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J_LS_2023A 08/09/2023 02:02:50 PM Committee Summary

PUBLIC
STAFF SUMMARY OF MEETING
JOINT COMMITTEE COMMITTEE ON LEGAL SERVICES
Date 08/09/2023
Attendance
Dickson X
Gardner E
Mabrey X
Moreno X
Roberts X
Van Winkle X
Weissman X
Wilson X
Soper X
Gonzales X
Time 02:02:50 PM to 04:43:47 PM
Place SCR 357
This Meeting was called to order by Gonzales
This Report was prepared by Courtney Dunaway
Hearing Items Action Taken
Retention of counsel for pending and potential litigation. Committee Discussion Only
Selection of applicants to be interviewed for the position of Director of the OLLS Committee Discussion Only
Other business Committee Discussion Only

Retention of counsel for pending and potential litigation. - Committee Discussion Only
02:04:10 PM  
Jerry Barry, Office
of Legislative Legal Services (OLLS), explained that the committee has
been informed a lawsuit has been filed against the House of Representatives,
the Speaker of the House, the Senate, the Senate President, Representative
Marshall, Senator Bridges, Senator Hansen, and Andrew Lindinger, and that
the committee is to decide whether to appoint them counsel.


02:06:21 PM
 Motion I move the committee go into executive session pursuant to 24-6-402 (3)(a)(II), C.R.S., for the purpose of conducting attorney-client discussions regarding pending or imminent court action, specific claims or grievances, or for the purpose of receiving legal advice on specific legal questions related to a lawsuit recently filed in the Denver district court and retention of counsel to represent legislative defendants in the pending or potential litigation.
Moved Soper
Seconded
Dickson Yes
Gardner Yes
Mabrey Yes
Moreno Excused
Roberts Yes
Van Winkle Yes
Weissman Yes
Wilson Yes
Soper Yes
Gonzales Yes
YES: 9   NO: 0   EXC: 1   ABS:  0   FINAL ACTION:  PASS
02:07:44 PM  
Senator Gardner expressed
his opposition to the motion.
02:09:00 PM  
Representative Weissman
expressed support of the motion and his belief that the question fit squarely
within the statute.
02:10:49 PM  
Senator Gardner found
Representative Weissman's argument compelling and withdrew his opposition
to the motion.
02:11:38 PM  
The committee entered
executive session.
02:56:30 PM  
The committee returned
from executive session.
02:57:07 PM  
Representative Soper,
vice chair, asked what the precedence is for the committee to retain counsel
outside of the list of approved counsel maintained by the OLLS.
02:58:36 PM  
Jerry Barry, OLLS,
explained that the usual process is to select an attorney from the list
of approved counsel but that he is aware of at least one instance in the
past where someone requested counsel outside of the list and the committee
chose to retain them. So while it is unusual, it is not unprecedented.
02:59:59 PM  
Senator Roberts asked
Representative Marshall if he had consulted the list of approved counsel
and if not if he would like to review the list.
03:00:26 PM  
Representative Marshall
explained that no, he had not reviewed the list because he consulted with
attorneys in the sunshine community to find a specialist but that he is
open to reviewing the list though he doubts he will know any of the attorneys
on the list.
03:03:01 PM  
Senator Roberts asked
if Representative Marshall was aware that hiring separate counsel would
result in additional costs to the taxpayers.
03:03:25 PM  
Representative Marshall
explained that, yes, he was aware.
03:04:22 PM  
Senator Gardner brought
up that the committee needs to discuss counsel for the other defendants
as well.
03:05:31 PM  
Representative Weissman
expressed that it is the appropriate course for the committee to appoint
counsel to all the other defendants too.


03:07:00 PM
 Motion I move that the committee appoint Ed Ramey as the attorney to represent the House of Representatives, the Speaker of the House, the Senate, the Senate President, Senator Bridges, Senator Hansen, and Andrew Lindinger in the lawsuit filed in the Denver district court.
Moved Soper
Seconded
Dickson Yes
Gardner Yes
Mabrey Yes
Moreno Yes
Roberts Yes
Van Winkle Yes
Weissman Yes
Wilson Yes
Soper Yes
Gonzales Yes
YES: 10   NO: 0   EXC: 0   ABS:  0   FINAL ACTION:  PASS
03:08:38 PM  
Senator Gonzales,
chair, turned the discussion back to counsel for Representative Marshall.
03:08:56 PM  
Representative Weissman
explained his belief that nonconflicted, nondelayed representation is important
for all parties and stated that he is in favor of separate counsel for
Representative Marshall but wants to not set a precedent on the committee
for choosing attorneys outside of the approved list. He also stated that,
in this case only, he is supportive of retaining counsel outside the list
in the interest of the institution.
03:14:57 PM  
Senator Gardner explained
that he has consistently supported retaining counsel for members sued in
their official capacity but opposes appointing counsel for Representative
Marshall in this case.
03:20:15 PM  
Representative Soper,
vice chair, noted that there are many situations in which a person does
not get to choose their attorney and that he believes the committee should
stick to the approved list as part of the typical process.
03:22:52 PM  
Representative Weissman
expressed that he doesn't want to see the committee go down the road of
deciding when a member should or shouldn't be appointed counsel by the
committee when sued in their official capacity and that if anyone on the
committee believes the list of counsel isn't broad enough then the list
can be reopened again. He also stated that the committee should let all
legislators know how the retention of counsel process works as a reminder
in the future.
03:27:08 PM  
Representative Soper
explained that he will be a no vote on the motion because he believes the
committee should not establish a precedent to go outside of the approved
list.
03:28:57 PM  
Representative Soper,
vice chair, clarified that he does not intend to impugn anyone's motive.
03:29:25 PM  
Representative Mabrey
explained that because the counsel outside the list agreed to the same
rate of pay of the attorneys on the list, he doesn't share in the concerns.
03:30:15 PM  
Senator Gonzales,
chair, asked if there is a separate paralegal rate for attorneys on the
approved list.
03:30:55 PM  
Jerry Barry, OLLS,
explained that there is not a set paralegal rate and that he has seen counsel
on the approved list charge 100 dollars an hour for paralegal work.
03:31:15 PM  
Senator Gonzales,
chair, requested that there be a differentiation in paralegal rate in the
future.
03:31:31 PM  
Senator Roberts explained
that he doesn't know if the committee is prepared to vote on the motion
today until they have further information.
03:32:48 PM  
Representative Weissman
explained that his understanding is that the hourly rate stands as it is
and that any paralegal rate or other is the business of the practice how
it decides to set that pay.
03:34:15 PM  
Jerry Barry, OLLS,
agreed that the 250 dollars is the cap on all hourly rates but that the
attorneys on the approved list have also charged less for paralegal work.
03:34:51 PM  
Senator Roberts explains
that because they just received the information of Representative Marshall's
choice of counsel this morning, he needs more time.
03:35:56 PM  
Representative Weissman
explained that the 250 dollars operates as a ceiling rather than a floor.
03:37:02 PM  
Jerry Barry, OLLS,
agreed.
03:37:09 PM  
Senator Moreno asked
if they can include in the motion that they will pay the same hourly rate
to any attorney retained as those on the approved list.
03:38:40 PM  
Senator Gardner pointed
out that he believes the motion does not include paralegal rate which concerns
him.
03:39:48 PM  
Senator Moreno explained
that the motion includes all who are working with the outside counsel including
paralegals.
03:40:05 PM  
Senator Gonzales,
chair, agreed.
03:40:31 PM  
Senator Roberts asked
if Representative Marshall wants to review the approved list.
03:41:03 PM  
Representative Marshall
stated that he is more than willing to look at the list but in the interest
of time would like to have an attorney retained as soon as possible.
03:42:32 PM  
Senator Roberts asked
Jerry Barry if Representative Marshall was informed of the list.
03:42:50 PM  
Jerry Barry, OLLS,
explained that Representative Marshall was not sent the list but may have
been aware of it in communications with Sharon Eubanks.
03:43:26 PM  
Senator Roberts asked
Representative Marshall again why he didn't review the list.
03:43:38 PM  
Representative Marshall
explained that he knew the list existed but immediately went to his contacts
in the sunshine law field to find a specialist and that he favors having
an attorney referred to him by someone he knows and trusts.
03:45:17 PM  
Senator Roberts explained
that the difference in deciding on if Representative Marshall should have
his own attorney compared to a different scenario is that this attorney
will be paid for by the state of Colorado.
03:45:36 PM  
Senator Gonzales,
chair, explained that she wants to give Representative Marshall a chance
to review the list.
03:46:55 PM  
Representative Marshall
explained that it's a concern to him that the attorneys on the list are
a tight-knit community.
03:48:09 PM  
Senator Gonzales,
chair, explained that from her perspective the issue is not about forcing
anything or making assumptions.
03:49:37 PM  
Representative Marshall
asked at what level he is expected to review the list.
03:50:30 PM  
Representative Weissman
explained that it may only take a few minutes to review the attorneys'
websites and that staff will then inquire of their availability and suggested
that the committee should be quick about appointing counsel after Representative
Marshall reviews the list by being polled early next week.
03:54:06 PM  
Jerry Barry, OLLS,
explained that the usual process is for staff to contact the attorneys
to see who is available and then will inform Representative Marshall which
of them are options and then poll the committee after.
03:55:38 PM  
Senator Gonzales,
chair, asked about the timeline.
03:55:55 PM  
Jerry Barry, OLLS,
explained that he will work on it as soon as possible.
03:56:16 PM  
Senator Gonzales
asked Representative Marshall if that was an okay solution.
03:56:33 PM  
Representative Marshall
explained that, yes, it is.
03:57:35 PM  
Senator Gonzales,
chair, explained that the committee will proceed with that process.
03:58:27 PM  
Jerry Barry, OLLS,
brought up a separate point, asking the committee to approve the OLLS to
be retained on behalf of any legislatuve defendant in any potential action
against the Blue Book later this year.
04:00:29 PM  
Representative Soper
asked a clarifying question about if it will be the OLLS or outside counsel
retained.
04:00:56 PM  
Jerry Barry, OLLS,
explained that it will be the OLLS retained as counsel, not outside counsel.


04:01:53 PM
 Motion I move to authorize the Office of Legislative Legal Services to represent the legislative defendants if there is a lawsuit against the Blue Book later this year.
Moved Soper
Seconded
Dickson
Gardner
Mabrey
Moreno
Roberts
Van Winkle
Weissman
Wilson
Soper
Gonzales
YES: 0   NO: 0   EXC: 0   ABS:  0   FINAL ACTION:  Pass Without Objection
04:04:06 PM  
The committee took
five
04:11:19 PM  
The committee returned



Selection of applicants to be interviewed for the position of Director of the OLLS - Committee Discussion Only
04:11:36 PM  
Senator Gonzales,
chair, reviewed the agenda item and asked the vice chair to make a motion
to enter into executive session to discuss applicants to be interviewed.


04:12:00 PM
 Motion I move the committee go into executive session in accordance with section 24-6-402 (3)(a)(III), C.R.S., for the purposes of conducting a discussion on matters required to be kept confidential by section 24-72-204 (3)(a) and (11)(a), C.R.S., that denies the right to inspect records submitted by or on behalf of an applicant or candidate for an executive position, with a state agency, who is not a finalist.
Moved Soper
Seconded
Dickson
Gardner Excused
Mabrey
Moreno Excused
Roberts
Van Winkle
Weissman
Wilson
Soper
Gonzales
YES: 0   NO: 0   EXC: 2   ABS:  0   FINAL ACTION:  Pass Without Objection
04:12:54 PM  
The committee entered
executive session.
04:30:03 PM  
The committee returned
from executive session.


04:30:39 PM
 Motion I move the committee invite candidates 3, 5, 6, and 7, to be interviewed on August 22nd in-person by the committee.
Moved Soper
Seconded
Dickson
Gardner Excused
Mabrey
Moreno Excused
Roberts
Van Winkle
Weissman
Wilson
Soper
Gonzales
YES: 0   NO: 0   EXC: 2   ABS:  0   FINAL ACTION:  Pass Without Objection
04:31:48 PM  
Representative Weissman
asked the committee if they could illicit input from staff of the OLLS
on what they'd like to see in a director through an appropriate, anonymous
survey before August 22nd.
04:34:47 PM  
Jerry Barry, OLLS,
said that he is happy to meet with Mr. FitzSimons of the Office of Legislative
Workplace Relations to see if he can create a survey if the committee decides
they want that.
04:35:22 PM  
Jennifer Gilroy,
OLLS, asked a clarifying question on the survey on if it would just include
particular qualities.
04:35:43 PM  
Representative Weissman
explained that the survey would not have personality specifics in order
to remain neutral.
04:36:57 PM  
Representative Wilson
explained that he believes it is the candidates' responsibility to form
relationships in the office and that the survey may be skewed.
04:38:02 PM  
Representative Soper,
vice chair, agreed.
04:39:49 PM  
Representative Weissman
agreed and explained that he doesn't want the survey to turn into a competition
so rescinded the idea.



Other business - Committee Discussion Only
04:43:32 PM  
No other business.


04:43:47 PM   The committee adjourned.






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