Senate committee debates H.1 change to ethics complaint referrals, separation-of-powers concerns raised

The Senate Committee on Government Operations on March 28 considered H.1, a bill that would amend how the State Ethics Commission refers complaints and the process for consultation with affected bodies.

Representative Martin Malone, chair of the House Judiciary Committee and chair of the House Ethics Panel, told the committee the bill aims to protect the legislature’s constitutional authority over judging the qualifications and discipline of its members. “The bill…has this problematic provision, which impinges on our sole authority under the constitution to judge the qualifications of legislators,” Malone said, arguing that a statute that requires a particular consultation procedure would in effect change the legislature’s own procedural rules.

Legislative counsel Michael O'Grady described the specific statutory mechanics under review and said the proposed amendment is not intended to remove the Ethics Commission’s input. “It is asking for their recommendation when the complaint is referred. It is allowing for consultation to continue, but it doesn't affect the procedure that the panels would take in judging the qualifications of its members,” O'Grady said, summarizing language in the draft that would exempt the legislature and judiciary from a 60-day written consultation requirement that applies to other referred complaints.

Professor Peter Tietje of Vermont Law School, who testified for roughly 30 minutes, disagreed that mandatory consultation would violate the state constitution’s separation-of-powers clause. “Requiring the legislative branches to participate in the consultations contemplated by 12 93 12 23 does not violate the separation of powers clause,” Tietje said, noting that the commission’s recommendations are nonbinding and that consultation can produce more informed decisions and guard against hasty action.

Committee members pressed both sides on practical effects. Senators raised a timing concern: the current statutory consultation requirement specifies that consultations be in writing and allows 60 days for them, which, critics said, could delay urgent legislative actions or even jeopardize a panel’s jurisdiction if a complaint arrives late in a biennium. Malone and other committee members said panels sometimes must act quickly to assert jurisdiction and protect due process, and that a written 60-day floor could interfere with those time-sensitive procedures.

Tietje acknowledged that rare, urgent circumstances could make immediate action necessary and suggested a narrow fix: allow a body that must decide before consultation can occur to notify the commission and conduct a post-decision consultation as a substitute. He offered draft language in his memo to address that precise timing risk.

No formal action was taken by the committee on H.1 during the session. Members said they will take additional testimony, consult with legislative council, and seek a compromise amendment to address the timing/jurisdiction concern while preserving the commission’s role in providing nonbinding advice.

The committee did not vote on the bill; members agreed to resume consideration next week and invited additional testimony from the House side.