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Senate Ethics Committee adopts hybrid rules on evidence, authorizes subpoenas and schedules adjudicatory hearing
Summary
The Senate Ethics Committee approved a package of committee rules with a hybrid admissibility provision, voted to send a due-process letter to the respondent, authorized subpoenas for documents from Legislative Services Division, and set an adjudicatory hearing for March 7, 2025. Respondent counsel objected, alleging procedural unfairness and withheld audit materials.
The Montana Senate Ethics Committee on Feb. 28 adopted a set of committee rules and a hybrid evidentiary provision, approved subpoenas for documents requested in the investigation of the senator from District 43, and scheduled an adjudicatory hearing to begin on March 7, 2025.
Committee counsel Mister Carroll told the panel that the governing authorities — the Montana Constitution, joint legislative rules, Senate rules and Mason's Manual of Legislative Procedure — require "adequate notice, formal charges, and a public hearing with the right to cross-examine witnesses." Carroll said the committee had provided notice by letter and scheduled a hearing consistent with those standards.
The discussion centered on subsection E10-70, the committee's rule on objection and admissibility. The panel agreed on a hybrid approach that combines the chair's authority to rule on objections with the committee's ability to overrule the chair on appeal, and also requires that, "to the extent possible, admissibility of witness testimony shall be determined prior to the adjudicatory hearing." The adopted language states that testimony is admissible unless a majority of the committee deems it inadmissible and that exhibits will be voted on after the close of testimony.
Senator McGillivray moved adoption of the rules with E10-70 held out for separate consideration; the committee subsequently approved the hybrid E10-70 language after discussion and a voice vote. The committee also approved a motion to send a letter dated Feb. 28, 2025, inviting the respondent to submit written objections or suggestions about procedural due process at least 24 hours before the adjudicatory hearing and confirmed that the chair and the minority vice chair would sign the letter.
On evidence and discovery, committee members and counsel discussed providing respondents' counsel with a witness list, short summaries of anticipated testimony, and an exhibit list in advance. Special counsel Dirk said the committee intends to provide those materials and is preparing an exhibit list and witness summaries to facilitate the hearing.
The committee approved a separate motion to seek a subpoena for "a copy of all documents provided to respondents' counsel as part of the public records request" directed to the Legislative Services Division. Senator Smith moved the subpoena; a voice vote carried the motion.
Respondent counsel Miss Mel, speaking near the end of the meeting, raised multiple objections to the committee's process. She argued the committee had not provided meaningful notice of the meeting's subject, said she had not received the full investigative file prepared by the legislative auditor and that selective production had prejudiced the respondent's ability to prepare. "This committee has spent a lot of time this morning committing itself to protecting the due process ... yet has stepped on the due process rights of former president Ellsworth," she said, and urged fuller production and additional opportunity to identify and secure witnesses.
Senator Ellsworth reiterated procedural protections in the committee's rules, noting the adopted pre-hearing provision that calls for exchange of witness lists and exhibits at least 24 hours before the adjudicatory hearing.
The committee adjourned after scheduling the adjudicatory hearing to begin March 7, 2025, at 9:00 a.m. or immediately after the floor session. The panel's actions set the procedural framework for that hearing but did not resolve the substantive investigatory matters; Miss Mel said she reserves further objections and may seek additional remedies if the committee does not produce the withheld materials.
Next steps: committee staff to distribute the signed Feb. 28 letter to the respondent and counsel, staff to prepare the witness and exhibit lists for pre-hearing exchange, the Legislative Services Division to be served with a subpoena for records the committee authorized, and the adjudicatory hearing to convene March 7.
