Senate Committee of the Whole
September 16, 2022
Hickey Okay, members, we’re going to come back to order. We should be being live streamed right now for this procedure after Senator Stubblefield’s motion. So another item for us is under, under the procedures adopted by the Senate, Section 6c requires the respondent to be seated at the table designated for the respondent rather than at his or her regular seat in the Senate chamber. I had talked to Senator Flowers a minute ago, and she indicates to me that she is not represented by outside counsel, which is the reason that we have the table over there. So for that reason, I would request, without objection, that she be allowed to remain in her seat. Senator Flowers will remain in her seat. You all should have at your desk the binders containing the reports and the exhibits submitted by the Ethics Committee to the president pro tem in accordance with Rule 24.10 for the Senate’s consideration. You should also all have a copy of the procedures for today’s meeting, as well as the flowchart I indicated a minute ago showing the order in which the business will proceed. Neither Senator– we’ll begin the procedures at this point. Neither Senator Hammer nor Senator Flowers submitted a request to call witnesses or submit additional documents in this matter. As such, we will proceed to the presentation by the Senate Ethics Committee Chair, Senator Hammer. And I’ll have to administer the oath, senator, whenever you get down here. So Senator Hammer, if you’d face me and please raise your right hand. If you’d state your name and your position as it relates to these procedures.
Hammer Kim David Hammer, State Senator, Chair, Senate Ethics.
Hickey Do you solemnly swear or affirm that the testimony you’re about to give will be the truth, the whole truth, and nothing but the truth, so help you God?
Hammer I do.
Hickey Thank you, Senator.
Hammer Thank you.
Hickey Okay, Senator, at this time, you’re going to be recognized to present the findings and recommendations of the committee regarding Senator Stephanie Flowers. And you have up to one hour for that presentation. We’ll take comments by senators, which will not be included in that. So you do have one hour. Thank you.
Hammer Mr. Chairman.
Hickey Yes, sir.
Hammer I’d like to request, with the chair’s permission, to have two members of the Senate committee sit behind me. In the event I need to consult and ask a question, I can make sure that what I state is true and accurate. I’d like to request Senator Dan Sullivan and Senator Clarke Tucker to be allowed to sit behind me.
Hickey Okay. Without objection, members, we will allow that. That is– both of those members are Senate— members of the Senate Ethics Committee.
Hammer Thank you.
Hickey And you can proceed whenever you all are ready.
Hammer Thank you. On August 18, 2022, I received a petition filed by Senator Alan Clark alleging that Senator Stephanie Flowers had violated the Senate Code of Ethics by receiving per diem and mileage reimbursement during the 2021 regular session on days that she had participated in the Chamber proceedings via Zoom. Under Senate Rule 24.09, Paragraph B, the Senate Ethics Committee is required to begin its investigation within 10 business days of receiving a petition. I notified the members of the Ethics Committee on August 18 that we would begin our investigation on August 26. The committee conducted a thorough and fair investigation over the course of multiple days in which we heard from all parties involved, allowed witnesses to be called and exhibits to be introduced. We deliberated for hours and worked to make sure that the reports accurately reflect our findings and recommendations to the full Senate. The seven other committee members and I worked to protect the process set forth the Rule 24 and to provide you with what we consider to be legitimate and thoughtful recommendations. Today, I come before you to present the Senate Ethics Committee’s findings and recommendations related to the allegations against Senator Flowers. These are the findings of fact. The Senate Ethics Committee found the following facts based on the exhibits and testimonies presented to us. First of all, Senator Flowers has not violated Senate Rule 24. Secondly, on January 11, 2021, the Senate of the 93rd General Assembly adopted temporary emergency procedures for the 2021 regular session. Those procedures allowed for remote participation of senators in the Senate chamber proceedings under certain circumstances. You can see in your binder under Exhibit C2, Section 4, Paragraph 2, Remote Participation of Members. See also Exhibit C3 Recording of January 11, 2021, Senate Chamber Meeting. Third point, Section 5a of the temporary emergency procedures of the Senate as adopted on January 11, 2021, reads as follows: A member participating remotely in a session of the Senate under these procedures shall be considered present for purposes of establishing a quorum. However, the member will not be counted as present for the purpose of per diem unless the member has traveled to Little Rock from his or her district for the purpose of participating in the sessions. See in your binder Exhibit C2, Section 5. Paragraph 2, Quorum. Point number four, Senator Stephanie Flowers participated in the Senate chamber meetings in person during week one of the 2021 regular session. Senator Flowers participated in the Senate Chamber meetings remotely in compliance with the temporary emergency procedures beginning on week two and for the remainder of the 2021 regular session. See Exhibit C4 in your binder, Rob Hatfield, Memorandum and Senator Flowers State Senate Chamber Attendance Table. See also Exhibit E5, Rob Hatfield Memorandum and Senator Flowers Zoom Screenshots. Point 5, Senator Flowers testified to the Senate Ethics Committee that she participated in the Senate chamber proceedings via Zoom throughout most of the 2021 regular session due to her personal health concerns during the pandemic. Point 6, Senator Flowers, without her knowledge, consent or request, was erroneously paid per diem and mileage reimbursements during weeks two and three of the 2021 regular session. See Exhibit C6, Table of Payments from Senator– from Senate to Senator Flowers. Point 7, Senator Flowers communicated with staff following week three of the 2021 regular session upon realizing the payments had been direct deposited into her bank account that she believed had been paid in– paid to her in error. You can see that in Exhibit D1, Senator Flowers Response to Complaint and Motion to Dismiss, Paragraph 1, Section 3B. Senator Flowers stated that she questioned Senate staff as to whether the payments were authorized under the temporary emergency procedures adopted by the Senate and was told that staff’s reading and interpretation of the rules and procedures allowed a member participating in a regular session by Zoom to be paid per diem but not mileage. See Exhibit D1, Paragraph 1, Section 3B. Point eight, Miss Lewis acknowledged in her testimony that she did advise Senator Flowers that she was eligible to receive per diem. Senator Flowers then followed up with Miss Cornwell regarding this matter. Point 9, following this conversation, an adjustment was made to Senator Flowers’ payments from the Senate whereby Senator Flowers direct deposit during week four was reduced to allow for repayment of the mileage reimbursements paid to Senator Flowers during weeks two and three of the regular session. See Exhibit C6, Paragraph 2. Point 10, however, Senator Flowers continued to be erroneously paid per diem during weeks four through 16 of the 2021 regular session. See Exhibit C6, Table of payments from Senate to Senator Flowers. Point 11, Senate staff had acknowledged that it was their clerical error that led to the erroneous payments of per diem and mileage reimbursement to Senator Flowers on days when she participated remotely in the Senate chamber proceedings during the 2021 regular session, and that Senator Flowers bore no responsibility for those erroneous payments. Point 12, on August 11, 2022, Senator Flowers was contacted by Miss Cornwell notifying her of erroneous payments of per diem. Upon learning of the erroneous payments, Senator Flowers wrote a check in the amount of $2,714 reimbursing the Senate for per diem payments made for 46 days at the rate of $59 per day. See Exhibit D1, Paragraph 2, Section 4A, and also see exhibit E3. The copy of the check number was 11647. Miss Lewis testified that the amount of per diem paid to Senator Flowers during the 2021 regular session was actually $55 per day, and rather than the $59 per day amount that Senator Flowers based her repayment to the Senate, and that amount had been erroneously communicated to Senator Flowers when she requested the amount she should repay, resulting in Senator Flowers making an overpayment to the Senate. Point 13, on August 22, 2022, Senator Flowers provided additional reimbursement payment to the Senate and the amount of $217.60 after being notified by Miss Lewis that four payments have been made to her on days that she had been granted leave from the Senate. See Exhibit D1, Paragraph 2, Section 4B. Also see exhibit D3, copy of cashier’s check 28937. Final point 14, senate staff testified before the committee that Senator Flowers had been reimbursed– that Senator Flowers had reimbursed the Senate in full for any overpayments made to her during the 2021 regular session related to days on which she participated in the Senate chamber proceedings via Zoom or was on leave. And the committee analysis is as follows: Senator Flowers took no affirmative action to receive this money. Second point, Senator Flowers communicated with Senate staff as soon as she became aware of the deposits into her bank account that she felt had been made in error. Point three, in doing so, she was assured by Senate staff that under current Senate procedures, she was entitled to payments she had received. Point four, to date, Senator Flowers has made three separate reimbursements of amounts erroneously paid to her during the 2021 regular session, as follows: A deduction to her week 4 regular session reimbursements for the amount paid to her for mileage; $2,714 on August 11, 2022; and $217.60 on August 22, 2022. Point 5, Senator Flowers acted in a reasonable, responsible and sufficient manner by contacting Senate staff with questions regarding Senate policy and procedures and relying on information that was given by Senate staff. Senators should be able to rely on information provided by legislative staff, and Senator Flowers’ decision to rely on the information provided to her by Senate staff was reasonable and sufficient. Point 6, at this time based on fiscal accounting research, all of the accounting regarding this matter has been reconciled with the exception of the amount to be reimbursed to Senator Flowers for the amount she paid representing taxes that have been withheld. And all amounts owed by Senator Flowers to the Senate have been repaid and Senate staff are working with DFA to reconcile the amounts. The fact scenario presented by Senator Clark’s allegation is not unprecedented. Testimony was given by Senate staff that when similar overpayments to senators have occurred over past years, the Senator was notified of the error and allowed to repay the erroneous payments to the Senate. The senators and staff were working in unprecedented circumstances of conducting a legislative session during the pandemic, which included wholly new procedures and scenarios, including remote participation by members. Clerical errors regrettably but understandably occurred. Finally, none of the actions alleged or facts presented to the committee amount to an ethical violation of Senate Rule 24 by Senator Flowers. In addition, all staff acted with high integrity and within the scope of their positions with the Senate in handling of these matters, including these Senate investigations. Committee conclusions and recommendations: The Senate Ethics Committee was presented with allegations of two violations of Senate Ethics Rule 24.03 and Rule 24.06c1. After many hours of deliberation and review of all testimony and exhibits presented to it, the committee arrived at the following conclusions: Senate Rule 24.03 reads in pertinent part as follows: Senators shall comply with all constitutional statutory provisions related to elected office. Violations of any constitutional statutory provisions shall be grounds for administering penalties as provided in code of ethics. Secondly, the Committee determined that no provision of constitutional or statutory law was violated by the actions alleged by Senator Flowers. In fact, Senator Flowers’ actions in conferring with Senate staff upon noticing the direct deposits to her account and swift repayment of the erroneous amounts paid to her during the 2021 regular session once those errors were brought to our attention demonstrated a desire by Senator Flowers to remain in compliance with the law as well as the Senate procedures and policies. Next, Senate Rule 24.061c reads, “A senator shall not knowingly seek, accept, use, allocate, grant, or award public funds for a purpose other than that approved by law, or make a false statement in connection with the claim, request, or application for compensation reimbursement or travel allowances from public funds.” Senator Flowers did not knowingly seek, accept or use any compensation or reimbursement to which she was not entitled, and she justifiably sought the input and guidance of Senate staff as to whether the reimbursements made by her were permitted under Senate procedures. Next, she was assured by staff that she was entitled to the per diem reimbursement she was receiving and worked with staff to reimburse the Senate for the erroneously paid mileage reimbursements. Next, in addition, when it was brought to Senator Flowers’ attention that she had been paid per diem in error during the 2021 regular session for the days that she participated remotely or was on leave, she immediately reimbursed the Senate for those amounts. And then finally, Senator Flowers’ actions related to these payments, including reliance on information provided to her by Senate fiscal officer and director secretary of the Senate, was reasonable, justifiable, and sufficient and do not amount to the violation of Senate’s Code of Ethics. Mr. Chair, I yield to questions from the senators, and we’ll have two motions following my closing statement.
Hickey Okay. And just, just for the record, if you’d acknowledge, you do not have any witnesses.
Hammer I do not present any witnesses. I would like to ask the right that if witnesses are provided that I would have the opportunity to respond with questions. But I did not submit a list of witnesses.
Hickey Okay. At this time, members, you can ask questions of Senator Hammer if you have any. Are there any questions of Senator Hammer? I see no– Senator Beckham.
Beckham I understand through the presentation that you made, which was very thorough that after the investigation, after digging through emails being presented to you, that there was no ill intent by Senator Flowers, no ethics violation from, from the standpoint of the Ethics Committee. What would be an appropriate way of reporting or resolving an issue when a member finds something like that or is given that information? What would be the appropriate way for them to resolve that?
Hickey Senator, maybe I’m– I’m going to be real specific. All of our questions need to be on the, on the findings because we have to stay germane to all of these. So I appreciate your question. But we need to, we need to stay just, just on what he, what he discussed to us. Anyone else? And again, it needs to stay germane to those findings and those recommendations that he presented. I see no other further, any further questions. So, okay. At this time, I will recognize Senator Flowers to present a response to the findings if she so chooses. So you don’t– you’re not going to have a response. Okay. So Senator Flowers has indicated to me that she’s not going to have a response– so give me just a moment– which means you will not have any witnesses. We’ll have to defer that. Okay. Senator Flowers, I would have to ask you, too, are you going to, are you going to take any questions from any of the other senators? Okay, you’re indicating no. Okay. Okay. And one final thing, then, Senator Flowers, do you wish to present– I won’t say a closing statement. I don’t know how you would do a closing statement since you haven’t presented, but do you wish to make a statement at all? Okay. Let the record show that Senator Flowers has indicated that she does not, not want to be recognized for a response. She’s not going to provide any witnesses, and that she’s also not going to have any questions from other senators, and that she will not have a closing statement. Senator Hammer, I’ll now recognize you for your closing statement if you so wish.
Hammer Thank you, Mr. Chairman. Senator Clark alleged in his petition that Senator Flowers had violated provision 24.03 of the Senate Code of Ethics but failed to provide the committee with any evidence that Senator Flowers had violated any provision of constitutional or statutory law. In addition, Senator Clark alleged the Senator Flowers had violated Section 24.061c of the Senate’s Code of Ethics, but the committee found that the evidence clearly showed the Senator Flowers did not knowingly seek, accept or use public funds for a purpose other than that provided allowed by law. In fact, once Senator Flowers became aware of the erroneous deposits to her account, she communicated with Senate staff to determine whether she had been paid per diem in compliance with Senate policies. Senator Flowers acted in a reasonable manner when she relied on information she was given by the Senate staff. Then, at each instance where she was notified by Senate staff that clerical errors had occurred, three separate instances, she worked with staff to immediately make reimbursements to the state. Testimony and evidence presented to the committee showed that this unfortunate incident was the result of clerical errors, not ethical violations, and Senator Flowers had acted in a reasonable, sufficient and ethical manner with regards to this matter. As such, I would ask the Senate adopt the recommendation of the committee regarding Senator Stephanie Flowers. And, Mr. Chairman, at this time, I have two motions.
Hickey At this time, you’re recognized for your first motion.
Hammer Thank you, Mr. Chairman. I move that the Senate find that Senator Stephanie Flowers has not violated Senate Rule 24.03.
Hickey Okay. Do we have a second? Okay. We have a second to that motion. Is there any– do any of the senators have any questions of Senator Hammer in regards to that motion? Okay. I’m not seeing any questions for you on that, Senator Hammer. Is there any senator here that wishes to speak for the motion? Is there any senator here that wishes to speak, to speak against that motion? Okay. I’m not seeing any. Okay. Madam Director, the roll will now be called.
Hammer Mr. Chair, do I need to take my seat or can I remain here?
Hickey Yes, sir. I’m sorry. You’re– I tell you what, if you don’t mind, why don’t you take your seat for this, and then you’ll have to come back. Madam Director, if you would, I’m going to ask you to call the roll in just a second. Members, if you would, though, I want to, I want to read this, and I’m going to ask every one of you to take your seats. That’s why Senator Hammer’s doing that. The pairing of votes shall not be recognized. Each senator present shall verbally respond when his or her name is called by voting with one of the following responses: yea, nay, present, or abstain. This is very important. If you do not respond when your name is called, you will be recorded as abstaining. So at this time, Miss Garrity, if you would, please call the roll.
Garrity Ballinger? Ballinger votes yea. Beckham? Beckham votes yea. Bledsoe? Bledsoe votes yea. Caldwell? Caldwell votes yea. Chesterfield? Chesterfield votes yea. Clark? Clark votes yea. Davis? Davis votes yea. Dismang? Dismang votes yea. Elliott? Elliott votes yea. English? English votes yea. Flippo? Flippo votes yea. Flowers? Flower votes yes. Fulfer’s on leave. Garner? Garner abstains. Gilmore? Gilmore votes yea. Hammer? Hammer? Hammer votes yea. Hendren? Hendren votes yea. Hester? Hester votes yea. Hickey? Hickey votes yea. Hill? Hill votes yea. Ingram is on leave. Irvin is on leave. Blake Johnson? Blake Johnson votes yea. Mark Johnson? Mark Johnson votes yea. Leding? Leding votes yea. Pitsch? Pitsch votes yea. Rapert is on leave. Rice? Rice votes yea. Sample? Sample votes yea. Stubblefield? Stubblefield votes yea. Sturch? Sturch votes yea. Sullivan? Sullivan votes yea. Teague is on leave. Tucker? Tucker votes yea. Wallace? Wallace is a yea.
Hickey Hold on just a minute, members. I want to get the exact tally. Okay, members, by a vote of 29 yeas, one abstain, that motion does carry. So it did pass. And, Senator Hammer, you’re now recognized for your next motion. You may proceed.
Hammer Thank you, Mr. Chairman. I move that the Senate find that Senator Stephanie Flowers had not violated Senate Rule 24.061c.
Hickey Is there a second? Is there any questions of Senator Hammer just on this motion? Okay. Any senator want to speak for it? Any senator want to speak against it? Senator, you can take your seat. Same thing again. But I’m going to read it again. Per Senate Rule 24.10f, the roll will be called. I ask that all members take their seats. The pairing of votes will not be recognized. Each senator present shall verbally respond when his or her name is called by voting with one of the following responses: yea, nay, present or abstain. Madam Director, if you would please call the roll.
Garrity Ballinger? Ballinger votes yea. Beckham? Beckham votes yea. Bledsoe? Bledsoe votes yea. Caldwell? Caldwell votes yea. Chesterfield? Chesterfield votes yea. Clark? Clerk votes yea. Dismang? Davis– I’m sorry. Davis? Davis was a yea. Dismang was a yea. Elliott? Elliott votes yea. English? English votes yea. Flippo? Flippo votes yea. Flowers? Flowers votes yea. Fulfer is on leave. Garner? Garner abstains. Gilmore? Gilmore? Gilmore votes yea. Hammer? Hammer votes yea. Hendren? Hendren votes yea. Hester? Hester votes yea. Hickey? Hickey votes yea Hill? Hill votes yea. Ingram is on leave. Irvin is on leave. Blake Johnson? Blake Johnson votes yea. Mark Johnson? Mark Johnson votes yea. Leding? Leding votes yea. Pitsch? Pitsch votes yea. Rapert is on leave. Rice? Rice votes yea. Sample? Sample votes yea. Stubblefield? Stubblefield votes yea. Sturch? Sturch votes yea. Sullivan? Sullivan votes yea. Teague is on leave. Tucker? Tucker votes yea. Wallace? Wallace votes yea.
Hickey So. Okay, members, by vote of 29 yeas, 1 abstain, that motion also carries. So at this time, members, I’m going to ask that we just take a 10-minute recess. And we will be back in here at whatever time that would be– 2:32.
Hickey Okay. Members, we’re gonna come back to order. We said that we were in a short break. I said, we were going to come back by 2:32. It is now 2:33. So that time has expired. So if everyone would please take their seats and we will begin at this time. All right. Okay. Having absolved Senator Stephanie Flowers of the ethics allegations brought up against her, in accordance with Senate Rule 2413, we will now take up the findings and recommendations of the Senate Ethics Committee related to Senator Alan Clark. We will continue to follow the same procedures for this portion of our business meeting as were allowed for a respondent to an ethics petition during the earlier part of our meeting today. Senator Clark– where is Senator Clark? I’m sorry, Senator Clark. Senator Clark, it’s my understanding that you have outside legal counsel and so that you will be sitting in there. Would, would you like to introduce them? It’s just up to you, sir. Well, you can– I guess. I’m going to allow you to come to the well if you want to just for that specific purpose or you can do that from your chair, Senator.
Clark Yes. My counsel is attorney Glenn Hoggard and Clint Lancaster.
Hickey Thank you, Senator. And I’m going to read a statement as our– on our procedures, as how it relates to outside legal counsel whenever you come into the Senate. So under the procedures adopted by the Senate, a respondent may bring legal counsel into the chamber. However, the legal counsel will have to abide by these three bullet points I’ll read. They may only be in the Senate chamber while the findings and recommendations regarding the senator that he and she is advising are being considered. It is only– that you are only allowed in the chamber in advisory capacity, capacity and shall not address the Senate, question witnesses, or make objections to the presiding officer. And, as you are right now, shall be seated next to the respondent at the table designated for the respondent only. So with that, Senator Clark, if you don’t mind going back to the respondent table. Okay. At this point, members, I will note, I will note at this point that Senator Clark has included Steve Cook as a potential witness. I feel that due to Steve’s role as the Senate’s legal counsel, it is vital to our parliamentary procedure that he remain in the chamber during this proceeding. As such, without objection, Steve will remain here in his usual advisory capacity. Seeing no objections, then Steve will remain in the chamber with us in his capacity. The first matter of business is consider motions by Senator Clark to bring witnesses and additional exhibits that were not brought before the Ethics Committee. Under our procedures, in order to allow calling of a witness or introductions of exhibits that were not brought before the committee, the senator requesting to call the witnesses shall provide the Senate with information, how the witnesses, witnesses testimony will further his case, and why the witness was not called before the committee. Senator Clark has submitted a request to call the following witnesses that were not witnesses before the Senate Ethics Committee. As stated before, that is Mr. Steve Cook, Senator Hammer and also Senator Flowers. In addition, Senator Clark has three additional exhibits that he would like to present that were not evidence before the committee. We will take up each of these items in separate motions. One other thing, one other thing for me to say is Senator Clark was asked, if he was going to do that, to do that by Wednesday of this week, I believe. At the start of this meeting, he has told me that he has, if I remember correctly, you have one additional witness and one additional exhibit. Is that correct? Okay. Senator Clark, I’ll now recognize you to present your motions as it relates to those items that I just discussed. You will have to take the oath whenever you, you get down here first. And then you can proceed. Senator Dismang, do you have a question?
Dismang Just to make sure I understand, so we’re going to be voting on each proposed new witness separately. Is that correct? And then each proposed new piece of information separately?
Hickey That is correct.
Dismang Okay. Thank you.
Hammer Okay. Senator Clark, if you would, please face me and raise your right hand. If you would, please state your name and your position as it relates to these proceedings.
Clark Alan Clark, State Senate.
Hickey Okay. Do you solemnly swear or affirm that the testimony you’re about to give will be the truth, the whole truth, and nothing but the truth, so help you God?
Clark I do.
Hickey Okay. Senator Clark, you may proceed with your motions. And the first one that I had is that if you’re going, if you’re going to make, still make what you’ve told us is that that will be a motion on Mr. Cook. You want him to be a witness?
Clark I do. So–
Hickey We’ll begin–
Clark So that’s the one you have listed first.
Hickey Yes, sir. And I don’t care how you do it, if you would rather do something different. That’s just the way–
Clark No, and I don’t know how you have it. So and I didn’t know it was going to be done one at a time.
Clark So you’ll just have to tell me.
Hickey Is your first one going to be in regards to Mr. Cook?
Clark That’ll be fine.
Hickey Okay. So you can proceed with Mr. Cook.
Clark And first of a– if I may say so, Mr. Chair, and colleagues, the– these– the ethics charges go through the committee. These are new charges. And so witnesses that I introduced and evidence that I introduced for the ethics charges are not the same witnesses and evidence that’s needed to defend myself against the charges that have been made against me. So the– that’s something we may want to change in the rules in the future. But for now, I will try to present each one. Steve Cook has– it has been–
Hickey Senator Clark, so just, just to kind of help along, I think, you know, that you would probably just say that you would make a motion to allow Steve Cook.
Clark I make a motion to allow Steve Cook. And what information do I need to provide?
Hickey Okay. What you– according to our procedures, what you will need to do is you need to provide the Senate with information regarding how the witness testimony will further, further your case and why the witness was not called before the committee. So you have two things, how, how, how that will further your case and why the witness was not called before the committee.
Clark I had absolutely no reason to call Steve before the committee, but in the report it states that there’s testimony that I had 30-32 ethics charges ready to file. Steve is the one who filed the ethics charge. He has information in regards to that. And he also has information in regard to the timeline, because it’s been– I don’t remember the words that were used, but basically said that I was reckless. And he has information in regards to the timeline.
Hickey Are– just please, just give me a sec. So, are you finished with that motion, Senator?
Clark I believe so.
Hickey Okay, so we heard the motion. Is there a second? Okay, we have a second on that. Now, if there would– is there questions just in regards to the motion to allow Mr. Cook from any of the senators? I think I, I think I recognize Senator Ballinger first.
Ballinger Thank, thank you, Mr. Chair. But just for clarification, I have a question for Senator Clark. Is– and I think you stated this, but, but one thing that’s, you know– we’re– you’re– you need to speak clearly to the microphone, because we’re having a hard time hearing you. But you never had an opportunity before the committee to present any type of defense to, to the charges that they are going to be bringing against you. Right? So, so any evidence that would help your case, you– or testimony, you never had a chance to present that before the committee, because at this point, the committee never even heard your defense for– on the charges of it being retaliatory or, or frivolous or whatever. Is that correct?
Clark That would be correct.
Ballinger Okay. Thank you.
Ballinger Senator Sullivan, you’re recognized, sir.
Sullivan Mr. President, this is more to you. So if a witness is called, are they compelled to testify?
Hickey I would think, I would think not. But I need to get with our legal counsel on that, so give me a sec. Okay. If I understand this correctly, members, and this is just as it relates to the motion at hand. It may be different if there’s a senator involved, which we know it will be. So, first of all, as far as it relates to Steve Cook, then yes, he’ll testify. The only thing is is that he cannot divulge confidential information, as you all know, the way that he talks, talks and does his job down here. So with that stipulation, I hope that answers that question, Senator Sullivan. I don’t know if that’s compelled.
Sullivan So our other senators that will be called, they’re compelled to testify?
Hickey We’ll get to them in a minute. But right now, we are just on the motion if this body wants to allow Mr. Cook to be called as a witness. Senator Dismang.
Dismang I understand we’re kind of in uncharted territory here because it’s not just the staff but the attorney for us also. And you kind of raised the issue of confidential information between– or attorney-client privilege, whatever it may be. I guess because I’m not an attorney I don’t understand how this plays out. I would assume that that is waived if he becomes a witness. And the reason being is the only one that can ask them then at that point any question is the respondent because he’s the only one allowing additional information that may be privileged to be released. If any of us ask information of their conversations or whatever it may be, we would not be allowed to gather that information. Now, I don’t know how that works because, again, I’m not an attorney, but I think it puts him in a very strange position for us and the membership. I’m not saying any of this will happen, but we are creating precedent. And so just to kind of restate my question, I mean, he can ask him anything to be divulged as a witness because at that point he’s allowing him to say things. None of the rest of us are allowed to ask any question that would be even similar to that. I would assume that the attorney–
Hickey Alright, members, let’s keep order. We’re not going to have a lot of talk and we all know this thing– we’ve got to keep it, we’ve got to keep it on the tracks. So let’s just head that off right here at the beginning. So I believe, and I’m going to ask Ms. Garrity if I say something wrong or she thinks that’s not correct to correct me, but I believe if Senator Clark calls Mr. Cook, then if Senator Clark asks him about their conversation, then that’s okay to divulge. But if Senator Clark were to ask Mr. Cook about any other members’ conversations, I don’t believe that would, would be.
Dismang Understood. What about other members asking questions of Mr. Cook?
Hickey I think if it relates to Senator Clark– if it relates to Senator Clark, what I, what I think– and again, if you all want to correct me here– as it relates to Senator Clark, that he could answer those questions. But he couldn’t answer any other questions if it relates to the other members.
Dismang That’s what I want to make sure I understood. Okay. Thank you.
Hickey Yes, sir. Senator Garner. Yes, sir.
Garner Yes, sir. Obviously, this isn’t is a legal proceeding, but I think in general, if an attorney and the client waived a privilege, attorney-client privilege, then any subject of the discussion should be open to any kind of interpretation. Generally how it’s handled. So there should be no questions off limit except another attorney-client privilege with another senator.
Hickey Thanks for that clarification, Senator. Is there any other– is there any question, any other questions of Senator Clark on his motion for Mr. Cook? Senator Chesterfield? Yes, ma’am.
Chesterfield Thank you so much, Mr. Chair. The Senator was standing away from the mic. I still am not clear as to what the purpose of Mr. Cook being called is, as he was not called prior. So would you state that again for me so that I am clear?
Clark Yes. Senator Chesterfield. The– one– I’ll take the second one I mentioned first. The– to establish a timeline, the Ethics Committee has, not the word they used, I think, but basically said I acted recklessly and I need to establish a timeline. And two, the– it was put out in the charges in the report that there was testimony that I had said that I had 30 to 32 ethics charges written and ready to file. And the– Steve can– would be helpful in answering that.
Hickey Is there any member that wishes to speak for this motion? Is there any member that wishes to speak against this motion? Okay. I’m going to do this by a voice vote. And of course, the motion before us is that, brought by Senator Clark, is that we will allow Steve Cook to be brought in as a witness. So all in favor say aye. Any opposed? Okay. That motion does pass, Senator Clark. Do you have a– I had the next one– the next one would be Senator Hammer as, as a witness. But that’s up to you.
Clark Who’s next after that?
Hickey Senator Flowers.
Clark Who’s next after that?
Hickey That would be the one that you have not indicated to me yet. You indicated to me, you indicated to me, you indicated to me before, before today, right whenever we came in here that you would have another witness.
Clark Okay. But that’s not all I turned in.
Hickey Senator, let me– the thing is, is this, this as it relates to witnesses that were not, that, that were not–
Clark Okay. My question–
Hickey –before the Senate Ethics Committee.
Clark Thank you for clearing that up, because I didn’t call the other two as witnesses. Even though they were witnesses, I didn’t call them. So that’s why I thought it was necessary.
Hickey So this is just as it relates to the– so that we are following our procedures that these are witnesses that did not present in the committee.
Clark The– there are– I hope to be able to clear up any questions with Senator Hammer at the time that he presents the–
Hickey Senator, are you making a motion?
Clark I’m making a– I’m sorry.
Hickey Senator Hammer.
Clark I’m sorry.
Hickey So if we’ll just start that way, that’d be good, that you move.
Clark Thank you. Thank you, Mr. Chair. I make a motion that we– that you allow me to call Senator Kim Hammer as a witness. The reason being that I hope not to have to call him, but because I hope that in questioning when he presents that we can cover everything that I need to cover. But there are questions about the procedure, specifically, that– procedure that I think is important.
Hickey So if I understand, right, of course, you’ve got, you’ve got how the witness’s testimony will further your case and why the witness was not called before the committee. So your why, of course, would be because you believe that he needs to testify in regards to some procedures. If so, that would be your why. Can you restate how the witness’s testimony will further your case?
Clark [00:58:03]The– to demonstrate that the committee’s findings may not be accurate. And if the committee’s findings are not accurate, that certainly affects my case. [31.9s]
Hickey Okay. All right. You’ve heard, you’ve heard the motion by Senator Clark. He’s asking you to allow Senator Hammer to be called, to be called as a witness. Do we have a second? I need a second. Okay. We have, we have a second. Senator Hendren, you’re indicating you’d like to have a question of Senator Clark.
Hendren Yeah. I don’t know if it’s to Senator Clark or the legal counsel, but this is similar to Senator Sullivan’s question. You know, I know that clearly a member does not have to go to the well anytime they want with regard to how we’ve conducted business in the Senate. My question is, if Senator Hammer or Senator Flowers or any other senator is called, do they have the discretion to say, I don’t want to testify?
Hickey Okay. I’m going to ask since we’re not addressing senator– not Senator– Mr. Cook. Mr. Cook, would you like to come down and talk to that? Because we have already addressed that, that you are going to be our parliamentarian. So I couldn’t do that on the last one because you were the one at issue. Senator Clark, do you mind allowing him to do that? Thank you, sir.
Cook Ultimately, 18 members decide what the rules are here. If, if, if a member has been called to testify and that member just flat just says, I’m not going to do it, somebody can make a motion that you’re in contempt of the Senate under our, under our constitutional powers. Ultimately, but a member has the prerogative to say, I’m not going to testify, it’s not my position to testify about my role, and I reserve the fact not to. But if a body makes a motion that this member has been asked, has been compelled in a Senate proceeding to, to testify, the only thing that can make him testify or her testify is a motion from this body that you, you, the senator such and such shall testify or that senator is contempt of the Senate under Article 5 Section 12 would be my– but, but unless 18 members compel that, that’s, that’s going to be a senator’s choice.
Hendren Well, I guess that’s my question. And maybe it’s Senator Clark of the motion. Is that what the motion is? Is the motion to compel by mandatory at the, at the risk of being in contempt of the Senate, or is it to request a member to come and–
Clark I think it’s more of a request. I don’t think any, any senator can compel another senator to do anything that that senator doesn’t want to do unless 18 members compel that senator to speak.
Hendren Okay. Thank you.
Hickey I’m going to take these in order, and right now I’ve only got three in my head. Senator Clark, if you don’t mind coming back, I have other questions. Is your question, Senator Pitsch, of Mr. Cook or–
Pitsch Well, process. It may go to Mr. Cook, but to you, I think, for now. We’re cutting new ground. But I would like some clarification in that Senator Hammer in this instance is going to be available for cross-examination. And I would like the definition of why he needs to be a witness where cross-examination won’t get the answers that the respondent is shooting for. Because to me I think we’re double hammering one person because he’ll be up there making the case and be available for cross-examination. And I think he– the case needs to be made to prove that him being a witness for the respondent is important to his case. And I don’t know how, how we do that. I mean, I guess you vote no if you don’t think he’s established that. Is that–
Hickey Well, I think, I think that’s up to Senator Clark to prove to you of why he thinks that’s different, because that is going to be his witness. So if he thinks that there’s some differentiating fact between that, that’s a question that needs to be asked of him. So do you want to do that?
Pitsch Well, I guess I would give that to Senator Clark then. I need more clarification of how him being cross-examined on what the procedure was, etc., which is where that normally would take place, as juxtaposed to being a witness called by you to answer the same type question.
Clark The– I believe that testimony of other witnesses may raise questions after he has made his presentation.
Hickey Okay. I’m going to take them in the order I seen them. Senator Elliot, you raised your hand. Do you still wish a question?
Elliott Yes, I do.
Hickey Senator Garner will be next.
Elliott Okay. I, I guess this is maybe to Steve perhaps. And, Senator Clark, I wouldn’t mind if you maybe answer as well. But Steve, initially. I know that we make some likenesses to a real court setting. I know that we make some likenesses to a real court setting. But we’re also the Senate, without question. And on any given day in the Senate, I cannot require somebody to go to the well and answer my question if I want them to. So I guess I would like to know what seems to be the overriding atmosphere here. Do we need to treat this like it’s some kind of court session and therefore you may be in contempt? Or are we having a session here in Senate where the rules of whether or not somebody can compel me to come, to come answer a question, what applies? I’d like to know your thinking about that. Maybe both of you.
Clark I think what’s really a question is due process issues. The– you know, I was notified at 5:52 Monday that I needed to get evidence, any additional evidence, which that’s what there would be. It wouldn’t be additional. These are new charges. Evidence and witnesses. And I have been working around the clock to try to make that happen. But the– I’m not trying to compel anything. I would hope, with the seriousness of the charges against one of our own and with the, the seriousness of the punishments that have been suggested that I’d be given all latitude, because basically I got to prove myself innocent, not be proven guilty. The– given latitude to, to prove that. And no, I did not– I wasn’t trying to compel anyone. I, I would hope that they would voluntarily testify.
Elliott And I, and I think I understand what you’re saying. And I just want to be really clear that I am, senator, because I’m strictly on what the reaction will be. Do you respect the fact that if somebody decides he or she does not want to be compelled, so to speak, to be a witness, that you would be understanding of that either way, because they have that– all of us are equal in here, and they have that prerogative. Would that be respected?
Clark I– this– again, I was given till noon Wednesday to get a witness list in and the– there is–
Elliott Senator. Senator–
Clark –here is no subpoena process that I know of–
Elliott Uh huh. Right.
Clark And so, so I, I, I–
Elliott And just in the interest of time, I’m not, I’m not arguing with you. So I, just in the interest of time, want to know if the person says yea or nay to being a witness, are you okay with that?
Clark I assume witnesses– I assumed witnesses were voluntary, and I hoped that, that my colleagues would not have a problem with, with being asked questions.
Elliott So you would respect that person’s choice to either testify or not testify without rancor or anything else, I’m assuming?
Elliott Okay. Thank you. I appreciate it.
Hickey Senator Garner, do you still have a question, sir?
Garner Yes, Mr. Chairman, there’s nothing in the Senate ethics rules I could find, but the Senate business meeting called under Senate Rule 24.10, there’s a Section in that dealing with witnesses. If you look at number seven on page two, on the third item, it, basically I think this is the line that we need to pay attention to, if 18 or more senators vote to allow the testimony of the witness, the witness shall be called and placed under oath. I don’t know if that changes your opinion of it or not. But my interpretation would be if we vote to allow it to happen, a senator would have to be placed up there [unintelligible] oath. Now would they be compelled to testify? Arguably, they would not. But they, under that cross of 18 vote, you have to do the oath, allow them to come up and then recuse or deny those questions or answers.
Hickey Senator Dismang, do you have a question?
Dismang I guess my question is, I mean, are we just in the question portion? Or are we at the for and against of the witness? Because, I mean–
Hickey We are still– I still have a group of senators that are wanting to ask questions of Senator Clark. So that’s– if, if you want to wait till that, then that’s fine.
Dismang Well, my question, though, is, to Senator Elliott’s point, this is somewhat we’re trying to structure it– we need to have structure. [01:09:12]And two, in his capacity, Senator Hammer is the prosecutor in some ways. And typically, I don’t think you set the prosecutor down and hold them as a witness. [11.8s] Now, I may be wrong, and again, I’m not an attorney and this is way out of my, you know, realm. But I mean, I think of all people in the chamber, he may be in a bit of a different position than anyone else. But I defer to an attorney in the room on how that should work or whatever. I just– it weighs.
Hickey Yeah, I think, and I think that’s been addressed. I mean although, although in the end it’s just this, this body, this body sets its own rules by the Constitution. I mean, so it’s– if 18 of you all, 18 of us make that, make that decision, which is what we’re about to do with this particular one, if 18 of you say that a senator, Senator Hammer, you know, is to be called as a witness, then I believe, as Senator Garner said, then he’ll be called as a witness, be given the oath, and then from that point, we’ll just have to proceed further if that happens. So, Senator Chesterfield, did you have a question, because I had you next?
Chesterfield I think I do, Mr. Chair. How much time was spent–
Hickey Is this to Senator Clark?
Chesterfield [01:10:37]Yes. How much time was– how much time were you allowed to present your case to the committee? [5.6s]
Clark [01:10:48]That’s a difficult question. [2.7s]
Chesterfield [01:10:52]Give me a ballpark. [0.3s]
Clark [01:10:57]Hour and a half. I mean, I was given as much time as I wanted as long as I was on subject. But I don’t think I took that long. But again, I could be wrong. Sometimes you’re– [13.0s]
Chesterfield But you were given up to an hour and a half to present your case?
Clark Yeah, the case on the ethics charges, not a case against it being frivolous.
Chesterfield Thank you. Thank you, Mr. Chair.
Hickey I want to make sure I understood that. Are we talking about the– whenever you get there in presenting your case, you have one hour.
Chesterfield No, no. What I was talking about– during the initial hearing–
Hickey Thank you, ma’am. I wanted to make sure–
Chesterfield –how much time was given for both sides to present their case. And in looking at the record, it was a substantial time. That’s what I was just trying to find out. Thank you so much.
Hickey Thank you, ma’am. Senator Tucker.
Tucker Thank you, Mr. Chairman. Senator Clark, you have rights in this proceeding here today, which I absolutely respect. And I firmly believe this proceeding should be totally fair to you, and I support that. Senator Hammer also has rights as well. And with this motion more so than the first one, my thought process is trying to balance that. And, you know, Senator Hammer is in a particular position as the chair of the Ethics Committee. And, you know, part of me wonders whether he needs his own counsel as to the questions that you may be asking of him. So I have to weigh that in my own mind before I’m prepared to vote on your motion. And from my standpoint, I know you’ve said a little bit about what you expect Senator Hammer’s testimony to be, but just for me, I need more detail. It’s been a little vague to me about why you may need to call Senator Hammer. But before I’m comfortable voting on this motion and trying to balance the rights between, you know, yours and Senator Hammer’s, I just need a little more detail.
Clark Okay. Could you repeat just the question?
Tucker Yeah. So I’m trying to, trying to balance– I want to support your rights to a fair proceeding here today. I’m totally supportive of that. Senator Hammer also has rights as a witness. And I think he needs to be on notice of whether he should get his own counsel as a witness in this proceeding. And he can’t do that without knowing, having some notice about what he may be called to testify about. He also has obligations as the chair of the Ethics Committee. You know, there’s confidentiality with regard to the proceedings that took place over there. So for me, I’m trying to balance your rights with Senator Hammer’s rights as to the proceeding here today. And in order to resolve that, in my mind, I need more detail about what you’re expecting out of Senator Hammer as a witness. And it’s been– you’ve, you’ve made a little bit of a comment about what you expect out of Senator Hammer. To me, that comment is fairly vague, and I just need more in order to be able to resolve how I’m going to vote on the motion.
Clark Thank you, Senator Tucker. First of all, I wouldn’t, unless I think it’s– I understand your concerns. I understand others’ concerns. I looked at it long and hard. And I wouldn’t call Senator Hammer unless I thought it was completely necessary. And I don’t know of anything that I would ask that would be incriminating or, or secretive.
Hickey Take them outside. This is one of those proceedings where I don’t want there to be any outside interference. Thank you. Senator Clark, I apologize.
Clark Like I said, this is very serious. And there are issues that Senator Hammer may be able to answer after other testimony has come forward.
Hickey Okay. Is there any other–
Clark Could I– and if not for that purpose, Senator Tucker, I wouldn’t– I won’t call him, and you can raise– and if you see me– if I called him, which is doubtful, and I do that, then please raise that concern because it is not– I don’t have any evil intent.
Hickey Any other questions? Senator Hammer. Then Senator Sturch. Senator Hammer, you’re recognized.
Hammer I’d like to direct this to the chair with the opportunity to ask our Senate legal counsel. Can I direct it to the chair, please?
Hickey I guess so, sir.
Hammer So as the one who may be put under, you know, to be called as a witness, that also is the Senate chair of Ethics, would I have the opportunity, because I didn’t have advanced– I don’t know if I had advanced notice I was going to get called as a witness or not– I can’t remember– to know to bring legal counsel to represent me in this. Can I, could I request today to have somebody represent me to ask me questions back. In the event I’m asked a question by Senator Clark, I would just like the opportunity to be able to respond. But I don’t know who that person would be to give me an opportunity to respond.
Hickey My answer to that would, I would assume, no. Because I don’t know how that would work. We don’t have it in our proceedings. We’ve scheduled this meeting and you’re here today. If you have– we don’t have– we have nothing in our, in our procedures that states that, you know, if a witness or whatever, I guess, has outside legal counsel with them, whether they’re going to be allowed to speak, they’re going to have to be beside you, things of that nature. So the way that we’re currently set up, 18 members of this body can feel differently. But I would have to, have to rule no.
Hammer Follow up question?
Hickey Yes, sir.
Hammer Could I make a motion in a little bit to ask for legal counsel, would I be allowed to make a motion in a little bit if needed?
Hickey I, and again, Senator, and I hope all the senators understand this. You know, I’m having to make these decisions on the fly as we go.
Hammer Yes, sir.
Hickey This is not something we normally do. I would think that that would be appropriate. I think that would be appropriate after the motion that would either allow or not allow you.
Hammer Thank you.
Hickey Well, I said Senator Sturch and then Senator Beckham.
Sturch Thank you, Mr. Chair. This is a question to you as well, and probably our staff. But I wanted to know, is there anything in our rules that says the respondent cannot ask the Senate Ethics Chair questions after his presentation? I’m looking through it, but I’m trying to figure out then why would that not be the opportunity for the respondent to ask the Senate Ethics Chair questions?
Hickey They would be able to. I think that was kind of brought up a minute ago, and somebody kind of asked Senator Clark, you know, if he were to differentiate between those. So, yes, sir, I think that’s a very good point.
Sturch Thank you.
Hickey Who was next? Senator Beckham.
Beckham To clarify Senator Hammer’s request, if he’s called as a witness, he can’t question himself, correct? He can’t cross-examine. Does that make sense?
Hammer I’d like a better lawyer, Mr. Chairman.
Hickey Thank you, Senator Beckham. Members, can we move on? All right, Senator Mark Johnson, I seen you next and then Senator Hendren.
M Johnson Mr. Chairman, in– to make this more efficient, this might be a question for Mr. Cook. But I presume– I hope– that Senator Hammer would have all of his Fifth Amendment rights in this proceeding, including simply to decline to take or answer a certain question from Senator Clark if he thought it would not be in his personal best interest. Therefore, I would hope that we could allow this to move forward with the understanding that, not because he’s a senator and that he’s been asked to testify, but because as a citizen if he just declines to answer that would not preclude him from answering the other questions. Is that correct, Mr. Cook, more or less?
Hickey Mr. Cook has indicated yes on that.
M Johnson Thank you, Mr. Chairman.
Hickey Say it in that mic, please. This is, this is not a– this is– we’re not in session. This is a business meeting.
Cook Just what you said is yes or anything that Senator Hammer thinks is privileged. That’s going to be his call. He, he, he’s compelled but not compelled to testify. He could be called, but he doesn’t have to testify. He will testify at his comfort level. But his comfort level is such that he absolutely has the right to decline on what you just said and anything he thinks is privileged.
Hickey Anybody else? Senator Hendren, you’re next, sir.
Hendren I think, I think that addresses the concern that most of us had that was brought up by the point in the rules and by Steve’s comments that 18 of us can compel somebody to testify or they’re in contempt of the Senate. And I think so long as we all understand that if Senator Hammer or Senator Flowers or any other senator who’s called chooses that they either want to exercise their Fifth Amendment or they want to leave the well just like we do every time we start getting asked questions we don’t want to mess with, they have the right to do that. I think if everyone is clear that that is the, the rules that we’re playing under, we’re fine. And I guess, Mr. Cook, is that what I’m hearing is the case? Okay.
Hickey One clarification. Those witnesses will be sitting at the table and not on the well. Just so that we’ve got it perfect if we can keep it that way. Anyone else? All right. Anyone want to speak for or against it? Uh, Senator Hammer, you want to speak for it? Senator Hammers’ being recognized to speak for the motion.
Hammer I think to a statement one time that Dan Sullivan made to me to remind me about the Constitution and the framers of the Constitution, that the intent is that we would always be moving toward a more perfect union. We are in unfamiliar territory. And quite honestly, I’m glad it is unfamiliar because it means it doesn’t happen on a regular occurrence. But I think the one overall arching goal that we should have, regardless of whether it’s in the rules currently or whether it’s going to be in the rules after we experience what we’re going through right now is that we would make sure that due process and no doubt is left in anybody’s mind or anything would be able to be pointed to that would say, well, because of that, we don’t really know. I personally wanted to get up here and just say that I do not object to being sworn in as a witness. I understand we are setting precedents and so I also understand I’m speaking for myself personally. But I just wanted to make sure in the clarity of the body that I do not have any objection. But with all clarification and moment allowed, I’ll make a motion, because I would like representation off of the committee. And we’ll learn from this and go on. Thank you.
Hickey Senator Dismang, you are recognized to speak against the motion.
Dismang And my reason is this. I mean, Senator Hammer is charged with the task today that he’s going to have to perform for this entire chamber as head of the Ethics Committee. There’s a time and place that he’s going to be able to be asked questions by Senator Clark. I do not see the point in setting him aside as a separate witness. And I also think that’s going to very much cloud– or put a cloud over this process and what his role is if forevermore the chairman of the Ethics Committee is then also able to be called down as a separate, independent witness. [01:23:38]Again, I don’t know because I’m not an attorney, but I don’t think that the defendants typically call the prosecutors to the table and then start asking them questions. [9.1s] I don’t think that that’s how that works. But again, for that reason and really for the precedent that I think it would create, I think it would be a bad idea for us to start calling the person that is about to lead this session in some ways also as a witness for the defendant. I just, I don’t think that that’s the proper thing for us today.
Hickey Okay. Senator Dismang has spoken against. Senator Ballinger, you want to speak for? You’re recognized to speak, sir.
Ballinger Thank you, Mr. Chair. Just for– let me share something with you that feels like it’s extremely compelling to me– is the processes set up when somebody files a claim for ethics violation that, that they all have the opportunity to have due process. So what will happen is Senator Flowers filed an answer. All of the evidence– everybody can bring evidence. It goes before the, the Ethics Committee. And then you can provide testimony. [01:24:45]You can bring people down to testify. Well, what’s happening here is none of that happened. Like, none of that happened. [6.6s] If, if you were in a situation where there was a– where there was a prosecutor that had evidence and he was a necessary witness, that prosecutor would recuse himself. And to some extent, we kind of saw that a little bit. Last time Senator Hickey brought the claim, so he didn’t preside over. He passed it over to you because he didn’t want to have any appearance of impropriety. Well, if this– if we had the extended process like we normally would, where Senator Clark could say, you know, Senator Hammer is a necessary witness, maybe he wouldn’t be the one who would be, be designated as the person who’s carrying this. [01:25:24]We’re, we’re struggling through this because, frankly, we don’t have a set of rules for this situation, that, that he never had the opportunity to go before the Ethics Committee and present his case. [10.0s] He may have filed the charge, right, for the prosecution, but he never had a chance to explain, you know, put on the evidence as the reasons why he did it before there was ever, ever findings of this issue. So to me it seems extremely compelling that we should, even though it was muddy, even though it’s a mess, that we should get the opportunity to do that now. I know that probably Senator Hammer is probably not going to get called because he’ll make himself available and be willing to answer all the questions when he’s presenting. But if he doesn’t or somebody makes a motion or is cut off or whatever it is, then I think the person who’s about ready to face some real hard penalties ought to be able to put on his full case as much as he possibly can in this abbreviated situation. Thank you.
Hickey Okay. Senator Ballinger has spoken for the motion. Does anybody want to speak against the motion? Anybody else for the motion? Senator Clark Tucker, you are which way? On the motion. Yes, sir.
Tucker I really just want to, want to respond to a point that Senator Ballinger made. Everything that Senator Ballinger said about due process for Senator Clark, I’m 100% on board with. Totally agree. [01:26:49]But Senator Ballinger made some comments about the fact that Senator Clark never had an opportunity to discuss any of this in front of the Ethics Committee. And that’s, that’s not exactly what took place. And I just wanted– was it a full proceeding? No, it was, it was not a full proceeding, and there’s merit in Senator Ballinger’s point. But to say that Senator Clark never had an opportunity to address any of this with the Ethics Committee is not accurate. [21.4s]
Hickey Okay. Hold on. Do you want to take a question?
Tucker I’ll take a question.
Hickey Senator Ballinger, do you want to be recognized for that?
Ballinger Thank you. Senator Tucker, but the one thing I guess my point is, is he didn’t– was not aware that he was having charges brought against him. So he was able to speak all he could as to why he brought the– brought– made file the claim. But what he didn’t have an opportunity to do was to demonstrate that the– that his claim wasn’t, wasn’t frivolous, that his claim was motivated out of, out of an animus or motivated out of being retaliatory. Like he never had a chance to put on any evidence to demonstrate that any of these facts that has been presented against him, the claim against him, are not true. Correct?
Tucker There was no formal allegation pending against him at the time the Senate Ethics Committee proceeding took place. There’s– and the evidence does not– if it were a Venn diagram, it would not be a 100% overlap and which is why I think we need to be deferential to Senator Clark and allow him to call– I voted in favor of allowing him to call Mr. Cook. [01:28:14]But the Venn diagram, there’s, there’s about, I don’t know, 90% overlap maybe. And so everything we’re about to discuss was discussed– maybe not, not everything. But a huge portion of what we are about to discuss was thoroughly investigated and carefully considered in the Ethics Committee proceeding. And Senator Clark, not in the Senate committee deliberations, but for the actual proceeding, was present for all of it, and able to address any question that the Senate Ethics Committee members raised and a bunch of questions related to this specifically were raised to Senator Clark during that proceeding. [33.1s]
Ballinger So, but the, the situation is he was not aware of the claims against. So we have several pages of claims of findings of fact, right? [01:28:57]If, if, if we were talking about in Senator Flowers’ situation, it would have been a claim against her that she could prepare an answer to and address each one of them. He’s never had the opportunity to address those because he didn’t see them until Friday after the decision was made, correct? [14.3s]
Tucker [01:29:13]So, I’ll repeat one thing I said earlier, which is there was no formal complaint against him. We’re on the same page there. Before the Ethics Committee adjourned and made its ultimate recommendations, Senator Clark was called back to the Ethics Committee, and he was asked about the items that were ultimately included in the report. And he had an opportunity to address those items in front of the committee. [21.3s]
Ballinger [01:29:35]When, when was that? When did he have the chance to address this? [2.2s]
Tucker [01:29:38]A week ago today. [0.6s]
Ballinger Okay. So on the Friday. How, how long after that was the report actually released?
Tucker I can’t tell you. Maybe 60, 90 minutes, something like that.
Ballinger So was that, was that report prepared before you ever heard his testimony?
Tucker Well, yeah, I think I’m going too, too far into divulging what happened in the, in the Ethics Committee proceedings at this point. And maybe I opened the door, in fairness. But I just wanted to– I did want to take issue with the notion that this was never discussed with the Ethics Committee or that he never had an opportunity to address it, because I don’t think that’s fair or accurate. But I’m with you on making sure that he has a fair proceeding here today. I just wanted to clarify any misconception about the due process of the Ethics Committee proceeding as to this.
Hickey Okay. For, against, on? Anybody else? We finished? Okay. I’m not going to make a ruling on this. So, Madam Director, if you would, I’m going to ask you to call the, call the roll.
Garrity Ballinger? Ballinger is yea. Beckham? Beckham is yea. Bledsoe? Bledsoe is no. Caldwell? Caldwell is yea. Chesterfield? Chesterfield is no. Clark? Clarke is yea. Davis? Davis? Davis is yea. Dismang? Dismang is no. Elliott? Elliott? English? English is a no. Flippo? Flippo is a yes. Flowers? Flowers is a no. Fulfer is on leave. Garner? Garner’s yes. Gilmore?Gilmore is a yea. Hammer? Hammer is a yea. Hendren? Hendren is a no. Hester? Hester is a yes. Hickey? Hickey’s no. Hill? Hill is yes. Senator Ingram is on leave. Irvin is on leave. Blake Johnson? Blake Johnson is a yes. Mark Johnson? Mark Johnson is a yes. Leding? Leding is no. Pitsch? Pitsch is no. Rapert is on leave. Rice? Rice is a yea. Sample? Sample is a no. Stubblefield? Stubblefield is a yes. Sturch? Sturch is a no. Sullivan? Sullivan is yes. Teague is on leave. Tucker? Tucker is yes. Wallace? Wallace is yes.
Hickey Let us, let us tally. Ma’am?
Elliott I’m so sorry. Can I vote or not vote? Either way, it’s okay.
Hickey You can on this because it’s not on the ethics. So, yes, ma’am. Okay. And since we did it that way, anyone else wish to vote? Anyone else wish to change your vote? We’ll just do it that way on this one. Okay. Now we’ll tally that up. Okay. By a vote of 18 yeas, 12 nays, that motion is adopted. So, Senator Hammer, you will be allowed as a witness. Senator Clark, if you would proceed to your next one. I have, I have Senator Flowers down if you’re–
Clark I’m not going to call Senator Flowers.
Hickey Okay. All right. At this point, I think to stay right, you have some exhibits. And then after we do this, because you turned all these in at the appropriate time, because we asked you to do this by a certain time, which was in our Senate procedures. So if you would, why don’t you present your exhibits one at a time? You have three of them, correct?
Clark Yes. But what do– do y’all have–
Hickey If you’ll do your first one.
Clark I have a– okay. Thank you. The first exhibit is just entitled timeline and it just lists dates that I intend to fill in, but it will make it easier for members if they have the timeline as an exhibit.
Hickey So, so what you’re telling me, though, this is a working type document. It’s not an exhibit.
Clark The dates are important, but it is an exhibit. Yes. These are dates that things happen. And let me again say whatever you want to do. This is a new charge, a different charge. I had no ability to submit evidence before on charges that I filed a frivolous charge.
Hickey We can call it One. How about that? Everybody okay with calling it Exhibit One? Senator Clark, are you okay with calling it Exhibit One?
Clark I’m fine with that.
Hickey Would you make it– would you write that on the top of it? Or Senator– or Mr. Cook, would you write that on the top? It’s not in the binder. This, this– I’m sorry, Senator. Again, everything that we’re doing right now is, is additional that Senator Clark, he has to request this of us. But if we, if we want to mark that as Exhibit One, that that might be, might be a wise thing to do. Mr. Cook, would you do that? Okay. So I guess, Senator Clark, before we go any further, I want to, I want to ask this. So in my opinion, you’ve got an exhibit. An exhibit is a document that’s complete. I heard you say that it will be filled in. So what you’re, what you’re saying is, is you’ve got a document that’s going to be a working type exhibit. Is that, is that what you’re saying?
Clark Correct. Yes.
Hickey Okay. Just for clarity of the, for the membership, so you, so you hear that. My– you know, whenever I think of– I believe– it’s up to you. An exhibit, of course, is we would think that that would just be a document that would be presented. Senator Clark has indicated that this is something that he’s going to be filling in as we go. So let me, let me let Senator Clark finish. I think we’ve got–
Chesterfield In order to deal with the exhibit, the members of the chamber need to see the exhibit, whether it’s working or–
Hickey Our fine staff has made copies and planned for that.
Chesterfield Thank you so much.
Hickey Senator Clark, are you okay if we pass those out?
Clark Absolutely. I want, want them to have it.
Hickey Senator Clark, you go ahead and proceed. Let’s try to roll, roll on through.
Clark [01:38:28]Make a motion that we allow this exhibit evidence. [4.5s]
Hickey [01:38:35]Okay. Senator Clark has made his motion. Any senators have any questions of Senator Clark? Senator Blake Johnson. [9.8s]
B Johnson [01:38:47]Senator Clark, there’s nothing on here but dates. [4.1s]
Clark [01:38:53]That is correct. [0.4s]
B Johnson [01:38:57]How is that, how is that evidence? [2.8s]
Clark [01:39:05]It’s an exhibit. [0.4s]
B Johnson [01:39:07]What’s. What’s behind a date? [1.1s]
Clark [01:39:13]The, the committee has, again, and the term ‘reckless’ stays in my mind, but that has made the charge that I proceeded without evidence and without reason. And the timeline will show that that’s not the case. But I thought it would be easier for you to have the, have a timeline where you could fill in the dates so that the dates were easily seen that one comes after the other. [41.5s]
B Johnson [01:39:58]So do you want me to go through this, the charges and fill in while we’re doing this? Is that what– [9.8s]
Clark [01:40:09]I do not. [0.3s]
B Johnson [01:40:11]So what happened on July the 28th of 2022? [2.1s]
Hickey [01:40:14]No, I think let’s– I think we just need to stay as it, as it relates to the document itself is the way I would see that, members. [9.2s]
B Johnson [01:40:24]That’s the document. [0.5s]
Hickey [01:40:26]I understand. But I think, I think this is the document that’s being presented. So this is what you’re going to be voting on is this document right here. Senator Johnson, I’m– are you finished, sir? You’re finished? [21.7s]
B Johnson [01:40:50]I guess. [0.3s]
Hickey All right. Senator Hendren?
Hendren Yeah, I guess– is it my understanding we have three of these that we want to have introduced? Is it possible for the sake of moving things along that we just take a motion? I don’t think anybody objects to letting him put whatever evidence he wants to in for us to, you know, look at. But to go through this for three times, can we just combine these and make a motion to allow these things to be admitted as exhibits?
Hickey As– no. As our– whenever we decided this, this is the way we decided that each, each witness and each exhibit would have to be done separately. So.
Hendren Okay, then I move immediate consideration on admitting this exhibit.
Hickey All right. All in favor say aye. Opposed? Okay, now we will– we have a motion on this exhibit. All in favor of allowing this exhibit, say aye. All opposed, say no. No. Okay. You want to present your next one, Senator Clark?
Clark Yes, Mr. Chair. Number two is an email from Tamara Lewis to me, and along with the attachment of my per diem, a spreadsheet of my per diem during the 2021 session. The purpose is to both– there’s allegation against the amount of time that I might have wasted with staff. And two is just to demonstrate that the charges are not frivolous.
Hickey Staff’s passing out all the documents so let’s, let’s get those. We got– we had Exhibit One on the first one. That was the one with the dates that we just voted on. Exhibit Two, Senator Clark, if we’re in agreement is going to be the email. Is that right?
Clark The email from Tamara Lewis.
Hickey All right. Members, if you see the email, the one with the email from Miss Lewis, if you would mark that as Exhibit Two. Okay. Senator Clark, you’ve– that document’s been passed out. I want to remind you that you’re supposed to provide us how that document is going to further your testimony, and then I think you’ve already provided why–
Clark I did–
Hickey — in a broad statement of why, why that you didn’t do it before the committee.
Clark I had no way of knowing that it would be needed when I filed ethics charges against Senator Flowers.
Hickey Okay. Any questions? Any questions in regards to this document? Okay. Any, anyone wish to speak for or against this, this exhibit. Okay. All in favor of allowing this document, please say aye. Any opposed? Motion carries. Okay. The next one is– I believe you’ve already passed that out, haven’t you, Miss Garrity? Okay. The next one is an email. Is that correct, Senator Clark, to Miss Garrity? It’s dated September 14, 2022.
Clark That is correct.
Hickey 10:51 a.m.
Clark That is correct, Mr. Chairman.
Hickey Members, mark that Exhibit Three. Senator Clark, just– you want to make a motion to allow this?
Clark I’d like to make a motion to allow the document or whatever we’re calling exhibit number three. The– [01:46:39]this email does nothing to further my case, Mr. Chair, except to enter into evidence that I wasn’t contacted till 5:52 on Monday about getting together evidence and witnesses by Wednesday noon. [18.3s]
Hickey [01:46:59]Okay. The way that we’ve set up our procedures is, is that is, that you have to state, I guess, why it furthers your case and you’re stating it does not further your case. [10.7s]
Clark [01:47:11]It shows that I wasn’t given a whole lot of time. [3.4s]
Hickey Okay. Members, any, anyone have any questions of Senator Clark on this? Anyone want to speak for or against this one? All in my favor for allowing this document, say, please say aye.Any opposed? Okay. All right. It’s my understanding that that concludes the ones that you were presented. And then at the beginning of this meeting– you had been given to Wednesday to get those in.
Clark Wednesday noon, correct.
Hickey We sent– we– just so everybody here knows, I had sent a letter to Senator Clark asking him, if I remember correctly, by this past Wednesday at noon– staff, correct me if I’m wrong– that he would provide any witnesses or additional evidence that he wished, wished to present. And that’s what we just did. So now upon coming into this meeting, Senator Clark has approached me, and I said I would bring it up, is he also wants to, outside of our procedures, present another witness and one more piece of evidence. Is that correct? One more exhibit.
Hickey Okay. So first members, I’m going to take– and I know his procedures– but I’m going to take a motion that if you all want to allow that due to our procedures and then we’re going to proceed to the same thing that we’ve been doing. So, Senator Ballinger, you have a question of that?
Ballinger Yes. So, and I kind of alluded to this earlier, we have procedures that we’ve adopted that sets up the procedures for a respondent to be able to respond. In this case, Senator Clark was never a respondent. Right? He was, he was a petitioner or claimant, but he was never a respondent. So I don’t– I mean, I, I, I think that that’s one reason why we should grant a lot of leeway in this case. But I don’t know that we have any structured rules that says he has to provide anything at any particular time. We’re going to go off from the old rules that we have, probably because that’s the best that we got. But the truth is, I don’t think there’s any rules that really pertain to his situation because he is not a respondent, which is what those rules were drafted for.
Hickey In all fairness, and again, this is a business meeting. We’re not in session. Yes, sir. And to be as fair as possible, I had directed the staff to do that so that we would go through this whole process just, just for that. So that’s the reason that I used those proceedings that we had in place to go ahead and allow Senator Clark to do that. Now, this does move somewhat outside of that, since he’s asked us to do something that’s different than even that we would have allowed for the regular respondent. So, so I guess, members, the first thing I’m going to do is, is I want– I guess I’m going to have to have you to make a motion, Senator Clark, that we are going to suspend our procedures to allow you to present. So if you would do that at this time, sir, if that’s what you wish to do.
Clark I ask the body to suspend our procedures so that I can submit– ask you to submit– or am I asking that now?
Hickey Okay. You’ve heard Senator, Senator Clark’s motion. All in favor say aye. Any opposed. Okay, Senator Clark, that motion passed. So if you would, do you want to start with your– to ask the body about the witness first or the exhibit first?
Clark I’ll ask about the exhibit first.
Hickey Okay. So if you would, again, just start with, I’d move that you allow whatever this exhibit is. Do you have a copy of that? Okay, let me ask this. Can we take a few minutes and let our staff–
Clark I gave you 40 copies. Oh, I’m sorry. They’re over on that desk. I told you I had 40 copies.
Hickey All right, well, let’s, let’s hold up. So are– all these copies are the same as the one that you have, Senator Clark?
Clark I can put this in and grab another one.
Hickey Okay. That’s all I need to know. Yes. If you don’t mind, staff’s going to pass this out before he starts.
Clark Okay. Thank you, Mr. Chair. This evidence is a Facebook post by me made July 27.
Hickey Hold on just a moment. Everybody has that except me. Okay, we have one. We have Exhibit Two. We have Exhibit Three. This one that was just passed out, will everybody please mark it Exhibit Four so that at least you’ll have that so if this is being referred to, if it passes, that we’ll have it correct. Ma’am?
Chesterfield I move to accept Exhibit Four.
Hickey Well, I’m not going to accept that, because he has got to present, because he has to– he’s supposed to present how it furthers his case. Senator Clark, proceed, please.
Clark Thank you, Mr. Chair. In the charges, it says that I have continually threatened the committee and attempts to use Facebook posts to show that. This– and also that I’ve retaliated against Senator Flowers because of her actions. This is a Facebook post that I made on Senator Sample who made the motion that was in question with me defending him. And somehow the committee missed this, and I would like to enter it into evidence.
Hickey Okay, members, you have the document in front of you. Any questions of Senator Clark? Senator Wallace. You’re recognized.
Wallace Thank you, Mr. Chair. What is this on? What paper?
Clark Sentinel Record. Hot Springs Sentinel Record. We just call it Sentinel Record.
Wallace Thank you, sir.
Hickey Any other questions of Senator Clark? Anyone want to speak for or against this? SenatorsClark’s motion is to allow this exhibit. All in favor, please say aye. Any opposed? Okay. That motion will also carry. Everybody does have it labeled Exhibit Four. Senator Clark, you now have a witness. Who– how do you want to proceed with that? Who is–
Clark Thank you, Mr. [01:54:46]Chair. I would like to ask the committee to allow me to introduce Clint Lancaster as a witness, as an attorney, to define what frivolous is in the law and how it’s determined in the law from a legal perspective from an attorney. [27.4s]
Hickey [01:55:17]Okay. You’ve, you’ve heard Senator Clark’s motion. Senator Dismang, do you have a question to Senator Clark? [5.5s]
Dismang [01:55:26]So we’re asking for an expert witness, essentially what you’re doing, but also that same individual is representing you. If your attorney comes down and decides that he wants to make himself and avail himself of this entire Senate, then there will no longer be attorney-client privilege between you and that attorney. He is now a witness and will be asked any question that anyone in this body deems necessary. [22.2s]
Clark [01:55:51]That would be– [0.3s]
Dismang [01:55:52]Then he can be a witness?[0.2s]
Hickey [01:55:53]Let’s, let’s keep– bup, bup, bup. Let’s keep, let’s keep the order, Senators. Right now. Hold on, please. We’re not going to proceed. [5.9s]
Dismang [01:56:01]But there was no other way– [0.6s]
Hickey [01:56:01]Senator Dismang– [0.0s]
Dismang [01:56:04]Was there no other way for you to come up with the definition of frivolous? [3.0s]
Clark [01:56:11]The– I think it’s much more important coming from an expert attorney than it is coming from me. And again, I’m trying to present a defense. The– and I will waive privilege with this attorney, if you wish. [24.1s]
Hickey [01:56:38]Okay. I have some information that I need to present, Senator Clark. And I hate to do it this way. But, okay, if everybody will look at in our Senate procedures on page 2, number 6d. I’m going to read this so that you’ll have it. It says, “The respondent may bring his or her own legal counsel to the Senate business meeting, at which the Senate Ethics Committee recommendations regarding the respondents are being heard. Respondent’s legal counsel will only be allowed in the Senate chamber in an advisory capacity to the respondent and shall not address the Senate, question witnesses, or make objections to the presiding officer. Respondent’s legal counsel shall be seated next to respondent at the table designated for the respondent only.” So you need to have that information in front of you because our procedures do say only with them. So, Senator Clark, do you wish to proceed with what you’re trying to do based on– [53.3s]
Clark [01:57:31]I do. I would like– [0.8s]
Hickey [01:57:32]Okay. All right.[0.3s]
Clark [01:57:33]I would like for Clint Lancaster to be a witness and not an attorney. [4.9s]
Hickey [01:57:38]I understand. Okay. Anyone, anyone have any other questions of Senator Clark? Senator Blake Johnson for a question to Senator Clark.[10.7s]
B Johnson [01:57:51]Can our Senate legal counsel define those terms without, without going beyond what we’ve said in procedures? He is our legal counsel. He can– he has a definition for those. [17.6s]
Clark [01:58:10]Senator Johnson, I’m sure he can for you. This is the, the– my case in defending myself. So that’s why I’m asking for someone outside to testify. [16.5s]
Hickey [01:58:30]Did that answer your question, Senator Johnson? Senator Blake Johnson. [3.4s]
B Johnson [01:58:35]Well, I don’t know. There’s two lawyers in the room.Three, I guess.[2.3s]
Hickey Right now, members, please. Honestly, we’ve got to, we’ve got to keep our decorum in here. Okay. Is there any other questions? I’m sorry, Senator Hendren. I did see you earlier. You’re recognized to ask Senator Clark a question.
Hendren I don’t know if it’s a question or it’s a point of order. You just read the rules that clearly state he can’t do this. It’s against the rules for the attorney to come and address the Senate. That’s what the rules say. So I guess my point of order is if we’re going to do this, it’s a suspension of the rules. It’s going to take 24 votes.
Hickey We really don’t just– it’s really not– in this in this thing, it’s really not a rule. We have procedures. So it would probably, if we did that, just be an 18 is what it would take because these are actually just our procedures. We’re not operating on the rules with our business meeting as, as it relates to this Ethics thing.
Hendren So what you read is not in our Senate ethics rules?
Hickey It’s in our– no, it’s in our Senate– it’s in our procedures that we passed here a few months ago whenever we were down here.
Hendren [01:59:45]So then this motion is to violate our Senate procedures, to get his attorney to define what, not the law says, but what our rules say, correct, that we wrote?[10.6s]
Hickey That’s why you have that information in front of you now. Yes, sir. And he’s proceeding with his motion, and it’s up to each one of you all to make that decision. So, anyone else? Senator Beckham.
Beckham [02:00:14]Just want to clarify something that Senator Clark stated, but I don’t think many of us caught it. And if he could clarify it. Were you asking to have your legal counsel excused as legal counsel and become a witness? Is that what you’re asking? [14.5s]
Clark [02:00:29]That was– yes, that’s what I asked. [1.9s]
Hickey Any other questions? Do you care to restate your question, Senator Beckham?
Beckham [02:00:42]Yes. What I heard Senator Clarke state was that he no longer wanted the gentleman here– I can’t recall his name– to be his legal counsel, but wanted him to be a witness instead. Is that correct? [13.4s]
Clark [02:00:56]That is correct. [1.3s]
Hickey Which I don’t– which personally– he’s already been recognized as his legal counsel and identified him by name, which I had that done at the beginning. So I don’t know how that would work either. So anyway. All right. All right. Any other questions? No other questions. Anyone want to speak, anyone want to speak for this motion? Anyone want to speak against it? Senator Dismang, you’re against, correct? Senator Dismang’s against.
Dismang [02:01:31]Members, I mean, we’ve identified someone as an attorney or a, you know, attorney, whatever it may be, allowed them privilege to sit in this room, and then we’ve changed and decided now at this point we want them to provide a simple definition or a legal definition of the word ‘frivolous.’ The other thing I would say, as far as furthering the case, where we are right now, the definition of ‘frivolous’ is what you are being asked to define yourself today, not for someone else to define for you that is not a member of this body. And so I’m not sure what we’re doing anymore at this point, but this, I mean, I think it’s improper. Number one, we’ve allowed them– our rules specifically stated– everybody saw the rules whenever they came out the very last time. And your attorney is only supposed to participate at that table in a quiet manner with you, not before us, as some type of expert here. And again, for that reason, I would ask that this particular individual not be recognized as a witness. [51.7s]
Hickey Okay. Senator Dismang spoke against it. Anyone want to speak for it? Anyone else want to speak against or on? Senator Clarke Tucker wants to speak against also.
Tucker [02:02:40]I just want to concur with what Senator Dismang said. Witnesses testify as to facts. If you have knowledge about what happened, you can testify to that fact. There is opinion testimony offered in court at times. Those are expert witnesses. The only exception for expert witnesses in a court of law is that you cannot testify to what the law is because that’s for the jury to decide. In this case, the members of the Senate are the jury, to Senator Dismang’s point. Now, if this gentleman had knowledge of the facts of what took place, perhaps he could be called as a witness to testify as to those facts. But as defining for us the question that we’re supposed to decide, that’s for the Senate. So I would concur with Senator Dismang. [37.4s]
Hickey Somebody is wanting to ask you a question. Do you want to take it or not, Senator Clarke [Tucker].
Tucker I’ll take it.
Hickey Senator Mark Johnson, do you have a question?
M Johnson Senator Tucker, would you take a question?
M Johnson What I was inferring from all this was that the, the witness that Senator Clark wanted to call was going to speak from, and, again, I’m speculating, Black’s Law Dictionary or some other document, not his personal opinion about definition of a word. Now, you know, we come into this chamber, we can have 35 different definitions of any word. But I hope that what he was trying to share was something, because in legal terms, there are established definitions of words. And I, for one, would like to hear that, whether it comes from Mr. Cook or Mr. Lancaster or from you or maybe even the chair. But I think that, again, the fact that we’re not only– you know, Senator Hammer is a prosecutor, he’s also a juror. We’re in a little different situation here. And again, I would like to see at least a little leeway on us and knowing the source of that definition, rather than in my opinion. But you could say Blacks Law dictionary. Would you agree?
Tucker [02:04:36]The way this process was set up is that a senator who’s a respondent has an opportunity for legal counsel. The senator is the one who makes the arguments, not the lawyer. That’s the way this process was set up. Now, Senator Clark is very capable of standing up here and making a case as to why what he did was not frivolous. He’s very intelligent, well-read, and I know he’ll have the evidence for it. And he can do that on his own. And he can get it. Arguments from a lawyer, that’s what the process allows. But the way the process was set up is that he has to be the one to make the arguments. And his lawyer can say, Use this definition of frivolous from Black’s Law Dictionary. It’ll be persuasive to the members of the Senate. And then it will be up to Senator Clark whether he wants to use that definition or not and make his case. That’s the way this process was set up. And what this proposal is is basically just an end run around that process to let the lawyer make a legal case. But that’s, that’s not what’s happening or that’s not what’s supposed to happen under the procedures that were set up for the Senate. [59.1s]
M Johnson I don’t know if I agree or disagree, Senator, but thank you for answering my question.
Hickey Senator Flippo, do you have a question?
Flippo Motion at the proper time.
Hickey I don’t think now is the proper time. Please, just– we’re almost, we’re almost here with this one. Does it pertain to this or is it something different? Okay.
Flippo Motion for immediate consideration.
Hickey Okay. That’s a proper motion. Non debatable. All right. First of all, we’re going to vote on the, on the immediate consideration. All in favor of immediate consideration, say aye. Any opposed? Okay. So now we’re going to vote on the motion. Would you please restate that motion?
Clark [02:06:27]Motion was to allow Clint Lancaster as a witness for the purpose of defining a legal definition of ‘frivolous’ and because that’s what this case is supposed to be about. [20.2s]
Hickey [02:06:48]Okay. You’ve heard Senator Clark’s motion. All in favor of Senator Clark’s motion, say aye. Any opposed? All right. The no’s have it. That does not carry. So that fails. [11.4s]
Hickey Okay, so you’re, so we’re finished with that portion at this time. So, Senator Clark, you can have a seat. At this time, we are going to take a 5 minute recess. So if everybody would be back here, I’m going to say 4:07.
Hickey Okay, members, I’d ask everyone to please take their seats so we can proceed. Okay, members, we’re back from recess. At this time, I guess we’ll proceed to Senator Hammer’s presentation to the committee. Findings and recommendations. For what purpose?
Dismang I’d like to make a motion.
Hickey Yes, sir. You’re recognized. Senator Dismang, is recognized for a motion.
Dismang [02:18:34]If I’m kind of listening correctly, I believe that what Senator Clark said is that he has not had time to adequately prepare. In fact, if you look at what would be Exhibit One, he’s not had the ability to even fill out his own timeline. So I’m sensitive to that and I understand that. With that being said, we also have other members that made obligations for this afternoon, and I do appreciate all the attendance we’ve had. But I would like to make a motion that we recess at the call of the chair, that, you, the chair, would then work with staff to make sure that we have an appropriate time where we can reconvene with the appropriate number of members. [33.1s]
Hickey Okay, there’s, there’s a motion– we have a motion on the floor. We have a second. Can you hold on, please sir, before you go to the well. Do you have a question of Senator Dismang?
Ballinger [02:19:24]I have a substitute motion. [1.0s]
Hickey [02:19:28]Okay. [0.0s]
Ballinger [02:19:29]I move that if we’re going to do that, that we provide the opportunity for Senator Clark to bring his evidence and present it to the committee itself and let the committee actually have hearings. They can put on evidence. They can look at it and they can actually– his side of the story can be presented to the committee before the body ever comes back and hears it.[18.8s]
Hickey Okay, we’re– right now we have a substitute motion and we will take up the substitute. We’ll do the substitute motion unless I hear another motion. So the substitute motion right now is, and I want to make sure everybody understands it, your motion is– your substitute motion, Senator Ballinger, is that we would allow that Senator Clark would go back through the committee process just, and I want to make sure, you just the same as a respondent would do and the whole process would start over. Is that correct?
Ballinger Or at least his side. So, so far we have charges brought, but we don’t have a response from him as a respondent.
Hickey Okay. That, that motion, that motion’s on, on the floor. Do you want to– do you want to take questions from that motion down here? Why don’t we do it that way? Let’s do it that way. I think that’s going to be cleaner because I can already see people got questions. Okay. So Senator Ballinger– y’all have heard Senator Ballinger’s motion. Does anyone have a question of Senator Ballinger’s substitute motion that he just made? Okay. We’re saying second. I heard– no. Senator Sullivan, you look– you’re first to ask a question of Senator Ballinger in regards to the substitute motion.
Sullivan [02:21:28]Senator Ballinger, just to make sure I understand, if he goes back to the, the Ethics Committee, there has been no complaint on him. Under what grounds does it go back to the Ethics Commission? [10.4s]
Ballinger [02:21:39]No, I, I agree. I mean, the, the situation is we have a situation where we have no rules at all. [5.3s] And I, honestly, I think that we should do like we did last time and we should adopt some procedures that we do that we deal with that at least at minimum allow the, the, the presentation to go. Because if you were given all the facts, you may very well change your opinion. And then the report that comes back out to us could be different. And so as it is now, he’s never presented his case for defending the, the frivolous nature of his report.
Sullivan Follow up?
Hickey Yes. Follow up, Senator Sullivan.
Sullivan [02:22:15]So actually, we do have a rule. The rule says thethat the Ethics Committee may levy a penalty. [6.7s]
Ballinger [02:22:25]So it can recommend. It can’t levy. But yes. [1.8s]
Sullivan [02:22:28]So my point being that what the committee did was make a recommendation that there be a penalty. [8.6s]
Ballinger [02:22:37]Correct. [0.0s]
Sullivan [02:22:38]But there has been no ethics complaint. So on what grounds would it go back to the committee? [4.4s]
Ballinger [02:22:43]It would go back to committee because we’d send to the committee with my motion. [2.5s]
Hickey Any other questions of Senator Ballinger? Senator Blake Johnson, you’re first. Senator Pitsch, you’ll be second. Senator Blake Johnson. Question on the, on the motion.
B Johnson How is Senator Hammer going to chair–
Hickey Is your mic on, sir?
B Johnson [02:23:06]How is Senator Hammer going to chair and be a witness in a committee? [2.9s]
Ballinger So that, I think is a, is a situation you have to deal with. It may be a situation where he’ll have to step down as chair in order to testify. However, we do that all the time with committees on a regular basis. I don’t think it’s going to be that awkward.
Pitsch [02:23:27]Thank you, Mr. Chair. I’m on page 10 of our book and I want to read a short little thing. Basically, it’s Senate Rule 2413. “If the Senate votes to absolve a respondent of any ethical violation”– as we did today with 29 votes– “the membership may levy against the claimant one or more of the penalties”– not charges, but penalties. I think that’s what Senator Sullivan is mentioning, that this isn’t the same as levying a charge against the Senate. What we are doing is following the rules exactly to a tee with what’s going on right now up until your motion, which then asks the committee or some other senator to file a charge. What is available in the rules is the Ethics Committee, as it says, the claimant against one or more of the penalties as described, we have the right, “may levy against the claimant.” One or more penalties. It’s not a charge. And we were very, I mean, we were– we talked about that with Steve. We knew we could not file a charge as an ethics committee. That’s not the process that’s in our rules. And I agree with you. We may choose to change the rules, but we’re following the rules that are in the book right now. [71.5s]
Ballinger So I think my point is the fact that we’ve just went through a bit of a fiasco trying to figure out things as we go. Right? And one of the things that really kept coming up is he never had a chance to present his side of the story. The charges against him. Right? Dealing with the frivolous nature, dealing with all he has are, are the findings. Whereas if it gives an opportunity for the committee to actually hear those things, the situation may change. So, I, I mean, I don’t, I don’t– I’m not disagreeing with you. The point is that, that there’s, there are a lot of rules that aren’t there dealing with when you bring it, the committee levies penalties for frivolous complaints.
Pitsch Can I–
Ballinger They frankly haven’t had a chance to deal with it.
Pitsch It’ll be a follow up and it will be quick. [02:25:25]I, like Senator Tucker and the other members of the Senate Ethics Committee, after the motion and the vote asked Senator Clark to come back in and was questioned. Again, we can’t charge. We can only question. And we questioned him about things in social media and why did he do this and where was he? Even his own vote today was the vote that she had not had an ethics violation. It was very clear that this was done in that manner. So my question is, I don’t know how to relay that to the full Senate, but the Senate Ethics Committee knows we followed the rules and we handed the Senate what is Senate rule 2413 to a tee. [37.0s] I just want to– that’s the response. I don’t want to say that he– [02:26:08]I’ve got to challenge back on he didn’t have a chance to answer. Because we brought him back in and he answered. [4.8s]
Ballinger So let me just make this really clear. I’m not, I’m not in any way disparaging what the committee’s done. It’s not because the committee didn’t do their job. It’s because the committee doesn’t, has never had the opportunity to do its job. The committee took the evidence that was presented on a claim.
Hickey Are we asking questions and back and forth here? So, so, fair enough. Now, Senator Clark, I’ve seen your hand come up a minute ago. Do you wish to ask a question? Okay. If you would get, if you would sit in your chair and turn your mic on would be good, sir.
Clark [02:26:54]Senator Ballinger, while I appreciate the intent, I don’t– and the points are on– right in line. That being said, I don’t see the point of going back to the committee. [19.5s]
Ballinger [02:27:15]Then I withdraw my motion. [0.7s]
Clark [02:27:16]Thank you. [0.0s]
Hickey His motion has been withdrawn. Okay. Now we’re going to go back to the original motion. Senator Dismang, will you restate your motion?
Dismang I move that we recess at the call of the chair.
Hickey Okay, we have a motion in a second. Are there any questions of Senator Dismang? And Senator Dismang, or do you want to take them? All right. The first one I’m going to have is going to be Senator Hammer. Senator Hammer, you can proceed, sir.
Hammer Senator Dismang, I’m reading it from Rule 24.10f. “Within 10 business days of receipt of the findings and recommendations of the committee, the President Pro Tem shall call a business meeting of the Senate to consider the recommendation of the committee.” I would like to either know– I’d like to ask your opinion and maybe a ruling of the chair by the fact that we have begun the process within the 10 days, going into recess violate either the rule or the intent of the rule or have we fulfilled the obligation coming in here now?
Dismang My response to that would be, number one, we’ve already, we’ve disposed of what we were supposed to dispose of requiring the 10 days, which that was the charge against Stephanie Flowers or Senator Flowers. The second thing that we’re talking about right now is the recommendation of a penalty that would be enforced only by this body. And so I think we’ve, we’ve done our job within the allotted timeframe. I’ve heard from Senator Clark and others in the room that he did not have time to adequately respond or prepare. Fine. I understand that. And so I think it would only be appropriate that we allow that additional time for him to respond and prepare so that we can have a full hearing, an appropriate one for him.
Hammer All right. Thank you.
Hickey And who was– okay. Senator Garner, you’re open to ask a question on the motion.
Garner Yes, sir. Back to Senator Hammer’s consideration, what you said was not according to the rules when we kind of say it. It says, “Within 10 business days of receipt of the findings and recommendations of the committee, the president pro tem shall call a business meeting to consider the recommendations of the committee.” So far, the recommendations the committee’s had was this additional punishment. So it be arguable that it also falls within the 10 days requirement, since that is part of their official report with recommendation. Is that not correct?
Dismang What I would say is that the, the way that I interpret that, that has to do with the charge that was brought against Senator Flowers. There’s a secondary part of that that relates back to a penalty. And actually, I don’t have it in front of me, but I think the way that it reads, it doesn’t really even say anything about a recommendation by the Ethics Committee for a penalty. That is something that’s supposed to be done by this body. But they were privy to information, had a discussion, and did make a recommendation on a penalty, which again, I think is separate in part from the hearing they held for Senator Flowers.
Garner Is it all one report or are there separate reports?
Dismang I don’t know the answer to that. I’m not a member of the Ethics Committee.
Garner There’s one report.
Hickey Another question? You now have a question, Senator Mark Johnson?
M Johnson Yes.
Hendren Okay. It has to be on this motion of Senator Dismang.
M Johnson It’s on this motion. Senator Dismang, I appreciate your thought that you’re looking at the fact, and, again, in fairness, we are all kind of plowing new ground here. We’re setting precedents that we have to deal with in the future. That’s great. I’m glad we’re doing that. I do agree with the point that by Senator Hickey calling this today, he’s within the rule. We met that. It’s like any trial beginning, if you will call it a trial. It can be recessed. It can be continuances. He met the requirements, the rules by the fact that we’re here on the 16th. And so I think it would be appropriate to do that. I would just ask that it not be in a huge hurry. And would, would you agree that perhaps 10 days to two weeks would be a more appropriate time to make sure that Senator Clark is given the full time to prepare his case and ensure due process?
Dismang I mean, I think we need to leave it at the call of the chair because there’s a lot of background that’s going to have to occur. And that’s communication with members, making sure members can attend, adjustments with other items that we may have legislatively that we need to attend. And so, again, I mean, what I would say, I think, I think everyone plans on being reasonable. We have had time. He has, he has prepared, even though maybe not as much as he would like to. And so hopefully, like I said, this, this is an additional time regardless I think would be beneficial.
M Johnson I agree. Thank you, Senator. Thank you, Mr. Chair.
Hickey Is there any other question of Senator Dismang? You want to be recognized, Senator Garner.
Garner I want to speak against the motion.
Hickey Senator Garner wants to speak against the motion. You’re recognized, sir.
Garner Thank you, Mr. Chairman. Regardless of your opinion on this issue one way or the other. I think we can all acknowledge and agree that Senator Clark has put through a lot of hardships and pressure these last few weeks. Whether you think that’s warranted or not is a different question. So after this motion was filed, I asked Senator Clark, would he like to proceed today or would he like to come back at call the chair? Senator Clark told me that he would like to proceed today. He has legal counsel here, two attorneys that are here testify. He has all his witnesses and all his exhibits already into evidence. He has done everything he said he could do to be prepared for tonight. And we as a body are here as well at this time to discuss this issue. Now, if you want to kick the can down the road, you can do that. We can meet up again, and maybe that time we’ll actually come to some conclusion. But Senator Clark said he wants to get this done tonight one way or the other. We can have that argument about what Rule 24.13 says about the recommendation from the committee and if we should hear them. My interpretation is, is that the Senate as a whole, the membership, not the committee, gets to decide whether we want to do punishments. And the punishments we have prescribed a day in the process is similar to how we did the Ethics Committee, or complaint against Senator Flowers. That’s how it was laid out the beginning. And I think it’s the fairest process where he gets to have his day up here to defend his case. That’s a long day. I know we got different obligations. But if you want to kick it– if you want this man to go back home, sit here and deal with this later, and then come up here and deal with this again, like I say, I don’t think you’ve been in trouble enough and know what it’s like to have that day in court and to actually have something done. So I ask this body to not support this motion, allow Senator Clark to have his day, and we’ll be done with this issue, dispose of it one way or the other. Thank you.
Hickey Senator Garner has spoke against the motion. Does anyone want to speak for the motion? For the motion? Senator Alan Clark wants to speak against the motion. Senator Clark, you will– you’re recognized when you get there, sir.
Clark Thank you, Mr. Chair. Senator Dismang, I appreciate the thought. I really do. I want to get this over with. I don’t care if you vote not to hear anything I have to say and just do whatever you are going to do. I want to get it over with.
Hickey Okay. Senator Alan Clark has spoke against the motion. Anybody else for, against, on? Okay. We have a motion on the floor. All in favor of the motion, say aye. Any opposed? I’m going to rule the no’s have it. I’ve got enough hands for the roll call. Madam Director, if you would call the roll.
Garrity Ballinger? Ballinger votes no. Beckham? Beckham votes no. Bledsoe? Bledsoe votes yes. Caldwell? Caldwell? Chesterfield? Chesterfield votes yes. Clark? Clark votes no. Davis? Davis? Dismang? Dismang votes yes. Elliott? Elliott votes yes. English? English votes no. Flippo? Flippo votes yes. Flowers? Flowers vote yes. Fulfer’s on leave. Garner? Garner votes no. Gilmore? Gilmore? Gilmore votes no. Hammer? Hammer votes yes. Hendren? Hendren votes yes. Hester? Hester votes yes. Hickey. Hickey votes present. Hill? Hill votes yes. Ingram is on leave. Irvin is on leave. Blake Johnson? Johnson votes yes. Mark Johnson? Mark Johnson votes no. Leding? Leding votes yes. Pitsch. Pitsch votes yes. Rapert is on leave. Rice? Rice votes yes. Sample? Sample votes yes. Stubblefield? Stubblefield votes no. Sturch? Sturch votes no. Sullivan? Sullivan votes yes. Teague is on leave. Tucker? Tucker votes yes. Wallace? Wallace votes yes.
Hickey Do you want to be recognized?
Garrity Caldwell votes yes.
Hickey All right. Is there any, is there anyone else in here that wishes to vote? Senator Brienne Davis? Senator Brienne Davis is a yes. Anyone else? Anybody else wish to change your vote? Let’s tally it up. Okay. By a vote of 20 yeas, 9 nays, 1 present, that motion is passed. And we will stand in recess until the, until I call this back. So with that, members, we are adjourned.