Lawyers, judicial ethics chairs and legislative counsel debate H.1 requirement for ethics consultation

House members and ethics officials spent the committee’s Feb. 13 hearing disputing a provision of H.1 that would require the State Ethics Commission to consult in writing with panels that receive referrals on alleged misconduct.

Legislative counsel Michael O'Grady told the House Government Operations & Military Affairs Committee that the bill’s mandatory consultation language—"shall consult"—and the 60‑day window in current statutory text could operate as a prior restraint on the legislature’s exclusive constitutional authority to judge its members. "Prior restraint is almost always unconstitutional," O'Grady said, arguing that conditioning a house or senate ethics panel’s action on an executive-branch commission’s response would improperly restrain the legislature.

The provision at issue directs the executive director of the State Ethics Commission, when referring complaints, to "signify any likely unethical conduct" and requires an entity receiving such a referral to consult with the commission in writing within 60 days before making a determination. O'Grady said the house panel proposed an amendment that would instead require the commission to state the commission’s view of how the statewide ethics code applies at the time of referral, rather than impose a mandatory waiting period.

Former State Ethics Commission executive director Larry Neubens, testifying for the commission’s position, said the 60‑day language is not a forced delay. He said the panel that receives a complaint can request the commission’s written view immediately and that the 60‑day window is meant only to ensure the consultation takes place and does not allow matters to languish. "The consultation doesn't say the only thing the consultation will say is, we believe this is a violation," Neubens said, adding that panels retain full authority to accept, ignore or disagree with the commission’s view.

Representatives of the Judiciary and bar discipline system told the committee they had not been afforded an earlier opportunity to comment on the consultation language and urged an exemption. Merrill Bent, chair of the Judicial Conduct Board, said the board enforces the Vermont Code of Judicial Conduct and does not apply the statewide ethics code. "The JCB does not apply the state ethics code," Bent said, and raised concerns that confidentiality rules would limit any two‑way exchange. Carolyn Anderson, chair of the Professional Responsibility Board, emphasized that attorney‑discipline proceedings are confidential until probable cause is found and that the Supreme Court oversees attorney discipline under Administrative Order 9.

State Ethics Commission staff and supporters framed the consultation requirement as a mechanism to promote uniform application of the state ethics code across branches and to provide panels with the commission’s expertise. Christine Zibbert, the commission’s executive director, described the commission’s role as service-oriented: "We are primarily a services organization," she said, noting the commission issues advisory opinions, provides training and refers complaints.

No formal vote on H.1 took place in the committee during the session. Legislative counsel recommended amending the language so the commission would specify its view at referral and remove a mandatory waiting period for legislative and judicial referrals; the commission and other witnesses described operational reasons for the 60‑day consultation window and said panels may trigger consultation immediately.

The disagreement tracks two distinct concerns: officials who want mandatory written input from the ethics commission at or shortly after referral to promote consistency and public confidence, and constitutional and procedural objections from legislative counsel and judicial and bar discipline chairs who say mandatory consultation and any delay could intrude on constitutional or court‑created disciplinary authority. Committee members asked questions but took no formal action during the hearing.