Committee reviews H.1 amendment to state ethics law amid separation-of-powers concerns

The Government Operations & Military Affairs Committee heard testimony about H.1 on Thursday, a bill amendment offered by members of the House Ethics Panel that would change how the State Ethics Commission consults with legislative and judicial ethics bodies on complaints referred to those bodies.

Proponents told the committee the amendment is narrowly aimed at a consultation requirement added by last year’s ethics law (H.875, enacted as 2024 Act 171) and scheduled to take effect Sept. 1, 2025; they said the statute, as written, could improperly limit the House’s and Senate’s constitutional authority to judge the qualifications and discipline of their members.

"The provisions of 2024 Act 171 appear to us to infringe upon constitutional legislative authority and procedure and therefore violate separation of powers," said Betsy Ann Rask, clerk of the House and co-counsel to the House Ethics Panel. Rask told the committee the H.1 strike‑all amendment offered by panel members would require the commission to provide, at referral, any application of the state code of ethics and a recommended action so the panel would have that information up front but still retain authority to determine its own procedure.

Under current statute (3 V.S.A. § 1223, as amended by 2024 Act 171, section 9), the Ethics Commission is required to "specify the application of the state code of ethics, the facts presented in the complaint, and include a recommended action" when referring complaints to entities including the House and Senate ethics panels and judicial boards; the contested language would also impose a written consultation requirement before the receiving entity could make a final determination. Rask and other panel supporters said that wording, if interpreted to bar a panel from acting until it receives a written consultation, would be a statutory constraint on internal chamber procedure and raise separation‑of‑powers concerns grounded in the Vermont Constitution (chapter 2, sections 5, 14 and 19) and relevant case law.

A representative of the State Ethics Commission told the committee the commission’s intent and practical needs differ. The commission representative said the commission was given investigatory and hearing authority in the 2024 law and that its new powers were created because the legislature identified a gap; the representative disputed a characterization that the commission has full enforcement authority and said, "We do not have enforcement powers. We only have the power to make recommendations." The commission representative described a practical consequence: for complaints the commission believes do not implicate core legislative functions, the commission may retain and investigate those matters itself and could make public findings, which the representative said is why advance consultation and engagement with the panels matters.

Witnesses on both sides repeatedly referenced the unresolved question of where the line will be drawn between "core legislative functions"—matters the Chambers alone constitutionally control, such as judging member qualifications or whether a member should vote on a question—and non‑core matters (for example, certain gift or misuse‑of‑position questions) that the commission may advise on or adjudicate. The committee was pointed to statutory text and court precedents as the basis for divergent legal interpretations; Rask emphasized that, in her view, the Legislature’s procedural authority should not be controlled by statute in a way that prevents a chamber from exercising its constitutional functions.

The committee also heard operational details and related statutory requirements discussed on the record: the commission’s enabling law and code of ethics are located in 3 V.S.A. (including references at 3 V.S.A. chapter 31, subchapter 1), the referral and reporting procedure in 3 V.S.A. § 1223, and a new reporting requirement (3 V.S.A. § 1226(a) as amended) calling for an annual aggregate report by Nov. 15 on complaints referred to panels. The House Ethics Panel has separately proposed House Resolution 6 to amend its own rules on confidentiality and information sharing with the commission; that resolution was referred to the House Rules Committee.

Committee members asked multiple clarifying questions about staffing and resources. Panel counsel and the commission representative said the commission requested a full‑time legal counsel position and an investigator during the 2024 budget process; the panel’s counsel said appropriators removed the full‑time legal counsel position from the appropriation. Committee members also pressed both sides to explain the practical steps after a referral under the competing interpretations: supporters of H.1 described a process where the commission would provide an upfront written statement of how the code of ethics might apply and any recommended action; commission staff described continuing engagement and, where necessary, conducting investigations leading to written findings that could be made public.

No formal committee vote or final action on H.1 was recorded during the hearing. Committee members noted the statutory consultation language is scheduled to take effect Sept. 1, 2025, and they indicated additional testimony and legal analysis may be scheduled before that date.

The hearing record includes extended legal briefing from Betsy Ann Rask and references to prior legislative history, including H.875/2024 Act 171 and floor debate timelines; committee members signaled they intend to weigh constitutional arguments, operational impacts and public‑perception considerations before deciding whether to adopt H.1 or take other statutory changes.

Looking ahead, sponsors of the H.1 amendment said the change is narrowly targeted to the consultation requirement in section 9 of Act 171 and is intended to preserve the chambers’ constitutional prerogatives while still allowing panels to receive the commission’s views; the Ethics Commission asked for clearer engagement and for panels to adopt collaborative practices so that advice and factual development could occur before or during panel consideration of a complaint.

(For context: the House Ethics Panel counsel said the consultation requirement as drafted is not yet in effect and that the panel has updated its internal closure and disclosure procedures to provide the commission with closure reports when complaints referred by the commission are closed.)