Legal Services [Aug 10, 2026]

Present.

Here. Representative Luck.

Senator Roberts.

Representative Soper. Here.

Good afternoon.

Excuse.

Here.

Thank you, Mr. Chair. Ed DiCieco, Office of Legislative Legal Services. I'm going to thank all the members as well for coming today and participating in this hearing. With me today is Director Ben Fitzsimons from LHRD. And today we wanted to talk to you about retaining counsel related to workplace harassment complaints. This is an issue that the Committee on Legal Services has considered. In September 12, 2024, the committee considered it after receiving a request from Speaker McCluskey to consider whether a council should be retained for a member of the General Assembly who is facing a workplace harassment policy complaint. Now, at that meeting in September of 24, the committee considered it, had a lot of information and a lot of variables to consider, but made no final determination about whether it should apply. Likewise, on November 13, 2024, the committee briefly discussed it, but took no action, and it has been tabled since then. Well, why am I bringing it to you today? Well as I mentioned to the chair with scant details which I can tell you right now those same details an individual requested the Committee on Legal Services to retain counsel related to a workplace harassment complaint Due to confidentiality that really all I can tell you And so I can tell you whether it a member partisan nonpartisan staff I can tell you it's not a third party because they wouldn't be covered by that, and we would tell that person immediately they're not covered by the statutory requirement. So while Coles has discussed this issue, it never decided it, and it has never retained counsel in this specific situation before. So this was, the chair decided, this was not the kind of discussion or the type of instance where we would use the polling as a way to determine whether to retain counsel or not. So to help us today, Ben and I put together some slides just to go ahead and kind of give some form to the discussion. It is the second time we've done it, so hopefully this helps us kind of present information to you. You can see it on either of the screens, and hopefully we shared it so that the folks from home and in the public can see these slides as well. When talking with the chair, just want to make sure to clear it to everyone. please feel to interrupt if you have any questions. It's not meant to be a presentation. We just want to give you, it is a presentation. It's a way to present information. But I also, if people would like to ask questions about specific points, please feel free to interrupt at any time.

Thank you. So the first thing I would do is just identify what topics we're going to have today. The first, just want to generally talk about retention of council procedures. Next, Director Fitzsimons will talk to you about information about the workplace harassment policy. Then we'll discuss considerations for retaining counsel in a workplace harassment policy complaint. As the chair said, if you then are comfortable, you can decide whether to adopt a policy. And then if you're ready, if you've adopted a policy, potentially apply it to the request if applicable. So that's kind of what we're looking at for today's discussion. So the first point of our discussion is to talk about the statute it authorizes. You know, as your attorney in the Committee on Legal Services, you've got to start with the statutory basis. And the basis in this case is Section 23.1001, which permits the Committee on Legal Services to retain legal counsel for the General Assembly or any member or agency in all actions and proceedings in connection with the performance, powers, and duties and functions thereof. So to me, this has a two-part analysis. First, you make the determination of whether the action is covered by the statutory provision. Then there is a discretionary component. It does not say the committee has a legal duty to do this, that it shall provide counsel, but rather you may retain counsel. So there's some discretion when this applies to this where you kind of make a determination. It's an action or proceeding and it relates to the powers, duties and functions. The committee still can make a determination. Is there enough money? Is this the type of case that you think is appropriate? I mean I think one example of discretion I would remind the committee of is when there was two members were sued related to their social media which they used related to their legislative content And they had blocked individuals and then were sued The matter was we retained the committee retained outside counsel. And then shortly thereafter, the case settled with paying the plaintiff's money. This committee decided, well, we're going to give notice to people about that if they don't follow the Office of Legislative Legal Services guidelines retaining counsel, then you would consider that and whether or not to provide counsel for them. So sort of it told people it's discretionary and we may or may not do it. So although typically in my experience is every time that I have presented an issue for retaining counsel, this committee has voted yes to do so.

Thank you, Rep. Joseph. This is something Director DiCecco and I have talked about, right? Like workplace harassment is something that comes up for many different employees, but whether or not they work for the government or not, but they don't have this statute 2.3.1001. And so it is a little strange to think about somebody just by virtue of maybe being elected or being involved with the legislature potentially getting an attorney. So the thought that I've had to.

and mr chair you and the director are largely into it but we've sort of just hit the bookends here and i think these at least for me were the bookends in 2024 as well on the one hand if and let's just take workplace harassment and put aside all other situations for which we'd retain counsel. If somebody has actually done what is complained of, we are tempted to say that is per se all trivia is. Whether you're a staffer or elected, that's just not part of the job that you were elected slash hired for. And we find analogies, you know, maybe intentional tort if proven is without the coverage of an insurance policy, for example. On the other hand, but for you have elected office X or staff position Y, you didn't catch the complaint at all. Brings me to two other things, first of which I think we chewed on a bit two years ago. It starts to get into really difficult line drawing because if we're going to have a policy that says, well, we might cover this but not that, then this committee is essentially sitting as a kind of fact finder, which gets very fraught very fast, taxes, I think, our capabilities, frankly, taxes what this committee is even statutorily set up to do and frankly risks politicization. The other one, just to sort of comment on the obvious, politics is becoming more adversarial. It just is. And I think it's worth considering that general condition, at least while it prevails, as we think about how broad is the umbrella under which council might, under some conditions with limitations, and I have thoughts on that that I'll share later, be extended for so long as people are part of this unique workplace. So, I mean, I think the bookends have been well stated by both of you. Those are some other thoughts that have been on my mind as I look back to my notes from before.

Rep Soper. Thank you, Mr. Chair. And I would agree, likewise with some of my colleagues. But I would just add that given the nature of how whether we as elected officials or our staff or professional staff within the legislative branch that the workplace harassment procedure, just like the judicial procedure that's out there in another branch of government, is a mechanism in which, I mean, I don't want to say the word weaponized, but it's a conduit for resolving a problem. and whether it's being used because someone feels this is an appropriate place to air a grievance or not, or that they view this as making a statement. In the words of Senator Weissman, the adversarial process has definitely crept full force into the legislative process. So it's a good place, in my opinion, to have legal counsel present. And I've just state that from the get-go that, I mean, we should always consider that here.

Thank you, Mr. Chair.

The one thing to note, and just I mentioned on how it could to Representative Joseph, the other side, and I think Senator Weissman hit this, It could be very well described that harassment is never subject to it and therefore or that type of behavior is never within the legislative duties and therefore the policy doesn't apply. I wanted to acknowledge what you had started with as well. OK, so I wanted to talk a little bit about the process of how we currently do this. And you can kind of consider how that process would would apply in this situation. First, there's two ways we can do it. One is at a discussion in a Kohl's meeting. That's the second agenda item. It's this type of agenda item, although this one's a little more unusual because you're considering the topic in general before deciding to apply it into an anonymized request. the other way we can do it so and sometimes that will happen at the meeting it will be if we're in session and all the members are here the chair may say let's just get together and have a meeting or if there's something unique about the case where it's necessary to have a discussion about the appropriateness of counsel we've had times where there's been multiple counsels retained by the committee for different legislative defendants in the same matter in that type of situation it made sense for the committee to have a discussion rather than using the second option. Now, the second option for this committee, I think, has been the more common manner, and that's where we've used a poll authorized by Section 23502, subsection 8, which permits me as the director in my office to submit a poll to the members on committee legal services for you to vote on whether or not counsel is retained. It's an explicit exception to the open meetings law insofar as you're making a decision to retain counsel. And in this instance, what we'll do is once we've received six votes in favor, which is the majority of the 10, we treat the full 10 members as the quorum, then counsel's retained, and we'll post that within 72 hours. Now, in either case, whether in person or through an email, I try to do the same thing. It's provide you information about the proceeding. So for example, if we'll provide you information about if it's a lawsuit, I would provide you information about who the parties are, the basis of the claim. I try to summarize it. I will provide a copy of the complaint to the members because that's all public information and sort of give you the background of the legal basis of why there is a lawsuit before the General Assembly or a member or staff. Because typically when you're retaining counsel, it's done because member has been sued or staff has been sued. But the point is I give enough information for this committee to make that determination about whether counsel should be retained. So it is both what is the underlying claim and it's also you get some facts about what's happening and certainly who is involved. In addition, actually, in addition to that about counsel, I will just mention, I will also before the committee votes or I provide the information to the committee I will also try to reach out to the the roster of attorneys that have been approved by this committee to represent legislative parties to see if they be interested in providing counsel if I able to get more than one then I will check in with the person who involved in the proceeding make sure that they okay with that person as their counsel, and then present that as a recommendation to this committee for you to be able to make that determination. Again, so you vote on whether to retain counsel and to retain a specific attorney. We aren't always able to do that. And so, for example, I think in the last one, this committee did an open-ended retention of counsel, and then we retained that particular person after the fact. But in general, you're sort of choosing who the committee is and who will be retained on behalf of the legislative party. Now, sometimes I will mention the Office of Legislative Legal Services will represent the legislative defendant. But as I said, it's usually from the roster of approved attorneys. We have several attorneys who have responded to solicitations that our office has put out through our website and other manners. And this committee then voted to kind of approve them as counsel in cases. And so what we'll do is typically use them as your counsel or as the counsel that you will retain on behalf. Now, it's not always the case. We have had instances where an individual member has requested a particular attorney to represent them, and the committee has approved it. So you don't have to have that person be on your roster. It's just more typical than not. And I should also just mention, today is an example of a unique circumstance where you're going to consider retaining someone who is not currently on our roster of attorneys.

Okay. Further discussion? Director DeCecco.

Senator Weissman. Thank you. On that point, I'm looking back at my notes from 9-12-24. that it came up then in the way of a question, and now it's here in the way of fact in the rearview mirror. What about Independent Ethics Commission? We were convened upon request from the Speaker to the then leadership of this committee to grapple with this issue, and we did for quite a while. The initial charge, as the Director noted, was, well, workplace, as we're here today. It just came up organically in the discussion. Well, what about IEC? And we grappled with that and landed nowhere in particular. Now here we've had to cross even that bridge. I also note from last time a key point, and I think Director Fitzsimons made this very early as we get more into the process. Whatever the findings are of a workplace harassment investigation, They are administrative and not legal in nature. And that definitely distinguishes them from a lot of what else this committee approves retention for. I think that either or both of you will get there organically. organically. But last point, I think it matters that counsel was approved, not just sort of for any part of the work of an ethics committee, which can go on for a while. I'm seeing that on the schedule on the website, and that was my life in the beginning of 25 over in the Senate too, but at the evidentiary hearing. So a little bit more of a formal and perhaps consequential stage. notes from two years ago also reflect, I think Rep Soper and I shared this point, there is a meaningful distinction, or one may feel that there is a meaningful distinction between onset of formal process further downstream in a workplace harassment investigation and prior to that point. So I think that's an important distinction. I hope we get there before our discussion is done, and I guess Director Fitzsimons in particular, as you continue with your comments, if you could sort of, this document or your equivalent of it in notes, if you could sort of focus us on that point in the process, because I think that's a material one for our purposes. Thank you.

Thank you, Mr. Chair. And just a couple of points to remember for Senator Weissman, even prior to 2024, the committee and the time, the most recent Colorado Common Cause action, this prior committees on legal services had retained counsel for matters before the Independent Ethics Commission, I think at least twice, to my knowledge. The new thing that's changed since 2024 was the last bullet with respect to the Ethics Committee, although that specific rule, House Rule 49D, does specifically say the member shall be entitled to the list of things, including counsel. So just to mention that.

Director DeShago Thank you Mr. Chair

Thank you

Thank you Ben Fitzsimons From the Legislative Human Resources Division I going to start by giving A little overview of our workplace Harassment policy It covers all legislators It covers all non legislative employees That includes non staff partisan staff, caucus staff, aides, and it covers third parties who are folks like lobbyists or members of the media. It prohibits workplace harassment based on any legally protected status and employment. We refer to that typically as protected class. The policy does include a specific definition of harassment that's taken straight from the law. Essentially, harassment under this policy means behavior that is unwelcome, that has a negative impact on a person's ability to do their work in the environment, and that is based on a protected class. The reporting process under this policy is different than other processes that may exist. Under the workplace harassment policy, folks, anybody with knowledge of a situation or an incident can't file a complaint. Complaints can only be filed by persons who have been directly impacted by alleged behavior. That's somebody that we would refer to as a complainant. So if I see somebody do something that's inappropriate, I can't file a complaint on behalf of somebody else. It has to be the person who's been impacted who files that complaint. And all complaints under this policy come through the Legislative Human Resources Division. We are the central point of contact for all complaints under the policy. Now, when we think about resolving complaints under the policy, that can happen in two different ways. And the first is an informal resolution process. That process is flexible. It's intentionally open to allow for individualized responses based on the unique context within which we're operating. So anything that might be appropriate to resolve the concerns, to stop the behavior, we can try that. There are no prescribed steps or outcomes. Specific people don't have to do specific things at specific times. Now, it's important to know that in the informal resolution process, there are no policy findings. No one determines whether or not behavior occurred. No one determines whether or not the policy was violated. So because of that, the process is voluntary. And assuming that all the parties agree to engage, then the expectation is that they engage in good faith through that. Complaints, all complaints, but certainly under the resolution process, the informal resolution process, are confidential. So the policy prohibits anybody who has any knowledge of a complaint from relaying the existence of the complaint, from identifying people who may be involved in the complaint, from disclosing details of the complaint. All of that is considered confidential. In fact, documents that are created related to this process are exempt from CORA to protect the identities of the individuals who are involved throughout the process. And complainants may change their mind. So complainants can elect for an informal resolution process, and if the behavior continues, if they're not getting the results that they hope to get, if they change their minds, they are allowed to change and pursue the formal resolution process instead. And that's the second process that's available under the policy. That a more traditional investigative process There are prescribed steps There are requirements there are outcomes that have to be hit Specific people have to do specific things at specific times Who does what varies based on the role of the respondent. All of it's written into the policy. As an example, if a legislator is accused of violating this policy and the complainant elects the formal resolution process, then each chamber has a workplace harassment committee that convenes, and they handle many of the steps that are required in the process. If a nonpartisan staff person is accused under the policy, it runs more like it would in a traditional work environment where HR takes the lead on much of the process. This process is also confidential. All of the same confidentiality protections apply, with two exceptions that are specific to this formal. resolution process, and they both address legislators specifically. So if a legislator is found to have violated the policy, HR creates an executive summary that describes the findings and the policy violation and identifies that legislator who's been found to have violated the policy. Nobody else has identified. That document is available for public inspection. The other exception is that if a legislator is found to have engaged in sexual harassment specifically, more information is available for public inspection. We still have the ability to redact identifying information for complainants and witnesses and anybody else involved, but that legislator who's found to have engaged in sexual harassment and much more of the case and investigation information is available for public inspection. So that's an overview of the two processes that the policy has. And then what I'd like to do next is sort of talk through, and this is what's outlined in the memo, is what does a typical workplace investigation look like? What are the steps that are followed there?

Director Fitzsimons. Thank you. Yes, that is accurate.

Great. Thank you. So typical workplace investigation overview. You all have the memo, so I won't read it in detail. I'll just sort of hit the high points. Typically begins with interviews. Interview is the lingo that's used in the memo. That doesn't necessarily mean it has to be a live meeting with a person where they relay information verbally. Oftentimes, complainants, respondents especially, can provide information in writing. So interviews means an investigator is gathering firsthand information from people who may be involved So collecting information about the complaint itself talking to witnesses who may have seen something who may have firsthand knowledge and getting a response from the respondent to the allegations The next step, and this is number four in the memo, an investigator will conduct any follow-up interviews that may be necessary. So this can happen kind of throughout as an investigator is gaining more information. They may identify gaps or needs to collect other information or go back to folks who they've spoken to. So that kind of goes on throughout the process. Once the investigator feels like they have all of the relevant information, they'll analyze it all, determine, again, are there gaps? Do I need more information? what is relevant and what is information that's not relevant, and then they'll create a report of findings. And a report of findings is simply based on the preponderance of the evidence standard. Given all the information, is it more likely than not that the behavior occurred as reported? And that is the report of findings from an investigation. Now then, typically what we see is once that initial report of findings is drafted, the investigator will provide the opportunity to the complainant and the respondent to provide any additional factual information and then incorporate whatever may need to be incorporated before finalizing that report. After that, somebody makes a policy determination. So given the findings in the investigation report, someone determines whether or not the policy itself was violated. That role can vary depending on the organization and our environment, depending on the role of the respondent. And then the last step is someone determines, based on the policy determination, what, if any, action is appropriate, what corrective action may be appropriate given the situation. Any questions about that basic process?

I do have a question, and I think, Ed, it goes back to the conversation that we've been having, and I'm struggling with this particular conversation. I guess part of the – you mentioned confidentiality, and I'm going back because you mentioned also the Opportunity Caucus. When that vote came, I was not in committee. but my understanding but for the fact these members were legislators, there would not have been a lawsuit, right? I understand that. But as part of this conversation, has there been an assessment of whether this person deserves taxpayer-funded counsel because the complaints fall within the purview of their work as a legislator? and I'm wondering is it because of confidentiality? Is that why there is no conversation about that? And also too, if that's the case, along the same line, if I'm outside of the capital, can someone file a workforce? I mean, can someone, well, that would be outside of the legislator if someone were to file a workplace harassment. Okay, okay. I get at least that part, but I'm still a little bit fuzzy about this whole providing counsel to a colleague who may have or may have not committed workplace harassment, and how does that fall within the purview of the work that they do? Thank you.

Another discussion. Rep Sober.

Director Fitzsimons. Thank you. The formal process starts as soon as a complainant says I wish to file a complaint under this policy and I want to pursue the formal resolution process In a traditional and a typical workplace investigation the point at which a respondent is notified it can vary Investigators typically need to consider things like their concern for possible retaliatory behavior, their need to maybe collect more information before talking to a respondent. So there are a number of orders things can sort of go in. Under our policy specifically, HR is required when a legislator is accused under the policy and the complainant elects for the formal resolution process. Before convening that chamber's workplace harassment committee, HR is required to meet with a respondent to allow them the opportunity to provide a response to the allegations. and then HR makes a determination, given the response, is it likely that this complaint was filed in bad faith or is knowingly false? And if that evidence exists, HR can dismiss the complaint prior to convening the committee.

Are we at that stage? Shall we shift it into the general conversation time? Not yet.

Director DiCicco. Further discussion from members before I pass it back? Okay.

Is that the conclusion of the presentation?

or is it only through your office or the investigator? Director Fitzsimons. Thank you.

conducting the investigation. Okay. Director DeCicca. Thanks. And I just wanted to mention that in terms of because it's to kind of present that in other contexts just to compare it. Obviously, that's different than litigation. Litigation is also very public. Any of the pleadings are public and with whether or not there's no laws related to that, that's just the general nature of litigation. Ethics proceedings are also a little bit different in that if there is an IEC hearing, for example. I believe it's required to be a public hearing. And an individual who has been named has an opportunity to make motions or present evidence to kind of have to clear their name or before the commission makes its final determination. Similarly, the House Ethics Committee is one where that is a proceeding. There's going to be a hearing on Thursday and Friday of this week where counsel will be present on behalf of the named representative and they'll be able to present a case or they'll be able to present witnesses, testimony, cross-examine other witnesses, and that person will be represented by counsel. That House rule also specifically says the member shall be entitled to that representation. The other thing, again, And this kind of talks about that role of the attorney in investigation. Again, in this type of case, neither the complainant or respondent appears before the committee. Instead, they just have this opportunity. And I should say that when you saw those slides, the way they interact with the investigator is the same for the complainant as the respondent. So both of them are potentially being interviewed and re-interviewed and have an opportunity to review the findings and identify any errors or raise any new facts that haven't been raised before. Other things for you to consider of who should be representative. We have members, staff, or both. And if it's within staff, would it be nonpartisan versus partisan? Now, the distinction, we've seen that investigation if it's a formal workplace harassment policy process. The difference between nonpartisan staff and partisan staff is that it, who it's presented to. Does it go to a committee or to an agency director? But in both cases, there could be consequences. The agency director could fire the individual. the committee could make a determination for action to be taken either against the non-partisan, excuse me, the partisan staff. Or if it's a member, then likely that recommendation would need to be the body if it going to be a serious consequence for them But to think about it in terms of if the basis is they subject to the policy because they a member of the legislature and therefore they're subject to the workplace harassment policy, then what's the difference with staff? They're subject to the workplace harassment policy because they're an employee of an office that is subject to this policy. The other question, again, would be who should be represented? The request, if it comes from a complainant or a respondent, I mean, they're both the same in this situation. They're a third party interacting with an investigator who then makes a recommendation to the committee. If you do the respondent, is there a reason that you do one and not the other? If you do both, is it odd to provide counsel to both sides of this administrative proceeding? um confidentiality again we've talked about it under confidentiality like i i couldn't provide any information to today if i wanted to but if i even if i had the information i wouldn't because of that is a cornerstone of our policy right now and so if you want to provide that information you're if you want to have more information to make a determination so that you have a case-by-case or an ad-hack policy, then you're going to have to greatly expand who has information about these cases. The Office of Legislative Legal Services typically doesn't have any information about this, so now we're involved, and then we will then have to provide it to this committee. I'm sure we could come up with ways to do it, potentially an executive session, but ultimately the 10 members of this committee are now going to have information related to a workplace harassment complaint that they wouldn't before.

Director Zasheko. Thank you, Mr. Chair. Thank you, Senator Weissman. The other information, just again related to confidentiality, is CORA. Obviously, it's not just the discussions this committee would have. It's making sure that any documents that come in, whether it's if it was an email about retaining counsel or if it's the retention of counsel agreement that we execute or the bills that we received, that those would also still be confidential so that we don't release through our documents information. Information that would allow someone to determine who was subject to a workplace harassment complaint. I believe we're comfortable that if you were to do it, that we could rely on the confidentiality required by the joint rule. And that is included in the policy to allow prior to at least the stage that there's been a finding of harassment, perhaps we would be able to keep those records confidential. But to the extent the policy, depending on the policy, you may want to keep in mind statutory changes to CORA may be necessary as well, as well as potentially to the open meetings law, too. The next consideration is our roster of attorneys. This is, you know, we currently have people who have indicated an interest to represent the General Assembly. there are folks who are often, they're working legislative, they have interest in First Amendment or they work in institutional issues. They deal with the review and comment board or they're litigators. And they're just generally people who represent or are interested in representing the General Assembly in litigation. I don't know that we have anyone right now who focuses on employment law. And so I don't know that we have any counsel right now who I would want to go and say, are you interested in representing this person in a workplace harassment complaint? Because whether I could recommend them to say that that person has the competency necessary to assist a person who's been accused. The other option here or consideration could be, do you allow it on a case-by-case basis? Do you either, we try to find counsel, employment counsel who's interested in defending these types of cases and have them on retainer? Or does the person have their own counsel? And this, like we've seen in other instances, they identify the counsel and this committee then provides, determines and provides the, you know, pays the bills for them. That also goes to confidentiality. I think it's well accepted. Director Fitzsimons has mentioned that there have been attorneys involved and I don't think that anyone views the policy and the confidentiality requirements of a person who has been named in a workplace harassment complaint as prohibiting them from retaining counsel and disclosing the facts of the workplace harassment to that counsel. I don't know that I could do that. So I don't know that I could solicit counsel to tell them we have someone interested in that. I mean, that's the client or the person who is the subject to the harassment complaint being able to work with that counsel. So retaining counsel, unless it's the person who is otherwise retained by the individual named might be tricky or might be something we would have to work through. The scope, you know, we, Director Fitzsimons talked about the different elements. Should it just be limited particular tasks? Does it apply after they've made the recommendation for, to the committee or agency director action? um you know i mentioned that these things can proceed but this is an internal policy it can keep going if you hire someone and retain counsel what is the scope of that representation is it just for particular tasks or functions or this part of the proceeding so for example we've retained counsel you know just for uh representative lindsey in the matter that's coming up on thursday and friday just for the evidentiary hearing not before that and there's certainly You made very clearly nothing after that and that similar to the ethics complaints where counsel was retained before the IEC where this committee was very I think direct in saying it does not apply to anything other than the Ethics Commission complaint Now maybe a way a proxy for that is also potentially to limit hours. So if you just say there's a certain number of hours that are given to each person named who has their own attorney, then maybe that's a way to address that. So you don't necessarily limit the scope, you limit how much they could do on a particular matter based on the limited times they may be able to interact or assist their client. The next thing would just be the role of my office, when obviously I think it would just be limited to paying the bills. This is one, again, we just need to make sure that we provide, make sure we are comfortable in providing and protecting the confidentiality through any records requests that we receive. But I also would, again, this would be a little bit different. I wouldn't necessarily have our office interacting or say we should be interacting with counsel to assist them in that defense, in part because for the reasons we talked about, potentially a conflict, and also just because we don't really have the expertise to assist them. And I think any information related to the process they can get from HR. So I think when you're looking at this policy, the question would be, if you decide whether counsel should be retained, can you do it? And then for whom would you retain counsel? Who are the particular people? Who should be retained? Who's the attorneys that you want to retain? Any limits on the scope? And then ultimately, depending on what you come up with, there may be changes that you need to consider to follow policies down the road. I think that'll stop there. The next slide just sort of talks about, you know, I think that really kind of concludes where we information we want to present you for your discussion.

Rep Sober. Thank you, Mr. Chair. I would agree in part and disagree in part. The part that I fully agree with is, I mean, taxpayers paying for something that's not transparent. I think that taxpayers deserve to know what they're paying for. Also, I agree with Representative Joseph that harassing is not part of the job of being a legislator and that you can be found guilty of harassment in the legislature, in King Soopers, and any other job that exists in society, and I only use that example because the chair raised that example, but any other employer, there's a similar process for that. The part that I disagree on is that, as the good senator from Aurora pointed out earlier, politics has become much more combative. And there's many tools that tend to be used against public officials or the support around public officials, either our professional or partisan staff, to make a point, to complain, to continue the adversarial process. And because of that, I do believe that we shouldn't fully close the possibility of an attorney for the process. I was sitting here thinking as Mr. Simon was laying out the process of when people historically have engaged an attorney. And those were the interview follow-up questions and any new evidence interview questions. I do believe that it would be entirely appropriate to provide legal counsel for the limited scope only of when someone is talking in those interviews. Because to me that is very akin to when someone is being accused outside of this building of a crime and they're being interviewed by law enforcement. We do allow that person to have an attorney present for those questions. And that if that, whether it's a member of staff, would want to have an attorney present for, because of the unique nature of the General Assembly and the fact that we do have, whether it's members or staff who want to continue the adversarial process into the workplace, this might be one area we would consider just a limited scope of representation. But overall, I do generally agree that, I mean, members shouldn't be engaging in the type of conduct that overall we would call workplace harassment.

Rob Black. Thank you, Mr. Chair. I sorry I will just disagree with um with where you at personally Um, I think that these are, this situation is actually analogous to the other matters that we have considered as a committee, even the one that was most recently voted on related to the ethics committee, um, representation. I would argue that if anyone is involved in whether an IEC complaint or an ethics committee hearing or in a workplace harassment complaint, that there is potentially unethical, illegal, inappropriate behavior at bar. Right. That's the very nature of these particular conversations. And so to say that we shouldn't provide counsel because the underlying issue may be inappropriate then raises questions for me as to whether we should be retaining counsel for all of those other situations. Why, if somebody has an ethics complaint against them because they're a legislator, should we be providing them with counsel? Why, if that is the standard? I also think that it's important to note because of the dynamics at play here, we're not aware, as far as I understand it, we're not aware if the person requesting counsel is the respondent. I mean, that's the conversation we've been having, but it very well could also be the complainant. There could be someone who has issued a complaint against another member or against another staff member and is feeling ill-equipped to defend him or herself in this process to answer the questions. Maybe it's an emotionally charged situation. Maybe they are of a class that makes them feel a bit more challenged to interact. I mean, we don't really know those situations. And so to to have this conversation as if all we're dealing with is a respondent who is guilty and therefore not deserving of this counsel, I think does not actually take into account the fullness of the conversation. Secondly, I agree, I agree with you that money shouldn't be spent, that's taxpayer money, that they don't know where it's going or how it's actually being meted out Now, one could argue that they do know where it's going, they just can't know for sure which particular legislator or legislative staff member it's going to and what all of those different dynamics are because it's all confidential But if the problem is that the taxpayers should have transparency here, to me, that actually goes to the underlying policy, which doesn't allow for that transparency. And so if our issue is that taxpayers can't see into this and that they're spending money that they don't know, well, that's already again happening. It's happening with respect to Mr. Fitzsimmons and the work that he does, because we don't actually know how many of these complaints he's getting in, how they're being handled, et cetera, et cetera. And so there's a lot of murky, if not just opaqueness in this whole process, that if that is the crux of the issue, then we should be looking at upending those confidentiality provisions and adjusting the way this entire process happens. I'll also note that a complainant has the ability to choose which process to go through. And so a complainant could choose the ethics process for the very same behaviors as this workplace harassment. And if we have made a standard that it's okay to provide counsel for a workplace or as far an ethics committee hearing um why then can it not also be provided in this instance um i have a few other notes here but but i do i i think um i think i'll just summarize i do have a few other notes but i'll let other people speak I'll just summarize. This is very similar to me, to the Opportunity Caucus conversation we had, to the IEC, to also the Legislative Ethics Committee and the determination of providing counsel in that situation. To me, I see them as analogous in terms of the scope that we're providing. I agree with Rep Soper that if we do allow for this counsel, that it should be limited to those instances where that information, oh, that's one of the other things I was going to say, where those conversations are being had in the way that Mr. Fincidman's outlined. And I'll note the confidentiality piece of this makes it very unique to me and actually more demanding of counsel, because when you have the ethics committee, let's say, either the IEC or the in-house ones in each respective chamber, you have it as a public process. And so the people involved on both sides of the question can seek advice and guidance and wisdom from everybody and anybody. They're not limited. In this particular process, though, they are limited. They can't share it with anybody. Nobody can share it with anybody. It has to be wholly closed. Unless, I guess you can, and this is what was mentioned at the end, I guess somebody could go out and retain outside counsel. But in that, they're having to expend dollars. And I just think about nonpartisan staff. I think about members. I mean, we've had this conversation how many times just this last session about needing to increase salaries or find new ways to make sure that legislative members are having the necessary income to live. Do they really have that as an opportunity to go out and seek this counsel. And if not, I mean, this policy doesn't even seem to allow them to talk about it with their spouse. And so now you have individuals, whether again, complainants or respondents who are very isolated, who are facing, if they're a respondent, very real consequences, potential consequences, and they may be completely innocent and just not know how to navigate these kinds of processes. There's emotions involved. I mean, there's so many different dynamics. And so from my standpoint, I think that it is well within our authority as well as it would be the just thing to do to go ahead and allow for counsel to be provided.

Rep Sober? Thank you, Mr. Chair. Yeah, I would just say that adopting no change in policy would address my concerns because it would still leave it up to a case-by-case basis for this committee. A member would have to make a request for counsel. Obviously, they'd have to disclose before the Workplace Harassment Committee, but it at least means that this committee retains control over what that process looks like. But I would say if the committee does choose to adopt any sort of a formal process, I would certainly urge a limited scope in nature in terms of, you know, it's the interview phase. It's not a, the taxpayers are paying for an attorney to completely fight the process the entire way. It's to make sure that a person doesn't unintentionally say something that leads to further, say, criminal sanctions when that may not have been the words that they should have chosen or that you know on advice of an attorney they would have worded something slightly differently I don know if anyone has ever seen my movie My Cousin Vinny but there's a scene in that movie where law enforcement asks the individual, did you shoot the clerk? And he responds by saying, I shot the clerk. And he says it again, I shot the clerk. only he's putting a question mark at the end. And so the transcript reflects that he had a confession where he said, I shot the clerk, but there was no question mark put there. And that's a good example where if an attorney had been present, that would have very much made the record. And I'll just leave it at that, that that's what a good attorney can do.

Great. I have a question for Director Fitzsimons. So right now either if you are a complainant or a petitioner do you have the ability to waive confidentiality whatsoever Because what we talking about here is, you know, we're having a discussion about people potentially being able to come forward on a case by case basis. But is the scope of the confidentiality rule such that no matter who tried to come forward to us, they would always be bound by that rule such that they would never be able to provide us any information.

And so there's nothing, and we can't amend the workplace harassment policies, confidentiality rule. And so if we were to ever entertain it, it would almost by design always be the case that we were entertaining it for an anonymous person based on an anonymous issue. Would that always be the case?

I think that's important to just put out there on the record. And where I am at still remains the same. I'm not sure that it's in the purview of the legal services committee or the office, OLLS, to be spending money on anonymous thing for anonymous purpose. Even if we say anonymous purpose is generic workplace harassment complaint, to me that doesn't seem like something we would want to do.

Director De Cheka. Thank you, Mr. Chair. And yes, Representative Luck, that's correct. As I mentioned at the outset for why we were here today, it was both to because a request was made and because the committee had previously had these considerations and had this discussion. So even if you don't adopt a general policy that either prohibits or allows it with certain frameworks, you do have that request. and I've actually provided all the information I can on it in that first slide where I said there was a request for counsel related to a workplace harassment complaint. And so if you don't choose to adopt a policy, then you still, I think, could consider that question with the information you have. I guess if you don't adopt a policy, just know that's the template for every time I present it to you, that's what it's going to look like. And so I don't know if there's something about – you may not adopt a policy, but I don't know that there will be anything on an individual request that will ever change to make you – to change the vote one way or another, other than the composition of the committee, I assume.

Rob Sober. Thank you, Mr. Chair. Thank you, Mr. DeCecco and Representative Luck. I appreciate the clarification. I somehow went over my head. I thought we were just looking at the general policy, not that there was a specific request on the table. Because to me those are, well, related but also slightly different issues. I mean, one is a larger question in terms of the general assembly and what our policies should be going forward and what that structure looks like. The other question would be a real, live, ripe for adjudication type decision in terms of needing to decide whether to retain counsel for an unknown person or not. Would that be a fair assessment?

Thank you, Mr. Chair.

I mean, I think the point here was there first was the discussion about a general policy because you have all – there's a limited amount of information. It doesn't fit. You could decide if you're looking about adjudicating this that as a matter of law, this never applies or we should never be providing it. And if the answer is that, then you don't have to go to the individual case to decide we're going to provide it because you made a determination you wouldn't necessarily provide it. In this sense, I don't think you have to have a policy to answer this question. Just know it's going to look differently than what you've previously been asked and retained counsel because I can't provide you any information. So you're going to make the anonymous request for an anonymous attorney. And it would also by nature have to be if that person has counsel, you're retaining their counsel on their behalf because I don't have any attorneys that I can provide for them.

Director DeCecco. Thank you, Mr. Chair. That would just depend on the circumstances of where it is in the process. I don't know. and whether bills have been paid potentially, whether you're paying for past services or whether I think it would still need to go to the attorney as opposed to the individual member who's paid for it. So it would have to be a direct payment to the attorney as opposed to a member or staff or the individual, whoever it may be, if you were to do this. But again, maybe I should have gone to the next slide. I stopped one short. This was the sum up of where we were to prepare a policy And then the next question was if there is a policy to apply it. And I guess it's wrong because if there is no policy, you could still determine whether to apply to allow it for any individual who made the request in this individual in this circumstance.

Director DeCicco Thank you Representative Luck and Mr Chair There is no policy It the distinct nature of this and the fact I can tell you anything about the case that makes it a little bit different

that set out different parameters for what this representation looks like. Because, for example, when you hire someone to represent someone in a lawsuit, the assumption is they're just going to represent them in that public lawsuit from beginning to the end. In this instance, we've heard discussions about having it limited to certain portions of it, or potentially limiting hours, or who is the counsel, all of those things could potentially be included in a policy or just done in a potential motion, or you direct this is what we're willing to retain for that individual, and the next one that comes up, maybe it's different, but ultimately you're going to get the same information presented on the front end, but it's your discretion about how you want to apply it on the back end. Further discussion. Okay. Seeing none, here is how I believe we should proceed. I am open to the committee adopting some sort of official policy on this. I think if we're going to do that, we should save that for a later date. Having had this conversation, and perhaps we could have OLS present us at a future date with some specific options of what that policy would be after now having been informed by this conversation. I'm personally not ready to explicitly, to Rep Soper's point, adopt a blanket ban in all cases, which I feel like if we were going to adopt something today, it would need to be something simple and clear like that. It seems like if we're going to do something, it would need to be more nuanced, which I would argue needs more time. On the second instance, the outstanding request, as Director DiCecco said at the beginning of the meeting and in response to Rep Luck and Rep Soper's questions, all we know is that there is a workplace harassment complaint and there is a request for counsel. I, based on that information alone, am not inclined to grant that request. And we can take a vote on that if folks would like. Rep Soper.

I agree with that, Rep Soper. And to Rep Soper's point, some of that would include changes that would need to be made in other venues if we were to be able to open the doors to us getting more information to make a determination because potentially a rule would have to be changed elsewhere that's not up to us. Director DiCecco, did you have anything to add? Other than just it seemed his points go to whether or not adopting a potential policy or just to allow additional information to be provided when future requests to come in, I don't think obviously any of those things would go to this separate question today of retaining counsel for this individual, which I believe if the motion was made, then the committee could vote on that based on the information you have. Rep. Joseph.

Thank you, Mr. Chair. I had a couple of questions for Mr. Fitzsimmons. May I dialogue really quickly?

Thank you, Mr. Chair. Mr. Fitzsimmons, the request that has come in is from a particular complaint. Presumably because you're the head of HR, you know the timeframe for which that complaint is being heard. Could you tell us how imminent this is such that if this committee did delay this conversation related to a policy to a later date, would we still be able to possibly aid this particular requester?

Thank you. The request was not made to my office, so I don't feel comfortable making any kind of assumption there. I don't know who the request is from.

Director Fitzhimon.

Okay. Thank you.

Director Fitzsimons. Thank you. I can make recommendations to the Executive Committee

Okay. Senator Gonzalez.

Okay. Just a quick point I want to make, just in particular in response to the point Senator Gonzalez just made. Where I am coming from, I, again, just feel like this is like a normal HR process that exists in any other workplace, and I can't think of any other one where a paid attorney provided by the government is something that occurs in particular from an anonymous request with an anonymous scope. And so for those reasons, while I appreciate where you're coming from, Senator Gonzalez, I'm not ready to approve any retention of counsel in this case. I understand the issue might be urgent for the purposes of HR, but I view HR as different than a court of law or quasi judicial body And so that that just where I coming from At the at this point I think the request is out there We don't need to, to, to make a motion. I can, we, well, well, no, no, I'm saying on the memo point. I'm saying on the memo point that, that Rep Soper made, We don't need to make a motion on requesting you all to put us something together that would include options, that would include, you know, as Rep. Locke said, what does this look like in theory? We explored that a little bit through questions. The executive committee sounds like they would have to change the policy as it would relate to what information could be provided to us. Seems like that would be the type of thing in the memo. So I think we have the request for the memo with options on the record. and we should take a vote on the specific request to retain counsel. Director DiCecco, you looked like you wanted to add something, or were you just dumping in before I finish my point?

Great. Okay, do we have a motion on the anonymous retention of counsel? Mr. Chair, I would make a motion.

Okay. Okay. That's a proper motion. Mr. Neerich, please call the roll. Rep's over.

Okay. Rep's over. We'll be excused from the vote. We don't need a second. Okay. Okay. So Vice Chair Frazella is noting to me that she also sits on this committee. We can have a discussion on recusal. If any member feels like they want to be excused from the vote, that's fine. In order, just know, in order for this motion to pass, we have to get a majority of yes votes. That's the important thing in terms of our part of the process. So if you want to excuse yourself from the vote, that's fine. Yeah, Senator Roberts.

Am I correct, Director Fitzsimons? Yes that correct Okay so we are already past time folks and I do want to get to the next agenda on our docket And so if you feel compelled to recuse yourself from the vote, let me know now. Okay. Rep. Joseph.

Well, so a motion is before us. We're not going to decouple it. We have to take action on the motion. The motion is, do we retain council for 10 hours? That's the motion before us. That's what we're voting on.

Unless he's asking you to Unless you want to bring a motion Request to sever it The request Mr. Chair

okay um so

Okay. So please offer a substitute motion.

Restate the motion just so that it states whether to retain council.

Okay.

Mr. Neerick, please call the roll.

Excused.

Senator Gonzalez?

No.

Mr. Doerr, Deputy Director Doerr. Thank you, Mr. Chair, members of the committee. Michael Doerr of the Office of Legislative Legal Services. The last time I talked to you and gave you a litigation update, in this case, there had been a petition for en banc hearing at the Tenth Circuit that had been filed by the plaintiffs. And we had filed a response on behalf of the legislative defendants, and the Tenth Circuit ultimately denied that request for an en banc hearing. And so the plaintiffs have then filed a petition for certiorari in front of the U.S. Supreme Court. They filed that at the end of last month. And so we're here to talk about the retention of counsel in that case. As you may know, the lead attorney on that case for the General Assembly was Ed Ramey, and he unfortunately passed away unexpectedly this last spring. He was being assisted in that case by Martha Tierney, and so she is taking up that case, but she also suggested to us that we may want to consider retaining another attorney to assist in this matter, particularly because at this juncture, it's important to have probably some more assistance and particular expertise when it comes to petitions for certain from the U.S. Supreme Court. She recommended an attorney, Blaine Myrie. His resume was sent to you with the agenda last week. His practice is almost exclusively appellate work, and he's filed many petitions for cert in front of the Supreme Court and also some responses for petitions for cert. So he's familiar with this practice. Ed and I have met with him recently, and we feel confident that he would be an asset to the case at this stage. And so we're recommending that the committee retain Mr. Myrie in this matter. I'm happy to answer any other questions or go into any more detail if you have it. But I know that time is short, so I will stop now.

Thank you, Mr. Chair, and thank you, Deputy Director Doerr. Just one fact to mention is that Martha Tierney is – she does have – she is representation before the Supreme Court. Yeah, she is also a member of the Bar of the Supreme Court as well as Mr. Myrie. So she is – they both can – she can work on the case individually, but it's her recommendation to have someone work alongside her.

In discussion.

Noted. Great. Brad Black.

Representative Luck, both attorneys in this case are at the same law firm, but this is, I think, a little bit unusual where they were, in many cases, that Mr. Ramey had handled for the General Assembly. He was just the named attorney, but in this case he had actually specifically asked for Ms. Tierney to also be part of this case because he felt like her assistance would be important and critical.

Replot. I guess I'm just wanting to make sure. So the costing of this, we're not going to be duplicating costs, right?

Thank you, Mr. Chair. Representative Luck, I mean, each individual attorney who works on it will bill for their hours at the approved rate. Mr. Meire agreed to the, although he's not counsel on our roster, he would agree to be retained at the rate of the committee's approved rate. but each of them would separately charge for their time To answer your question we typically don have the previous question you asked about to have multiple counsel for one party We typically have one attorney for

Rob sober Thank you, mr. Chair, and and I did want to I guess simplify this vote maybe slightly more in terms of the committee already made the decision to hire Martha Tierney and Mr Ed Ramey It just so happened Mr Ed Ramey passed away and were bringing on board that replacement So the original decision has already been made by that committee, and I just want to point that out, that in terms of the substance, I feel more like this is a procedural vote and not a substantive vote, because it's in terms of replacing an attorney, not hiring a new attorney. We're not actually doing more than what this committee had previously decided.

Vice Chair Verzell. Thank you, Mr. Chair. I move that the committee retain Blaine Meir, Mayor? Meirie. Meirie, sorry, my apologies. and his firm Blaine Myrie LLC as co-counsel for the legislative defendants for opposition to the petition for a writ of certiorari filed with the U.S. Supreme Court in the matter of gays against groomers et al. v. Garcia et al.

Representative Camacho.

Senator Carson?

Senator Gonzalez? Abstain. Excuse me.

Yes. Representative Luck? Yes. Senator Roberts? Aye. Representative Soper? Yes. Senator Wiseman Epstein Madam Vice Chair Aye Mr Chair Yes Okay, on a vote of seven yes, three excused, that motion passes. Okay, I believe that wraps up our business for today. Future conversations to come. probably on both topics. But with that, the Committee on Legal Services is adjourned. Thank you.