S.J.R. 2

1

JOINT RULES - ETHICS PROCEDURE
2 AMENDMENTS
3 2000 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: L. Steven Poulton
6 Leonard M. Blackham
7 Joseph L. Hull
Ed P. Mayne
Terry R. Spencer
Michael G. Waddoups

8 A JOINT RESOLUTION OF THE LEGISLATURE REVISING ETHICS COMMITTEE RULES
9 TO ALLOW A WAIVER OF CERTAIN PROCEDURES; SEPARATING THE DISCIPLINARY
10 PHASE OF AN ETHICS INQUIRY FROM THE PRELIMINARY INQUIRY PHASE WITH THE
11 SAME STANDARD OF PROOF IN A WAIVER; AND PROVIDING AN EFFECTIVE DATE.
12 This resolution affects legislative rules as follows:
13 AMENDS:
14 JR-16.04
15 ENACTS:
16 JR-16.07
17 Be it resolved by the Legislature of the state of Utah:
18 Section 1. JR-16.04 is amended to read:
19 JR-16.04. Rules of Procedure for the Senate and House Ethics Committees.
20 In hearing and processing all complaints, these rules govern the procedures to be followed
21 by the Senate and House Ethics Committees:
22 (1) (a) No information received by the committees concerning any alleged violation shall
23 be disclosed to the public until the member of the Senate or House charged in the violation has
24 received [the Statement of Alleged Violations] a Summary of the Preliminary Inquiry provided for
25 under Subsection (4).
26 (b) No meetings of the committees shall be open to the public except a disciplinary hearing
27 under [Subsection (6)] JR-16.07.

28 (2) (a) All complaints submitted to the committees shall be in writing. Each complaint
29 shall contain the following information:
30 (i) the name and address of the three Senators, if the respondent is a Senate member, or
31 three Representatives, if the respondent is a House member, who are filing the complaint, who
32 are the complainants;
33 (ii) the name and position or title of the person alleged to be in violation, who is the
34 respondent;
35 (iii) the nature of the alleged violation;
36 (iv) any facts alleged to support the complaint, and when facts are based upon the
37 information and belief of the complainants, the complaint shall state that and give the basis for the
38 information and belief; and
39 (v) all documents which support the complaint as an attachment to it.
40 (b) All complaints shall be filed directly with the President of the Senate, if the respondent
41 is a Senator, the Speaker of the House of Representatives, if the respondent is a Representative,
42 and with the appropriate ethics committee chairman.
43 (3) (a) Within five days after receipt of the complaint, the staff of the committees shall
44 examine each complaint to determine if it is in compliance with Subsection (2). If the complaint
45 is not in compliance, it shall be returned to the complainants with a copy of the legislative rules
46 on ethics. The complainants may resubmit the complaint. If the complaint is in compliance with
47 the rules, it shall be filed with the chairman and the co-chairman of the committee.
48 Every member of the committee shall be notified of the filing of the complaint and its
49 availability for inspection.
50 (b) Within 30 days after the complaint is filed, the chairman and co-chairman shall place
51 the complaint on the agenda for consideration at the next committee meeting with the
52 recommendation:
53 (i) that the complaint be considered; or
54 (ii) that the complaint be dismissed because it fails to allege facts which constitute a
55 violation.
56 (4) (a) At the next meeting of the committee, the committee shall determine whether the
57 alleged violation in the complaint is within the jurisdiction of the committee and whether the
58 complaint merits further inquiry. The complainants and respondent shall be notified, in writing,

59 of the action taken by the committee.
60 (b) If the committee determines that further investigation into the matter is merited, the
61 committee meeting shall become a preliminary inquiry to determine whether the violation
62 occurred. This preliminary inquiry is not open to the public.
63 (c) The chairman and the Director of the Office of Legislative Research and General
64 Counsel may require, by subpoena or otherwise, the attendance and testimony of witnesses and the
65 production of any materials the committee considers necessary to the inquiry.
66 (d) At the beginning of the preliminary inquiry, in order to expedite the committee's
67 investigation and to facilitate a proper resolution of the matter, the committee cochairs and the
68 respondent may agree in writing that the procedural requirements of JR-16.07 are waived.
69 [(d)] (e) In the preliminary inquiry, the following rules apply:
70 (i) Scope of Preliminary Inquiry. The scope of the preliminary inquiry is limited to the
71 alleged violations stated in the complaint.
72 (ii) Attendance of Respondent or Others.
73 (A) During the testimony and evidentiary stage of the preliminary inquiry, the respondent
74 and his counsel may be present.
75 (B) Only (Senate, House, or Joint) Ethics Committee members and its staff shall be present
76 during the other portions of the preliminary inquiry.
77 (iii) Evidence. Only relevant or material evidence is admissible in the hearing. The
78 chairman's determination of admissibility is final and may only be overruled by a majority vote of
79 the committee.
80 (iv) Record. A record shall be made which includes rulings of the chair, questions of the
81 committee and its staff, the testimony and responses of witnesses, sworn statements submitted to
82 the committee, relevant documents, and such other matters as the committee or its chairman may
83 direct.
84 Except for the official record, no camera or recording device may be brought in or used in
85 the preliminary inquiry.
86 (v) Committee Chairman.
87 (A) The committee chairman is vested with the power to direct the committee in the
88 preliminary inquiry.
89 (B) If a committee member objects to a decision of the chair, that member may appeal the

90 decision to the committee by stating: "I appeal the decision of the chair." This motion is
91 nondebatable. The chairman shall direct a roll call vote to determine if the committee membership
92 supports the decision of the chair. A majority vote of the committee is necessary to overrule the
93 decision of the chairman.
94 (C) The chairman may set time limitations on any part of the preliminary inquiry.
95 (vi) Testimony.
96 (A) At the direction of the committee chairman and co-chairman the committee may hear
97 the testimony of the complainants, the respondent, and witnesses.
98 (B) If a witness desires, the witness shall be permitted to make a brief opening statement.
99 (C) Examination of a witness shall be under the direction of the committee chairman.
100 After the witness's presentation, committee members shall question the witness, after which the
101 respondent shall be given an opportunity to question the witness. Further examination by the
102 committee, committee staff, or the respondent shall be as directed by the committee chairman.
103 (D) The witness's disobedience to the chairman's direction to answer a question constitutes
104 contempt. The chairman's direction may only be overruled by a vote of the majority of the
105 committee members present.
106 The object of the Fifth Amendment privilege not to incriminate oneself is so no criminal
107 action will be prosecuted. If a witness cannot be prosecuted for the crime to which his testimony
108 relates, it is improper for the witness to invoke the privilege.
109 (E) The committee chairman shall direct each witness to furnish any relevant book, paper,
110 affidavit, or other written evidence for the committee's consideration, which material the witness
111 has chosen to bring or the production of which has been required by subpoena duces tecum.
112 Unless overruled by a majority vote of the committee members present, disobedience to the
113 chairman's direction to produce such documents in response to a subpoena duces tecum constitutes
114 a contempt.
115 (F) A witness may be allowed to insert in the record sworn written statements of
116 reasonable length relevant to the purpose, subject matter, and scope of the investigation.
117 (G) Unless otherwise directed by committee, all witnesses shall testify under oath.
118 (H) Legislative General Counsel shall administer the oath to each witness.
119 (vii) Response of Respondent. The respondent shall be given an opportunity to respond,
120 orally or in writing, to the allegations stated in the complaint.

121 (viii) Advice of Counsel.
122 (A) Any witness testifying before the committee may have his counsel present.
123 (B) When the committee seeks factual testimony within the personal knowledge of the
124 witness, such testimony and answers should be given by the witness himself and not suggested to
125 the witness by counsel. Counsel for a witness should not advise the witness during the witness's
126 testimony, except when specifically requested by the witness.
127 (C) The participation of counsel at a hearing and while a witness is testifying is limited to
128 advising the witness of his legal rights. Counsel shall not be permitted to address the committee,
129 ask questions of any witness, or engage in oral arguments with the committee, but must confine
130 his activity exclusively to private conversations of legal advice to his client. Counsel's failure to
131 abide by these rules is grounds for counsel's exclusion from the preliminary inquiry.
132 (ix) Contempt. A majority of the members of the committee may compel obedience to the
133 requirements of the committee by way of contempt proceedings begun by application to a state
134 district court as to any person who:
135 (A) fails to comply with a subpoena or a subpoena duces tecum;
136 (B) refuses to answer a question relevant to the investigation which does not infringe on
137 his constitutional rights; or
138 (C) is guilty of contempt on any other grounds specified in statute or recognized at
139 common law.
140 (x) Interested Persons. Upon consent of a majority of its members, the (Senate, House,
141 or Joint) Ethics Committee may permit any person, not compelled or invited, to appear and testify
142 at a hearing or submit a sworn written statement of facts or other documentary evidence for
143 incorporation into the record.
144 (xi) Subpoena Power. At the direction of a majority of the committee, the committee
145 chairman may direct staff to issue subpoenas to direct the attendance of witnesses and to issue
146 subpoena duces tecum to direct the production of documents.
147 (xii) Release of Testimony. The release of any testimony or other evidence presented at
148 a closed hearing and the form and manner of such release shall be by a majority vote of all
149 members of the committee. Committee members and its staff shall not publicly disclose any other
150 part of the preliminary inquiry.
151 (xiii) Continuance of Preliminary Inquiry. If a majority of the committee determines that

152 further evidence and testimony are necessary, they may adjourn and continue the preliminary
153 inquiry hearing to a future date, which date shall be established by a majority of the committee.
154 (xiv) Burden of Proof.
155 (A) If, at the conclusion of the preliminary inquiry in which the procedural requirements
156 of JR-16.07 are not waived, the committee determines, by a preponderance of the evidence, that
157 there is reason to believe the alleged violation of the Code of Official Conduct did occur, the
158 committee shall direct staff to prepare a Summary of the Preliminary Inquiry.
159 (B) If, at the conclusion of the preliminary inquiry in which the procedural requirements
160 of JR-16.07 are waived, the committee determines, by h [ clear and convincing ] A PREPONDERANCE
160a OF THE h evidence, that there
161 is reason to believe the alleged violation of the Code of Official Conduct did occur, the committee
162 shall direct staff to prepare a Summary of the Preliminary Inquiry.
163 [(xv) Special Prosecutor. If an ethics probe goes beyond the preliminary inquiry stage, the
164 Senate or House Ethics Committee shall direct the chairman to appoint a special prosecutor. This
165 special prosecutor shall be paid by the Senate if it is a Senate Ethics Committee or the House if
166 it is a House Ethics Committee. The special prosecutor shall prepare the Statement of Alleged
167 Violation from the summary prepared by the committee staff. The special prosecutor is also
168 responsible for prosecuting the respondent in the disciplinary hearing.]
169 [(xvi)] (xv) Voting. If the committee is unable to achieve a majority vote directing further
170 proceedings against the respondent, this constitutes a dismissal of the complaint.
171 [(xvii)] (xvi) Announcement of Committee's Decision. At the conclusion of the
172 committee's deliberations in the preliminary inquiry, when a decision has been reached, the
173 respondent and his counsel shall be invited into the committee room to hear the committee's
174 decision, which shall be written as a Summary of the Preliminary Inquiry.
175 [(e)] (f) At the completion of the preliminary inquiry, the staff of the committee shall keep
176 a file containing a comprehensive summary of the inquiry.
177 [(f) If the committee determines that there is reason to believe the alleged violation did
178 occur, the committee shall direct the special prosecutor to transmit to the respondent and to the
179 complainants a copy of the Statement of Alleged Violation. The statement shall be divided into
180 counts. Each count shall allege a separate violation, and the facts which support each count.]
181 [(5) (a) The respondent has 30 days from receipt of the Statement of Alleged Violation to
182 respond. The response shall be in writing and shall be signed by the respondent or the respondent's

183 counsel. The response shall be limited to the following:]
184 [(i) an admission or denial of each count, under oath, with any supportive evidence or
185 relevant information;]
186 [(ii) an objection to any or all counts on the grounds that the count fails to state facts which
187 constitute a violation of the Code of Official Conduct or any law, rule, regulation, or other
188 standard of conduct applicable to a member of the Senate or House in the performance of
189 legislative responsibilities;]
190 [(iii) an objection to the jurisdiction of the committee considering the allegations contained
191 in the statement;]
192 [(iv) a motion for a more detailed statement regarding the cause of action stated in the
193 complaint; or]
194 [(v) an objection to the participation of any member of the committee, the committee's
195 staff, or the special prosecutor on the grounds that that person would be unable to render a fair and
196 impartial judgment or investigation. The committee, by majority vote, shall judge the
197 qualifications of the person against whom the objection is raised.]
198 [(b) The respondent's failure to submit a response to the Statement of Alleged Violation
199 or any count contained in it constitutes an admission of the alleged violation.]
200 [(c) Within 30 days after receipt of the respondent's response, the committee shall
201 determine, by majority vote, to:]
202 [(i) dismiss the complaint;]
203 [(ii) grant or deny the respondent's motion for a more detailed statement, and if this motion
204 is granted, direct the special prosecutor to give a more detail in the Statement of Alleged Violation
205 and give the respondent 30 days from receipt of this statement to respond as provided in Section
206 (5);]
207 [(iii) hold a disciplinary hearing; or]
208 [(iv) defer action, if a judicial proceeding is pending.]
209 [(d) If the committee is unable to achieve a majority vote directing further proceedings
210 against the respondent, this constitutes a dismissal of the statement. The respondent and
211 complainants shall be notified, in writing, of the action taken by the committee.]
212 [(e) The chairman may extend any time limitation, if the extension would facilitate a fair
213 and complete inquiry. The chairman may shorten any time limitation, if special circumstances

214 necessitate this being done.]
215 [(6) (a) Prior to any disciplinary hearing, the committee shall adopt a statement
216 establishing the scope and purpose of the hearing. A copy of this statement shall be furnished to
217 all witnesses. The scope and purpose may expand or contract during the hearing, depending upon
218 evidence received. The respondent has the right to counsel during all stages of the disciplinary
219 hearing.]
220 [(b) The disciplinary hearing is open to the public and consists of two phases. Phase I is
221 to determine whether or not the counts in the statement have been proved. This phase shall be
222 conducted as follows:]
223 [(i) The meeting shall be opened by the chairman. He shall give a statement of the
224 committee's authority to conduct the hearing and the purpose and scope of the hearing.]
225 [(ii) Witnesses and evidence shall be received in the following order whenever possible:]
226 [(A) witnesses and evidence offered by the special prosecutor;]
227 [(B) witnesses and evidence offered by the respondent;]
228 [(C) rebuttal witnesses.]
229 [(iii) All witnesses shall testify under oath. Witnesses offered by the special prosecutor
230 at a hearing shall be examined first by the special prosecutor. The respondent or respondent's
231 counsel may then cross-examine the witnesses. The committee members and committee staff may
232 then question the witnesses. Redirect and recross examination may be permitted in the chairman's
233 discretion. Witnesses offered by the respondent shall be examined first by the respondent or
234 respondent's counsel, and then may be cross-examined by the special prosecutor. Committee
235 members and committee staff may then question the witness. Redirect and recross examination
236 may be permitted in the chairman's discretion.]
237 [(iv) At a disciplinary hearing, the burden of proof rests upon the special prosecutor to
238 establish the facts clearly and convincingly by the evidence they introduce.]
239 [(c) Phase II of a disciplinary hearing is to]
240 (5) (a) After the announcement of the committee's decision in the Summary of the
241 Preliminary Inquiry, if the procedural requirements of JR-16.07 have been waived as provided in
242 Subsection (4)(d), the committee shall determine what recommendation should be made to the
243 Senate or House with respect to any count which has been proved. The committee shall hear no
244 further testimony during [Phase II] the preliminary inquiry, except by a majority vote of the

245 committee.
246 [(d)] (b) A count is not proved unless a majority of the committee so determine by vote.
247 A count which is not proved shall be dismissed. If a majority of the committee does not vote that
248 a count has been proved, a motion to reconsider that vote may only be made by a member of the
249 committee who voted that the count was not proved.
250 [(7)] (6) (a) The committee may, for any count that has been voted as proved, recommend
251 one or more of the following actions:
252 (i) censure;
253 (ii) expulsion;
254 (iii) denial or limitation of any right, power, or privilege of the respondent, if under the
255 Utah Constitution the Senate or House may impose such denial or limitation, and if the violation
256 bears upon the exercise or holding of any right, power, or privilege; or
257 (iv) any other action the committee determines appropriate.
258 (b) If a majority of the committee does not vote in favor of the recommendation for action,
259 a motion to reconsider may only be made by a member of the committee who voted against the
260 recommendation.
261 (c) The committee's recommendation to the Senate or House shall be submitted in writing
262 and shall contain a brief but complete statement of the evidence which supports their
263 recommendations.
264 [(8)] (7) The Senate or House shall consider the recommendations of the committee and
265 shall, by a majority vote of that house, either accept, dismiss, or alter these recommendations. If
266 the committee's recommendations are for expulsion of a Senator or Representative, acceptance
267 of this recommendation requires a two-thirds vote of all the members elected to the Senate or to
268 the House.
269 Section 2. Section JR-16.07 is enacted to read:
270 JR-16.07. Disciplinary Hearing.
271 (1) If there is no waiver of the disciplinary hearing as provided in JR-16.04(4)(d), the
272 Senate and House Ethics Committees shall follow these procedures at the conclusion of the
273 preliminary inquiry.
274 (2) Special Prosecutor. If an ethics probe goes into a disciplinary hearing stage, the Senate
275 or House Ethics Committee shall direct the chairman to appoint a special prosecutor. This special

276 prosecutor shall be paid by the Senate if it is a Senate Ethics Committee or the House if it is a
277 House Ethics Committee. The special prosecutor shall prepare the Statement of Alleged Violation
278 from the Summary of Preliminary Inquiry. The special prosecutor is also responsible for
279 prosecuting the respondent in the disciplinary hearing.
280 (3) If the committee determines that there is reason to believe the alleged violation did
281 occur, the committee shall direct the special prosecutor to transmit to the respondent and to the
282 complainants a copy of the Statement of Alleged Violation. The statement shall be divided into
283 counts. Each count shall allege a separate violation, and the facts which support each count.
284 (4) (a) The respondent has 30 days from receipt of the Statement of Alleged Violation to
285 respond. The response shall be in writing and shall be signed by the respondent or the respondent's
286 counsel. The response shall be limited to the following:
287 (i) an admission or denial of each count, under oath, with any supportive evidence or
288 relevant information;
289 (ii) an objection to any or all counts on the grounds that the count fails to state facts which
290 constitute a violation of the Code of Official Conduct or any law, rule, regulation, or other
291 standard of conduct applicable to a member of the Senate or House in the performance of
292 legislative responsibilities;
293 (iii) an objection to the jurisdiction of the committee considering the allegations contained
294 in the statement;
295 (iv) a motion for a more detailed statement regarding the cause of action stated in the
296 complaint; or
297 (v) an objection to the participation of any member of the committee, the committee's staff,
298 or the special prosecutor on the grounds that that person would be unable to render a fair and
299 impartial judgment or investigation. The committee, by majority vote, shall judge the
300 qualifications of the person against whom the objection is raised.
301 (b) The respondent's failure to submit a response to the Statement of Alleged Violation or
302 any count contained in it constitutes an admission of the alleged violation.
303 (c) Within 30 days after receipt of the respondent's response or the respondent's failure to
304 respond within that time, the committee shall determine, by majority vote, to:
305 (i) dismiss the complaint;
306 (ii) grant or deny the respondent's motion for a more detailed statement, and if this motion

307 is granted, direct the special prosecutor to give more detail in the Statement of Alleged Violation
308 and give the respondent 30 days from receipt of this statement to respond as provided in
309 Subsection (4)(a);
310 (iii) hold a disciplinary hearing; or
311 (iv) defer action, if a judicial proceeding is pending.
312 (d) If the committee is unable to achieve a majority vote directing further proceedings
313 against the respondent, this constitutes a dismissal of the statement and of the complaint. The
314 respondent and complainants shall be notified, in writing, of the action taken by the committee.
315 (e) The chairman may extend any time limitation, if the extension would facilitate a fair
316 and complete inquiry. The chairman may shorten any time limitation, if special circumstances
317 necessitate this being done.
318 (5) (a) Prior to any disciplinary hearing, the committee shall adopt a statement establishing
319 the scope and purpose of the hearing. A copy of this statement shall be furnished to all witnesses.
320 The scope and purpose may expand or contract during the hearing, depending upon evidence
321 received. The respondent has the right to counsel during all stages of the disciplinary hearing.
322 (b) The disciplinary hearing is open to the public and consists of two phases. Phase I is
323 to determine whether or not the counts in the Statement of Alleged Violation have been proved.
324 This phase shall be conducted as follows:
325 (i) The meeting shall be opened by the chair. The chair shall give a statement of the
326 committee's authority to conduct the hearing and the purpose and scope of the hearing.
327 (ii) Witnesses and evidence shall be received in the following order whenever possible:
328 (A) witnesses and evidence offered by the special prosecutor;
329 (B) witnesses and evidence offered by the respondent; and
330 (C) rebuttal witnesses.
331 (iii) All witnesses shall testify under oath. Witnesses offered by the special prosecutor
332 at a hearing shall be examined first by the special prosecutor. The respondent or respondent's
333 counsel may then cross-examine the witnesses. The committee members and committee staff may
334 then question the witnesses. Redirect and recross examination may be permitted in the chairman's
335 discretion. Witnesses offered by the respondent shall be examined first by the respondent or
336 respondent's counsel, and then may be cross-examined by the special prosecutor. Committee
337 members and committee staff may then question the witness. Redirect and recross examination

338 may be permitted in the chairman's discretion.
339 (iv) At a disciplinary hearing, the burden of proof rests upon the special prosecutor to
340 establish the facts clearly and convincingly by the evidence introduced.
341 (c) Phase II of a disciplinary hearing is to determine what recommendation should be made
342 to the Senate or House with respect to any count which has been proved. The committee shall hear
343 no further testimony during Phase II except by a majority vote of the committee.
344 (d) A count is not proved unless a majority of the committee so determine by vote. A
345 count which is not proved shall be dismissed. If a majority of the committee does not vote that a
346 count has been proved, a motion to reconsider that vote may only be made by a member of the
347 committee who voted that the count was not proved.
348 (6) Announcement of Committee's Decision. At the conclusion of the committee's
349 deliberations in the disciplinary hearing, when a decision has been reached, the respondent and his
350 counsel shall be invited into the committee room to hear the committee's decision.
351 (7) At the completion of the disciplinary hearing, the staff of the committee shall keep a
352 file containing a comprehensive summary of the disciplinary hearing.
353 (8) (a) The committee may, as provided in Phase II of the disciplinary hearing, for any
354 count that has been voted as proved, recommend one or more of the following actions:
355 (i) censure;
356 (ii) expulsion;
357 (iii) denial or limitation of any right, power, or privilege of the respondent, if under the
358 Utah Constitution the Senate or House may impose such denial or limitation, and if the violation
359 bears upon the exercise or holding of any right, power, or privilege; or
360 (iv) any other action the committee determines appropriate.
361 (b) If a majority of the committee does not vote in favor of the recommendation for action,
362 a motion to reconsider may only be made by a member of the committee who voted against the
363 recommendation.
364 (c) The committee's recommendation to the Senate or House shall be submitted in writing
365 and shall contain a brief but complete statement of the evidence which supports their
366 recommendations.
367 (9) The Senate or House shall consider the recommendations of the committee and shall,
368 by a majority vote of that house, either accept, dismiss, or alter these recommendations. If the

369 committee's recommendations are for expulsion of a Senator or Representative, acceptance of this
370 recommendation requires a two-thirds vote of all the members elected to the Senate or to the
371 House.
372 Section 3. Effective date.
373 This resolution takes effect upon approval by a constitutional majority vote of all members
374 of the Senate and House of Representatives.




Legislative Review Note
as of 12-10-99 3:12 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel