Panel debate: mandatory consultation with State Ethics Commission and separation‑of‑powers concerns

The Government Operations committee spent substantial time on the constitutional question of whether legislative panels (and judicial disciplinary bodies) should be required by statute to consult the State Ethics Commission when a complaint touches the State Code of Ethics. Testimony reflected two enduring tensions: (1) whether a statutorily mandated consultation infringes on the legislature’s core, constitutionally assigned functions, and (2) how to balance an independent statewide ethics process with the legislative body’s prerogative to set its own rules and discipline.

Paul Gillies, a municipal-law attorney and longtime observer of Vermont constitutional practice, told the committee that separation-of-powers jurisprudence recognizes necessary overlaps among branches and that consultation by the ethics commission is unlikely to rise to a constitutional usurpation of core legislative function. "I don't see it as interfering with core legislative responsibilities," Gillies said, characterizing consultation as an informational tool rather than a directive: "Nothing that the commission does forces the legislature ... to do anything. It just gives them a little more opportunity to talk about things."

By contrast, Jay (Jake) Hirshon Johnson, legal counsel to the governor, urged caution. Johnson said the State Ethics Commission’s investigatory and referral powers — effective in statute on Sept. 1, 2025 — and a requirement that the Legislature consult the commission could create a slippery slope: "This committee has worked very hard over the last eight years to develop a functioning ethics commission... I find these (mandatory) consultation requirements troubling because they risk pulling what should be legislative core functions under an external review process." Johnson referenced Vermont case law that stresses the practical realities of overlapping authority but argued the statutory mandate could enable an outside body to indirectly influence internal legislative discipline.

Committee counsel and other witnesses explained how the statute currently operates and where the perceived friction lies. Under the statute enacted last year, the Ethics Commission may receive complaints, review and refer matters that relate to the State Code of Ethics and campaign finance law. Committee members asked whether the statute, as written, already requires a referral in practice and whether additional mandatory consultation language in H.1 (a companion bill under discussion) would change the legal posture.

John Bloomer, a former legislative leader and longtime Senate staffer, argued that mandating consultation by statute crosses a constitutional line because only the legislature may prescribe its own internal proceedings and discipline. "Consultation and receiving information from a source is not a problem — it's when they're requiring you to get it. When you are directed in statute to follow a process that affects your adopted rules and what they can be, that is unconstitutional," Bloomer told the committee. He urged the panel to guard the legislative branch’s prerogatives and to rely on existing channels of consultation when necessary rather than a binding statutory referral.

Committee members repeatedly raised a narrower practical question: if a complaint touches both the State Code of Ethics and a rule that is clearly a core legislative function (for example, internal procedure or member discipline), who decides whether the matter is within the commission’s scope? Several witnesses suggested that clarifying language around what constitutes a "core legislative function" would help. Others said that the current law’s effective-investigatory date (Sept. 1, 2025) makes the question timely: the commission will shortly have broader investigatory authority.

No final decision was made. Several senators asked staff to produce a short legal memo outlining the constitutional arguments and case law, and the committee scheduled follow-up witnesses for its next meeting.