 Welcome back to Senate government operations. It is still Friday, April 2nd, and we're going to spend some time discussing age 135, which is a draft of a bill to deal with some changes to the Vermont Ethics Commission. It's not the code of ethics itself, but it's more the operations of the commission. Larry Novens from the Ethics Commission is here with us, and Emmer Abajali is going to go through the bill with us from the legislative council. So Emmer, do you want to walk us through the bill? Draft 1.4. Yes. So as you may recall about two weeks ago, I did a walkthrough of age 135 as passed by the house. There were three changes that the committee requested. As you'll see, there was a variety of just as a refresher. These are changes to the State Ethics Commission statutory provisions under chapter 31 of Title III. This, as the vice chair mentioned, does not include any of the proposed state code of ethics language. This is simply about the operation of the State Ethics Commission. So the version that you're seeing right now is a strike all amendment to age 135 as passed by the house. However, the only changes from the as passed by the house version are the changes that are highlighted in yellow in draft 1.4. So I will walk you through those. So beginning in section one, section 1211, executive officers annual disclosure. You may recall there was a conversation and a concern about using the phrase the previous calendar year as for some executive officers who are appointed midyear may not understand that the request is for the previous 12 months and might think that the request is for a January to December. And so the request was to make a change by striking calendar year and putting in 12 months instead. Mr. Vice Chair, should I pause for any questions or comments after each revision? I would pause just very, very briefly because these are pretty basic changes. Okay, all right. If anybody has questions chime in when we're there. Okay. So the next change is all the way down on page 11, I believe. And this is the section where the committee spent a fair amount of time hearing testimony and discussing the provision of guidance and issuance of advisory opinions to individuals that are or will be subject to this chapter. There was a concern as I understand it about the language within H-135 as passed by the house that someone could either a future executive director or future commission members could interpret subsection A-1 as permitting the commission or the executive director to provide guidance to either someone other than someone who is or will be subject to the provisions of this chapter. Or that the, I guess the commission could proactively provide guidance even if someone does not ask for it or on a subject matter that doesn't relate to that person's specific duties. And that concern was also raised with regard to subdivision B on page 12 regarding advisory opinions. The, there was if I recall a little bit of confusion and then clarification about what is an advisory opinion and what is guidance. Guidance is the document that is issued to a specific person about their duties. The advisory opinions are those, the issuance of an advisory opinion that is then later posted to the State Ethics Commission's website. So just as some background there. No, you're right. You're right. We were definitely confused about that. I think some of us thought the opposite was true. That we thought that guidance was an advisory opinion and advisory opinion was guidance. So we were definitely, we were confused or we were still learning which was which. Yes. And myself included in that. So that was a very helpful clarification during the discussion. So the request from the committee was that I insert the word only around the guidance piece so that the executive director may provide guidance only to a person who is or will be subject to the provisions of this chapter upon his or her request with respect to that person's duties regarding any provision of this chapter or regarding any other issue related to governmental ethics. For the advisory opinions down in subsection B after reviewing the language in here as written which is on the written request of a person who is or will be subject to the provisions of this sub chapter the executive director may issue an advisory opinion to that person that provides general advice or interpretation with respect to that person's duties et cetera. And I believe the committee felt that that language was more a little more specific perhaps than in subsection A and did not need the word only. So I wanted to provide an alternative option for the committee to address what I believe is the concern which is that someone will interpret these sections to say that because the language says the executive director may someone may interpret that to say, well, it doesn't say I can't provide guidance or issue an advisory opinion to someone else. And so I in case the committee found that inserting the word only was not sufficient to address that concern or the possibility of that misinterpretation or misapplication of this provision. I provided you with some alternate language which is also posted. I will give people a moment to pull that up if they haven't already. Does everyone see the other document that I submitted to Gail? I'm seeing some nods, okay. So this would instead of inserting the word only or I suppose you could in addition to inserting the word only provide a new subsection C which states the executive director shall not provide guidance or issue advisory opinions in circumstances other than those specified in that section. And I felt that sort of encapsulated what the intent was that the committee was looking for but the committee did request that I use the word only in that subsection A. So that is how I did the initial draft. I did talk through this language with executive director Novens. Am I saying your last name correctly, Larry? Novens. Novens, okay, thank you. I'm glad I asked with director Novens. He had some concerns about using the word or having the word only in there as it's placed. I won't get into those because I think you probably explained his concerns much better than I can. And he also had some concerns about the alternate language that I proposed but this is the, I wanted to give you what you requested which is the only put into that subsection A and then an alternative that I thought might also address the concerns that were raised by the committee the last section. Maybe we should ask Larry what he's thinking. Larry, what's your response? Well, let me go through them one by one, if I may. The first change to 12-11 to 12 months, we're fine with that. And then, well, we have gotten to the change about the hiring position but we're okay with that as well. With regard to this section, I think the language, the quote, alternative or alternate language is going to create some problems for us. And I think the problem that I see is it sounds unduly restrictive. We have a duty when we get calls, people call us and they ask us about ethics things and it may or may not fall within the bailiwork of the Ethics Commission. Now, if I get a call from somebody in municipality or something else and they call me and say, what do I do? Where can I go? And I can sort of point them in the right direction and I'm worried that the language that the only guidance I could ever give would be limited to those specified in the chapter would make that very confusing and deter people from contacting us. My thought is in section B, our advisory opinions is clear that if however you wanted to put an only in there, you could put an only at the very beginning so that B1 might say only on the written request of a person who is or will be subject to the provisions of this chapter, that would take care of your concerns. I have thought from the beginning that it was clear and it didn't need any extra clarification, but if you feel that it does, I would recommend just putting the word only at the beginning, not at the end. I don't think there's a risk of the executive director issuing a guidance or an advisory opinion to someone else just because it says may. The way I read the statute and I think this is consistent with normal statutory interpretation is the ethics commission has only the authority that you've given us. And if you give the executive director authority to issue advisory opinions to people within state government, that's the only authority I have. I don't have authority to issue an advisory opinion to anyone outside. So in my mind, it's clear already if you need to double underline it, double underscore it and wanna put it only at the beginning of section B. I don't think it's necessary, but I don't think it harms us. What I am concerned about is that the quote alternative language would deter people from contacting us. It would make it more difficult for me to assist other people. If I get a call from somebody and they say, well, I have a question about something that relates to me in my town or I'm on a board for the state and I've got this issue. I feel that I would be hampered in my ability to say, well, you know what? You might wanna go talk to legislative council or you might wanna read the governor's executive order or you might wanna go someplace else to look for resources. And that language about under circumstances other than those specified in this section, I think is really, really restrictive. And not necessary. Senator Clarkson, I actually have a quick clarification first before you're talking, what only appears in section A under the guidance. That's where Amron put only. And now you're saying to put it in addition to put it in. No, I don't think it's necessary at all. But if for some reason you felt you had to, you know, double underline it, then that would be the place to put the word. I don't believe it's necessary. But you're saying I'm just being turned to be clear. You don't think it's necessary in either way. I'm saying, I'm presenting that it might be, might be necessary in both places. I don't think, well, let me talk about the advisory opinion first because I don't have an issue with the guidance. The thing about the advisory opinion is the only way somebody can get one is to write to us to put it in writing. And it's clear under section B that the written request has to come from a person who is or will be subject to the provisions of the code. So that's very limiting language. Guidance doesn't have that kind of limiting language. Anybody can call me and ask me for guidance. But in terms of issuing an advisory opinion, the only way I can ever do that is if I get it in writing from someone who is or will be subject to the provisions of the ethics code. So I think it's very, I think it's very clear and very limited already. Senator Clarkson, I didn't mean to interrupt you before. I'm sorry? Senator Clarkson, I interrupted her before. No, you didn't. You didn't, I just had a question, which is, first of all, I think, I wouldn't want to do anything to limit your ability to be a resource to a town to whomever was wanting to seek guidance from the ethics commission. So I wouldn't want to do anything here that limited your ability to give that. And I can't remember how we ever got into the only discussion. Why are we, if Larry is recommending that we do nothing to change it, why are we bothering? I think Senator Collin more remembers. You're hoping anyway. And I think I do. And I still have an issue. So let me open H-135, the 4.1 draft. So line 10, on the written request of a person who is or will be subject to the provisions of the chapter, the executive director, et cetera, et cetera, may issue an advisory opinion to that person, but it doesn't say that you can't issue it to somebody else. And I think that was the original problem that we foresaw. We understand that only by someone asking for it is that trigger to issue the guide or the advisory opinion, but it doesn't limit you from issuing it to anyone besides that person. At least the way I'm reading that, Larry. Can I respond to that? The original language of the statute, and this is where I think the ethics commission got off the rails, there was no limitation on who could ask for and receive an advisory opinion. It was our suggestion to remodify our own policies to make that limitation very clear. So we added the language, the limiting language opinion to that person. We added the language with respect to that person's duties to make it very clear that this is not available to anyone else other than individuals asking about themselves. And that was the whole purpose for bringing that in. I mean, we could have just left it blank and not address the issue, but after the debacle, regarding the advisory opinion, it certainly seemed to the ethics commission that our policy needed to be changed and we made that change. And then we thought it would be best to mirror that policy change in the statute to make it clear to everyone else that that limitation is not only our choice, but that we have your confirmation on it. So that was the reason for doing that. And I don't think by any stretch of the imagination, it leaves open any ability to grant an advisory opinion to someone else. Again, we have limited authority. We have only what you give us. And if you give us authority to issue an advisory opinion to the person who asks for it about their conduct, that's the end of it and we can't go anywhere else. So if you're convinced that that sentence means opinion to that person and that that in fact makes it exclusionary, I guess I'm okay with it. Oh, I'm absolutely confident of it. And that's why we suggested that language to make it very clear to the world that the kind of thing that happened two and a half years ago won't happen again. Understood. Okay. And I guess I would ask Amron if, well, you're the little there is still there too. I'm just trying to make it as tight as possible so that nobody else can get it. But Larry is seemingly convinced that that phrase makes it exclusionary that only that person may be the recipient of the advisory opinion. And if you're okay with that, Amron, I am too. Before Amron speaks, I thought that advisory opinions were gonna be posted. They would be, yes. So they're basically available to everybody? No, anybody can read them, but nobody can ask for one. Okay. That's the difference. They are public records, but if Senator Polina, if you were to ask me for advisory opinion, as opposed to guidance, we would issue a written document that would be directed, it would answer your question. Anyone else could see what we said. Okay. So, Amron, are we okay? Thank you. So Larry and I had much conversation about these two sections and how they would be interpreted. And so, I wanna say, I agree with Director Novens that statutory interpretation for these sections where the legislature is granting authorization for the commission to perform an action that that means that the legislature is only authorizing that action. It is not, and that people should not be interpreting this as you say, you may do something, but you don't say, I can't do something. So that means I can do the thing that you didn't even mention. I think that is standard statutory interpretation. However, my understanding from the committee was that as Director Novens put it, there may be some interest in sort of a double underline, right, given the history of what has happened with advisory opinions in the past. I think that it's really up to the committee to determine whether they think this will be misinterpreted in a way that it has been in the past with language that certainly was less specific than it is now in its revised version. So, and I believe Senator White pointed out last time, over time you will have different executive directors, you will have different commission members. And so I think it's really a question for the committee whether you feel like a double underline is necessary. I think Director Novens is correct that from a statutory interpretation perspective, the language as is sufficient, but it's whether you want the double underline and how you wanna do that. Senator Collin Moore, sorry, Senator Collin Moore and Senator Clarkson. Thank you Senator. So I guess if I could use the oft used expression, belts and suspenders, is that what you're suggesting here? And if it is, I guess I'm fine, but Larry has made me feel a lot better. And I'll just say, I don't have a strong feeling either way if we wanna begin that sentence with the word only, I guess I'm fine, but if it's no more than belts and suspenders, then maybe we don't need to. Senator Clarkson. I'd leave it as it is. I think Larry's given me confidence that it's fine the way it's written now. And I think I'm going to channel my inner Frank Lloyd Wright, less is more. Senator Rom, do you ever thought about this at all? I don't need to put you out of the spot. Yeah, no, I mean, I just, I think overall between the lines, I would say it's better not to give people the false impression that we're doing a whole lot in this area if it's not warranted or needed. I don't wanna, you know, if we're not really debating a substantive change to our ethics code, and it's a lot to act like we are on the floor, sort of bring it to people's attention in that way. Well, I kind of feel the same way that Senator Collamore said in others that if it's not necessary, then we probably should not bother doing it. I agree that what you said originally, Larry, that the alternative language with all due respect to Amran, that did seem kind of tight, that alternative language seemed limiting. I don't have a strong feeling about the only, I have nothing against putting the only there, but if others don't think it's necessary, then I would say not to. Are we saying not to put it in either one? Not to put it in the guidance or the? Just the second one. Right. Keep it in the guidance. Yeah. Okay, Amran, is that okay? I'm sorry. Go ahead. Yes, I was gonna say, oh, I'm sorry, who's going ahead? Well, Larry, what's up? Thank you. The difference, you know, guidance only to the person, guidance is confidential anyway. Right. I don't think, again, I didn't feel the only was necessary. I don't think it hurts at all. If I may echo your concern, Senator Polina a little bit, I think the fewer changes there are to this bill, the fewer problems, they'll be down the road. And I'd like to keep it as close to what the house sent over as possible. Sure. Amran, did you have something? I just wanted to add that I'm fine in whichever direction the committee would like to go. I think adding bootstraps is fine. I think the language as it is, is sufficient from a technical perspective. If you're not worried, there's going to be someone vastly misinterpreting it, which it seems like with all of the revisions that Director Novens has requested from the beginning have made the language much tighter. So I just wanted to be clear that I don't really have any preference in this area. I just wanted to provide the committee with what they were requesting after our last discussion. So I am happy to go in whichever direction you would like. Well, let's go in keeping it in the guidance but not putting it in the advisory opinion. Yeah, okay. And are there other things we need to do in terms of going through the bill then, Amran? Or is that basically it? There's one last change at the bottom. This was the language around adding a position. Me, let's roll back here. This is down on page 15 with a new section for creation of position within the state ethics commission, the executive director with the consent of the state ethics commission is authorized to establish one new part-time exempt administrative assistant position for the efficient administration of the commission. And I will say I drafted this language with the understanding that there does not need to be an appropriation for this fiscal year or for fiscal year 2022. So there is no language in here surrounding funding for the position. This would only create a position or authorize the creation of a position. Why is that? Why do we not have the appropriate money for it? That's it. Larry? Yeah, because during the first year, year and a half the ethics commission's existence they had extra money which is sitting in a reserve fund. And I think it's, if he's having $60,000 sitting in this reserve fund we still have access to and that's why we're not asking and don't need an appropriation at this time. Of course, some naysayers will say, well, you're gonna come back and ask us for the money next year. Well, we can deal with that next year. Senator Clarkson? Kick it down the road. But if we fund the position and have the position and fill it then for FY 2023 we would be asking for that extra money, yes. Sure. So my only concern is part-time. Do you want a half-time person? A three-quarters-time person, a quarter-time person. Part-time is very vague. Do you want a half-time person? I would say it. I'd be fine with half-time. Well, then I'd be specific about what you want because we're good at trying to get what you need and want. Yeah, let's say half-time then. I'm perfectly happy with that. It says part-time and that could be a quarter-time person. Right. Well, I mean, I don't know if it'll be possible to do it on less than half-time. But actually no more than half-time. Okay, then I would say a 0.5 FTE. Don't you guys agree? I mean, if you say- Yeah, I think that sounds good. And the House version obviously didn't have anything and didn't have this in at all. Correct. It had very vague language that the House Appropriations Committee took out at the end of the session after it left House government operations. Okay. I'm fine with it. You can make that change, Emory. Yes. So we're okay with this? Yeah. I think we're fine with the technical pieces. Right. I honestly think we should put off the discussion of the Code of Ethics itself until the chair is here. We could all have the conversation together. Does that make sense to people? I mean, that would be flexible, but it just makes sense to me to wait for everybody to be here. No. It's a pretty broad conversation. And if her baby, she'd want it. I mean, this is, yes. I tried her again and the phone, I think they have lost power. I mean, the phone is still wacky. Larry, is it sort of a job for you to rejoin us at another time? Or as long as I know enough in advance to be here, I can be here. So if she showed up in 20 minutes and you wanted somebody who wanted to give me a call, I would be happy to come back. More likely be next week or the week after. Just let me know. Yeah, it's not like it was a quick power outage. It doesn't look like it looks like it's enduring. Right. Yeah, I don't think it'll be today. Well, Larry, thanks a lot for being with us. Appreciate it. We'll be back in touch. Yeah, if I could just say... We'll finish up this bill soon and get it out. And then we'll do the Code of Ethics sometime in the near future. Great. I'll look forward to it. We're not privy to the schedule right now, but we'll be back in touch soon. Great, thank you very much. Thank you, Larry. Bye-bye. And we could, as by way of some homework, we should all take a read of 384, which Gannon introduced, but they didn't take up. That's the Code of Ethics? Yeah, I skimmed it this morning. And they just decided not to take it up, Amron, right? They decided to send it to us. Like, I mean, there was no particular political reason why they didn't do it, right? I don't know why, to be honest. I don't know why. By the time they were busy with things and then there was pensions, and it's been pensions ever since. So I'm not really sure as to the reasoning. Okay. And this is strictly a policy one, and it has made crossover anyway, right? Right. I mean, 135 has made crossover. So we have one... Oh, yes, 135 has, yes. We could put it in that. It could be a vehicle for this. Okay. I don't think it's dead in the water. I mean, I think we have... No, I don't think so either. Yeah. I think you can also be seen as something that we work on this year and come back and finish it up next session. We could, yep. Because that might be a big lift. We don't know how debatable it's gonna be. People are gonna be agreeable or not. But 135, if we want Larrity, is half-time person. We need to move on that. Right.