr. FitzSimons explained if the HR administrator conducts the investigation, the supervisor usually decides whether or not there was a violation. If a third-party investigator conducts the investigation, the HR administrator could decide whether or not there was a violation. In response to questions from the committee, Mr. FitzSimons outlined issues that could arise if supervisors where to make the decisions about disciplinary actions. Committee members also expressed concern about the HR administrator being housed in OLLS.  Members discussed having decisions about disciplinary actions be made at the director level with advice from the HR administrator for nonpartisan staff.

11:29:12 AM  

The committee discussed who should determine whether or not a partisan staff member had violated the policy.  The committee discussed factors of partisan staff employment, including who partisan staff is employed by and report to in the legislature.  The committee discussed having a central authority be involved in complaints involving nonpartisan or partisan staff and the need for a central repository for documentation to promote consistency.  The committee discussed whether party leadership or an individual legislator should determine whether a partisan staff member has violated the policy.  

11:53:24 AM  

The committee discussed whether or not leadership could intervene when a partisan staff member was found to have violated the policy, but the staff person's direct supervisor did not take any action.


11:56:40 AM  

The committee then discussed who will make recommendations of discipline after a violation has been determined to have occurred.  The committee discussed whether the EEO advisory panel could impose disciplinary actions or only make recommendations for disciplinary action.

12:10:08 PM  

Committee recessed for lunch.