Conference committee on Senate Bill 2004 debates changes to complaint process, plus staffing and IT funding

The conference committee on Senate Bill 2004 spent much of its meeting debating language that would let the Ethics Commission negotiate informal resolutions directly with respondents rather than attempting to negotiate between complainants and respondents, and discussing related budget and staffing items.

Chairman Nader opened the session and asked the group to take up the amendment language and other items. Representative Lausser raised procedural questions about replacing a clause that currently "shall attempt to negotiate or mediate between the 2 parties" with language stating the commission "may negotiate an informal resolution with the accused." He asked staff to explain how that change would affect cases where complainants want to participate.

Rebecca Binstock, Director of the Ethics Commission, told the committee the proposed change would standardize and speed the resolution process. "It creates a standardization," Binstock said, adding that the commission could adopt settlement guidelines — for example, a private reprimand for a first offense or training requirements — and use informal resolutions as an educational tool rather than as primarily punitive measures.

Binstock also said the change could shorten investigations by allowing the commission to resolve cases after the summarily dismissed stage or during investigations, rather than drafting a lengthy report and recommendation. She cautioned that the commission would publicize whatever informal-resolution standards it adopts so complainants understand expectations going in.

Committee general counsel Bogdan Carpenter warned of practical complications if both approaches were written into the same subsection. "You maybe could do that, but then you're gonna create 2 informal resolution processes," Carpenter said, explaining the risk that complainants and respondents could be treated under different informal procedures and that inconsistencies could arise.

Several members pressed possible consequences. Representative Lausser and others asked what recourse a complainant would have if they objected to a negotiated outcome; Binstock said complainants currently have limited involvement after investigations begin because confidentiality attaches to investigations, and she did not identify a statutory appeal right tied to the proposed informal-resolution step. Committee members expressed concern that the change could encourage a larger volume of complaints if complainants knew the commission would handle resolutions without their ongoing participation.

The committee also discussed the publicness and forms of informal resolutions. Binstock listed possible resolutions that the commission might use: private letters of reprimand, required ethics education, or remedies tied to gifts (she referenced current practice of returning items or addressing value, noting an existing rule she described when speaking of value multiples). She said most informal resolutions are kept private when there is no formal finding of misconduct but that some resolutions are public by agreement of the commission and the parties.

On budget and staffing, Senator Davidson said the Senate delegation views reclassifying one staff position (an operational/manager-level role) as a priority to retain office productivity; the committee discussed a specific figure of $24,434 tied to that reclassification. The group also discussed one-time funding of $50,000 for a case-management or IT solution. Senator Davidson and Representative Blauser said the Senate wished to give the commission flexibility in how it uses the $50,000 — whether to hire an outside consultant, pay NDIT for development, or otherwise plan and prepare an RFP — and said the commission might be better served by using some funds to assess needs before pursuing a larger contract.

Members noted the commission had asked for more than $100,000 originally; committee members said they were not convinced the commission had completed enough preparation to justify a larger immediate appropriation. Senator Davidson asked conferees to work with counsel on the software and staff-pay items so the committee could act at its next meeting.

Committee members also asked staff to consider a policy for complaints referred to a state's attorney, suggesting a 60-day guideline after which the commission could reopen or dismiss the ethics investigation if the state's attorney had not acted; no statutory change was adopted at the meeting and the committee noted it cannot direct a state's attorney.

The chair said Representative Lausser would draft amendment language for item 4 for the committee to review the following day; Senator Davidson agreed to help with the budget items. The chair distributed an updated chart on complaint resolutions and noted the report showed five more resolved cases since the last report. The committee set two sessions for the following day (10:00 a.m. and 3:30 p.m.) and adjourned.

Ending: The committee did not take a formal recorded vote on the amendments at this meeting. Members directed staff and conferees to draft amendment language and to return with more detailed budget and implementation information at the next meeting.