 171 I sent oh I didn't yes you sent this and I just printed it out I'm gonna go get it and I I didn't forward it to to Amron so let me do that um Amron I'm going to forward this to you Gail just forwarded to TJ and Christina okay there we go and okay so I we are going to here right now we have two new witnesses here with us Steve Howard and Terry Corsons and I would like to jump to Terry would you like to kick us off here and Terry I I don't I'm sure you know all of us but I'm going to introduce ourselves anyway just in case so Jeanette White from Wyndham. Anthony Plain in Washington County. Brian Collomore Rutland County. Allison Clarkson Windsor County District it's good to see you Terry. Nice to see you and Senator Keisha Rom is with us but must be technical having some technical difficulties she's from Wyndham Chittenden County and I'm only sorry that we're not there to have your apple bread pudding or her cake or her cookies I know I did deliver cookies to you the pages this morning next door to you Senator White and I walked in on Senator Collomore I'm not realizing that he was in a Zoom meeting but so I'm sorry to have missed you all. We're sorry to miss you and your cookies. So I'm going to ask Terry to weigh in on this issue we have had a flurry of emails around this issue and I sent some thoughts to the and I know they're very simplistic but I sent some thoughts to people and but Terry would you like to weigh in on the issue as you see it and then we also have Steve Howard here because this affects more than attorneys but I don't see him here yet. No Scott's here with us Scott Griffith. Yes I thank you I do see him I was okay Terry. Great thank you very much Terry Corsons executive director of the Vermont Bar Association thank you so much for allowing me to participate I have been observing the the committee hearings and on Friday saw for example Mike Kennedy who I know had a conflict for today so he had contacted me and I offered to write up a memo at least setting forth from my understanding of the VDA's position in this matter and I did submit that if I don't know if people have seen it but I'll just be testifying to summarize and in general there's two basic points that I would like to make and strictly limited to the applicability of S171 to Vermont licensed attorneys that that is all that my my memo addresses and I'm coming from the context of the Vermont Constitution and also from the context of the rules of professional conduct you all have heard from others that there's that provision in the Vermont Constitution that indicates that the Vermont Supreme Court has disciplinary authority over all judicial officers and attorneys that law and when the framers put that into the Constitution I've got to assume it's because there was a body of law for centuries whereby rules of ethics and conduct kind of specific to attorneys because of attorney specific roles in the courts in society required and I think it was made mention of at least on Friday about higher standards of professionalism and ethics that are applied because when you think about the work that attorneys do it's oftentimes in a fiduciary capacity people's liberty they're representing people's liberty in today's context you know families support parentage all kinds of very people's property their life savings so there's an expectation that there's a higher level I think of conduct and ethics expectations so in my mind that's likely why the framers included that provision because there was a system to address ethical complaints for example or disciplinary complaints against judges and attorneys so there's that provision coupled with the other provision whereby the legislative executive and judiciary departments are separate and distinct so that neither exercise the powers properly belonging to the others and that would include the power to discipline attorneys and judges and I noticed in the statute already exempts or as Senator Whiting prefers saying the code of ethics does not apply to judicial officers it already says that so in my mind a very straightforward clean way to acknowledge that attorneys and law are subject to the same disciplinary authority as our judicial officers if the phrase were in this is in section 1202 b2 if a phrase that read those subject and this would say the code of ethics does not apply to those subject to the Vermont Supreme Court's disciplinary authority under chapter two section 30 of the Vermont Constitution that would then make clear that the code does not apply to judicial officers or to attorneys in fact again because of what's already provided in the Constitution but that to me would correct an inconsistency that's there now and it would also ensure that one branch of government is not exercising a power properly belonging to another the other aspect that I wanted to comment on is the Vermont rules of professional conduct and you all wouldn't necessarily have any reason whatsoever to ever look at them or to see them but I did link to them so that you could see it there 158 pages a very detailed extensive thorough again compiled over decades if not centuries of rules of conduct and ethics specifically geared to attorneys duties as officers of the court. So there's been commentary about how trying to fit the provisions in the in S 171 into scenarios where attorneys are involved in and how they like people liking to to trying to fit a square peg into a round hole. I think that's again why I think the framers likely had in mind the centuries of experience that resulted in the unique rules of conduct and ethics that already apply to attorneys into judges. There's a reason why they were exempted out. There was also commentary that well the Secretary of State has authority over attorneys who are notaries public but in fact that's not the case. In 26 VSA section 5305 B2 the professional responsibility board has jurisdiction if there are any complaints about a notary public who are attorneys and that's because the Secretary of State acknowledged in light of this very same constitutional provision that the Supreme Court has disciplinary authority over attorneys and the Secretary of State recognized he did not. So there isn't any kind of present there regarding notaries public. In the last thing in this assignment just came up in terms of what Mr. Kinsley filed today. I don't think he testified on Friday, but he stated in his materials in support of including attorneys. He said if the commission finds that someone has violated the code of ethics, it would be dependent upon another entity to take action to correct that wrong. So playing that out to its logical conclusion, if for example, if attorneys were subject to the S171 and somebody came to the commission and said there's an ethical complaint against this attorney, presumably the commission would go through its process and say it found that there was an ethics violation. What would it do then? It would send it over to the professional responsibility program. And presumably the professional responsibility program would go through its entire process, but applying those rules that are applicable to attorneys. Because those are the ones that would be relevant in pertinent and say it found, okay, there's an ethics violation. What's accomplished? You've got a duplication of effort of process. For what reason? Say it found that there wasn't an ethical violation. What do you have then? You have a waste of the process that went through in the commission. So what was gained? What would be gained by the commission going through an exercise? If ultimately, the professional responsibility program, which has been in existence for centuries, and is constantly being reevaluated, constantly being scrutinized, constantly being updated. It just seems that it wouldn't make any sense to have that extra separate exercise, when for the last 200 plus years, it's this court has been recognized as the proper authority. So I just wanted to make mention of that in light of Mr. Kensley's submission. So my suggestion would be to substitute that phrase so that you have consistency with the constitution and no use or patient of powers. Any questions for Terry? Well, we need to take the testimony and then Christina will go to you for and I know that you were thinking that the commission would not go through the investigation, but would funnel it. I think that's what you had in mind. But that would be true right now. But if there's ever enforcement for the commission, the commission would be the responsible party for doing it. No. Why not? If they're subject to, okay, never mind. We're going to go to okay, Senator Clarkson. Yeah, she was she was shaking her head when you asked that question. Yes, I know. Yeah, right. Terry, I think one of the are you I think one of the things we're struggling with is we want I mean, at least I would hope and I think Ben and a couple other people would hope we'd have a universal code of ethics, you know, just this big umbrella and that we would then and then every branch I mean, your branch or at least the lawyers would be exempted through this additional language in our state code of ethics. So within the state code of ethics, if we can make an umbrella that works with some fairly simple universal understanding, and then have any group that needs to be exempted because of pre pre existing rules that they would be exempted in that bill, but that every initially in the, you know, that the bill is intended to provide this sort of universal standard, but that sub groups can be exempted. That do you sort of get I think that's sort of at least that's my hope and I think it's a couple other people's hope as well. Because I think we're happy to exempt groups that have pre existing frameworks for code ethics code and protection, I mean, ethics, a code of ethics, like the legislature, like lawyers like the court, but that we all begin agreeing that this is a fundamental foundational on which we stand. Terry, did you want to respond to that? Did you even understand? I mean, I'm sorry that was a ramble. Sure. And I didn't know it's my connection. Oh, no, no, no, I understand. And I apologize because I don't know if it's my connection, but it was broken up a little bit. But I mean, we would have certainly no disagreement that ethics are critical. Some code of ethics is critical. And I'm sorry, I didn't hear all of the days of testimony, but I believe that there wasn't a code of ethics in the executive branch primarily is where I guess they're trying to make sure that there's a foundation. So I guess I would just ask that there be a distinction between, I guess, if that was lacking for the executive branch that there be in the grand scheme here and acknowledgement that, you know, at least for as long as the Constitution's been in effect, there's been an effort to have this code of ethics for the judicial branch and certainly attorneys at law, that's my most familiar with. But I don't think anybody would disagree that it's critical that we have basic ethical principles that govern. But it is possible to exempt out those who are already subject to what in my view, very robust ethical standard that are patterned to the scenarios and circumstances that pertain to attorneys because as like Mike Kennedy pointed out, the conflict of interest, the offensive and propriety, those are just going to, I think wreak havoc if you're trying to make them fit because it's just two difference, the circumstances are two different in terms of when and what in what would be a violation for an attorney when it wouldn't be a violation for someone, for example, an executive branch, just because of conflicts of interest, attorney, client privilege, disclosure, prohibitions. It gets very complicated. So I'm, I thank you, I'm going to jump to Steve, because I think he also has some new information and we've, and I would encourage us if we haven't read the email from Matt Valerio and from John Campbell, to read those, because I think they speak to what Terry was just talking about. I'd like to go to Steve Howard, because I think that there's John Campbell was beyond just the attorney issue, but he also had the issue of post-employment, post-government service employment, and that would completely limit some deputies, some states attorneys and deputy states attorneys. And that is an infringement on their rights, I believe. And so I'd like to hear from Steve Howard, and, and that I think that that's a lot of your issue also. But that it affects more than just states attorneys. Thank you, Madam Chair. Vince is actually going to testify on our behalf on this issue. Okay, thank you as an attorney. Thank you. Okay, Vince. All right, thank you, Madam Chair and hello to everyone. I wanted to be brief. It looks like you have a boatload of witnesses. But as I read the provision in S171, the provision would restrict any person from taking employment where the state is a party. And I think the unintended consequences, the ramifications are far reaching and perhaps not as thought out as they could be. With regard to attorneys, I think you've got that covered pretty well. But for example, if I stopped being a state's attorney, I could not be a defense attorney, or even a private attorney representing anyone if the state is involved. And as as we all know, Vermont is a government by permit. And we have tax issues, land use issues, I couldn't even represent somebody and trying to get their motor vehicle license or permit back. To further the discussion, which I think you've been having in the last few minutes, there are already a number of laws on the books that govern conflicts. And in addition, almost every licensed or registered profession has some type of code of conduct, whether it's specific to the profession or trade, or whether it's the more generic one that applies as somewhat of a common denominator across all licensed and registered professions. I think this is akin to something which the courts disfavor. And that is a covenant not to compete where someone works for a company, they say, we will let you work for us. But in exchange, you have to sign an agreement that when you stop working for us, you can't work for X number of years in a certain geographic area. I see this akin to that type of approach. And believe that in a state like Vermont, where you need to do more than one job to survive, in most parts of the state, I see this as a restraint on trade. Instead of restricting the number of people who are trained, eligible, experienced, to go out and take jobs, which we can't fill. I see this job, this bill doing exactly the opposite, further restricting the pool of labor that would enable us to get out of the crisis that we have right now with recruitment and retention of workers across all trades across all professions at the state, county, and municipal level. So that's my take. And thank you very much. Any questions for Vince? So committee, I, I just sent an email and I, I do apologize for being such a grinch about this bill. But the way we've been doing this, and then continuing to make exemptions, makes it more and more and more complicated and more and more complicated to understand. And I have a couple basic issues. One is that I'm not sure that the other states that we've been talking about have in their constitutions, that the General Assembly is responsible, completely responsible for the General Assembly and the judiciary, the Supreme Court is completely responsible for the judiciary. I don't know if they do have those in their constitutions and they're able to do this anyway than that. That changes my opinion a little bit, but I don't know that they have that in their constitutions. But we do, we have it in our constitution. And my other concern is that this is getting so complicated that I, when I think of a code of ethics, I think of it as kind of akin to the Boy Scouts pledge of honor or the 4-H pledge of honor, I'm going to do these things and I'm not going to do these things. And I looked up the 4-H one, and it says, I won't do my exhibits in a certain way, or I will. And it's so they're these 10 kinds of things. And so I don't understand why we don't have a code of ethics that's the basic things that person shall avoid any conflict or interest of apparent or appear the appearance of conflict of interest shall not direct another person to act in a manner that would be unethical shall in the course of conducting state businesses act impartially showing no favor, all of those, those were the 12 points that were in that were the kind of headings in the in the code of ethics, and then charge instead of then trying to define under these what it is for an executive branch employee, what it is for a judicial branch employee, instead of trying to define them have each branch define instead of trying to put it all the words in here and then do exemptions for people I don't understand. I don't understand why that is such a difficult concept to me, it makes a lot of sense, but I guess it doesn't. And for the post employment, for example, is very different. There are laws that say what we can't do in post employment, we can't become a lobbyist. There are codes of conduct that say what an attorney shouldn't be doing post employee post government employment. There are the legislative staff, we haven't even talked about them yet. But that says that they can't. So Michael Grady, if he got really sick and tired of us, he could not decide to become an attorney that worked for a utility company. He couldn't do it. Because it says in here that he can't that the legislative staff can't represent anybody that would be in conflict with the guy. I just I don't see why. And I just want other people to weigh in here. But I do not understand why we would do all of these things gifts are very different for different people the how you recuse yourself after a code of conflict is I mean, a conflict of interest is very different for the legislators than and for the attorneys, they're it's a different process. So why do we have why are we trying to get all of those processes and exemptions into into the state code of ethics instead of having a broad state code of ethics and then having the anyway, you get my drift. So yes, Senator Clarkson. So I agree with you. I mean, I think we need a broad code of ethics and then a chapter maybe on each branch, and then deal with it in a very it could I think, I think we could handle it that way. How do we do a how do we do a chapter on each branch in the in the bill? I thought that Terry just said their code of ethics for attorneys is 158 pages. Are we going to put that in here? No, we're going to defer to that code to that's what I that is just suggested. Sorry, I thought that's what you just suggest. What I suggested is that we just have a code of ethics and then we we refer the the details for each of those 10 points would be developed and carried out by the particular branch. That's all. Senator Polina. First of all, I really appreciate you trying to figure this out along with the rest of course, and I don't feel frustrated and somewhat disappointed and discombobulated because I think we're all feeling that at this point. I want to back up for a minute and just because we talked about a lot of exemptions and that's part of the frustration. I just want and I'm not taking a position necessarily. I just want to talk this through. I mean, what I think we're talking about exempting is this is at this point is the judiciary, the judges, the lawyers and the legislature at some level, and it looks like nature is a little bit of both. But if that's the case, and I, Terry said that we can insert language that would essentially exempt the lawyers along with the judiciary from the from the code. That would be one exemption. There'd be that exemption and exemption for the legislature. I don't want to call it exemption for the legislature, but it's a partial exemption for the legislature. I guess all I'm saying is that I don't think that's a lot of exemptions when you say it out loud. I'm not saying it's good, but saying it doesn't feel like that much when you say it out loud. I like the idea that you put forward about keeping it simple, though I really do just not sure if we had a really an ethics commission with enforceable powers, they would be able to interpret those, you know, myth people raise issues and bring complaints and the commission would be able to decipher what's going on and make a decision. But without them being able to interpret those codes, those 12 things, we'd have to, like you said, ask each department to write it up for themselves. That could just be more trouble than it's worth, I think. Anyway, I don't want to ramble on about it. I just think that the exemptions are not that many. If we really look at them realistically, I think the bill is complicated, and that's a problem. But I think, and I think if, if the, if what Terry talked about exempting the lawyers would include people like Michael Grady and let's say if council staff, that could help solve part of the problem, the dilemma that we're feeling. It would also mean Gail couldn't take a job, not as an attorney, but Gail couldn't take a job because it says legislative staff. Right. So, and my, I didn't mean that the commission should interpret these. What I meant is that for each of these things, the branch responsible would come up with, with what does conflict of interest mean for the executive branch? What does conflict of interest mean for the judiciary? And I, and I don't think it's just the judges because, and the attorneys because the constitution says shall administer the court system. And that includes their employees. So they, they would have it and then the legislature has its code of ethics and says this is what conflict of interest is for us. And that could be those would be in the hands of the ethics commission, but wouldn't be in the statute itself. Because conflict of interest as defined in here, also, and it does say that it doesn't apply to our core legislative activities. And I've tried to do some research on core legislative activities. And what I come up with is voting, not meeting with constituents and not going to meetings and not working on bills, but voting. We did get, we did get a memo from someone might be Christina, I'm not sure some source at the memo, which did research into the legislative issue. And basically, it did say that meeting with constituents was was core committee meetings were core, that the kind of stuff. I don't know if we can't remember. And we're exempt. If it exempt us from our core legislative work, and everything that we do is core, then we're exempt completely. Well, except for now, which soon would be allowed to take bribes and stuff like that. Well, but that's all right. I said, I said it's a partial exemption. No, that's already state law. That is state law. And the last thing in the code of ethics that was given to us by the Commission, and which I have on my number 10 is shall abide by statutes regulating. Oh, just post government employment, but it's also shall not. There was one that said you shouldn't break the law. Anyway, Senator Callemore. Thank you, Madam Chair. And not to disagree with Senator Plena, for whom I have the utmost respect, respect. But I think I'm looking at it the other way, and probably more like the chair is, I think she's laid out a structure that makes some sense with, and I don't know how many there are there 10, 11, 12, sort of, I don't want to call them bullet points. But let's call them areas of agreement, regardless of the branch, that everybody can sort of say, Yeah, that makes a lot of sense. And then leave it up to each individual branch to flesh out, expand, enumerate, however you want to phrase that, their own view of life is in terms of ethics. So there wouldn't be any exemptions to use Senator Plena's language. I don't think we need to put exemptions in statute. I think all we need to do is say, Here's what everybody can agree on. And then each of the three branches will go further. And I don't know what the language should be, but will be responsible for their own jurisdictional oversight in terms of how they put this together. That's, it seems to make more sense to me than, than saying, Okay, here it is, except this guy doesn't have to and this guy doesn't have to and this guy doesn't have to. I think it should be the other way around. Everybody agrees on this. Now go and figure out for your own branch, how best to do that. One of the things we'd have to think about and going in and out there, I'm not arguing with this. I'm really just brainstorming, believe me. But we talk about the needs, the desire to have everybody under the same code of ethics. Now obviously we're talking about exemption. So that goes out that concept goes out the window. We're not talking about everybody anymore. But we talked about how the snowplow driver should be held to the same standard as the governor, you know, the governor should be held the same standard as snow track, snowplow driver. We would get we would end up with a code of ethics that varied department from not department, but branch of government to branch of government. And I don't know, that's just that that's that's a dilemma. I'm gonna not oppose the idea necessarily. I'm just saying that's another wrinkle in this whole thing, because we've been talking about keeping everybody on the same standard. Senator Clarkson. Sadly, Anthony, they already are on different standards. And so I think that you're right that this discussion reflects our frustration and they're not being able, it would be great if we could begin 250 years ago and sort of get everybody on the same standard. But I think I like the notion of a positively stating everything to go to Brian's point and Jeanette's exempting less and saying yes to more saying yes to judiciary and lawyers saying yes to the legislature. And that this is the the executive what's left is this is what the executive branch is, you know, is the core code of ethics for the executive branch. But it's wonder it's better to have a yes, yesable propositions and and begin with this thing we all agree with, and then delegate the authority to oversee it to the branches as they oversee it now. To net to net with you envision if we went in that direction, would you envision, let's say we pass a bill that has the 12 to 10 points on it, as each to each, each branch of government to come up with its own code, they would report back to the commission or someone like like there's be a deadline for them to call it spun away, you think mechanically how that might work. If you've gone that far and thinking about it, I hadn't gotten that far. But I think that the judiciary could just forward their their book, they're pretty well set. I think the legislature is probably pretty well set. I mean, we have masons and our rules. So we would put those into it. And the executive branch I human resources has has some I don't know that it applies to everybody. So I But this could be it for the executive branch. I mean, what's left is stated positively, could be it for the executive branch. Well, they're just like, we need to rethink that a little bit too, because I believe that the department of sheriffs and state's attorneys executive branch. And so their attorneys would be a lawyer. So they're also under, I know, but they are under the executive branch. So if this is, so then, where do they fall? Do they fall into the, the conflict of interest as defined by the executive branch or by the judiciary and or by the professional code of regulation? And, and do they are, are they able to move from being convinced is a government employee. And I think under the, I don't know, are you under the executive branch or the judicial exact executive, executive branch? Okay, so you would not be able to quit your job and become a defense attorney. Well, if I read it correctly, that's, that's right. Right. But aren't you covered first by your profession rather than your employment? So your profession, as Terry says, is as a lawyer. So you're covered by the first rather than your employment. But if this apply, if this applies to all executive branch employees, he is an executive branch employee. And you can't say, except it's not going to apply if he's covered someplace else. Either applies to all executive branch employees or doesn't right, I was speaking to an architect that used to work for state buildings the other day. If I read that correctly, and again, you folks have heard all the hearings, I haven't. I don't think that architect would be able to be involved in a project where the state is a party, you know, and they do a lot of work all over the state. And I'm just suggesting you tread carefully. Clearly, you can't argue with the concept behind this bill. But the way you write it, you got to be careful, you don't have those unintended consequences. And I think if you're going to delegate authority, I think you're going to have to direct every licensed profession or trade to to revise their code of conduct to ensure that the legislative intent is carried out, but not to the point where you're putting people out of business. That's the fear. On the other hand, like 45 other states have already done this. And it just seems amazing to me that, you know, I want to know it's 45. There's my question, Anthony is, do those 45 other states also have in their constitutions, right? They all do have that in their constitutions that the Supreme Court regulates the judiciary and the General Assembly regulates itself. That's a question for TJ. Yeah, that's that's my question. Thank you, Madam Chair. All but I think three of the states have separation of powers, provisions in their constitutions. All of the Northeast states have provisions that are, if not identical, substantially the same in that they very clearly parse out and delegate the duties of each branch and say that they cannot cross over one another. Okay, so I have not seen their constitution. So I have no idea that. So, okay, I guess that ends that conversation. If other states have it in their constitutions as clearly as as in ours. Okay. Yes, Senator Calmar. Thank you, Madam Chair. So TJ, I guess I'm struggling here. If we went the way that I'm starting to feel that we should, which is the way the chair feels and we enumerate sort of basic concepts right off the bat and then just say each branch will make them more or less as that while they can't make them less, will will make them, you know, flesh them out. Aren't we in essence doing the same thing as just sort of doing a state code of ethics? I mean, the end result is the same, isn't it? It's not really the same. And that, I mean, the easiest way to view it is the way that the, you know, national integrity bodies, nonprofits view it. And they have sort of a hierarchy that roughly plays out as, you know, the lowest and most criticized are those that don't have a code of ethics and don't have an ethics commission. And there's very few of those states. The next tier, though, is those that have either a commission that does not have much real authority or a separate branches approach that it sounds like you're you're leaning toward. And that's not to say it won't work in the state of Vermont. But there are certain disadvantages that come along with each branch coming up with its own code. Obviously, they can tailor it for themselves. But the uniformity is gone. And so if you have, by way of example, a maintenance worker in the judicial department might engage in some type of conduct, let's say, hiring a daughter for a job, that might be treated differently than it gets treated in the executive branch. And it might get treated differently than it would in legislative branch. And that in addition to not having a uniform code, it also ends up raising problems down the line, because there's a view of unfairness from the employees and oftentimes from the union's perspective, that they're not being treated in the same manner for the same conduct. Yeah. Oh, I'm sorry. So explain to me a little bit about I'm really hung up on a couple things here. The conflict of interest, it says, each time a public service is confronted servant is confronted with a conflict of interest, public servant shall either make a public statement, recusing themselves from the matter, or if he chooses to proceed write a written statement. My understanding is that this would violate attorney client privileges, it would. So we're already saying that if this applies to everybody, it doesn't apply to everybody because and so we'd have to say, however, this does not apply to attorneys, and it doesn't apply to legislators, because every time they want it, if I stand up and say, I'm not going to vote on this because under rule 73, I might, it might be perceived I have a conflict, I'm going to have to write a statement. But in fact, what happens is that the rest of the 29 senators either say, yeah, you're right, you can't vote on it, or they say it's okay. So we've already identified two different places here where this, where there are exceptions to this and my so my concern is that when we do this, and then we try to apply it across the to everybody, that it doesn't apply to everybody. So can you address that a little bit? Sure, I can try. And as a threshold matter, I apologize, we had a very fruitful conversation with the judicial branch on Monday. And in response to that circulated some draft language to see if it satisfied their concerns. And to my knowledge, we haven't heard back yet. But that was one of the issues that was addressed, that this may be a little too cumbersome in the way of people recusing themselves. And generally speaking, if you're going to recuse yourself from a matter, that should be the end of the conversation right there, because you're not engaging in any act that could be a conflict of interest, you're no longer involved. But it's the situation where you say, I do have a conflict of interest. And I do choose to go forward. That becomes potentially problematic. And so in order to address that, we previously had language that drafted the de minimis exception as something that you would explain on a form. The proposed language we sent to the judiciary would exempt that straight away from the definition of a conflict. So that if you had a conflict, but that conflict was de minimis, then you chose to go forward, you would not have to do anything. Or ministerial, for that matter. If there's no decision making process that has to be a part of what you're doing, if it's purely ministerial, then that would not have to be the subject of filling out a form. The reason that we did that was a very valid concern from the judicial branch, that that they have people who are at the desks, who take paperwork from people. And if somebody who would otherwise constitute a conflict of interest came in just to hand them papers for filing, it would technically fall under the current language as you have in funding. And that's a very valid concern. We don't want to cause people who have no decision making authority to have to fill out a form every time one of those ministerial or de minimis contacts come in. The final thing I would say is with respect to the legislature, because of the unique stature of legislature with respect to legislative duties, irrespective of whether you stood up and said, I have a conflict, and this is what it is, I'm going to get rich off of this bill, and I'm going to vote anyway. That really is still within your poor legislative function. It might not be something that everyone agrees with, but it still falls outside what the code would cover. I guess I didn't understand that because our code of ethics says that the other members of the body decide whether we have a conflict or not. Yes, but that has nothing to do with the code of ethics. Once you're inside your legislative duties, and I apologize, it was a little late, but I sent you both my own rendition of what falls within legislative duties, and also a presentation that's a little more layman's term that the National Conference of State Legislatures conducts. But it goes through all of the things that legislators, because of their unique position under the Constitution, simply can't be touched by any other branch. So then we're completely exempt from this code of ethics. Well, I think that probably says too much. For example, if you stepped outside of your legislative duty and called up a contractor and said to the contractor, I'm a legislator, I know that you have a bill coming up next session. And by the way, my son is looking for a job. I think he really would benefit from a job at your company, your contracting company. Well, now you've sort of gone outside your legislative duties. It doesn't really have anything to do with the decision making process of a legislator. But that would pretty squarely fall under the code of ethics as engaging in conduct to benefit a family member using your state position. Although I think that that would be covered under governmental conduct, regulated by law, but maybe not. And if you're using your legislative, if you're saying I'm a legislator, you're using your legislative position, you're not outside of your, if I call up and say, I'm Jeanette White, and I'm calling somebody in Connecticut, and they don't have any idea who I am, then that would be outside of my, but if I call somebody up and say, I'm a legislator, and you should do this, that is within that is using your, your office in a in an inappropriate way. And I think that is already covered. But I may be wrong. Anyway, other, I see Pat has her hand up. Pat, are you there? I am here. Thank you very much, Madam Chair. Lots to talk about. As you were talking about making, keeping it simple and, you know, the 10, 10, 12 items, I was thinking that that's starting to make a lot of sense, but then kind of did full circle that key, the word uniformity to me means means everything. Because my, my personal position here is about Vermonters, and what, what they need in this process. And I think they need clear uniformity, clarity, what's what is it we're expecting of all three branches of their government? And where can they go to feel comfortable that their concerns will be heard? And I think right now, if I may with no with if it goes to the judiciary, I don't think there's that sense of comfort. If I was a Vermont or going to the judiciary to, to make a comment about somebody from the judiciary or the legislature, I think we're here to set the record straight for Vermonters. And somehow we're sort of losing that in this discussion. And so I take back my idea that maybe you are on the right track. I think it has a lot of merit, but it would create such chaos almost sort of where we are right now with everybody saying and doing different things. So making it having it enforced would be a real problem. But it's the people of Vermont that were that deserve some real clarity of what we expect and what they expect and where they can go to feel comfortable that they will be heard. That's just sort of where I'm at right now. Thank you. And I think the where they can go is the ethics commission. Exactly. And, and that's, I think that's always been clear. And that's underlying legislation. Yeah, and I think that's what they need. And I know having been in personnel for years, I've heard that more often than not, people who would like to go talk to somebody, because they're not even sure about whether what they are thinking is a conflict, they just need to talk to somebody. And what we were going on this bill was going to set that up for them, that they've got a clear definition of what conflict means and where can they go? Yeah, I think you're right. But I don't think it is a clear definition of conflict because there are the conflict is very different for attorneys and for people in the judiciary and for legislators. So it isn't this just this definition. So I don't think it's as different as we're making it out to be because we're coming up with and I'm doing the same thing to I'm sitting here. Well, what about this or what about that? I think it's, I think we're making it maybe a little bit more complicated because because I remember Jim Condos and Jim Greenwood. I talk about them at my show all the time when there was an issue for them on the Senate floor, they stood up and said, I'm recusing myself and they were, they were relentless and they said, I work for utility, I can't vote on this. And they would sit down and everybody would would respect their decision and move on. Since I've been there, that has not happened. Jim Condos would stand up and say, I believe I have a conflict of interest and the rest of the legislators would say it isn't any more of a conflict of interest than anybody else would have. I mean, you don't stand to gain any more than anybody else. And so you can proceed, but but it was there and they recognized it. So I think what you're doing with this bill is it's got to be uniform. It's got to be very and it's got to be clear and understandable. And I agree with you there. That's why I was sort of going off into taking a left hand turn there about the keeping it simple. But but this is not a simple issue. It's just complicated. It isn't. And I would hate to see if Jim Condos stood up and said, I believe I have a conflict because I work for Burlington Gas and Electric. And the other people said, you can go ahead, that he would have to then write down his reasons on this piece of paper and turn it in. But that's what it says here. And and so either if I may, that's that's almost to protect Jim and on those cases, because if it gets challenged later on, it's sort of protecting him and Jim Greenwood would do the same thing back back in the day. They were very good at that. Okay, but I just okay. You guys are on are on the right track with this bill and and we need to I hope it works out, but I think everybody's got to be included and and we'll deal with it as as it comes along. And I think your idea the other day of visiting the issue in a year from now, I think that was a good that was a good discussion. So I just want to ask Pat one more thing. How would you deal with the issue that Vince brought up? Because under this, he would not be allowed to leave his position as a state's attorney and become a defense attorney. Well, I think there's there's got to be some language that we can come up with to allow that. No, no, it's it's not because that's that was when I was working. That was an issue and they they've they resolved it because this is Vermont. There's not so many jobs for well there are these days, but there's not so many jobs. So you've got to open the door for people. I I realized that and that I think Anthony the Anthony's point about writing something and then having lots and lots and lots of exemptions right is not but that's what we would be doing here and and I think that Steve Howard had and Vince also had issues that weren't just the attorney issues but people in other positions in state government. The lobbying the lobbying issue is is an issue for that's all that I get that's already state law right that's already law. So Scott. Yes, thank you Senator White and Pat McDonald we've not met but your comments that you made a few minutes ago when you began speaking make me think that I didn't do a very good job on Friday describing the plans the programs that are in place within the judicial branch that that we feel should give people a high level of confidence about how we manage our affairs and I'd be happy to visit with you outside of the meeting to answer any questions you have or explain our processes more fully. The other thing I just wanted to recognize and Senator White I appreciate you a little while back bringing the conversation back to rooting it in what are constitutional principles and we've been discussing for the last few minutes the application of this version of a bill or that version of a bill but I just want to point out that the committee's apparent recognition that judges and lawyers judges are already exempted from the bill lawyers it sounds the committee is considering whether to add that language and we would advocate for that the the reason that's being considered is because the court under its existing constitutional authority has done what is required and put in place programs to govern the behavior of and discipline judges and lawyers we do the exact same thing under the exact same authority with the rest of our staff so I we can talk about judges we can talk about lawyers but then there's all of the other people who work within the judicial branch and we would argue that their identity is like that of the we have a code of conduct that they are bound to apply abide by it's embedded in our contract with the VSEA it's recognized as applicable uh and then the last thing I'll just say is follow up to mr. Jones comment it was a fruitful conversation that we had several of us on the judiciary side with with him and with miss sorette and we really appreciate their willingness to listen and their receptivity um and so just for the committee's for the record and so the committee knows we value that a great deal but mr. Jones I would also just point out when when we're talking about the hierarchy and the the relative the ranking of systems to to promote and govern ethical behavior one of the pieces is enforcement and again for the record we do have within the branch within the judicial branch enforcement mechanisms that cover everybody who falls under our umbrella and I don't want the committee to lose sight of that and I I I don't know that it's Mr. Kinsley his memo raises the point that the separation of powers issue really becomes only a potential issue when we're talking about enforcement I don't know that I necessarily agree with that and I think that what we're talking about here is putting into law codifying formalizing recognizing a role for the ethics commission that could make those conversations when it comes inevitably to issues of enforcement and what the limits are the enforcement powers of the of the executive branch relative to the other branches it complicates that conversation so even though this does feel difficult and encumbered this conversation I think it's important and I think it's helping to clarify issues and maybe just as importantly potential ways forward thank you I'm gonna go to Christina you're muted Christina sorry apologize so apologize before if I'm shaking my head understood to be rude I didn't mean to do that I just felt like we're going down a path there's maybe a misunderstanding in terms of the role of the commission and how that would play out in terms of attorneys so I think that one of the issues that came up when you're talking about attorneys was that there there's a duty to the client and that is definitely you know something that's front and center when it comes to the rules of professional conduct and then when we're looking at codes of conduct like the one that you show you currently has in their employee handbook we're looking at responsibilities to the employer and to the public and so there could be a complaint that comes in that overlaps but also they are at the same time very separate and so if a complaint were to come into the commission that was related to the code of conduct or the code of ethics and it applied only there then we would only be looking at it from that perspective if it's something that was related to the rules of professional responsibility then that's where the home for that would be so we're looking at kind of like different relationships set up there and I think TJ could also chime in here if Vermont were to exempt attorneys we'd be the only state in the country that did that it'd be a very unusual situation you know I'm an attorney it is very common to be covered by multiple codes of conduct including state codes of conduct and this is the codes of conduct for any and all of the bars which you are a member so I just wanted to make it clear that we are concerned about attorneys but I do think we came together in discussion and talked about what the different roles are there duty to client duty to employer duty to the public these are different things and we also did come up with wording I do understand that there's been some misinterpretation of the intent of the language regarding post-employment issues and so that was never intended to address attorneys who are leaving the state going to private practice going into becoming a criminal defense attorney when you've been a prosecutor obviously that's a very common situation so the intent and I don't believe in other states that have the same language it's interpreted that way but certainly we have come up with draft language that would cover that situation because when looking at it it seems that it is causing confusion and just in terms of we've done so much work so far just the past few weeks but I also think there's two years of work that's gone into this draft that we have now and that includes a long public comment period and so while I do understand the quest for simplicity I think it is important to recognize that we do have public comment for many many parties that are represented in this current draft and I do think that I think it's a group or a small and mighty group there is the tendency to deal with hypotheticals everything that could go wrong but if we were to just take this draft bring it to a bigger audience I think at this point ethics is in the news right now it's in the background but it's in the news and in the selection year I do think the voters and the public would appreciate really seeing where their representatives stand when it comes to ethics you know we could continue on the path that we're on now it's pretty it's been pretty intense but I do think we've come to you know more levels of agreement than not but I do think it would be a great idea if we could take this outside of where we are now and bring it to the next step which involves a bigger conversation with a bigger group of people the voters could see where legislators stand the members could show the voters where they stand on ethics and any changes that we think are truly required I mean they can this is one step they could be handled you know in the floor vote there's chances for amendment amendments when it goes to the house there's chances for changes but right now it just feels like we are kind of going back over issues we've discussed before and I do think that if we put a provision in the bill where we came back a year after this was enacted and looked at language changes that were necessary we would see that a lot of our fears haven't been realized but where they have been realized we can make those changes then and we'll also have the opportunity to see where training would resolve the problem versus changes in language thank you I'm going to jump to Mike and then I'm going to just make one one other comment and then unfortunately we have another issue that we're supposed to be dealing with at 315 but my I guess one of my comments would be that the larger conversation is with the General Assembly and with the Senate and I'm not sure that this would pass the Senate because they're going to have the 25 other people are going to have the same questions that we've had here and so I we need to have something that's going to pass and also pass 150 people in the House and then the so that's the larger audience and I just do have some concerns that if we pass even if we got this passed that there there are some things in here that will impact people in the once it becomes statute for example the representative representation restrictions the way I read that is no public servant can knowingly make with the intent to influence any communication or appearance before any entity of the state on behalf of any other person other than the state in connection with any investigation application request for ruling or determination rulemaking contract controversy claim charge accusation arrest quasi judicial judicial or other proceeding so somebody couldn't leave and then represent somebody in a permit application against the state or challenge a permit that was granted or not granted so this this if we pass this this could have an impact on people in the before we get a chance to to so I don't want to go into that right now because but I'm just afraid that if we pass it it will have impact on people that we are not anticipating and that that impact would last for a year unless the bill was until the bill was changed so that's just a comment so I'm going to go to Mike very quickly very quickly thank you I just wanted to add to your prior point I don't doubt that there are most states have separation of powers clauses in their constitutions what I don't know however is how many states actually have the more specific clause that Vermont has that is the Supreme Court is vested with the authority to discipline judicial officers and attorneys I think that's an important distinction from just a regular if you will separations of power separation of powers clause I'd also just point out that in the rules of professional conduct there's a very lengthy preamble that talks about a lawyer's professional responsibilities and duties and those duties are not limited to duties that lawyers owe to their clients the very first clause is a lawyer as a member of the legal profession is a representative of clients an officer of the legal system and a public citizen having special responsibility for the quality of justice it concludes many pages later as Terry mentioned lawyers play a vital role in the preservation of society the fulfillment of this role requires an understanding by lawyers of their relationship to our legal system the rules of professional conduct when properly applied serve to define that relationship we have we have been applying these rules for for many many years it's why I have a job and I think that further speaks to the point to the argument for exempting attorneys last I know you have to run but I love your discussion about coming up with just basic principles that in a way that's what I've done you know Terry mentioned that how long the rules are they're over almost 200 pages they're they're almost impossible for practicing lawyers to remember in the moment and to pat mcdonald's point they're almost impossible for a non lawyer to read and figure out what should I expect from my attorney so what I've done my job includes helping lawyers not to violate the rules so I do a lot of seminars I've asked lawyers to distill the rules the 200 pages down to five concepts we're going to be competent we're going to communicate with our clients we're going to maintain our client confidences we're going to avoid conflicts and we're going to be candid five five one word five single words that each begin with the letter c now to make it more catchy I added two more so that I now have the seven c's of legal ethics and I talk about sailing the seven c's of ethics and those are commingling because we are entrusted with other people's money we shouldn't commingle it with ours and civility which I think is sometimes lost and we need to remember that advocating for our clients doesn't mean we get to be in civil but I think that that's I raise this because it's doable to come up with these basic tenants because we've done it within the legal profession here so thank you thank you I'm going to suggest that we need to jump now but I'm putting this on the agenda for next month next Tuesday and what I'm going to do is because I have really strong you probably haven't guessed this but I have really strong feelings about this and you very a lot of concerns I'm going to have Anthony run the meeting is that okay Anthony sure okay so thank you thank you everybody and perhaps if we could everybody reread the the last everything we've gotten so far and I don't know if we got from TJ and the judiciary if we got if we got the language or if you have the language but whatever we have and figure out and then read the draft that we have before us and figure out where and how we would have to put in exemptions and then Anthony will run the meeting yes Senator Clarkson you're muted I'm trying so hard TJ you said you were going to send us something from NCSL or maybe you did and Gail just hasn't posted it although there is something from NCSL posted called privilege and immunity protecting the legislative process I don't think that's what you were talking about that's exactly what I'm talking about that's what NCSL uses to train legislators okay okay great so this is so I would encourage us to look at this too because I yes I have read that yeah I thought that was good me too okay I'm going to have us do we need to take just a five minute break that that would be great that'll put us only I apologize the sun is so lovely but I have to close my eyes sometimes because it is it's just fine you're going to not take a walk we're going to have a five minute break and you can take a walk afterwards okay