Committee debates new ethics rules: special counsel retainer, complaint process and due‑process hearing format

Legislative Services Division staff presented proposed Senate ethics rules intended to provide a single, consistent process for investigating alleged misconduct by senators. Joe Carroll (Legislative Services Division) outlined Document A, a draft chapter that draws on Mason’s Manual, other states' rules, and recent Montana practice and that proposes a retained special counsel to investigate complaints referred by the ethics committee.

Carroll said the proposal is designed to ‘‘have fewer ethics committee meetings based on the Texas model’’ and to have ‘‘more decisions made prior to an investigation’’ so the process is organized before any crisis arises. Under the draft, the ethics committee would schedule an organizational meeting early in the session to retain special counsel from a Legislative Services Division‑maintained list of attorneys; the committee could give preference to a retired judge or former legislator for the role.

Filing rules proposed that only senators may file complaints to the ethics committee chair or vice chair; complaints must be written, identify the accused senator, cite relevant rules or law and attach available evidence. Carroll proposed multiple statute‑of‑limitations options for committee consideration (examples included a two‑year window or an Idaho‑style limitation referencing the date of first election), and he offered an informal mediation option for decorum disputes before referral to special counsel.

If the committee refers a complaint, the special counsel would ‘‘conduct an investigation’’ with authority to interview parties, request documents and ask the chair to issue subpoenas. Carroll told members that special counsel interviews are not public meetings and that documents generated during an investigation are not subject to public disclosure while the investigation is pending.

The draft sets out a due‑process hearing structure in public committee session if the special counsel’s report shows good cause: the special counsel serves as first proponent witness; the subject may be the first opponent witness; both sides can marshal witnesses; committee members may question witnesses; the chair controls out‑of‑order or procedural questions and can recess to allow submission of written questions.

Carroll also laid out disciplinary categories ranging from informal reprimand to censure to punishments that, if they meet the constitutional definition of punishment, would require a two‑thirds vote of the full senate. Members pressed staff on definitions for ‘‘restriction of conduct’’ and whether any restriction could inadvertently strip a senator of voting rights without the constitutionally required threshold; staff advised that such distinctions are policy choices between majority‑level discipline and constitutional punishment thresholds.

No final decisions were taken; the committee asked staff to refine the definitions, clarify interactions with the legislative conduct panel for harassment/discrimination complaints, and prepare model language for next meeting discussion.