Bill Summary for Bill Number House Ethics Committee -- Receipt of Requested Evidence

Date: 03/22/2006

Final
House Ethics Committee -- Receipt of Requested Evidence

HOUSE COMMITTEE ON ETHICS

Votes: View-->	Action Taken:
Moved to draft a letter to the Speaker of the Hous	PASS

12:37 PM -- Call to Order

Representative Weissmann, Chairman, provided an overview of the committee's activities today. He discussed the original complaint received and the issues that were raised in the official complaint, specifically whether Representative Stengel billed taxpayers for days that he did not work. He read the letter that the Speaker wrote establishing the House Ethics Committee and appointing the committee members. He stated that the first thing the committee needs to determine is whether what is raised in complaint, and what is included in the Speaker's letter is the extent of the committee's charge. He added that the committee then needed to look at the relevance of the evidence received for today's hearing.

12:39 PM -- Discussion of the Evidence Received

Representative Weissmann walked through the evidence notebook (a copy of this notebook is available on file at the Legislative Council Office). The first section contains the statutory and constitutional sections that deal with the payment of per diem to members of the General Assembly (Section 2-2-307, C.R.S., Section 18-18-304 and 404, C.R.S., Section 1-45-101, C.R.S., et seq., and Article XXVIII, section 2 (5), Colorado Constitution). He stated that he did not feel that the section of law related to soliciting unlawful compensation (Title 18) is relevant to the complaint. Representative Curry stated that Section 18-8-404, C.R.S., deals with knowingly committing an act relating to office but constituting an unauthorized exercise of his official function. She stated that the complaint letter has to guide the process, and wondered whether the language related to "unauthorized exercise of official functions" may be what the complaint is referencing. Representative Hefley concurred with Representative Weissmann that legislators lead diverse lives. This means that they are doing multiple activities during each day. She added that House Rule 49 is quite vague, and that maybe the language in the rule needs to be reviewed in the future. She added that a member could be challenged all the time if Title 18 was used to determine a member's activities. Representative Curry responded.

12:46 PM

Representative Weissmann discussed the newspaper articles that are under tab #2 in the notebook. He added that the articles address some of Representative Stengel's activities during the interim related to campaigning on Referenda C and D. Representative Marshall stated that if the days for which per diem was received correspond to days that were spent campaigning, then this would be important to review, since the law restricts this type of activity.

12:48 PM

Representative Weissmann stated that tab #3 was a letter from Representative Stengel indicating that his assistant, Donna Acierno, did not retain records after she left her position as his assistant.

Representative Weissmann continued with a discussion of tab #4, which contains information about a complaint filed against Representative McFadyen for advocating for Referenda C and D while on official Capital Development Committee (CDC) business. In this case it was a CDC tour to Southern Colorado. He stated that the information under tab #4 was incomplete in that there was no indication of what happened to the complaint, specifically whether it was pursued further or was withdrawn. Representative Hefley commented on this issue.

The committee further discussed the issue of campaigning for issues and candidates while doing legislative work and therefore claiming leadership per diem. Representative Marshall wondered how, if Representative Stengel saw the activities of the CDC as being unethical when they were responding to questions, and his complaint states that the law prohibits this type of activity, he in turn could claim per diem for days that he was also campaigning in an official campaign role. Representative Weissmann reiterated that he did not think the CDC activity was a violation of law. Representative Hefley stated that talking about campaign issues and doing legislative work on the same day, is likely a common practice. She added that there is nothing in the law preventing a member from doing that.

12:58 PM

Representative Hoppe stated that at the Congressional level, lines are clearly drawn between legislative activities and campaigning activities. She stated that Colorado law and rules may need to be clearer, as they do not currently distinguish between work conducted in the building and work conducted outside of the building, such as campaigning. Representative Weissmann reiterated that the complaint addresses billing taxpayers for days not worked, and that regardless of whether multiple activities were done each day that was billed, the committee needs to determine whether Representative Stengel conducted legislative work on the days he claimed a per diem.

There was discussion about whether there is an expected level of work in order to receive the $99 per diem. Representative Weissmann commented on the legislative budget bill that had just passed on third reading in the House, which indicates approximately how many leadership per diem days are budgeted for the 2006 interim.

Representative Curry referenced Representative Stengel's response to the complaint in which he indicates that some of the communication he had with his own staff on the days that he billed per diem was related to debate dates for Referenda C and D.

01:06 PM

There was continued discussion about the allegations raised in the complaint, and the Speaker's letter appointing the House Ethics Committee, which appears to deal specifically with the legality of billing for days not worked. Representative Weissmann stated that piecing together the previous year of activity for almost anyone would be difficult. Representative Hefley added that since House Rule 49 is so nebulous, it may be time for the committee to determine its course of action. She added that if the committee could meet in executive session it would be easier to move forward and make a determination, since everyone was trying to be so diplomatic. Representative Marshall stated that House Rule 49 really only deals with the creation and process to be followed by the committee, so was not sure why Representative Hefley felt that it was vague. Representative Hefley stated that she would like a decision to be made today as to what direction the committee would take on this complaint.

Representative Weissmann discussed the difficulty in determining probable cause when the issue is whether legislative work was done on a specific day. The committee discussed the standard that should be followed by a member claiming per diem for a day when the General Assembly is not in session.

01:16 PM

Representative Curry stated that she is pretty sure the committee will never be able to determine how much time Representative Stengel spent working on the days he claimed per diem. She referenced again the complaint that Representative Stengel filed against Representative McFadyen. Representative Weissmann stated again that he would like to know the outcome of that complaint.

01:19 PM

Representative Weissmann directed the committee to tab #5, which is a response from Marilyn Eddins indicating that she does not keep compensation records. Tab #6 contains responses from various minority staff members. Finally, tab #7 contains a history of per diem information for all members of leadership compiled by the Legislative Council Staff.

Representative Weissmann asked whether committee members felt that there was any additional evidence needed to help make a decision, and then discussed three options for proceeding. He stated that he personally felt that additional evidence would not get him to the decision of probable cause. He did request that the committee find out what happened to the complaint that Representative Stengel filed against Representative McFadyen.

01:24 PM

Representative Weissmann added that a second option is to determine at this time whether there is probable cause to continue with a formal investigation that would lead to a recommendation to the full House. If the committee thinks that there is probable cause, a new set of time lines would begin for the formal investigation. Representative Marshall requested that the committee further discuss the standard of probable cause. She asked whether this means a violation of ethics or a criminal violation. The committee concurred that it would likely be the ethical violation aspect rather than a criminal violation.

Representative Weissmann added that the third option would be to do something similar to what was done in response to the complaint against Representative Tony Grampsas in 1998.

He discussed the first option again - asking for additional evidence and information. He stated that seeing more information would likely not help him make a decision as to probable cause. Representative Curry asked whether there is additional information about whether previous formal complaints have been filed similar to the McFadyen complaint, and how they had been resolved.

The committee again discussed the charge of the committee, and what the Speaker's charge to the committee was in his letter appointing the members of the committee. Representative Weissmann stated that the Speaker's charge to the House Ethics Committee seemed to be determining whether days claimed and billed for were actually days that were worked. Representative Marshall added that looking at days worked and days paid is fine, but the Speaker did receive and forward the full complaint that was filed, so the committee should at least try to answer the complaint as it was originally filed. Representative Hefley stated that she believes that the Speaker's charge to the committee is what the committee should address. Representative Marshall stated that she feels the Speaker was attaching the full complaint to his letter, thus it seems that he intended for the committee to review the whole packet.

The committee contemplated asking the Speaker about his intent as it relates to the charge of the committee. They also again discussed the detail of the complaint. Representative Weissmann stated that probable cause may be hard to determine, but that the issue of whether the actions of Representative Stengel were right or wrong may result in a recommendation to change the section of statute to be clearer as to when per diem can be claimed. He added that the law could set an expected level of work for claiming per diem.

01:41 PM

The committee continued discussing the procedural aspects of how the work of this committee could be concluded. There was discussion of making any letter from the committee part of the House Journal.

01:42 PM -- Recess

01:46 PM

The committee reconvened. Representative Weissmann discussed two draft letters that he had distributed to the committee members earlier today that contain some proposed paths the committee could take (copies of the draft letters were not distributed at the hearing since they were just drafts, and the committee wanted to have input into them before they were drafted into a final draft). He added that neither the idea of the committee doing nothing, nor raising the issue to the point that the full House must act on it are necessarily appropriate. He instead proposed that the committee consider drafting some sort of letter. He requested that the committee vote today on some course of action, and then based on the outcome of that, determine the time line for communicating with the Speaker.

The committee continued talking about whether additional evidence or information would help it arrive at a finding of probable cause. They also discussed the draft letters that Representative Weissmann had distributed for the committee to review.

01:54 PM -- Recess

01:57 PM -- Reconvene

Representative Hefley moved, seconded by Representative Hoppe, that the draft Weissmann letter indicating that the committee found no probable cause be finalized and sent to the Speaker of the House and to Representative Stengel.

Representative Marshall asked for clarification about whether the letter was stating that there was no probable cause for finding an ethics violation. She added that she would like to be sure that the draft letter is not final. Representative Weissmann clarified that this motion indicates that the committee found that a standard of probable cause was not met, and that a letter be drafted to the Speaker indicating such. He added that the draft letter can be worked on by the legal staff, and then the committee would be given the opportunity to agree on the final language of the letter.

Representative Weissmann restated the motion as follows: "that the committee determines that there is no probable cause, therefore the committee finalizes its work by formulating a letter (similar to the draft) and forwarding that to the Speaker of the House." There was committee discussion about the motion.

Representative Hoppe stated that a review of the rule, and possible tightening of the rule, may be in order so that this issue does not come up again. Representative Curry asked whether the decision is based on an ethical standard or a legal standard. Representative Weissmann stated that he feels it is on an ethical standard due to the vagueness and broadness of the laws cited.


BILL:	House Ethics Committee -- Receipt of Requested Evidence
TIME:	02:10:01 PM
MOVED:	Hefley
MOTION:	Moved to draft a letter to the Speaker of the House of Representatives indicating that the House Ethics Committee finds no probable cause to go forward with a formal investigation of Representative Stengel. There was considerable discussion about the motion and whether the committee's charge has been fulfilled. The motion passed on a 3-2 roll call vote.
SECONDED:	Hoppe
		VOTE
	Curry	No
	Hoppe	Yes
	Marshall	No
	Hefley	Yes
	Weissmann	Yes

Final YES: 3 NO: 2 EXC: 0 ABS: 0 FINAL ACTION: PASS

02:15 PM

The committee directed staff to work on finalizing the draft letter. Members of the committee would have the opportunity to review it before it is sent to Representative Stengel and the Speaker of the House. Representative Marshall asked whether the committee could submit their comments to each other before the staff works on the letter. It was determined that committee comments should be submitted to staff by noon on March 23, and that the letter could potentially be finalized by Friday, March 24.

02:17 PM -- Adjourn

The House Ethics Committee adjourned.