Final
STAFF SUMMARY OF MEETING

COMMITTEE ON ETHICS COMMITTEE

Date:03/20/2013
ATTENDANCE
Time:07:36 AM to 08:30 AM
Pabon
X
Scheffel
X
Place:SCR 352
Aguilar
X
This Meeting was called to order by
Senator Aguilar
This Report was prepared by
Elizabeth Burger
X = Present, E = Excused, A = Absent, * = Present after roll call
Bills Addressed: Action Taken:
Organizational MeetingWitness Testimony and/or Committee Discussion Only


07:36 AM -- Organizational Meeting

Senator Aguilar called the meeting of the Committee to Investigate a Complaint Pursuant to Joint Rule 36 - Lobbying Practices - to order. The committee was provided with a notebook of information regarding the complaint and the committee's charge. The notebook contains information distributed prior to the hearing as well as the materials distributed during this hearing. A copy of the notebook may be viewed in the offices of Legislative Council, State Capitol Building, Room 029.

Representative Pabon moved that Senator Aguilar be elected as the chair of the committee.
BILL:Briefing
TIME: 07:36:52 AM
MOVED:Pabon
MOTION:Appoint Senator Aguilar as the chair of the committee. The motion passed on a vote of 3-0.
SECONDED:
VOTE
Pabon
Yes
Scheffel
Yes
Aguilar
Yes
Final YES: 3 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: PASS


07:37 AM

Jennifer Gilroy, Office of Legislative Legal Services (OLLS), reviewed the charge of the committee, which is to investigate a complaint that was filed against Joe Neville by Representative Cheri Gerou regarding an incident that occurred in the lobby of the House Chambers on February 15, 2013. Ms. Gilroy explained that the committee's role is to investigate the incident and noted that similar committees have in the past made recommendations, but that Joint Rule 36 does not require the committee to make a recommendation. She noted that meetings of the committee are open to the public and stated that the OLLS has prepared a no-contact letter which informs members of the General Assembly that they are not to discuss the investigation with the members of the committee. She explained that the committee can issue subpoenas through the Executive Committee of the Legislative Council, but that generally witnesses are cooperative and have appeared before similar committees voluntarily.

07:40 AM

Ms. Gilroy suggested that the committee review the documents provided to the the committee and determine which witnesses the committee may like to interview. Ms. Gilroy responded to questions from Representative Pabon regarding the open meetings laws that apply to the committee, and noted that committee deliberations must be conducted at an open meeting. She further addressed whether the committee could administer oaths to witnesses.

07:42 AM

Ms. Gilroy noted that the OLLS would prepare letters asking witnesses to appear before the committee and that Joint Rule 36 does not prescribe a timeline for the committee's investigation, so the process can take as long the committee feels is necessary. Sharon Eubanks, Office of Legislative Legal Services, listed the witnesses that the committee may wish to have testify including Representative Gerou, Mr. Neville, and House Sergeant-At-Arms Jon Judson who escorted Mr. Neville out of the building on February 15. Representative Pabon stated it may become apparent that the committee may wish to interview additional witnesses as the investigation continues. Senator Scheffel noted that Representative Gerou's letter regarding the incident indicated that the confrontation between Representative Gerou and Mr. Neville occurred in the House Lobby, and suggested that the committee could request that certain witnesses who saw the encounter identify themselves. Ms. Eubanks noted that the witnesses called to testify before the committee may also identify other potential witnesses. Ms. Gilroy distributed a letter from Representative Gerou identifying other witnesses the committee wish to interview.

07:48 AM

Based on Representative Gerou's letter, Senator Aguilar identified the following additional witnesses to be interviewed by the committee: Representative Waller; Mr. Daniel Carey, lobbyist for the National Rifle Association; Mr. John Wallin, Chief Sergeant-At-Arms for the House of Representatives; Ms. Totsy Reece, lobbyist; Mr. Dan Cartin, Director of the Office of Legislative Legal Services; and the state patrol officer who escorted Mr. Neville out of the building after the incident with Representative Gerou on February 15. Ms. Eubanks noted that the letters prepared by the OLLS would request the witnesses to appear before the committee and to provide, prior to the committee's next meeting, any documents in their possession that are relevant to the investigation. Representative Pabon noted that the committee may discover they need additional documents as the investigation continues. Senator Scheffel stated that the State Patrol may have a report of the incident and Ms. Eubanks indicated that the House Sergeants-At-Arms may have similar documents.

07:52 AM

The committee discussed future meeting dates of the committee. Senator Aguilar suggested that the committee meet on Wednesday, March 27, at 7:30 am.




07:53 AM

Mr. Shawn Mitchell, legal counsel to Mr. Joe Neville, addressed the committee. He stated that Mr. Neville had prepared a written personal statement regarding the incident, but that he is not going to introduce it. Mr. Mitchell argued that the committee should conduct a limited inquiry. He stated that Mr. Neville and the organization he is employed by, Rocky Mountain Gun Owners, do not apologize for the incident and are permitted to raise any issue that they would like before the committee. Mr. Mitchell stated Joint Rule 36 is overly broad and stated that the rule goes to the core of first amendment speech, and that the investigation has a chilling effect on speech. Mr. Mitchell noted that pursuant to Joint Rule 36, a threat must be made with the purpose of influencing a legislator's vote, and that the facts do not support that Representative Gerou was threatened to change her vote. He suggested that the committee interview Representative Gerou about the incident and recounted Mr. Neville's understanding of the confrontation and the details of the event which have been reported. He suggested that Representative Gerou's conduct toward Mr. Neville constituted harassment or disorderly conduct. Mr. Mitchell further discussed his belief that Joint Rule 36 is unconstitutional and stated that the committee's proceedings have a chilling effect on first amendment rights and the rights of citizens to petition the government.

08:03 AM

Senator Aguilar noted that the investigation was requested by the Executive Committee of the Legislative Council, and the committee's role is to gather facts, not necessarily to make a finding. Mr. Mitchell stated that the committee could exercise its own policy and legal judgement and the committee could report to the Executive Committee that there is no basis for the investigation. Senator Scheffel asked if Mr. Mitchell would provide a copy of his remarks to the committee, and Mr. Mitchell noted that the remarks would be e-mailed to the committee at a later date. Senator Scheffel asked Ms. Gilroy to comment on the constitutionality of Joint Rule 36 and Ms. Gilroy noted that there is no precedent for a committee appointed pursuant to Joint Rule 36 to find that the rule is unconstitutional. She suggested that the committee could make a recommendation about that issue to the Executive Committee and noted that the Executive Committee is the decision-making body in this situation. Senator Scheffel clarified that the committee's role is as a fact-finding body, and noted that the Executive Committee is the decision-making body. Senator Scheffel asked if there is a process that could determine whether the rule is constitutional.

08:09 AM

Ms. Gilroy noted that the OLLS can prepare information on the General Assembly's authority to promulgate rules. Representative Pabon stated that the committee should presume that the rules of the General Assembly are constitutional, but that either side can continue to raise arguments about the constitutionality of the legislative rules going forward. He noted that he wasn't sure if the Executive Committee could make the determination about the constitutionality of the rule and that that determination may need to be made by the Judicial Branch. Mr. Mitchell responded to Representative Pabon's comments regarding the constitutionality of the rule. Mr. Mitchell stated that he might argue directly to the Executive Committee about the constitutionality of the rule. Senator Scheffel requested that legal staff assist on the issue, and Ms. Gilroy noted that the committee would be provided with research on the issue and information, if available, on historical challenges to the rules. Senator Aguilar suggested that Mr. Mitchell write a letter to the Executive Committee requesting that they investigate the constitutionality of the rule.


08:17 AM

Ms. Gilroy asked if the committee still wished to interview witnesses at its next meeting. Representative Pabon stated that the committee should reserve its right to question and hear from all witnesses, especially in light of the open meeting requirements. Ms. Gilroy noted that the committee may wish to consider how to handle the examination of witnesses by counsel. She noted that there has been previous precedent to allow questioning of witnesses by counsel, but the questions were prepared in advance and were asked by members of the committee. Representative Pabon asked if the OLLS would serve as legal counsel to Representative Gerou in her individual capacity, and Ms. Gilroy responded that they would not. Senator Scheffel noted that he has no objection to allowing counsel to question witnesses. Representative Pabon stated that he favored requiring the questions to be submitted to the committee and the committee members could determine whether or not to ask the questions. Ms. Gilroy explained that in the similar instances in the past, the questions were submitted to the committee and posed by the committee members, but no questions were disallowed by the committee. Senator Scheffel asked that the OLLS prepare letters notifying the parties' legal counsel that they may submit questions to committee and the committee could ask witnesses the questions at the next meeting. He suggested that objections to the proposed process could be submitted to the committee as well. Representative Pabon stated the committee should reserve its right to ask all or none of the questions submitted by legal counsel.

08:30 AM

The committee adjourned.