The Legislature's ethics rules are 12 years old, critics say it's time for an update

by Maggie Mullen, WyoFile.com

Wendy Volk thought long and hard about filing an ethics complaint against a Laramie County senator after she said the lawmaker effectively sent a social media mob her way in August 2021. 

The incident began when the lawmaker posted to her professional social media page, questioning her status as a longtime Republican and asking why the Republican Party hadn’t done something sooner to take her out, Volk recounted. In the lawmaker’s online attack, Volk said, he referenced her many years of testifying at the Legislature. 

Soon, Volk said, the post attracted 78 other people who piled on with comments. The Cheyenne Realtor received threats via email. Some attacked her personally, others went after her family. Volk filed a police report. But she did not file a complaint with the Legislature, she told a legislative subcommittee last week without naming the lawmaker.

“I did not feel comfortable filing an ethics complaint when I looked at what our current rules are,” Volk said, adding that it appeared that social media posting was not covered. 

The rule that outlines the formal process for dealing with lawmaker misconduct falls short in Volk’s opinion. Several lawmakers agree, especially given the rise of social media and incivility since the rule was adopted over a decade ago. It’s now up to the newly created Subcommittee on Legislator Ethics Complaint Procedure to consider how to improve the process. 

“Saying that we should govern [legislators] for their behavior in their official capacity kind of makes sense as a first point of discussion,” Sen. Chris Rothfuss (D-Laramie) said during the subcommittee’s first meeting Thursday. “But then as you start to think about, ‘Well, what is and isn’t appropriate for us to govern of a duly-elected official that’s representing their constituents in a way that they see best? Where do we draw that line?’ is an interesting question. And there is no clear answer.”

Rothfuss sits on the subcommittee with Sen. Eric Barlow (R-Gillette) and Reps. Mike Yin (D-Jackson) and Dan Zwonitzer (R-Cheyenne). Sen. Tara Nethercott (R-Cheyenne) and Rep. Clark Stith (R-Rock Springs) co-chair the subcommittee. Several of the panel’s members have first-hand experience with harassment and incivility, including Nethercott who was on the receiving end of an obscene email from a Park County Republican official suggesting she should end her life.

Lawmakers did not come to a consensus during the meeting, but directed the staff to draft a revised rule that takes their discussion into consideration. The subcommittee’s next meeting has not yet been scheduled.

History 

Up until 2011, the Legislature had no procedure specifically defined for ethics complaints, according to a Legislative Service Office memo. It was a complaint filed against the late Rep. Sue Wallis in 2010 — which leadership ultimately dismissed — that spurred lawmakers to devise a formal process, known as Joint Rule 22-1. 

“The unfortunate reality of being involved in today’s political system is that there are those who would use ethics challenges as a tool to advance their political interests,” then-House Majority Floor Leader Tom Lubnau told lawmakers as they debated the rule’s initial adoption. “On the other hand, this body should take ethics violations very seriously. Currently, we have no rules to address ethical violations. Joint Rule 22 attempts to strike a balance between quickly addressing spurious claims while at the same time addressing serious claims.”

The rule hasn’t been changed since then. Complaints must be written, signed and submitted to either the Speaker of the House or the Senate President. Once received, a copy of the complaint must be provided to the accused member. 

From there, several things can occur. Complaints filed for “political purposes” can be dismissed at leadership’s discretion, according to the rule. Leadership may also “dismiss any complaint which on its face appears to be frivolous or submitted for any improper purpose,” so long as the decision is made in consultation with the majority and minority floor leaders. If the complaint isn’t initially dismissed, leadership must forward it to its respective members of Management Council, the governing body of the Legislature, to determine if there is “probable cause” to begin an investigation. 

These deliberations must be made in executive session while “all records, findings and proceedings of the review shall be confidential.” 

When the rule was first up for debate in 2011, lawmakers said such confidentiality was needed “to avoid unnecessary attention on salacious and baseless allegations that lack probable cause,” according to a LSO memo.

The complaint, however, becomes public if members of the Management Council determine there’s probable cause. At that point, an investigative committee is formed to hold public proceedings. No complaint, however, has ever reached that juncture in the 12 years that the rule has been in effect. 

While the rule has traditionally been adopted by both chambers, the Senate voted to drop it during the most recent legislative session due to concerns that it hampered the process more than it helped. (That decision, in turn, prompted the creation of the subcommittee.) Without the rule in place, complaints filed against a member of the Senate would currently be handled according to a constitutional provision that gives leadership the ability to decide on complaints.

Discussion

Notably, the rule is limited to misconduct involving “legislative duties,” such as a violation of the state’s conflict of interest or ethics and disclosure laws, or “violence or disorderly conduct during legislative meetings, sessions or during the performance of legislative duties.”

That narrow scope is a problem for the two members of the public who spoke at the meeting — Volk and Marguerite Herman, a Cheyenne resident with the League of Women Voters. 

It’s not clear what kind of behavior or conduct counts under the rule, Herman said, but explicitly broadening it might be helpful. 

“It’s a different world than it was just 12 years ago,” Herman said. 

The subcommittee shared a similar sticking point. The discussion turned philosophical at times as lawmakers considered where “legislative duties” begin and end. Does that include speaking to constituents or wearing one’s legislative nametag in a public setting? Or is it confined to the session and committee meetings? 

“The suggestion that we expand the scope of legislative duties to anything under color of legislative authority, to me … would greatly broaden the rule and would effectively encompass anything that any of us do,” Stith said. 

Expanding the rule to include something like social media posting, Stith said, could “lead to a proliferation of the Ethics Committee and it would become a much larger, more full-time committee.”

The rule is structured to work reasonably well for a case where there is a clear violation of ethics law or the constitution, Rothfuss said. But in his 12 years in the Legislature — much of which has included serving on Management Council — most ethics complaints have been along the lines of what Volk described, where a complaint involves perceived bad behavior instead of something like an incriminating financial gain. 

As written, the rule doesn’t really provide a process for those more common complaints, Rothfuss said.

“Maybe it shouldn’t. And maybe it should,” Rothfuss said. Drawing “the line for circumstances where there’s a clear transgression of statute,” is much easier, Rothfuss said, then “for circumstances where we don’t collectively like a specific behavior very well. What do we do? And how far should we be able to go and what’s an appropriate process?”

The subcommittee also discussed how to handle confidentiality moving forward with a revised rule as well as how to address potential power imbalances between lawmakers and members of the public or conflicts of interest. As written, the rule does not completely tackle recusal in the case that a complaint is wedged against a lawmaker in a position to decide the merits of the complaint. Additionally, the subcommittee debated, what if anything, should be done to give the body the ability to address complaints outside of session. 

“We are a part-time citizen legislature,” Nethercott said. “So we’re not here to be an HR team all the time. These are elected officials that the people have duly elected to represent them, as opposed to some other type of employment situation. So it’s a pretty hard balance to strike.”

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