Sept. 27: Senate Committee of the Whole (Alan Clark Ethics) transcript

Senate Committee of the Whole: Ethics violation by Alan Clark

September 27, 2022

 

Hickey Alright, members, if you don’t mind taking your seats, we’re going to call the Senate Business order to– Senate business meeting back to order. As you all know, we’ve been in recess from our last meeting. Senator Pitsch is, he’s going to lead us in our prayer and our pledge. Senator Pitsch, you’re recognized. 

 

Pitsch Thank you, Mr. Chairman. Please join me as we approach the Lord in prayer. Heavenly Father, we come before you today to do the work of the people of the great state of Arkansas. Be among us. Give us counsel. Be with us in our decision making. Always let us remember the fourth petition of the Lord’s Prayer, your prayer, where you told us to remember, thy will be done. In your name we pray, amen. Join me in the Pledge of Allegiance. I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all. 

 

Hickey Okay, members, I have– we’ve heard from some members who have requested that our staff give this to me. So without objection– for Senator Rapert, is there any objection to Senator Rapert? Okay, we’ll say his leave is granted. Senator Stubblefield has asked for leave. Without objection, we will consider his leave granted. Senator Sturch? Without objection, his is considered granted. Are there any other members who ask– who wish to ask for leave for any other members? Senator Johnson has asked for leave for Senator Caldwell. Is there any objection to that? Seeing none, it will be granted. Anyone else? Okay, Madam Director, if you would, please call the roll. 

 

Garrity [All present except Caldwell, Rapert, Stubblefield, Clark, and Sturch]

 

Hickey Senator Ballinger is here also. Okay. Thank you, Madam Director. All right, members, the purpose of our meeting today is to hear presentation regarding the findings and the recommendations of the Senate Ethics Committee related to the committee’s findings and recommendations regarding violation of Senate Rule 24.13 by Senator Alan Clark. We will now move to the hearing, presentation and testimony related to the committee’s recommendations regarding Senator Clark. Before doing this, just a few procedural reminders for everyone. As we determined during our meeting on September 16, this meeting will be live streamed. There was a vote on that, so we will be– this meeting is live streamed. Also, there are some exhibits that were provided by Senator Clark. Each one of you should have those. I believe they’re in your binders. I have that there in the front pocket or they’re either lying there on your, on your desk. Another thing I want to remind members is whenever we’re doing our discussions, testimony, speaking to, for, whatever it may be, that all comments and everything must be germane to the subject. And the way that our procedures are written up is that those are the matters which are the findings and the recommendations of the Ethics Committee. Also, I see that we have some guests in our galleries here today. We welcome you all and we thank you for being here. We do, we do, however, ask that your participation here is to watch and that there’s no outburst for or against, clapping, or any other thing. So, sir, that’s exactly what I was talking about. You know, that, that, that type of thing, we will not, not allow. So we will give you one warning on that. And from that point, we’ll go forward. All right. At this time– 

 

Garner Senator Hickey, I have a motion at the proper time, sir. 

 

Hickey Yes, sir. Is it the motion that you told me about? 

 

Garner No, sir. It’s a different motion. 

 

Hickey Okay. What is your motion, sir?

 

Garner I have a motion to recess at the call of the chair for the purpose of consideration of my fellow Senator and colleague and for the fact that Senator Clark would have no legal representation for this hearing today. If needed, I’m– I can explain this further if the chair allows it. 

 

Hickey Okay, I’m going to rule that is a non-proper motion. If you want to appeal it to the floor to overrule me, you can do that at this time. 

 

Garner I appeal to the floor, and I’d like to explain if possible. 

 

Hickey Okay. Do you want to come down here to explain, sir? 

 

Garner Absolutely. 

 

Hickey You’re recognized, Senator Garner. 

 

Garner Thank you, Mr. Chairman. I’m making a motion for Senator Alan Clark that we go into recess for the call of the chair. As many of you know, Senator Clark had a pre-planned conflict that prohibited him from being here today. He had a pre-planned vacation months ago before this hearing ever started, and he let the leadership know about this meeting. He was prepared and ready to defend himself on September 16 where he appeared here with his attorneys and did not realize that this meeting would not be taken care of at this time. But putting aside that issue, and I know many of you have traveled here and canceled plans and vacations, and while I think it’s important we give consideration to a colleague on this matter, I think the second reason is much more substantive and something you consider. Having this here today would deny Senator Clark his ability to have legal representation. Senator Clark’s attorneys, two of them which appeared here last Friday on September 16, had conflicts due to the short, truncated nature of this hearing being called. They could not appear today to legally represent Senator Clark as is provided by the Senate rules and also was provided for a basic constitutional right that a Senator have a legal representation whenever he’s presenting in front of a government body. While this may be an internal Senate conflict dealing with our procedures, this is a government body who is be issuing sanctions against the individual. Therefore, he should have the right and the ability to have legal counsel here to protect himself. This is something that Senator Tucker brought up, that we have afforded protections to Senators while they bring themselves up. As such, his attorneys could not appear here. And since this was announced last Monday past 5 p.m. in a text message thread, it was impossible for him to get legal representation in such a truncated matter. For this reason, I would ask them to overrule the ruling of the chair and to allow this motion to allow Senator Clark to come back at a time in the future with both him, when he doesn’t have a personal conflict, nor– or and he can have his legal representation. 

 

Hickey Okay. So is there anyone that wants to speak for the motion? Against the motion? All right, Senator Dismang’s first. And then Senator Sullivan, you’ll be next. 

 

Dismang I mean, I appreciate the words, Senator Garner. In fact, I would argue that Senator Clark made a point over and over and over again last meeting that he was not prepared and did not have time to prepare. Now, I think all of us wanted to be quick in our response and our ability to come back here today. All of us have made sacrifices to be here today. Most everybody in this room has a job. We weren’t taking away from our vacation. We were actually leaving our place of employment to come down here to take care of our business as a member of the Senate. Now, Senator Clark probably knows that more than anyone. In fact, I mean, I’ve been a part of Senator Clark wanting to actually subpoena people to come and speak before that he was not compelled to be able to have come and speak before a committee. I would just argue everybody in this room has sacrificed their time, especially if you’re on the Ethics Committee. And to be honest, I mean, I believe that it’s in respect to this body that Senator Clark would come today. I canceled a vacation a week ago or whenever we last met. We were supposed to go to town that Friday. We did not do it. I’ve missed work multiple days now for this particular event and at no fault of my own. But I do feel like it was my responsibility to be here. And at a minimum, he could have found it to be his. So with that, I speak against this motion. He made a decision, and a conscious one, not to participate today. 

 

Hickey Senator Dismang has spoken against the motion. Does anybody want to speak for the motion? Senator Ballinger, you’re next because you’re for. And then I’ll go to– okay. Senator Ballinger. Senator Ballinger is speaking for the motion. 

 

Ballinger Thank you, Mr. Chair. How many of you all got a text saying would we be available on– I did. I know I’ve talked to a whole lot of other people who got a text asking me if I’d be available either yesterday or today. You know who didn’t get a text? Senator Clark. Now, maybe he got a– didn’t get a text because they knew, because they knew he was going to be gone. He sent an email saying that he was going to be gone. They knew he was going to be gone. I mean, like, look, if we’re going to do this and we’re going to sit here and we’re going to– there is no way that we can pretend that we are even giving a modicum of justice, a modicum of due process. If we go forward when he can’t be here, and not only him, but his attorneys can’t be here– so even if he got on a plane in the middle of his vacation and flew back and spent a day and a half here with us, he can’t have his attorneys here representing him. This is not justice. This is not, this is not fair. This is not due process, not at all. 

 

Hickey Will you take a question? 

 

Ballinger I’ll take a question. 

 

Hickey Senator Garner, you’re recognized for a question. 

 

Garner Thank you, Mr. Chairman. Senator Ballinger, you’re an attorney, you’ve been around a lot of civil cases and understand the criminal law. Is it very common practice for attorneys when they have conflicts or for a party to have conflicts to get motions to continue with a reschedule? Has it happened routinely, more than not, that hearings are rescheduled weeks out and months out in advance in our legal system? 

 

Ballinger Yeah, all the time. I mean, it happens all the time. And so what you have to do is you have to try to schedule and get everybody together. It’s not easy, and you make, make sacrifices. You figure out a way to do it. It takes a little bit of work and usually it, you know, it doesn’t happen by one person making the decision to do it. 

 

Hickey Senator Dismang, you’re recognized. 

 

Dismang Just to follow up on that question, so you’re telling me that a vacation is a valid response for a continuation? 

 

Ballinger Yeah, absolutely. Yeah. Yeah, that’s, that’s why when if, if there is something that got scheduled without one party’s involvement in it and they had a, they had a, a conflict, a vacation, that would get continued. And if it didn’t get continued, it would be a good, good case for appeal. 

 

Dismang That’s a much different circumstance that I’m aware of. 

 

Ballinger [00:22:53]Well, you may practice more law than me. I don’t know. [1.7s]

 

Hickey Senator Sullivan, you’re recognized. 

 

Sullivan [00:23:00]Yes. Is this a court of law or a committee meeting? [1.6s]

 

Ballinger [00:23:02]It’s a committee– this is all political. We know that this is all political. [2.5s]

 

Sullivan [00:23:04]I agree, but again, Senator Clark, it appears to me, has controlled it from the beginning. And he has done things to wearing the giant ‘E’ on his chest to telling people that– accusing me of pre-judging the situation and then refusing to answer the question. He’s had multiple times where he has controlled this. And I’ve had to leave a prayer breakfast this morning with 200 dads in order to be here. As he said, many of us have left our jobs and left our families to be here multiple times. Somebody told me this morning that we had, as a committee, well over 20 hours each in this, plus staff time. And you’re telling me that we need to do this because he goes on vacation? [51.9s]

 

Ballinger I, I get it. It’s not because he’s on vacation. It’s because his counsel can’t be here. His counsel. And, you know, we were aware of it. He’s got a right to counsel, even in our rules– well, if the rules even apply here, he has a right to counsel. And, you know, it’s easy. We could have just scheduled it– you know, the one person who’s, who is absolutely necessary to this process, it is Senator Clark and his counsel. And we could have scheduled for next week. 

 

Sullivan Follow up? 

 

Hickey Yes, sir. 

 

Sullivan [00:24:25]So did he have a right to counsel throughout all these proceedings? [3.8s]

 

Ballinger [00:24:31]I don’t know. I’m not sure, but I think so. [1.7s]

 

Sullivan [00:24:34]Did he choose to do so then? [1.0s]

 

Ballinger I don’t know. 

 

Sullivan No. Thank you. 

 

Hickey Senator Mark Johnson, you have a question? Senator Clark Tucker will be next.  Mark Johnson, you’re, you’re recognized, sir. 

 

M Johnson Senator Ballinger, to follow up on Senator Sullivan’s question to ask if he had a right to counsel. He did not know of this potential sanction until the issue related to the complaint against Senator Flowers, which we unanimously with one extension– with one abstention, actually voted that it was dismissed. So he didn’t– wasn’t in jeopardy of anything until that time. Is that not correct? 

 

Ballinger That’s correct. And I didn’t even think about that is that the whole point I made last time is that he never actually had an opportunity to put on his defense for– against his sanctions. The process never gave them that opportunity through that. So he shouldn’t have even had counsel present if he’s, if it’s a matter of just filing the ethics complaint. 

 

M Johnson Follow up, Mr. Chairman? 

 

Hickey Yes, sir. 

 

M Johnson Senator Ballinger, does this potentially deny Senator Clark his Fifth Amendment and possibly other constitutional rights? 

 

Ballinger I mean, this is the thing is if he has a right that is, is being foretold or taken away by a, by a governmental body, the answer is yes. 

 

M Johnson [00:25:58]Do you recall when Senator Clark and I were brought up on ethics charges last two months ago, perhaps, that the final action that happened on this floor, there was a motion to refer it to a prosecuting attorney?[14.7s]

 

Ballinger [00:26:13]I do recall that. [0.6s]

 

M Johnson [00:26:14]Does that put someone in jeopardy of potential criminal prosecution and extend their constitutional rights to them? [6.3s]

 

Ballinger Yes, in that case, for sure. 

 

M Johnson Thank you, Senator. Thank you, Mr. Chairman. 

 

Hickey Thank you. Senator Tucker, you’re recognized. Senator Irvin, you’ll be next. 

 

Tucker [00:26:30]Thank you, Mr. Chairman. Senator, in my– in the course of my, in the course of my practice, of course, I’ve experienced continuances for hearings. In my experience, that’s typically when the parties are going to be in front of a judge with the lawyers only arguing a motion and when you actually come to a trial where you have 12 jurors involved, that a judge is much, much less lenient and much more strict as to time and continuances, which, of course, 12 is less than the 34 we have here. And I’m just curious if that’s been your experience as well. [28.7s]

 

Ballinger [00:27:00]No. That’s 100% right. [0.7s] But if they never contacted you as the attorney to– in order to schedule that and that lapse was discovered, they would grant the continuance. Thank you. 

 

Hickey Senator Irvin. 

 

Irvin Thank you. Are you familiar with the language in 24.13 of our rule? 

 

Ballinger Mm hmm. 

 

Irvin So in that language– Senator Clark does have knowledge of the language in 24.13, correct? 

 

Ballinger I assume, at this point, for sure, yes. 

 

Irvin Okay. So in that it says, “If the Senate votes to absolve a respondent of any ethical violation, the membership may levy against the claimant one or more of the penalties as described in Rule 24.11 if it determines that the accusations were spurious or frivolous.”. 

 

Ballinger Yeah. And that’s– I mean, from– 

 

Irvin That is an immediate vote as soon as the Senate votes to– on the first issue at hand. It’s an immediate vote. 

 

Ballinger Yeah, that’s why you–

 

Irvin You know what we have done, and [00:28:11]Senator Clark was very aware of that when he was actually brought back into the Senate Ethics Committee into an executive session after we rendered our decision, he had the opportunity then and was asked twice during the hearings if he would like to withdraw his claim. He did, he did not take that opportunity when he was offered that twice. He said, no, I’m not going to withdraw this complaint. No, I’m not going to withdraw this complaint. He knew full well that this section 24.13 was in the rule, and he did not take, not one opportunity, not two opportunities, but even a third opportunity, which he was given due process from the members of the Ethics Committee. He denied one time, two times and three times those opportunities that we afforded him. So he was very familiar with what we’re doing here today and what was– and where we are in this process. He could have avoided it. He chose not to. Those are his actions. [77.3s] You can respond. 

 

Hickey Is– well, is there a question? Is that–. 

 

Irvin Wouldn’t you agree? 

 

Hickey Okay, Senator Ballinger. 

 

Irvin Would you agree that he was familiar with the language in 24.13? 

 

Ballinger I answered that. Thank you. 

 

Hickey Okay. Senator Garner, do you wish to be recognized? Okay. Anybody? All right. Senator Ballinger has left the well. Senator Ballinger actually has spoken for the motion to overrule the chair. Is there anyone that wants to speak against it? Senator Bart Hester is going to speak against the motion. 

 

Hester Members, speaking against this motion, you know, earlier this week or last week, Senator Hickey communicated to at least me and I believe all of us that, hey, I’ve called this meeting for next Tuesday. If this body doesn’t think it’s appropriate, 18 members reach out to me and I will move the meeting to a different day. He said that, I will defer to the body on this. Do you know how many out of 35 reached out to him and asked to move? Four. Unless that’s changed since last night. Four out of 35 asked him to move. So I think the body has a clear consensus that we wanted to have this meeting today to get this matter over with. Thank you. 

 

Hickey Senator, Senator Hester speaking against the motion. Anyone else, anyone want to speak for? Okay, so at this time, we’ll take a vote. So let me, let me be clear here. Yes is for the override of the chair. If you vote no, that is to agree with the ruling of the chair. So all those in favor of the motion say aye. Any opposed, say no. The no’s have it clearly. So okay. With that, we will proceed on. At this time, Senator Hammer, you’re going to be recognized. We will need to do your oath again. So if you don’t mind coming down, we’ll administer that at this point. If you would just start– if you would, please state your name and your position as it relates to these proceedings. 

 

Hammer State Senator Kim Hammer, Chair of Ethics Committee, Senate Ethics Committee. 

 

Hickey Okay. And as you’re doing, if you’ll face me and raise your right hand. 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 Okay. Okay. Senator Hammer, you may proceed with your, with your presentation. You have up to one hour to present these, the Senate Ethics Committee findings. 

 

Hammer Thank you, Mr. Chair. Members, if you want to turn to tab– 

 

Hickey One other thing that I needed to ask you, and I think at the last meeting, do you need, do you want any Senate Ethics Committee members with you? Because I think we were going to allow that. But that’s– you had asked me that before. 

 

Hammer I would like to, I would just like to defer to have the option that if asked a question outside of being placed under oath for testimony purposes to be able to consult with a couple of the committee members to make sure I give clear, concise answers. 

 

Hickey Okay. 

 

Hammer If the chair would like to have them here, I’ll defer to the chair. 

 

Hickey That’s fine. It’s just if they are going to speak though, we will need to administer the oath to them. So if you’re just going to have them back for consultation purposes, that’ll be fine. But if they are going to address the body in any way, shape or fashion, we will need that, you know, the oath to be administered. So. 

 

Hammer Okay. Let’s just go with it the way it is. 

 

Hickey Hold on just a moment. Okay. Rob, if you can hear us up there, we’re having– somebody has told us that they’re having trouble hearing from the podium. So if there’s a way to turn that mic up, we would appreciate it. If you could indicate to us if you’re able to do that. Sounds like he said yes. See if that– see if that’s better for the members Senator Hammer, if you’d just do a test. 

 

Hammer One, two. Test. One, two, three, four, test. 

 

Hickey If you could go a little higher, Rob. Tell me whenever you’re there. 

 

Hammer Test. One, two, test. One, two, three, four. Test, test, test. 

 

Hickey Good members? I’m getting thumbs up, so, Rob, that ought to be good. Sorry, Senator Hammer, you may proceed.  

 

Hammer Thank you. This is not an ethics complaint. This is what is allowed in 24.13, first of all. So I want to make that clarity, so as we go through this, we will have that distinction. Members, if you’d like to turn to Exhibit E in your tab, there’ll be some references to items that will be found there. So it might make it easier for you to look at that, if you will go ahead and find your place there. Having found that Senator Flowers did not violate the Senate Code of Ethics, the Senate Ethics Committee made additional findings and recommendations regarding Senator Alan Clark, the claimant, and brings those to the Senate for its consideration under Rule 24.13 as follows: Finding of fact. The Senate Ethics Committee found the following facts based on the exhibits and testimony presented to us. Senators Clark– Senator Clark’s allegations of ethics violations against Stephanie Flowers, Senator Stephanie Flowers, were spurious, frivolous and retaliatory. A pertinent timeline of the events of Senator Clark’s actions and public statements leading up to the filing of his petition against Senator Flowers, which demonstrates his retaliatory intent, is as follows: On June 22, 2022, the Senate Ethics Committee began its hearing process on a petition filed against Senator Clark. And during committee deliberations on that day, Senator Clark submitted an FOIA request to the Bureau of Legislative Research for all supplemental sign-in sheets submitted by members of the General Assembly for the past 10 years. On June 27 of 2022, the Ethics Subcommittee adopted findings that Senator Clark had violated the Senate Code of Ethics and recommended penalties be imposed against him to the full Senate. [00:36:13]On June 30, 2022, Senator Clark made a Facebook post that included the statement, “Working in Little Rock with my best old ex-friends, say, people you thought you knew well, but turns out you really hated.” [14.6s] You can find that in Exhibit E, Tab 6 if you’d like to look at it. On July 3rd of 2022, an article appeared in the Arkansas Democrat Gazette regarding the Ethics Committee’s recommendations concerning Senator Clark, and Senator Clark was quoted as saying, “When it comes to Mark Johnson, [00:37:01]I will burn the house down. [1.1s] We’ll talk about all these things that could be ethics charges and some people will get real uncomfortable.” Senator Clark went on in that article to state that he plans to be a little meaner in the Senate. You can look at Exhibit E7 to find that. On July 21, 2022, the Senate held its business meeting during which it found Senator Clark to be in violation of the Senate Code of Ethics and imposed penalties against him. On July 22nd of 2022, Senator Clark attended a Republican Party of Arkansas event and was photographed wearing a Scarlet Letter ‘E’ around his neck. You can find that under Exhibit E8. On July 29, 2022, Senator Flowers was informed that Senator Clark had submitted a FOIA request regarding Senator Flowers’ Judiciary Committee attendance during the 2021 regular session to the Bureau. On August 9th– and if you want to turn to Tab E9, you’ll find what I’m about to reference. On August 9th of 2022, Senator Clark made a lengthy post on his Facebook page entitled Secrets to Giant Killing, in which he made several threatening statements. I will read just a few to you. “The battle is real and there will be losers. Life’s battles are littered with the bodies of the dead, would-be giant killers. The giant did not get his reputation without a body count. Stop and pick up some ammunition. If when the giant threatens you, you must answer.” On another section from this post, it quotes, “If the giant says he is going to kill you, very calmly, let him know that he is the one that is going to die. Look for the right moment to attack. Attack.” I do not– I do have one correction on this one. The report states this post was made on August 16, but that was the day it was reported. Senator Clark’s Facebook post is dated August 9. On August 18, Senator Clark filed his ethics violation petition against Senator Clark [Flowers]. The committee found that Senator Clark’s retaliatory intent in filing his petition against Senator Flowers was further evidenced by the fact that Senator Flowers was not the only Senator to have erroneously received per diem and mileage during the 2021 regular session while participating via Zoom. In fact, one, Senator Clark testified that he was aware prior to filing his petition against Senator Flowers that another Senator had also received per diem and mileage payments on the days he participated via Zoom. Secondly, Senator Clark was aware that the other Senator lived more than 50 miles from the state Capitol, making him ineligible for per diem and mileage reimbursements at a rate higher than Senator Flowers. Third, Senator Clark never asked Senate staff for information related to the other Senator’s attendance during the 2021 regular session. Fourth, Senator Clark never asked Senate staff for information regarding amounts paid to the other Senator on days he participated via Zoom. Fifth, yet despite never having made these inquiries, Senator Clark, when asked by the committee why he did not– did not also file a petition against the other Senator, he stated that he felt the alleged violation by Senator Flowers were the, quote, “most egregious,” end quote, because of the dollar amount. Further, Senator Clark did not find out the dollar amount that Senator Flowers erroneously received until August 24, six days after he filed his complaint. Finally, Senator Clark had multiple opportunities to withdraw his petition against Senator Flowers and did not do so, as follows: Senator Clark received a copy of Senator Flowers’ response to his petition on August 25, the day before the first meeting of the Ethics Committee regarding his petition. Her response contained a statement that she had communicated with staff when she realized the payments had been direct deposited into her account and had questioned as to whether she was eligible for them, and she was assured by staff that the payments were correct. Testimony of the staff further supports Senator Flowers’ statement. On August 25, Senator Clark was also aware of the repayments that had been made to the Senator– or to the Senate by Senator Flowers. These repayments were as follows: Deductions to her week 4 regular session reimbursement for the amount paid for mileage, $2,714 on August 11, 2022, and $216.60 on August 22, 2022. During the committee hearings, Senator Clark heard both Ms. Lewis and Ms. Cornwell testify that the payments to Senator Flowers were the result of clerical error on their part and that Senator Flowers bore no responsibility. Senator Clark was asked twice by the committee members whether he would like to withdraw his petition and both times he refused. [00:43:06]Finally, Senator Hickey testified to the committee that Senator Clark had told him that he had drafted ethics violations against an additional 30 to 32 Senators. [12.2s] Committee analysis. The committee took all of this into consideration and found that Senator Clark’s retaliatory intent was underlying all of his actions and decisions– decision making into this matter. [00:43:36]The intent to retaliate against the Senate and the members of the Senate Ethics Committee shows that the allegations made against Senator Flowers were not done in earnest, but rather were spurious in nature, meaning that they were not what they were purported to be, a valid ethics petition filed from concern for a Senator’s behavior, but rather the first step in Senators Clark’s stated intention to “burn the house down.” The committee further expressed its grave concern for the ability of a Senator to file this type of frivolous petition against a Senator, serving only his own personal agenda of retaliation rather than the stated purpose of our code of ethics and causing, in the process, the excessive waste of Senate and staff time and resources. Senator Clark’s intentions had been made clear to the committee. The facts that I set out for you today regarding his many retaliatory public statements and actions, his failure to file a petition against or even investigate another similar situated Senator, his decision to file a complaint with incomplete information, and his refusal to withdraw his petition in face of evidence that all of this was a clerical, was clerical in nature show that Senator Clark had the intent to retaliate against senators and Senator Flowers. He was aware the Senator Flowers situation was not unique, but chose not to file a petition against the other senator, and in fact, did not even request any information regarding the other senator, showing that Senator Flowers, as a member of the Ethics Committee that had made the recommendation against Senator Clark, was targeted by him in his pledge to burn the house down. [116.9s] Senator Hickey testified that Senator Clark had told him he already had ethics charges drafted involving 30 to 32 additional senators, further demonstrating Senator Clark’s intention to continue to use the ethics process to carry out his retaliation against the Senate. When presented with all the facts and evidence before the committee that clearly demonstrated that clerical errors, not unethical conduct, were at the root of the issue he was complaining of, Senator Clark refused, not once, but twice to withdraw his petition against Senator Flowers. The Ethics Committee spent many hours reviewing the evidence related to both Senator Flowers and Senator Clark. The committee considered this evidence with an open mind without passion or prejudice. Toward the end of the committee’s proceeding, the committee asked Senator Clark to appear once more before the committee with no other witnesses present for the sole purpose of giving Senator Clark a fair opportunity to explain his actions and the intent behind them. The committee went above and beyond to conduct a thorough and fair investigation of Senator Clark’s complaint. [00:46:50]Senator Clark’s clear demonstrated retaliatory intent in filing this petition against Senator Flowers more than rises to the level of a spurious and frivolous petition warranting a decision by the Senate to impose penalties against him. I would ask that the Senate adopt the recommendation of the Senate Ethics Committee with regard to Senator Clark and will have a motion or motions at the appropriate time. [26.2s] The committee recommends a finding by the Senate that Senator Clark’s petition against Stephanie Flowers was spurious and frivolous in violation of Senate Rule 2413. Mr. Chair, I will yield to questions from the Senators and will have a motion following my closing statement. 

 

Hickey Okay. Just, just one thing. Staff’s indicated to me that you’re, you’re not going to call any witnesses. But if would, state that for the record, that it’s not your intent to call any witnesses. 

 

Hammer I did not submit a list of witnesses to be called. It’s my intent not to call any witnesses. 

 

Hickey Okay. And there’s going to be questions. Senator Sullivan, I seen you raise your hand first. 

 

Sullivan And this might be a question for staff also. But, Senator Hammer, when the committee– and I was on that committee and a friend of Senator Clark’s, I might add. The committee was getting ready to gavel back in, and when that opportunity came to gavel back in, all the evidence had been presented. Is that correct? 

 

Hammer That is correct. 

 

Sullivan And so when all the evidence is in, did Senator Clark vote for the motion to exonerate Senator Flowers?

 

Hammer My recollection is when the Chamber voted that he voted to exonerate Senator Flowers. 

 

Sullivan [00:48:39]Yeah, it was frivolous, essentially, and all those things– he voted for that. So when– can staff check on that vote? He did vote to exonerate her. [11.5s]

 

Hickey [00:48:51]Yes, I believe, I believe. But we will verify. [2.1s]

 

Sullivan [00:48:59]Well, I’ll make my point and then you can go beyond. [1.9s]

 

Hickey [00:49:05]The motion that we did, which was at 24.03, was Senator Clark was listed as a yea. [8.0s]

 

Sullivan [00:49:15]So he voted for her to be exonerated. [2.0s]

 

Hickey [00:49:18]Yes. [0.0s]

 

Sullivan [00:49:18]Okay. So when we walked in, when we walked into that meeting and you’re getting ready to gavel us back in, Senator Clark could have walked up to you and said, I choose to withdraw my complaint. Is that true? Could he have done that? [17.4s]

 

Hammer Well, I’d like to speak to the process. The process would have allowed for that to happen, whether–

 

Sullivan Okay. And maybe the staff can answer this. But if he had withdrawn at that time, would all of this have stopped immediately? If he says, I withdraw the complaint, does it stop? 

 

Hickey You’re talking about from whenever we came in for the meeting on the floor? 

 

Sullivan No, sir. I’m talking about when we’re in committee, and Senator Hammer’s getting ready to gavel us back in, and if, Senator Clark– all the evidence has been presented. And Senator Clark could have withdrawn them before we read our findings on Senator Flowers. And had he withdrawn them, then this, this whole process would have stopped right there with no penalty. Am I right? 

 

Hickey That, that’s my understanding. Staff would like to speak to it. They’re both nodding their head. That is, that is the procedure that was– 

 

Sullivan Okay. So not only were there two opportunities, there was a third opportunity as that closed that he could have stopped this. And in fact, at that time, he should have known she was innocent, because a few days later he voted her as innocent, and chose not to do so. Is that correct? 

 

Hammer That’s my recollection. 

 

Sullivan Thank you. 

 

Hickey Senator Garner, do you have a question? 

 

Garner Yes, sir. I have multiple questions. I don’t know how you want to handle that with me just proceeding on to the next question. 

 

Hickey If you don’t mind, just let’s do one at a time and then we’ll just ask me for continuance and we’ll keep going. 

 

Garner Okay. Absolutely. Senator Hammer, the committee found that Senator Clark’s complaint against Senator Flowers was reckless, fury– spurious, reckless, without merit. Is that a good summary of what you all found? 

 

Hammer Yes. 

 

Garner I’m going to ask you a question. [00:51:18]Was the $4,000 that was returned to the taxpayers by Senator Flowers and myself, [5.3s] was that meritless? Was that spurious? Was that frivolous? Was that reckless? 

 

Hickey That’s not germane to the findings of this committee. 

 

Garner It absolutely is, your hon– um, um, Chairman. It’s multiple times his report. He listed the amount that was paid back. There’s multiple facts within the report of that money being paid back by Senator Flowers. I can point to the actual part of the committee report if you want to. My understanding is that, that–

 

Hickey But, but you said, but you were asked– but restate your thing. You said if that was frivolous or spurious. Is that correct? 

 

Garner Correct. I’m asking–

 

Hickey That was not part of it. So I’m, I’m going to– whether or not Senator Flowers was on that part. So if you reword the question to just ask about the $4,000, I think that would be correct because it is in within the findings and recommendations. 

 

Garner Is the result of Senator Clark’s complaint that the $4,000 was paid back to the taxpayers also frivolous and without merit?

 

Hammer Mr. Chair, I need to ask the chair a question before I answer that question. 

 

Hickey Yes, sir. 

 

Hammer Nowhere has this committee identified publicly that the Senator in question in the report is the Senator that just identified that he is the one that did it. I just want to make sure that I am clear and I want to make sure the record reflects that the Ethics Committee, no member of the Ethics Committee, has identified publicly that the other Senator in question in the report is actually Senator Garner, by his own admission just then. 

 

Hickey Okay. And that, that would be true. Do you, do you agree with that, Senator Garner, that they have not listed you? 

 

Garner Absolutely. The only places that Senator was specifically named, multiple media reports come out identifying me as the Senator. 

 

Hickey Fair enough. So since it says other Senator and we now know it’s you based on what you’ve said then. 

 

Garner Correct. 

 

Hickey Okay. Do you have another question? 

 

Garner Was that question answered, your honor? 

 

Hammer Could it be restated, please? 

 

Garner Yes, I’ll restate it. Because of Senator Clark’s complaint, the results were the taxpayers of Arkansas was repaid nearly $4,000. $2,700 on August 11, $217 on August 22, and $906 on September 1. I’m asking if the results of the complaint, the taxpayers being paid back, is also frivolous and without merit. 

 

Hammer I’ll be honest with you. I really don’t know that I understand your question, but the definition of spurious that we used was not being, not being what it purports to be, false or fake. Frivolous is having no sound basis as in fact or law. The decision we made aligned with those definitions as we understood it. 

 

Garner Okay. 

 

Hickey So no, are you, are you– let’s not not go back and forth. Are– you let me know when you’re finished, Senator Hammer. And then, Senator Garner, I’ll come back to you. 

 

Hammer Mr. Chair, may I ask– I just want to make sure I’m answering correctly. So could I have the two that I had here before from the committee? It will be Senator Sullivan and Senator Clarke Tucker to come up and let me consult with them, please. 

 

Hickey Yes. 

 

Hammer Thank you. 

 

Hickey And here’s the thing. I said that if they were consulting– I think the best thing for us to do is to go ahead and do the sworn testimony at this time if you two gentlemen don’t mind. Because I can see that there might be questions of you and there’s– if you want to step forward to answer, then we’ll do it, do it that way. All right. 

 

Tucker Separately or together? 

 

Hickey Let’s do it separately, I think, since we did Senator Hammer by himself. Okay. If you would, if you would state your name and your position as it relates to this matter. 

 

Sullivan Senator Dan Sullivan. 

 

Hickey If you’d face me and stand and raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? 

 

Sullivan I do. 

 

Hickey Okay. Senator Tucker, if you would, state your name and your position as it relates to this matter. 

 

Tucker Clarke Tucker, State Senator, member of the Senate Ethics Committee. 

 

Hickey And if you would face me and raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God. 

 

Tucker I do. 

 

Hickey All right. Senator Hammer, just whenever you’re ready, you can go back to answer Senator Garner’s question. 

 

Garner And Mr. Chairman, if I may, I will– I didn’t mean to interrupt a while ago. I thought he was finished. 

 

Hickey That’s no problem. Like I say, we just, we’re all going to work together in here. We know how tough this is and how emotional it gets. 

 

Garner And if I call Your Honor about seven times, just understand that– 

 

Hickey We all know that’s incorrect. 

 

Garner I don’t mean to call you Your Honor. 

 

Hammer Mr. Chair, may I have committee member Senator Sullivan answer that question, please? 

 

Hickey Yes. Is that okay with you, Senator Garner? Senator Garner, is that okay with you if Senator Sullivan answers the question?

 

Garner Absolutely. This is about the committee report. They’re members of the committee. They had a hand in that. Absolutely. 

 

Hickey Thank you, sir. Senator Sullivan, you’re recognized. 

 

Sullivan No one is denying there was an error. In fact, we all agree there was an error. So the fact that the taxpayer was repaid due to an error was the right thing to do. It had nothing to do with the ethics of it. 

 

Garner Absolutely. That’s a great point. I’m happy you admitted that on the record. 

 

Sullivan Thank you. 

 

Garner But for Senator Clark’s complaint, that mistake would not have been discovered. Isn’t that correct? 

 

Sullivan Well, I don’t know. I mean, Senator Clark could have come to the floor and said, guys, we’re making some errors here and I want to correct them. Instead of doing that, he files an ethics complaint. 

 

Garner [00:57:10]Well, the ethics complaint led to the taxpayer being repaid, as you just described, which is a good thing. [4.2s]

 

Tucker [00:57:16]Senator, Senator Flower’s reimbursement to the Senate was before the ethics complaint was ever filed. So you, you can never– you cannot say that the ethics complaint led to the taxpayers being reimbursed because that’s factually not true. [12.4s]

 

Garner We can go through the timeline and different testimony, especially with Steve Cook if he’s allowed to be called, he can actually counter that, which I’ll bring up later. But for right now, let’s move on to my next question. 

 

Hickey Your, your– you have another question? 

 

Garner I have several questions. 

 

Hickey Senator Hammer, we’ll start with you. Senator Garner, you’re recognized. 

 

Garner As Senator Sullivan said, because of the complaint filed by Senator Clark, we discovered that the Senate rules were not followed properly. Isn’t that correct? 

 

Hickey That, that’s not germane. Well, you said the rules? 

 

Garner Yes, sir. 

 

Hickey Okay. I’m sorry. That was. I thought we were talking about the procedures. So you are correct, sir. 

 

Garner Yes, sir. It’s Section 5, Part E dealing with the temporary procedural rules. 

 

Hickey Disregard. Disregard. 

 

Garner Yes, sir. Just making sure I was clarifying. 

 

Hammer Ask the question again. I’m sorry. I lost it between you two talking. 

 

Garner Okay. I’m sorry. Because of Senator Clark’s complaint, we discovered that the Senate rules, specifically Section 5, part E of the temporary emergency procedures was not followed correctly as regard to per diem. Isn’t that correct? 

 

Hammer I would question whether that would be a proper interpretation. That may be yours, but I don’t necessarily agree mine. And maybe get Senator, Senator Tucker to weigh in. 

 

Tucker I just think with this entire line of questioning, there’s a conflating of his investigation– Senator Clark’s investigation of what happened with the per diem and the filing of the ethics complaint. Now, he can raise questions about whether the rules were violated, ask staff, ask Senator Flowers. That investigation by Senator Clark did discover the error and lead to the reimbursement to the Senate of the error that was made. That’s an entirely separate thing from filing an ethics complaint. And so to continue to say that the ethics complaint led to the reimbursement or the ethics complaint led to the discovery of the error, I disagree with that characterization because the ethics complaint did not lead to any of that. Senator Clark’s investigation did, yes, did lead to the discovery of the error and the reimbursement. But that’s a separate matter from the filing of the ethics complaint. 

 

Garner Thank you. I’ll move on to a new subject, if you will allow me. 

 

Hickey Yes, sir. 

 

Garner Senator Hammer back, Your Honor?

 

Hickey Yes, sir. 

 

Garner Senator Hammer, Senator Sullivan just brought up this point that the committee asked multiple times for Senator Clark to withdraw his complaint. Is that correct? 

 

Hammer He was given opportunity to withdraw, yes. In fact, he was directly asked one time. 

 

Garner I’m sorry. As Senator Sullivan said, Senator Clark voted to exonerate Senator Flowers whenever we had the hearing in this chamber. Is that correct? 

 

Hammer Yes, sir. 

 

Garner If Senator Clark had withdrawn that motion at that time, do you agree that that would be evidence of him be filing a frivolous complaint in itself? If he voluntarily withdrew the complaint after everything going out without allowing the recommendations of the Senate committee to go forward, wouldn’t that be an admission of a frivolous, spurious complaint by himself? 

 

Hammer I would, I would not agree with that. I think, one, it would be speculation, and I really don’t know where you’re coming from with your line of thinking. Maybe one of the others can answer. 

 

Garner I’ll move on to another subject matter. 

 

Hickey Yes, sir. 

 

Garner Anybody else can jump in whenever you want to, Mr. Chair, I’m just going. 

 

Tucker Can I respond to that? 

 

Hickey If you– yes, sir. 

 

Tucker Just briefly, a finding of not guilty does not mean something was frivolous. The prosecutor files matters all the time where there’s a finding of not guilty. That’s not what makes something frivolous. So the complaint could have been withdrawn at that moment, and that does not lead to an admission that it’s frivolous. That’s, that’s not the basis for the finding. 

 

Sullivan Mr. Chair. 

 

Hickey But, just, yes. Senator Sullivan’s recognized, then, Senator Garner, we’re going to get back to you for another question. 

 

Garner Thank you, Mr. Chairman. 

 

Sullivan One of the things that we discussed multiple times was what’s reasonable. And we’d end up discussing all these legal terms and what the law says and what the law doesn’t say. And we were trying to decide what was reasonable. And also, the committee kind of determined what was frivolous or not frivolous. And we based that on what a reasonable person would do. And the finding said that what Senator Flowers did was reasonable. She accepted the advice of the Senate counsel and of the body. And some of the things you’re asking us to do are speculate what would have happened if this or that wouldn’t happen. That’s not what the committee– that wasn’t our task. We were tasked with finding out whether what she did was reasonable, and that’s what we did. 

 

Garner Thank you. 

 

Hickey Okay. Senator Garner, do you have another question? 

 

Garner Yes, sir. Multiple. Senate Hammer, in Ethics hearings on Senator Clark and Senator Johnson’s violation of ethic on June 22, did Senator Irvin appear by Zoom? That’s correct, isn’t it? 

 

Hammer Yes, she did. 

 

Garner And at that time that Senator Irvin appeared by Zoom, did Senator Flowers ask questions about her appearance on Zoom? Yes, sir, it’s in the report, page 10, line A, as far as the June 22. 

 

Hickey I remember it. 

 

Hammer Yes, she did. 

 

Garner Correct. And did she make an issue of whether Senator Irvin should have been paid per diem for that Zoom meeting? 

 

Hammer Yes, she did. 

 

Garner And was Senator Clark in that meeting when that discussion happened? 

 

Hammer Yes. 

 

Garner Moving on to a new issue– anybody could jump in whenever you want to, Mr. Chair. 

 

Hickey Right now, looks like you still have the floor. You’re recognized, sir. 

 

Garner Senator Hammer, Senator Irvin already beat me to this, but in Senate Rule 24.13, do you find the word ‘retaliatory,’ ‘retaliation’ or any derivative of that word inside the Senate rules? 

 

Hammer It is not. 

 

Garner It is not. Yet in this committee report on the top of page 4, it lists that the accusations Senator Clark made against Senator Flowers were spurious, frivolous and retaliatory, in violation of Senate Rule 24.13. Isn’t that correct? 

 

Hammer I believe that’d be a correct statement. 

 

Garner On page 10, the committee report says that the– the heading is spurious, frivolous and retaliatory. Isn’t that correct? 

 

Hammer The report does reflect that. 

 

Garner On page 14, on the bottom of page 14, on the top of page 15, on page 16, you mention the word ‘retaliatory’ over and over again. Isn’t that correct? 

 

Hickey If you’re going to ask the page numbers, for him to answer that, I think he needs a little more time to make sure they’re on that page. 

 

Garner I can withdraw that line of questioning. 

 

Hickey Okay. I just don’t want him to state something under oath out of an accident. Okay. 

 

Garner In your testimony earlier, when you gave the presentation on the facts of this case for Senator Clark, you mentioned the word retaliatory many times. Retaliatory intent, I believe is the word you said. In your testimony you gave, you know, 30 minutes ago, you mentioned retaliatory five, six, seven, eight times. I can’t remember. I kept trying to count them. I’m sorry, I lost count. Would you say that’s accurate that you said it multiple times? 

 

Hammer Yes. 

 

Garner Okay. So both in the application of the Senate rule and in the evidence you used against Senator Clark, the issue of retaliatory is a major component of y’all’s case against Senator Clark. Is that correct? 

 

Hammer I think it is a component, but I would not assign the word major. But I think it has to be incorporated into the discussion. 

 

Garner And nowhere in our Senate rules does it allow for a retaliatory accusation to be punished under Senate rules. Is that correct? 

 

Hammer I would– if you’re, if you’re debating the point of retaliatory being part of the wording of why we have arrived at our conclusion, I do not know that you could separate retaliatory from the conversation, whether we’re having it verbally or whether it’s in print. But I’d like Senator Tucker to respond to that also. 

 

Hickey Senator Tucker, you’re recognized. 

 

Tucker The word retaliatory is not in Rule 24.13. However, it’s up to the members of the, of the Senate to determine whether a complaint is frivolous or spurious. [01:05:45]And whether a complaint is frivolous or spurious may depend on whether or not it’s retaliatory. [3.7s] So it’s, it’s not, it’s not as though the rule says we cannot find a complaint sanctionable because it’s retaliatory. It’s not explicitly excluded. And it’s up to the members of the Senate to determine whether a complaint can be frivolous or spurious because it’s retaliatory. 

 

Garner Senator, will you agree with me that multiple times in the report, you list ‘retaliatory’ as a completely separate element, separate from spurious? Isn’t that correct? So much so that you labeled a heading on page 10 as being spurious, frivolous and retaliatory. 

 

Tucker I don’t have the report in front of me at the moment. There’s, there’s no dispute that the word ‘retaliatory’ is listed in the report several times. 

 

Garner And it’s not in the rule. That’s correct? 24.13. 

 

Tucker Asked and answered, Senator. 

 

Garner [01:06:37]Okay, thank you. I think someone else wants to jump in. I need a drink of water. So I’ll step out and come back. [3.2s]

 

Hammer Mr. Chair, may I respond in addition?

 

Hickey Is that okay, Senator Garner, if he responds. 

 

Garner Absolutely. Yes. Yes, sir. 

 

Hammer All right. One thing that I wanted to point out is that, in my comments that were mentioned a while ago, that while I do use the word retaliatory, which I don’t know what other words you would use to capture what it is that led to the spurious and frivolous, but in my comments a while ago, it clearly stated, “The committee recommends a finding by the Senate, by the Senate, that Senator Clark’s petition against Senator Stephanie Flowers was spurious and frivolous in violation of Senate Rule 24.13.” The ability to introduce the word, whether in print or whether into verbal argument as to what prompted the spurious and frivolous is one thing, but it is mentioned that it is Rule 24.13 that allows for spurious and frivolous to be noted. 

 

Hickey All right. I seen Senator Irvin. And then, Senator Ballinger, you’ll be after that if you still wish. Senator Irvin, you’re recognized for a question. Remember, remember our germane. 

 

Irvin Yes. 

 

Hickey Okay. 

 

Irvin Senator Hammer, based on the comments that you just made where this word is being utilized in explanation of how the committee found this to be spurious and frivolous, the Rule 24.13 is in regards to any motion that is generated from the results of the findings where it could be made as spurious and frivolous. 

 

Hammer That is correct. 

 

Irvin It would be as part of the motion, which is not what we’re discussing at this present time. We’re actually discussing the findings of the committee and the explanation towards how the committee came to it becoming a spurious and frivolous filing. Is that correct? 

 

Hammer I would agree with that. And I think that was kind of captured in what I was trying to say just a second ago. It may have been the door in, but it’s, it’s not, it’s not what we’re debating here. We’re debating a spurious and frivolous accusation as allowed in rule. 

 

Irvin Correct. Thank you. 

 

Hickey Senator Ballinger, and then Senator, Senator Hendren. 

 

Ballinger Thank you. And this question may be better for Senator Tucker, but either way it’s good. But generally, you would agree that we need to be bound by rules, right? Especially when we’re talking about a situation where, where we are going to decide on some pretty grave punishments on a, on a Senator, we need to be following a set of rules, correct? 

 

Hammer I would agree. 

 

Ballinger In, in, in this case, we– in order to put the penalties–maybe it needs to be amended some time and put retaliatory in. Maybe that’s a good idea. I don’t know. But in this case, there’s nothing in there that said retaliatory. It’s spurious and frivolous, right? 

 

Hammer If you’re asking if the word retaliatory is in the rules, I’d want time to reflect. But I think the general consensus is that it’s not. Again, the focus point, though, is on what is being recommended. And that is a charge based on a spurious and frivolous, not actually the word– I just lost it.

 

Ballinger Retaliatory, correct? 

 

Hammer Yeah. Thank you. 

 

Ballinger [01:09:59]So but it has to be– if, if we’re going to actually have a set of rules, the words need to have meanings. Can you point to one definition of either spurious or frivolous that also includes retaliatory to define it as, as being part of the system. [14.8s]

 

Hammer All right. Let Senator Tucker answer. 

 

Hickey Senator Tucker, you’re recognized. 

 

Tucker [01:10:20]Well, I would just say that one of the definitions of spurious is that something, something– that a matter like a complaint is different than what it purports to be. And a reason why it could be different than what it purports to be is because it’s retaliatory, not because it’s an earnest effort at finding an ethics violation. [16.4s]

 

Ballinger So what I would say is, when you file a report, there are words, right? [01:10:40]So we understand, you know, that’s the document itself. The definition of spurious would be something that it is not what it is. Right? It’s pretending to be something else. Those words, the words on the document, they were all relatively accurate. There was no, nothing that was pretending, purporting it– the, the ethics filing that it was a Social Security document. Right? There’s nothing on the document itself that made it where it was fake or, or phony from anything besides what it was, correct? [31.3s]

 

Tucker I’d have to review the petition to answer that comfortably since I’m under oath. 

 

Ballinger Okay. But you understand, like, it could be erroneous. There could be an error in there. That’s not– [01:11:22]but the document itself, there was nothing on it that was made it where it was, was spurious, was phony or, or not what it purported to be. [8.4s]

 

Tucker [01:11:33]I’m not going to, I’m not going to agree that nothing about it was spurious. But I will agree that it wasn’t a Social Security document or some other document like that. [7.9s]

 

Ballinger Okay. 

 

Hickey Senator Hendren, you’re next, sir. 

 

Hendren Thank you, Mr. President. [01:11:47]And I want to start by telling Senator Hammer I appreciate the work of the Ethics Committee and the diligence that you put into a very hard and serious job. And then I want to also say I’m not a lawyer, but I’ve heard some of the dumbest discussion this morning that it seems like I’ve heard in a long time. To, to argue that you can’t, because something is frivolous, that you all have found that it is frivolous because you determined that it was based on retaliation, that is the very nature of why we have this provision in the rules. You know, what the Senate is being asked to do here is, what is the Ethics Committee role going to be moving forward? Is it going to be a political weapon? Or is it going to be a tool by which we deal with some of the hard issues that have to be dealt with so that we don’t have recurrences of what many of us saw go on for decades down here? And I guess I’d ask you, again, the Ethics Committee has been knee deep in this. We’ve had four complaints filed. How many of them have the Ethics Committee found to be valid? [69.5s]

 

Hammer [01:12:57]Two. [0.0s]

 

Hendren [01:13:00]So 50%. Right now, this Senate is sitting here with a body that 50% of the complaints that fellow members have brought forward– [8.8s]

 

Hickey [01:13:09]Sir I, I don’t know that– I don’t know that this line of questioning is germane. [4.9s]

 

Hendren [01:13:15]All right. It has to go with whether or not– we’re talking about frivolous here and, I guess, how we’re going to deal with frivolous. I don’t think there’s anything more germane than whether or not this body is going to stop this nonsense. [9.7s]

 

Hickey [01:13:26]I understand. Let’s just try to narrow it down just, just a little bit so it gets closer to these findings and recommendations. [5.8s]

 

Hendren [01:13:33]Okay. So let me– again, I think one of the reasons when we talk about, you said frivolous and spurious, one of the factors in your report that you cited was the decision by Senator Clark to specifically cite one member when multiple members had done the exact same. Is that correct? [18.1s]

 

Hammer [01:13:51]Yes. [0.0s]

 

Hendren [01:13:53]Now, we don’t have a provision in the rules that say you have to cite every member, but you viewed that as an indication that this was not a genuine, sincere complaint in an effort to try to reform the Senate but was retaliatory or, or whatever we want to call it, something that is inappropriate use of the Ethics Committee complaint process, correct? [22.7s]

 

Hammer [01:14:17]Correct. [0.0s]

 

Hendren [01:14:18]And again, I think we keep straying around and trying to trip each other up with legal mumbo jumbo. But the fact is, what this Senate is and what this motion that you’re going to bring to the Senate are, what do we do with a 50% failure rate? Because that’s what we’re at right now. And I appreciate the effort that you all have done to deal with that. [16.9s]

 

Hickey Okay. I’m taking them in order I’ve seen them. Senator Wallace, you’re next. 

 

Wallace [01:14:44]Members, our country has spent 250 years building what I think is a beautiful judicial system, our laws. We’re not talking about law in this meeting. We’re talking about the rules and regulations that we collectively as Senators developed over the last three years. We’re tripping over mouse turds right now. We need to get on with the vote. [33.8s]

 

Hickey [01:15:19]Ma’am. Hold on just a second. I warned you all about this. Any type of outburst. We appreciate you being here, but that’s the second time I’ve heard, heard laughing. And this is very serious. The members of this body down here are trying to, to give this the due diligence that it needs. So if you all would please, please refrain from that, I would greatly appreciate it. I’m sorry. Senator Wallace, you continue, sir. [23.0s]

 

Wallace [01:15:43]My apologies for it. I probably caused that. We’re not going to have a perfect system. We had the best system that we collectively could draw up. And we spent hours working on this and developing this. Trying to define what’s frivolous, that’s not what this is about. This is about what is right and what is wrong. This is about protecting the character of the Arkansas State Senate. Thank you, sir. [37.0s]

 

Hickey Yes, sir. Thank you. Senator Blake Johnson, do you wish to be recognized? I had you next. 

 

B Johnson Senator Tucker, please. Senator Tucker, there’s been, you know, debate and questioning and, and about this spurious or frivolous. And, and that’s pretty much– spurious to me is meaning a fake or false charge. So whenever this, this charge was paid before the charge was levied, then the charges is, is fake or not correct to begin with, in my view. And through the testimony in the committee, that’s what was found. [01:17:12]The amount was paid prior to the charge being levied. So before it ever starts, it’s a false charge. That’s, that’s my non-legal opinion. But, I mean, you can try to define frivolous or spurious. But it was, it was spurious before it was ever levied. [26.4s]

 

Tucker [01:17:40]So I think, I think a key point, and I should have probably said this better when I was responding to Senator Ballinger, is you’re entitled to that opinion because you’re a member of the Arkansas State Senate and it’s your job today to decide what’s spurious or frivolous. Now Senator Ballinger is entitled to his opinion about what’s spurious. And he may think it’s not spurious because it’s not a Social Security document or tax document, whatever the case may be. [23.8s] And when it’s time to do it, he can come down to the well and make that case to the other members. [01:18:09]But for all of us, our job here today is to determine what our own personal definition of spurious and frivolous is. And I think you laid out a strong case to support your opinion as to why the complaint was spurious. It’s, I don’t think anybody finds fault with asking a question about an error that occurred or trying to get that corrected. It’s really more about getting those questions answered before you file a complaint. And then when you get that information, which you yourself determined was not an ethics violation, once you have all the information at hand, whether you continue to pursue an ethics violation, an ethics charge at that point. [44.7s]

 

B Johnson May I follow up? 

 

Hickey Yes, sir. 

 

B Johnson So, you know, we have set forth these rules and procedures to hold ourselves accountable. In this case, it was clerical. We have not held the staff to that accountability. They have jobs and they’re accountable to, to us in that matter, but not these ethics. So this could not have been filed as an ethics charge against our staff. It was charged against someone who has a direct deposit and, and found error in that direct deposit two weeks after, after that and was, was paid, had paid it back when the charges were filed. So. 

 

Tucker Paid back before the charges. 

 

B Johnson Paid it back before the charges were filed. I don’t, I don’t understand. I don’t, I don’t understand the argument. This is a matter of discipline. This is not a matter of court. This is administrative procedure, is it not? This is administrative procedure that we have set forth in our rules and our procedures. 

 

Tucker That’s right. That’s right. There’s no constitutional rights at issue here today. 

 

B Johnson Absolutely not. 

 

Tucker There’s nothing in the state constitution about a Senate ethics proceeding. It’s something we created by rule four years ago. 

 

B Johnson My, my dad had a procedure in policy and– 

 

Hickey Well, let’s, let’s stick to the findings, Senator. Let’s stick to the findings and recommendations. 

 

B Johnson I was never given that–

 

Hickey Please. Thank you, sir. Senator Ballinger, I had you. Do you still wish to be recognized? 

 

Ballinger Yes. 

 

Hickey Okay, you’re recognized, sir. Senator Garner, are you wanting to be recognized? 

 

Garner Yes, sir. 

 

Hickey Okay. You’ll be next. 

 

Ballinger And this is probably better for Senator Hammer. [01:20:49]On page 11-12 of the, of the, of your findings, your report, it has the, the dealing with the, the giant killing thing that we’ve, we’ve discussed. [11.3s]

 

Hammer Okay. Got it. 

 

Ballinger [01:21:14]Do you recognize this as a commentary on, on 1st Samuel, the story of David and Goliath? [3.8s]

 

Hammer [01:21:22]When given, when given a opportunity– when given an opportunity to explain, there was no reference to that by Senator Clark. And as far as whether– actually, we looked to see if this was maybe a reprint from somewhere and we couldn’t find it. So that would mean it’s original words to Senator Clark. And I honestly can’t tell you what he was thinking when he wrote it. [23.2s]

 

Ballinger Yeah. Well, so Clark’s commentary on the story of David. So, for instance, you know, you need to be practiced, skilled with your weapon. You know, this was David, you know, out there working against the lion and the bear with the sling. Right, you have to, you need to, you need to, you know, don’t listen to experts, someone tell him that that he you know, that he couldn’t do it. He was too small. I mean, there, like, if you go through the story in 1st Samuel, chapter 17, each one of these things are– [01:22:15]now this is Clark’s interpretation, not necessarily maybe how I would say it or somebody else would see it. But this is basically a Bible study lesson, right? [8.9s]

 

Hammer [01:22:26]I think that’d be your assumption, not– that’s an assumption on your part or Clark’s assumption. [5.2s]

 

Hickey So the question, the question’s been answered. Do you want– do you have a follow up? 

 

Ballinger [01:22:37]So, so, and I’d say probably– all right. So is it possible that this is just a Bible, Bible story lesson? Is this possible that this is just a commentary on 1st Samuel, Chapter 17? [12.2s]

 

Hammer [01:22:51]I would, I would not venture to guess what was being thought when this was written. I would tell you this. I’ve read that story. I don’t know I would have used it in this context if it was me personally. [12.3s]

 

Ballinger Well, and so the– one of the things that I think is really important as you guys are using the retaliatory in order to get to the spurious or frivolous. Right? [01:23:12]So the question is, you know, is this, and this is evidence of, of it being retaliatory or is it, or is this just somebody sharing a Bible study? [7.9s] So, for instance, you know, you know, how is the paragraph relating to signing of the contract before you do it have anything to do with the Senate ethic matters? 

 

Hammer Repeat the question, please. 

 

Ballinger There’s, there’s one paragraph in there that says, make sure you sign the contract before you do the act. How does that relating to the Senate ethics matters? I mean, I realize you, you, you highlighted some things. You bolded some things that were pertinent. But there are other aspects of this, like, how would that apply? 

 

Hickey Hold on. What’s your point of order? 

 

Irvin Mr. Chair, are we in question and answer time or in filibuster debate time? 

 

Hickey Okay. Just, if we would, try to direct it more as a question, Senator Ballinger. 

 

Ballinger Sure. 

 

Hickey Do you want to answer that, Senator Hammer? 

 

Hammer I’d like, I’d like to restate the question, because I never heard the question.

 

Hickey Can you more directly state, state the question, please, Senator Ballinger? 

 

Ballinger Okay. So one of the, one of the paragraphs that– let me just figure out which paragraph it is so I can tell you, give you– 

 

Hickey What, what page are you on, sir, so all the members can see?

 

Ballinger So I’m on a different document, but it’s pages 10-11 of the, of the, of the report. So it’s the paragraph that starts and I’ll just read it: If you want to get paid for killing giants, sign a contract on the front end. People have no fear and no need of anyone to help them kill, kill dead giants. How does that apply to the ethics hearings? 

 

Hammer I think we take it in the whole context of what was written. And when I think about the word retaliatory characterized by a desire for revenge. I think when you put that and don’t lift out one statement and you put the whole statement and take it into consideration, it creates the narrative for, was the spurious and frivolous action driven out of revenge. I think Senator Sullivan would like to comment on that. 

 

Ballinger But honestly–

 

Hickey That was the question and answer. Do you, do you, do you care if Senator Sullivan answers it also, or would you rather him not? 

 

Ballinger If he wants to answer. 

 

Hickey Senator Sullivan. 

 

Sullivan [01:25:27]These are questions this body is going to decide. This body is going to decide if that quote or that paragraph is relevant or irrelevant. That’s what we’re here for today. And you continue to ask those questions, [13.1s] but when we look at the number of and the different locations and different statements made and put those together as a whole, I think they do make a statement. But to pull out a paragraph, and if you’re right and it’s a valid point and the body says, man, that’s a big deal, and it doesn’t apply, then we’re going to vote him not guilty over that. That’s what the body is going to do, not us. [01:26:02]And you’re also asking questions that Senator Clark chose not to be here to explain what he meant. He chose that. And now you’re asking us to tell us what Senator Clark meant, and that’s not what we do. That’s what you do. [11.9s]

 

Hickey All right. He answered the question. Do you have another? Do you have a follow up? 

 

Ballinger I do. Yes. Just a couple more.

 

Hickey Senator Ballinger, you’re recognized. 

 

Ballinger So. So there is a paragraph that deals with the, the, you know, the king’s advisors don’t care. They’re just buying time. How would that apply? Let me say, the point of this, I mean, I don’t need to hide anything is so much of this, this, this paragraph doesn’t really, doesn’t apply. I can see how someone, especially if your interactions with Senator Clark all was over this ethics things recently, how you could see it apply to, but so many of these things don’t apply. Do you, would you agree that some of this absolutely doesn’t apply at all to the Senate ethics hearings? 

 

Hickey They’ve basically answered that same question. 

 

Ballinger Well, I don’t, I don’t, I don’t think they ever have. 

 

Hickey No. Members, y’all are going to have to help me.  All right. It’s not real fun up here. Senator Hammer, if you want to try to answer that, fine. [01:27:11]And then let’s slow it down a little bit if we have to. [1.9s] Senator Hammer. 

 

Hammer The answer is no. 

 

Hickey All right. We’ve questioned and answered. Do you have a follow up, sir? 

 

Ballinger Just, just one other question. 

 

Hickey Yes, sir. 

 

Ballinger [01:27:22]In the 10 years that you’ve seen Alan, Senator Clark down here, have you ever seen him be retaliatory to other members? You’ve seen him be hard headed. You’ve seen him be, be arrogant. You’ve seen him do whatever. Like, we know that, we know Alan is Alan, right? Have you ever seen him be retaliatory to another member? [18.5s]

 

Hammer [01:27:43]Yes. [0.0s]

 

Hickey All right. It’s been answered. It appears you’re through, Senator Ballinger. Is that– are you finished, sir? Okay. Senator Garner, you’re recognized, sir. And then Senator Chesterfield will be after you. 

 

Garner Yes, sir. I have three questions. I will be done. So if you indulge me or we can go to Senator Chesterfield after my questions. Want to be upfront about it. 

 

Hickey No, sir. Long as they are germane, you take off. 

 

Garner This is probably better for Senator Tucker since he answered that. Just want to correct the record, because I believe Senator Johnson was incorrect and then Senator Tucker agreed with him. Senator Johnson said that the money was paid back before the complaint was filed. I just want to show that your record report showed that a second payment was made on August 22, three days after the report was filed. So that was just a factually incorrect statement. I want to make sure the record reflect that. Would you agree with that, Senator Tucker? 

 

Tucker So the supplemental payment may have been. I don’t have the dates at hand. I know for certain that the main payment, which is all– Senator Flowers, her first payment back was 100% of what she was asked to pay back. And I’m certain that that was made before the complaint was filed. The supplemental payment after that, it may very well have been after the complaint. And I’ll take your word for it. 

 

Garner And that was roughly– the first payment was roughly $2,700. Is that correct? 

 

Tucker Yes, sir. 

 

Garner And then the– provided by staff of the total amount per diem and mileage Senator Flowers was paid for the total of the General Assembly, that amount came out to $5,944 roughly. Isn’t that correct? 

 

Tucker If that’s what the number is. Again, I don’t have that right in front of me, but I’ll take your word for it. 

 

Garner I mean, so there was a valid question that the committee ultimately answered of what total amount Senator Flowers should reimburse the Senate. Would you agree with that? And the amount you all came to was the $27 plus $217. No problem with that. But there was a valid rules question if she owed for the weekends or not or anything. Would you agree with that? 

 

Tucker The committee looked at all of those numbers at the time with the Exhibit provided by staff. And just for the record, that Exhibit, those numbers, the $5,900 approximate number that you cited, that was provided to Senator Clark, I believe, one week after the complaint was filed. 

 

Garner That document itself, and I have counter evidence that would point that he knew about before the committee, but that’s not for you. Separately, Senator Hammer, if I can go back to him real quick. Or you can have Senator Chesterfield jump in. It’s up to you, Mr. Chair. 

 

Hickey No, sir. Just–

 

Garner Two more. 

 

Hickey [01:29:57]Let him– let’s just slow down. [1.8s] I know we don’t like doing that, but let’s do it. 

 

Hammer I’d like to add something additional to that testimony, if I may. 

 

Hickey Are you okay if he adds something additional? 

 

Garner Absolutely. 

 

Hickey Yes, sir. And then you’ll be allowed to ask your other questions, Senator Garner. 

 

Hammer If you look at page 7 on the report, at the bottom, there’s a note that this is still trying to be 100% resolved because of the issue of the taxes. And we’re having to work with DFA because they’re trying to get to the true amount. [01:30:26]The one thing to be stressed is that Senator Flowers, once made aware, has been totally cooperative to making sure that everything that is owed and I would hope you would have done the same or are doing the same as well, Senator. [12.8s]

 

Garner Absolutely. The question just was, was there an open question when you went to committee on the amount to be paid versus what Senator Clark filed on his complaint versus what that total number. And it sounds like you confirmed even today, we really don’t know what that true number is. Did you just confirm that? 

 

Hammer I think we’re still waiting as far as what the true number is. But, Senator Tucker. 

 

Tucker Again, I’m going to restate something I said earlier. We’re conflating an investigative and error correcting process with an ethics process. And, yes, when Senator Flowers was first approached, you know, again, [01:31:14]I don’t, I don’t have all the total numbers memorized, but she was asked to reimburse per diem at $59 per day when actually she was only paid $55 per day during the 2021 session. So she actually overpaid when she, when she reimbursed the Senate. [13.8s] Then another error was discovered, in which not only was Senator Flowers paid per diem and mileage for days that she participated by Zoom, she was also reimbursed per diem and mileage for days that she was on leave. So that’s where the supplemental came in. And there was just, there was an accounting process that was taking place that was separate and apart from the ethics process. [01:31:49]And she overpaid actually a second time, which is the point you’re making now, because if you live less than 50 miles from the state capitol, which of course several members do, then your per diem is taxable. It’s not if you live more than 50 miles from the state capitol. So Senator Flowers reimbursed the Senate for everything that was paid out, including the taxes that she never personally received. So that’s the question that’s ongoing. She still has overpaid the Senate. She’s paid back more than she ever personally received. [25.6s] And yes, there is an investigative and accounting process that goes along with that, and that’s separate and apart from an ethics process. 

 

Garner [01:32:21]And I’ll [unintelligible] because of the complaint being filed. I’ll move on to Senator Hammer. [2.5s]

 

Hickey All right. This is the second question? 

 

Garner Yes, sir. 

 

Hickey All right. You’re recognized, sir. 

 

Garner [01:32:29]Senator Hammer, the committee made the point and you made it in your testimony that you all found evidence that Senator Clark didn’t bring another complaint against a Senator, who also was paid per diem, in this case me as I identified. Isn’t that correct? [11.2s]

 

Hammer [01:32:41]Correct. [0.0s]

 

Garner [01:32:41]So it was a retaliatory action that he brought one complaint against one Senator and not another complaint against somebody else. Is that correct? [6.0s]

 

Hammer [01:32:50]I think that’s going to be up for you all to decide. But there was the question raised why one and not the other. [5.0s]

 

Garner Interesting. And in multiple times of your testimony, you mentioned that because he did not file that other complaint, you saw this as a reason to bring these sanctions against him. Is that a better way to ask that question? 

 

Hammer I think it raises the question of why, if you knew at the same time there were two, why only one of the two. 

 

Garner Well, putting aside that Senator Clark didn’t know about this until August 11 as we’ll find later after he had already worked on his complaint, didn’t you find and didn’t you say at the beginning of my question that the complaint against Senator Flowers frivolous, reckless, spurious and without merit. 

 

Hammer In my comments a while ago? 

 

Garner [01:33:30]When I began questioning. Isn’t that a good summation of the complaint that you said Senator Clark filed against Senator Flowers, that it was spurious, frivolous, reckless in nature. [9.4s]

 

Hammer [01:33:41]That’s our recommendation. The body will decide if, if you agree or not. [3.0s]

 

Garner [01:33:44]I’m confused. The committee is now saying that Senator Clark should have filed another, your words, not mine, spurious, frivolous, reckless complaint against me. And the fact that he didn’t showed that he is retaliatory, spurious and furious– and frivolous in nature. Is that correct? [15.4s]

 

Hammer [01:34:01]No. [0.0s]

 

Garner [01:34:04]Well should he have– [0.7s]

 

Hickey Let, let, let them answer if you don’t mind, Senator Garner. Senator Sullivan, you’re recognized. 

 

Sullivan [01:34:10]Yeah. There’s an attempt here to, to separate all of these. And any one of the allegations standing alone is sufficient to find someone, make a finding. We considered all of the allegations. We didn’t separate them, but we did take testimony on every one of them. And the testimony as a whole on the individual acts, on the individual charges taken as a whole is a result of what Senator Hammer was saying. Trying to separate them out as if they were singularly responsible is just not what we were charged to do. [40.7s]

 

Garner [01:34:51]I’m just confused [0.4s] because you use a point that Senator Clark didn’t file a complaint against another Senator. But then at the same time, you say that basically the same fact pattern was reckless, frivolous and spurious. So in essence, you’re saying that he should have filed another frivolous lawsuit, excuse me, frivolous complaint, by your words, not mine. [01:35:11]Let’s move on from that. Senator–[0.0s]

 

Sullivan [01:35:13]Well, no, whoa whoa.  I would agree you’re confused. [2.5s]

 

Hickey Okay. This is– you’re going to answer something on the question number two? 

 

Tucker Yes. 

 

Hickey Are you okay with that if he answers something in question number two? 

 

Garner Absolutely. 

 

Hickey All right. Senator Tucker.

 

Tucker There’s just two other points I want to jump in with. One is not to say– [01:35:35]the committee’s position is not that Senator Clark should have filed a complaint against you, necessarily. The point is that there was disparate treatment between two similarly situated Senators. Two Senators both received per diem in error. A complaint was filed against one. A complaint was not filed against the other. That’s a disparate, that’s disparate treatment. [19.2s] Whether the complaint was right, wrong, indifferent, whatever the case may be, that’s disparate treatment. [01:35:59]The second point is, it’s not just the filing of the complaint– and this has been discussed by Senator Hammer in his original presentation and throughout the rest of the questions– it’s not only the filing of the original complaint. It’s also the continued refusal to withdraw the complaint once the evidence comes out. [15.5s]

 

Garner And last question and I’ll be done. 

 

Hickey Yes, sir. 

 

Garner Senator Hammer, in regards to this complaint and this recommendation only, was there any findings from the committee that Senator Clark committed any federal or state law violation? Did he break the law on this committee here– this committee recommendation only. 

 

Hammer As far as breaking the law? 

 

Garner Yes, sir. 

 

Hammer No. 

 

Garner Was there anything within this report and this report only that found Senator Clark acted immorally, that he stole a bunch of money from the Senate, that he used staff in an improper way? Was there anything– excuse me, acted immorally as far as stealing money or stealing supplies or anything like that?

 

Hammer Against Senator Clark? 

 

Garner Yes, sir. 

 

Hammer No. 

 

Garner Was there any allegations or facts that prove that Senator Clark did something that we would find morally reprehensible outside of this chamber? Did he cheat on his wife? Did he beat somebody up? Did he do anything–

 

Hickey Let’s stay a little tighter, if you don’t mind. 

 

Garner That’s the last part of this question. 

 

Hickey Yeah, I– the basis of what you’re saying is germane, but we need to keep it a little tighter. 

 

Garner That’s the last part of this inquiry. 

 

Hickey Yes, sir. Do you want to answer that? 

 

Hammer As stated in the report, the report stands for itself. The answer to your question is no. 

 

Hickey Do you have a follow up, sir? 

 

Garner This is the final part. To be clear, you’re asking us to disenfranchise thousands of voters in Senator Clark’s district through the severest punishment that has been imposed since I’ve been up here in the Senate for a man who you admitted didn’t commit any crimes, didn’t steal any money, who didn’t have any moral failings. But we’re going to kick him out of the Senate, essentially, and disenfranchise his voters, his constituents, from using the Senate staff, from drafting bills, to shoring a committee, to multiple things, to emailing, simply on a internal, as Senator Tucker described it, Senate procedure. Is that correct? 

 

Hammer [01:38:07]He had three opportunities not to put us in this position. He has made a decision that he’s going to bear the full weight of that decision because of his actions, and it is this body’s determination whether to go forward with that or not. [11.9s]

 

Hickey Senator Chesterfield, I had you as next. 

 

Chesterfield Mr. Chair, I move the agenda to consider the recommendations of the Ethics Committee. 

 

Hickey And that’s a proper motion. So let me make sure I understand what you’re, what you’re saying. 

 

Chesterfield I move the consideration of the agenda to consider the recommendations of the Ethics Committee. What I am trying to do is to move to hear the recommendations. We have debated everything else. It is now time for us to hear the recommendations. 

 

Hickey Okay. There is a little bit of a process that we need to go through. I thought you were talking about as far as this particular one. We can’t– we don’t– we can’t move straight to his motion at this time.  

 

Chesterfield What I want is to hear the recommendations from the committee. We have not done that yet. 

 

Hickey He, he, stated, he stated those. 

 

Chesterfield He has not stated the recommendations of the committee. 

 

Hickey What page is that on? Would you– 

 

Chesterfield Then I move immediate consideration. 

 

Hickey Well, there’s a process that we have to follow. So if you would, would you want to answer, try to answer that. Do you want to tell her what, what page, tell the Senator what page the, the findings were on?

 

Hammer I’ll let them find it. But in my comments a while ago, before I yielded to the Chair for questions from Senators, I read this statement, “The committee recommends a finding by the Senate that the Senate– that Senator Clark’s petition against Senator Stephanie Flowers was spurious and frivolous in violation of Senate Rule 24.13. I did make that statement a while ago before I yielded to the chair. 

 

Hickey I don’t know if it’s proper or not in this, in this– the way we’re sitting here. But I’m going to allow it. But you’re going to have to restate what your immediate consideration is– immediately to consider what? Because let me, let me explain this, and members we’re not, we’re not in session. We’re in a Senate business meeting. So I hope you all give me a little latitude. So what you’re saying is you want immediate consideration. 

 

Chesterfield By the body– 

 

Hickey Okay. 

 

Chesterfield –on the recommendation of the Ethics Committee. 

 

Hickey Okay. So what that would do is that would, that would, that would limit this testimony. And that means that we would have heard all these recommendations. And at that, and at that particular point, the way that our procedures are, then we would be at Senator Clark’s spot. 

 

Chesterfield Senator Clark is not here. 

 

Hickey Well, I’m well aware. But there’s– I do know that there’s another member that has asked me to make a motion, and I have told him I would recognize him. 

 

Chesterfield To do what? 

 

Hickey Whenever we get there, that’s fine. So for me, for me to recognize your motion, what you need to– what you need to state is that it is just as it relates to–

 

Chesterfield Whatever I need to say. Just tell me. 

 

Hickey –what this questioning that we’re doing. 

 

Chesterfield Okay,. 

 

Hickey Ma’am?

 

Chesterfield Whatever you need me to state, tell me. 

 

Hickey Well, you state what you want to. 

 

Chesterfield We’ve been in court all morning. 

 

Hickey Yeah. 

 

Chesterfield And we have had pro and con discussions all morning, which is the basis of any kind of hearing that you have. We cannot say we have not debated this issue. 

 

Hickey Okay. 

 

Chesterfield We have debated it and we have debated it. It is either time for us to put up or just shut up. 

 

Hickey Okay. Do I understand that as far as this part of the procedure that we’re in, that you want to limit the, you want to limit the debate and that we go along to the next section? Is that what I’m understanding? 

 

Chesterfield Yes, sir. 

 

Hickey Okay. Do you mind turning your mic on and stating that so it will be on record? 

 

Chesterfield Yes, sir. 

 

Hickey Okay. All right. So, members, there’s a, there’s an immediate consideration on the floor. It’s not supposed to be debatable. What it is, is that this part, this part of our procedure we will complete. [01:42:32]And at that point, we’re probably going to take lunch and then going to go to Senator Clark’s part. [5.8s] So all those in favor of the motion say, aye. Any opposed? Ayes have it. Senator Hester, do you have a, do you have a comment or question? 

 

Hester Yeah. I mean, I think we’re all here. And I would ask the body that we not break for lunch and that we, we finish this process. 

 

Hickey Okay. Y’all have heard, y’all have heard Senator Hester’s motion. All in favor say aye.  Any opposed? Okay, we’ll continue on. All right. 

 

Irvin Question, question of the chair. 

 

Hickey Yes, ma’am. Senator Irvin. 

 

Irvin If we get to the point of making the motion and we’re debating the motion, which was my point, was that we– questions and answers is a different type of the section versus debate of a motion. So at the point of debate of a motion, if you’re a member of the Ethics Committee, do we need to be sworn in if we speak for or against the motion? 

 

Hickey Let me, let me confer with staff on that. That’s not the way we had it set up. Let me confer with them. No, ma’am, we will not. 

 

Irvin Okay. Thank you. 

 

Hickey Okay. We’re now going to be at the part with Senator Clark’s, his presentation. You were going to make a motion? 

 

Garner Correct. 

 

Hickey You want to make it from here? 

 

Garner Yes, sir. Probably better to be able to take questions. 

 

Hickey Yes. First– yep, you can make your motion from there. You’re recognized to make it. 

 

Garner Absolutely. After discussion with Steve Cook, I’m going to make a motion to amend the Senate procedural rules to allow me to speak on Senator Clark’s behalf. Senator Clark is obligated at this time. [01:44:39]I’ve sent a text message to Senator Hickey saying that Senator Clark authorized me to speak on his behalf, but we have to amend the Senate rules in order for that to happen. [7.1s]

 

Hickey [01:44:47]And I was going to– and as I told you, I was going to rule your motion out of order. [4.0s]

 

Garner [01:44:52]Correct. [0.0s]

 

Hickey [01:44:52]Because our current proceedings that we’re operating under, they do not allow a designee. [4.9s] So that will be the ruling for the chair is that’s not a proper motion. So now you want to appeal, appeal that to the body? 

 

Garner Appeal that to the body. Yes, sir. 

 

Hickey Okay. All right. So everybody here understand or do we have questions on what’s going on? Senator Dismang. 

 

Dismang Question. [01:45:12]I guess my question would be, you know, I mean, so you’ve had a lengthy questioning of everyone that’s come to the floor this morning. I’m assuming you would subject yourself to that same type of questioning today? [10.8s]

 

Garner [01:45:24]Correct. Well, specifically, I want to call witnesses for Senator Clark and be open to any kind of questioning that the body may have. [6.4s]

 

Dismang Witness, witnesses that have already been– 

 

Garner Entered in, that have been admitted before we broke for the process on September 16, specifically, Senator– or Mr. Cook, Miss Lewis and Miss Cornwell as discussion. I had a discussion with them before the session. 

 

Dismang [01:45:45]But you will avail yourself to questioning as if you were Senator Clark?[3.0s]

 

Garner [01:45:49]We’re going to follow the process. [0.6s]

 

Dismang [01:45:50]Y’all have had lengthy conversations, and you feel comfortable that you’re going to be able to adequately express the views and opinions and facts as they are seen by Senator Clark. [8.4s]

 

Garner [01:45:59]To the degree that I can, I will answer the questions. [2.0s]

 

Hickey Senator Irvin, you’re recognized. 

 

Irvin [01:46:09]Through your questions, you repeatedly were trying to make the point that Senator Clark did not have legal counsel. However, you’re an attorney. So are we now to understand you as the role of a Senator who has the ability without this motion to speak against the motion if that’s what you choose to do or for the motion if that’s what you choose to do. Are we now to see you not as Senator, but as legal attorney and legal representation for Senator Clark, which you argued he he didn’t have? [33.0s]

 

Garner [01:46:43]No, ma’am. I’m not legal representation. I am a Senator who is trying to act on behalf of a colleague who could not be here and to give him a defense in this proceeding as provided by [8.0s] the rules, if we amend them. 

 

Irvin So, but you could do that without the change in the procedure as Senator Garner during the time of debate on the motion? 

 

Garner No, ma’am. There’s the issue with the witnesses is the only thing to preclude me from doing that. I’d be more than happy to make my statements during the motion and consider that. The issue is that there are three witnesses who have testimony I think is vital for this proceeding. And I’m not– there’s not a mechanism in place to allow me to call them and question them unless we amend this procedure. 

 

Irvin Okay. 

 

Hickey Senator Hendren, you’re recognized. 

 

Hendren Yeah. [01:47:34]Our rules have some time limits on things. And I guess for all of us, as Senator Dismang said earlier, who are missing work and have obligations, are we going to put any kind of guidelines and time limits on this? [12.0s] I think the respondent is limited to one hour for presentation, which includes questions, answers, start to finish. Are we going to do that or are we going to anticipate having to be here– 

 

Hickey The way our procedure, procedures are set up, like with Senator Hammer, he had one time for his presentation. We do not have a time limit as far as questions and answers or whatever. Of course, this body could always stop it if 18 of you all desire to do that. But as far as our procedures themselves are set up, it’s just one hour for the presentation and then it can continue on until you stop it. 

 

Hendren Okay. 

 

Hickey Senator Chesterfield first. 

 

Chesterfield Thank you. Mr. Chair. Has the Chair received a written request from Senator Clark indicating that he wants the Senator to act in his behalf? 

 

Hickey I will be happy to read. Is that okay with you? 

 

Garner Absolutely. 

 

Hickey Just to let you all know, Senator Garner had approached me before today and told me that he was looking, that he was going to represent Senator Clark. 

 

Garner Stand in. 

 

Hickey And I told him that I was going to rule that out of order. And I told him he could appeal it to the floor, which is what we’re doing now. In addition to that, as he was walking off, I said one another question that I would have would be, have you received anything in writing from Senator Clark authorizing that? And he said, I have not. And then 10-15 minutes later, he sent me a text from– it says Alan Clark at the bottom of it. It says, “On this date of September 27, I authorize Trent Garner to act on my behalf in any capacity needed due to my and my attorney’s inability to attend today’s proceeding, proceedings. Alan Clark.” Senator Elliott, you’re recognized, ma’am. 

 

Elliott Thank you. [01:49:45]Senator, could you just give us some idea the extent to which you and Senator Clark have worked together so that you could stand in for Senator Clark today to assure us that we will have some sense of certainty you are actually speaking what he would say if he were here? [21.1s]

 

Garner Yes, ma’am. I don’t think me and– I don’t want to say this 100%– but I’m 99% sure me and Senator Clark had no real conversations about the proceedings before September 16 because he had his attorney and he was going to present his. I had questions I prepared to ask as a Senator. After that meeting was adjourned, I reached out to Senator Clark and said, I understand that you may have something coming up, a vacation or something up. Will you be there and if not, can I help you? He said, Let me think about it, let me discuss with my attorneys. That was probably the beginning a week when that was decided. I don’t know the exact date, but a few days later he wrote me back and said, Yes, I would like to proceed. He sent me some documentation, I believe, at that time. [01:50:48]We met last Friday with his attorneys at their law office here and I got some additional– a opening statement, a closing statement and some of the questions he would like to be asked. [9.8s] And then we’ve text a few times in the proceeding time until today, specifically sending him what my questions would be, what my witness– ask the witnesses, kind of getting his back and forth on that. 

 

Elliott [01:51:10]As I think it would, if I were have– had somebody representing me, I would have wanted to talk to you about the contemplated questions that this body might ask. Did you go through that process? [13.2s]

 

Garner [01:51:24]I just gave my personal opinion about different things. He gave me his legal analysis based on what his attorney has done. And we had a discussion about the merits of that one way or the other. [9.5s]

 

Elliott [01:51:35]So you did not contemplate what questions might be asked of this body so you could be prepared to answer on behalf of Senator Clark? That’s what I’m asking. [8.3s]

 

Garner [01:51:44]Oh, yeah. We discussed. It’s hard to–I don’t want to be evasive in this. It’s hard to say, If they asked X, I want you to say Y. I don’t think we had many conversation like that. We had, X is a bad issue. This is what I would say or this is what the issue is. We had conversations like that, but I can’t sit here and say that he said, If Senator Elliott asked me point X, you say Y. That conversation didn’t happen. [21.9s]

 

Elliott So lastly, Senator, Senator, if, if a question comes up from the body, you’ve not discussed it with Senator Clark, are you at that point going to let us know you have no basis on which to answer that question. 

 

Garner I can. I’ll probably point to the record most of the time or what the testimony from the witnesses themselves. 

 

Elliott Thank you. Thank you, Mr. Chair. 

 

Hickey Senator Hammer, you’re next. 

 

Hammer Thank you, Mr. Chair. [01:52:34]Senator, I’m listing the roles that you’re going to be speaking in. If this is granted, you’ll be speaking as though you’re Senator Clark. You are going to defend Senator Clark. You are going to speak against the recommendation. But the additional twist to this is you’re going to speak as a Senator who did exactly what Senator Flowers did that resulted in Senator Clark filing charges against her, but not you. That’s a pretty complicated scenario. Do you think you can navigate through all that, given all four of those things? [32.2s]

 

Garner [01:53:07]Absolutely. And I think that is critical to the reason why I reached out to Senator Hammer. [4.0s] I would argue viciously that I did not violate the Senate ethics rules as this body decided. Senator Flowers did the same thing in her response, which I read in full. I agree with a lot of her points. And I agreed a lot with Senator Clark put together as well. The issue I have and the reason why I think this is important is because if we’re going to allow a process where a Senator brings a good faith argument, where there’s tangible results that result in a public good, where he was honest and forthright with the information and that we found that the rules weren’t followed correctly, and then this body is going to sever them from this Senate body, that is a chilling effect and a precedent I could not stand by. [01:53:55]I’m not, I don’t have much time left in the Senate, but I could imagine being in Senator Clark’s position very easily for multiple reasons and finding myself being treated the same way. [9.9s] That is what made me stand up and defend Senator Clark today. 

 

Hammer Thank you. 

 

Hickey Senator Dismang, you’re recognized. 

 

Dismang Thank you. Just a couple of questions to make sure I understand. This mimics a little bit about Senator Hammer. [01:54:19]So if you are, essentially, you’re taking the role of Senator Clark today. [3.6s] Of course, you know, probably not on the punitive side, if there is one levied. But so, [01:54:29]there’s going to be at a point here where we’re going to do– you know, we’re going to accept this motion and then we’ll begin debating the actual motion. We’re not there yet. This is just gathering information and background. Do you expect that you’re going to be speaking against the motion or for the motion at that time? [15.6s]

 

Garner [01:54:48]It depends on what this body does. Right [1.6s]

 

Dismang [01:54:50]Okay. If we allow you to be Senator Clark for today. [4.2s]

 

Garner [01:54:56]I’m not being Senator Clark. That’s a different– that’s a distinction. I’m standing in his place to this. [3.4s]

 

Dismang [01:55:00]But that’s what you’re asking, to be him today. [1.4s]

 

Garner [01:55:03]Attorneys aren’t their clients in a court of law. [1.0s]

 

Dismang [01:55:04]You’re not an attorney for Senator Clark. [1.3s]

 

Garner [01:55:06]But I’m speaking in generalized terms. [0.7s]

 

Dismang [01:55:07]If you were, then you wouldn’t be allowed to be doing what you’re doing right now, per rules. But my, my point would be, I mean, what I would like an acknowledgment from, because this weighs in on my decision, do you plan on speaking against the motion shortly? So assuming another, yet another role. So you were a questioner just a minute ago as a member of the jury, whatever we want to call ourselves. And now you’re going to come down and you’re going to be some quasi attorney, but not attorney for Senator Clark, and then you’re going to turn around, and are you going to speak against the motion, or can we anticipate you to be like Senator Clark in that nature and not be a part of the back and forth on the for and against? [37.1s]

 

Garner I appreciate you bringing up this being a quasi-judicial thing, just as Senator Hammer is both prosecutor, jury, and a Senator as well, and holds those dual roles, there’s multiple people in here who hold different hats. I think you can acknowledge that. [01:55:57]What I will do is, if this is defeated, I will make my comments I would have made during the motion at the end, just that segment. I will not have– [10.4s]

 

Dismang [01:56:08]You don’t need to make them, just– I want to– [1.0s]

 

Garner [01:56:09]I will not, I will not have them– please don’t interrupt me, sir. I want to have the opportunity to question witnesses, which I think that information is key. [6.6s] But I will make my presentation during that motion. If this body allows me to proceed forward as is, I will not have anything to say unless something major happens. 

 

Hickey Do you have a follow up? 

 

Dismang I’m going to be quick. 

 

Hickey Yes, sir. 

 

Dismang How long do you anticipate you’ll need for your presentation? 

 

Garner The first part will be very, very quickly. I’m intentionally not spending a lot of time on that part. 

 

Dismang On the presentation that you will have about an hour for. 

 

Garner On the presentation, it will be more about the witnesses, back and forth. [01:56:43]I can show you my sheets. They’re roughly– [1.5s]

 

Dismang [01:56:45]That’s part of his hour. [0.5s]

 

Garner [01:56:46]I’m sorry. I’ve been interrupted multiple times. [1.5s]

 

Hickey [01:56:48]Let him answer. Senator Garner, continue on. [1.6s]

 

Garner I can show you my sheets, and I discussed it with staff. My question is a page, page and a half– page or half a page for each witness. [01:56:57]Unless the body more has questions, I don’t anticipate them taking five or 10 minutes apiece, if that. And then my closing statement, I was going to ask for a little leeway because it requires 15 minutes. I was going to go in more detail there and kind of save, not filibuster or plow the same ground in the first hour, if that makes sense. [16.9s]

 

Hickey Senator Dismang, do you have another follow up? 

 

Dismang [01:57:18]Well, I do not understand then. So, I mean, my understanding was the presentation, the questioning of the witnesses by this individual, would be one and the same. And so you’re going to be less than an hour for your presentation, questioning witnesses and your closing. [14.2s]

 

Garner [01:57:33]I will stand up here and get the presentation that I deem to help Senator Clark. And then I’ll step away, we’ll go to the witnesses as per the procedures we put in place. And then there will be a closing statement of 15 minutes, which I will speak as well. [11.0s]

 

Hickey Anything else? 

 

Dismang No. 

 

Hickey Senator Irvin, you’re next. 

 

Irvin [01:57:52]So the chair has ruled that this is not an appropriate– so you’re asking for us to overrule the chair? [6.6s]

 

Garner [01:57:59]Yes, ma’am. [0.2s]

 

Irvin [01:58:00]And so a yea vote would be that we’re overruling the chair, and the no vote would say we agree with the chair that this is not part of our procedure. Are you concerned that if you are changing the rules of the procedure that’s not fleshed out– and as chair of the Ethics Committee, we spent, I have no idea how long, hours and hours and hours and hours and hours creating these rules and these processes. And we debated in the committee all the details about the ramifications of this and the ramifications of that. And we spent I can’t tell you how many hours trying to create a process that we believed was fair, was reasonable, and that made sense for the body to proceed down these routes. So right now, you’re asking us to really put in a whole new section of the rules that has not been fleshed out by the members of this body. Just in– you’re asking based on what you want and your opinion, not a process that has been fleshed out by the Ethics Committee or even asked to be reviewed by the Ethics Committee, which could have been brought to light by Senator Clark. So that’s clear. That’s what you’re asking is for a Trent Garner section of the Senate rules process and procedure outside of the Ethics committee’s ability to look at this and flesh it out. That, that’s what you’re asking for today. [95.0s]

 

Garner Well, to answer that question, I have to go to staff. I believe that the Senate rules lays out a very generalized procedure we follow. And the specifics of it was done through the Senate hearing meeting process. I don’t know if that part was approved by the Senate Ethics committee or not. I’m just figuring. I know the Senate rules were, but this procedure, based on those rules was, I believe, put together separately. [01:59:55]I’m not exactly sure who put that together. I do not think it’s the Senate Ethic committee. And if I’m wrong, I will be standed corrected. I think– [6.7s]

 

Irvin [02:00:02]You weren’t part of the Senate Ethics Committee four years ago. And I can tell you from, from– we went through all kinds of scenarios and details to try to create the rules, because we were trying to understand how this would actually play out in the Senate. [14.4s]

 

Garner Yes, ma’am. But I don’t think this is a issue with the rule. I think it’s a issue with the procedure that was created based off of the rules. I think that’s a distinction that matters. 

 

Hickey Senator Hendren, I had you next. 

 

Hendren [02:00:31]So, Senator Garner, would you be opposed to a substitute motion that allowed you to have no more than an hour and then no more than 30 minutes for question and discussion and then set a 1:30 vote certain time? [10.1s]

 

Garner There’s also a closing argument in that section. I would– if you want to amend it this way, I’d be more than happy. I can– [02:00:50]I want to spend less than a minute on the opening and presentation part. [4.1s] The witness section, as long as it’s me being able to question, not the members as whole, I can get what I need done in 30 minutes. Now, if 20 people ask questions and you filibuster at time, I’d be worried about that, not be able to move on because the 30 minutes has run out. And then if I could have roughly 30 minutes, then a closing statement, I’d be more than amicable with that. 

 

Hendren [02:01:12]I don’t care how the hour is spent or even the 30 minutes. I guess what I’m saying is, would you be opposed to a 1:30, we take up the considerations and have a vote. [2.2s]

 

Garner At 1:30 as long as I’m granted the leeway in my closing to exceed the 15 minute timeline, because I don’t want to plow the same ground in the opening as I would the closing, but the closing has a 15-minute prohibition. 

 

Hendren [00:00:15]That’s up to you. You’re the one that’s the respondent making the time– [2.9s]

 

Garner But it’s not. Because the rules specifically say I can only be limited to 15 minutes. So if I was exceeding that, the body would have to allow me to exceed that 15 minutes. 

 

Hendren [00:00:26]So you would not be opposed to a 1:30– no later than– because maybe we’ll wrap it up by 1, but no later than 1:30 vote certain time so long as there was not– you could exceed the 15 minutes if you can do so by 1:30?[12.0s]

 

Garner In my section, specifically, the part where I’m standing in for Senator Clark, I would have no opposition to it. [00:00:44]Now, if the body wants to allow for a motion for different parts, things like that, as long as I get to ask my questions to the witnesses, I cannot be cut off from that part. [9.6s]

 

Hendren [00:00:55]Mr. President, I make a substitute motion that we allow Senator Garner to present for Senator Clark with the time under the current procedures of no more than an hour and that at 1:30, this body will set a time certain to take up the recommendations of the Ethics Committee. And, and I would say make that no later than 1:30. Again, if we finish early, I don’t think anyone’s going to object. [20.7s]

 

Hickey We’re saying that’s the total, the total time?

 

Hendren Correct. 

 

Hickey For witnesses, the entire, the entire section of that process? 

 

Hendren Correct. 

 

Hickey All right. We’ve got that motion. Hold on just a moment. Senator Hammer, you don’t– you do not wish to be recognized? We’ve got a substitute motion on the, on the floor at this point. It’s just a question for me?

 

Hammer Actually, I think it would be a question to Senator Hendren to clarify.  

 

Hickey Well, I think the appropriate thing is, is we now have this motion, this substitute motion on the floor. So, Senator Hendren, do you wish to come answer questions on that? Senator Hendren is– we have a substitute motion on the floor. If I understand it correctly what it is, is that it, it says that we will continue– we will complete the Senator Clark’s portion that was, was there within one hour. And that’s all inclusive of everything. So, Senator Mark Johnson, if you wish to. 

 

M Johnson Senator Hendren, I would agree with your motion except I want to clarify that the time that other Senators would have to ask a question of a witness during that proceeding, that Senator Garner calls would not count against his time, that is, some of us could not filibuster the time and eat up his time as part of that. Other than that, I’m perfectly okay with it. But could you clarify that? 

 

Hendren Again, the most important part of the motion is, I don’t think any of us here are going to impose our will on and limitations on how Senator Garner chooses to spend the time, nor will we impose our– I do think if somebody chooses to filibuster, then they need to do so knowing full well that there will be a vote at 1:30 and they may be causing more harm than good. So the purpose of this is to continue to– to stop us from continuing to rehash and just allow us to have some certainty about when we’re going to finish this. 

 

M Johnson Thank you. 

 

Hickey Senator Ballinger, if you want to go ahead and ask a question, you can. 

 

Ballinger Thank you. So I think probably almost all of us are on the same page as far as what we want to accomplish. But one thing that I’d be a little concerned about is if other people are asking questions and filibustering that Senator Garner would not have this 15 minutes to close. And so would you amend this motion to make it where, where regardless of the time, Senator Garner will have that allotted 15 minutes to close. 

 

Hendren I’m fine with that, so long as we make it 1:15, Senator Garner has the option to cut off questions and debate and come give the 15 minute close. And then we still give him that opportunity and we have the 1:30 certainty. 

 

Hickey You okay with that? 

 

Ballinger Yeah, I’m okay with that. 

 

Hendren Thank you. 

 

Hickey Any other questions? Okay. Senator Hendren, whenever you get back to your chair, I’m, I’m going to ask you to restate that motion, because I do not want there to be any surprises. I had a ruling from the chair on the first motion that that was not proper. So the way that I’m going to look at this is that this substitute motion is going to trump that. If it was to fail, then we’re going to go back, back to Senator Garner. So if you would, if you would state your substitute motion again, then we’re going to vote on that. 

 

Hendren My motion is that we set a time certain of 1:30 to consider the recommendations of the Ethics Commission, and between now and then, we allow Senator Garner to make his presentation on behalf of Senator Clark. And we ensure that at 1:15, he has the ability to preserve the final 15 minutes for any closing comments. 

 

Hickey Okay. We have some other questions. Senator Irvin. 

 

Irvin I want to make sure that Senator Hamer’s 15 minutes is also preserved for his closing statement. So that would actually need to be at 1:00. 

 

Hickey That would be a different section. So if we do everything–

 

Irvin If we are taking a vote at 1:30, then that’s a vote on the recommendation. Senator Hammer needs to have his ability for his closing statement, which is afforded to him by the process. 

 

Hendren I’m fine with that adjustment to say that, again, we still set the vote at 1:30. But Senator Hammer will have the opportunity to present a closing statement after Senator Garner’s closing statement. If that pushes us on beyond 1:30, I think that’s understandable. 

 

Hickey Senator Ballinger. 

 

Ballinger And I think I know this, but because we’ve used the phrase “have the vote at,” that’s actually when we’ll hear the motion from the committee and probably actually multiple motions from the committee at that time. We won’t actually– it’s not, it is not ending debate at that point. They’ll still be people have the opportunity to speak for and against or whatever. Correct? 

 

Hendren No. I think we will hear the motions. The debate will occur between 1 and 1:30 or hopefully before, if Senator Garner’s presentation is not an entire hour. But the motion is to have the vote. Because we could have 2 hours of filibustering debate after a motion if we open it up like that. The motion is to have the vote at 1:30 on the motions. 

 

Ballinger [00:06:52]So there is multiple motions that we’re going to have. There won’t be one. [3.5s]

 

Hendren To begin the vote process, I guess. Okay. I think there’s two. 

 

Ballinger But there will be no opportunity to speak for and against the motions. 

 

Hendren There will be 30 minutes of debate at least. 

 

Ballinger I’m so sorry. Will we have 30 minutes at that point to start 30 minutes of debate, speaking for and against each motion? 

 

Hendren We– again the purpose, I’m hopeful that we can be done prior to 1:30, again, if Senator Garner’s presentation is as short as he said. But the purpose of the motion is to set a time that we will vote on the recommendations of the Ethics Committee. That is barring– that is after and including any debate that the Senate will continue to have. We’ve been debating this all morning and another day entirely already. 

 

Hickey Senator Flippo, do you have a question? All right. Another question, Senator Irvin. Let’s get them all out. Okay. All right. Okay. All right. We’re going to be voting on the substitute motion that was Senator Hendren’s. So all in favor of Senator Hendren’s motion say aye. [00:08:14]Any opposed, say no. No. [2.1s] The motion carries. So at this time, Senator Garner, if you will come down. 

 

Irvin Mr. Chair. 

 

Hickey Senator Irvin. 

 

Irvin Sorry. Just for the behalf– for the benefit of both Senator Clark, Senator Garner and the membership, could we have a written copy just so that we’re real clear that he is the designee or something in writing? I just think it would be appropriate for us to have that in writing as part of the record. 

 

Hickey The body just decided it and I have the text that come from Senator Garner which I will–

 

Irvin I’m asking for that to be a copy made for the record. 

 

Hickey Okay, I’ll send it to staff. 

 

Irvin Thank you. 

 

Hickey Yes, ma’am. Okay. Hold on just a second, Senator Garner. Another question. I guess I need to put you under oath since you’re going to be acting as this if that’s okay with you. All right. If you would, state your name as it relates to this proceeding. 

 

Garner Trent Garner, State Senator for District 27. 

 

Hickey Okay. And if you would, face me with the right hand up. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? 

 

Garner I do. 

 

Hickey Thank you, Senator Garner. At this time, you can proceed. And if I understood everything, you have until 1:30 to get it all complete. 

 

Garner Okay. 

 

Hickey One. Excuse me, 1:00. Is that your agreement? That’s what you understand? 

 

Garner Yes, sir. I think [unintelligible] plenty of time [unintelligible]. 

 

Hickey All right. You may proceed. 

 

Garner [00:10:11]I’ll reserve my time and forego opening statements and presentation at this time. We’ll move straight to witnesses. [4.3s]

 

Hickey What did he say? I didn’t hear you, sir. What did you– 

 

Garner I’m foregoIng a presentation and opening statement as per allowed, and I will be reserving the rest of my time because we’re on limited factor onto the, the witnesses and also to the closing. 

 

Hickey Okay. [00:10:40]Will you take questions because I’m gonna rule that out– I’m considering ruling that out of order because, are you saying that you’re going to come back? [6.2s]

 

Garner [00:10:46]No, sir. [0.3s]

 

Hickey [00:10:47]For your opening statements? [0.0s]

 

Garner [00:10:48]No, sir. [0.3s]

 

Hickey What you’re, what you’re looking to do is to take the entire time for the, the question of the witnesses?

 

Garner Yes, sir. And I’ll try to explain it. Right now is my time for an opening statement. 

 

Hickey Yes, sir. 

 

Garner And presentation. [00:11:00]I am foregoing the opening statement and presentation. We’ll move on to the next part with the witnesses. And then there will be a closing at that time. [6.7s]

 

Dismang [00:11:07]I object. [0.0s]

 

Hickey Okay. Do you have a question? 

 

Dismang No. [00:11:12]The Senator needs to avail himself to questions as he agreed to during initial questioning. And additionally, just as Senator Clark would have to do if he were presenting here today. [9.8s]

 

Garner [00:11:23]I’m foregoing the presentation. Therefore, there will be no questions. [2.3s]

 

Dismang [00:11:26]That, that’s not how– I object. That’s not how that works. [2.0s]

 

Garner [00:11:30]Are you going to force me to stay up here, Senator Dismang? [1.5s]

 

Hickey [00:11:32]All right. [0.2s]

 

Dismang [00:11:33]We can force you to leave. [0.7s]

 

Hickey [00:11:34]Let’s rein it in– we went down this trail. [0.8s] So, all right. If he’s foregoing that, if there’s a proper motion from the floor, then I’ll take a proper motion from the floor. [00:11:47]But as of this point right now, I, I think that that’s your right. So you can, you can take your seat, sir. [7.2s] All right. Senator Dismang. 

 

Dismang [00:11:59]I’d like to make a motion for immediate consideration. [0.9s]

 

Hickey [00:12:01]If you would, could you– immediate consideration of what? Because that’s what– [6.1s]

 

Dismang [00:12:08]Findings, to accept the findings of the Ethics Committee. That’s the first one. Is that not correct? And I mean, I know we’re not in debate, but I’d be happy to discuss that. [8.8s]

 

Hickey Hold on just a moment. I need to discuss with counsel. It’s my understanding that Senator Dismang is going to adjust his motion. 

 

Dismang I’d like to be recognized for a motion. 

 

Hickey Yes, sir. Members, if all of you would please take your seats. [00:14:40]Let’s just, let’s slow down. Let’s slow down and make sure we get all this right. We need to write it out so everybody understands it, because I don’t want there to be any confusion in this process. [10.4s] So, Senator Dismang. 

 

Dismang Thank you. Members, from the Scarlet E to the–

 

Hickey Are you withdrawing? 

 

Dismang I’m withdrawing my motion for immediate consideration. 

 

Hickey Okay. Now you’re recognized for a motion. 

 

Dismang [00:15:03]Members, from the Scarlet E to the, you know, the story about giants to pretending somehow that’s not associated with what’s happening in this chamber to the line of questioning we just went through. For everyone that was on the Ethics Committee, I believe that this is being made a mockery of our processes. And it’s time to end it. I asked specifically if Senator Garner was going to be willing to take questions. He alluded that he would be willing to do so and instead got down and immediately made a quick statement and ran away from the podium. That told me his intent on what we were doing. This isn’t a game. It’s nothing to be made fun of. This is a serious matter and one that I think most members in the Senate take seriously. And so with that, I move that the Senate find that Senator Alan Clark has violated the Senate’s code of ethics, specifically Senate rule 24.13 by filing a spurious, frivolous and retaliatory ethics petition against Senator Stephanie Flowers.  [60.1s]

 

Hickey Okay, you’ve heard the motion. You’re going to have to take questions. 

 

Dismang That’s fine. 

 

Hickey Are there, are there, are there any questions? Is there a question? 

 

Garner Yes, sir. 

 

Hickey Senator Garner, ask your question please, sir, of Senator Dismang. 

 

Garner Per the discussion earlier, Senate rules dictate that we go through a certain process. Would this motion be out of order for the rules that we have in place? Would he have to do a substitute motion to suspend the rules in order to do that? 

 

Hickey Not that I see. No, sir. All right. Anyone want to speak for the motion? Senator Irvin, you’re seeking for. You’re speaking against. I did that wrong, really. Really, against needs to go first. So that’s my mistake. Senator Ballinger, if you’ll come down and speak against the motion. 

 

Ballinger Thank you, Mr. President. What makes a mockery of this situation is the fact that we are about ready to levy– really, I mean, I’m, like, I’m of no illusion that, that Senator Clark– I mean, you know, I don’t know if his lack of representation or whatever, but I really kind of feel like the process was sort of bent against him from the very beginning. [00:17:17]You know when he had an opportunity to put on evidence in this process, you know, in his defense? Never, never. He didn’t have opportunity today. He didn’t have the opportunity in committee. [13.9s] In the committee, it was not about him. They just issued a decision, brought it out here. Never has he been able to put on any evidence. All you have is the prosecutor’s side of this case. [00:17:44]And now we’re going to decide it, not only against Alan, right, who, I mean, I don’t know. I mean, it’s– maybe I’m weird, but like, I thought everyone loved Alan. I mean, Alan loves everybody. [13.1s] Your colleague. Been here a long time with you. And not only is it against him, but the 87,000 people in his district. [00:18:07]I mean, I’m just saying, like, if this motion passes, he’s never, not once had the ability to put on evidence in his defense, not one time. [9.4s]

 

Hickey Okay. Y’all want to ask questions or do you want to– all right. Who has the first question? Because I have Senator Irvin is going to speak, speak for the motion next. So, question. Who has first question? Senator Sullivan and then Senator Hill. 

 

Sullivan [00:18:36]Are you saying that I don’t love Alan? [1.3s]

 

Ballinger [00:18:38]No, I don’t know. I assume you do. [1.0s]

 

Sullivan [00:18:40]That’s what you said. [0.4s]

 

Ballinger [00:18:41]I said we all love Alan. That’s actually what I said. [1.9s]

 

Hickey [00:18:43]All right, let’s, let’s, let’s stick, let’s stick to questions and answers. Please, let’s, let’s bring it back in. [6.8s]

 

Sullivan Is this– is the question today about whether people love Alan or not. Is that the question? 

 

Ballinger No, that’s not what it’s about. 

 

Sullivan [00:18:58]Did he have an opportunity to present his defense today? [3.3s]

 

Ballinger [00:19:04]No. [0.0s]

 

Sullivan Okay. All right. 

 

Ballinger By rule, he was allowed to have his attorneys. His attorneys couldn’t be here.

 

Hickey Senator Hill. 

 

Hill I’m going to piggyback off what Senator Sullivan just just said. [00:19:17]You made a comment that he did not have a chance to present his side of the story. He had the opportunity to be here today, but he chose to go on vacation. I chose, after not seeing my son for a year and a half, to leave early to be here today. And I won’t see him for another year and a half. And that was not a vacation. So he had the opportunity to tell his side of the story. He chose not to show up. [23.3s] Do you agree or disagree with that? 

 

Ballinger I disagree. His attorneys couldn’t be here by rule. 

 

Hill That’s the question. Did he decide to show up or not? 

 

Hickey He answered, Senator Hill. Senator Mark Johnson, you have a question? Okay. You’re recognized, sir. 

 

M Johnson Senator Ballinger, a week ago Friday, we were here to take this matter up, were we not? 

 

Ballinger We were. 

 

M Johnson And I believe Senator Clarke was sitting over here and had two attorneys with him. And I do recall there was a motion, I believe, and correct me if I’m wrong– maybe it was Senator Dismang– to recess this proceeding at the call to the chair. 

 

Ballinger Yeah. 

 

M Johnson And Senator Clark opposed that. He wanted, as I recall– correct me if I’m wrong– wanted to stay and finish this that day. 

 

Ballinger Correct. 

 

M Johnson So I’m, I’m shocked at the fact that my colleagues would do everything they could to deny, even as a stand-in with Senator Garner to ask these questions of witnesses and to quash this whole thing. [00:20:49]This reminds me of the, the term that was used by, I believe, Justice Thomas. It’s a high tech lynching. This is an outrage. [8.0s]

 

Hickey Senator. Senator–. 

 

M Johnson All I’m saying– I’m asking a question. 

 

Hickey Please, sir, please. 

 

M Johnson Is this– does this follow any kind of due process, whether it’s our rule and procedure that we adopted or anything else? We just stopped in the middle of it and have a motion to go vote. Is that what, is that what I’m hearing? 

 

Ballinger Yes, that’s correct. 

 

M Johnson Okay. Thank you, Senator. Thank you, Mr. Chair. 

 

Hickey Okay. Any, any other questions? He’s left the well. Senator Irvin, do you want to speak for the motion? Okay, Senator Irvin is going to speak for the motion. Senator Garner, are you waiting to speak against the motion? 

 

Garner Yes, sir. 

 

Hickey You’ll be next. Senator Irvin, you’re recognized. 

 

Irvin Thank you, members. Thank you for letting me speak for this motion. [00:21:42]I’ve been on the Ethics Committee for four years. I’ve chaired it. We spent countless, countless hours trying to determine how we stop the corruption that we experienced. It’s not fun to vote for a bill and then figure out that somebody was making money on the side. That wasn’t fun. And that member that was a Senator in this body is in prison right now. [26.3s]

 

Hickey  [00:22:10]Let’s try to–[0.2s]

 

Irvin [00:22:10]No, I have leeway because– [1.7s]

 

Hickey [00:22:13]–no, no, no, no–[0.0s]

 

Irvin [00:22:13]I need to be able to–[0.5s]

 

Hickey [00:22:13]Senator Irvin– [0.0s]

 

[00:22:13]–speak to these. [0.8s]

 

Hickey [00:22:16]Please, let’s try to, let’s try to rein it in as to the recommendations and what the motion is. [3.8s]

 

Irvin The motion– I understand that. 

 

Hickey I understand and I understand there’s more to it. But let’s– 

 

Irvin There is a time and a place for things. And we have to have the ability because the public is watching this. The public needs to understand and hear all of the stories. They need to understand why we’re here. 

 

Hickey We– 

 

Irvin And I understand. I’m going to speak to the motion. [00:22:45]This committee spent countless hours going through the findings of this. These were choices that were made by Senator Clark, not by me, not by any of you. These were Alan Clark’s choices. He made these decisions to go down this path. He’s the one that jeopardized his ability to serve his constituents. That’s not on me. That’s not on this body. Those were choices that Senator Clark made when he went down this path. Senator Clark gave, he was given every opportunity of the Ethics Committee to present his case. He was given every opportunity to lay out his evidence. We sat for hours listening to his side of the story. [52.1s] At one point, he made allegations and accusations against us as members of the Senate Ethics Committee that we had already prejudged this. And when we asked him about that and called a point of order, both myself and, and Senator Sullivan, he wouldn’t back it up. And he retracted the allegations he made towards us as members of the Ethics Committee when we have spent hours and hours and hours trying to be as fair and reasonable as possible to look at this. [00:24:11]And the fact of the matter is, is that Senator Clark lied to us when he said that he filed the complaint against Senator Flowers because it was egregious based on the amounts. He had no way of knowing that when he filed his complaint. And that was a false statement that he made to us. He had no way to qualify or quantify that statement because he didn’t know the amounts that were paid to Senator Garner as a clerical error. So he had no way of knowing the amount and the difference between what was paid to Senator Flowers and what was paid to Senator Garner. And so he made a false statement and a lie to us. And when we pointed all of these things out, we gave him not one opportunity, not two, two opportunities to pull his complaint down to avoid this penalty phase that we’re in right now. Again, a choice that he made, a choice that Alan Clark made not to withdraw his complaint. He was given those choices. He could have chosen not to file the complaint. He could have chosen to pull it down the first time. He could have chosen to pull it down the second time. And then after we made our public comment and motion that Senator Flowers was not in violation of an ethics complaint, the committee brought him back in so that he could then again have the choice to avoid the penalty portion of this. And he chose not to. And that’s where we’re at. Those are choices that he made, not choices that I made. And he had every opportunity to avoid what we’re doing right now. We have given him every opportunity to present his case. He has presented it in public. He has made plenty of statements in public. And I, for one, am not going to wear the Republican lens. That’s not ethical for me. I can’t put on Republican glasses and say, this a partisan issue. That would be unethical for me and below my standard as a person. I can’t do that. Yes, we care deeply about our colleagues. I care deeply about Senator Clark and the other Senators that have been involved in these issues over the years. But that’s not my job as a Senator. I have to maintain my own personal standard of honor and integrity and honesty. That was not maintained by Senator Clark through this process with the Ethics Committee, which led us to where we are today. Not by my choices, but by the choices of Senator Clark. And I would appreciate a good vote for the motion. [190.5s]

 

Hickey All right, we’re in for or against. Do you want to speak against?  All right, Senator. Senator Johnson, I told Senator Garner he was next. Do you want to yield to him, Senator Gardner? Senator Johnson, you’re speaking against the motion. You’re recognized when you’re ready, sir. 

 

M Johnson Thank you, Mr. Chairman. I said I wasn’t going to speak today. I thought we were going to have a procedure. We were going to hear testimony, we were going to hear a report, we were going to hear testimony, we were gonna hear witnesses. And now suddenly Senator Dismang makes a motion that says, let’s just drop everything and move for conviction. Now, Senator Irvin, I was not sitting in that closed meeting that you had. I didn’t hear all those things you referred to. And you heard them because you’re a member of the committee. But the rest of us that aren’t members of that committee might want to hear the testimony of these witnesses. Now, we put some limits on the time and again– of course, we’re standing up here, wasting the time that we agreed to allow Senator Garner to fill in for Senator Clark. [00:28:45]I’m appalled at the process. The man deserves his constitutional rights, right to an attorney, right to make his case, right to call witnesses. [10.9s] We’ve written rules that contravene the intent, and I think maybe the letter of the Constitution. Your attorney can’t answer. He can whisper in your ear, but he can’t ask any questions. I mean, it is absurd. It violates every bit of fairness in American jurisprudence. Now, what the Senate chooses to do after hearing from these witnesses and the case made in this adversarial relationship, which is our system, I’m okay with. But just saying I’m tired, I want to go home. My kids are waiting for me. I mean, I don’t want to be here either. I don’t think there’s a single one of us in this room that want to be here. But Senator Clark showed up on the date he was supposed to be here. He had his two attorneys and we were ready to go home– 

 

Hickey Let’s stick to the motion if we can. 

 

M Johnson The motion was for us to stop what we’re doing and vote. 

 

Hickey I understand. 

 

M Johnson And that’s a bad motion. I urge that you reject it. Allow our little hour and a half of due process to go forward. And then the Senate can decide. I can live with the consequences. I just can’t sit, couldn’t sit there and be quiet and see the due process part being skipped. Thank you, Mr. Chairman. I appreciate a no vote. 

 

Hickey Sir. All right. He’s spoken against. Is there anyone who wants to speak for? Senator Garner also wants to speak against. Senator Garner, you’re recognized. Please try to stay with the motion if you don’t mind. 

 

Garner Yes, sir. 

 

Hickey Thank you, sir. 

 

Garner Colleagues, it’s been a stressful day. Any time you’re dealing with the severity of suspending a member of the Senate and the consequences of those actions, it puts pressures on us all. I’ve intentionally and purposely tried to keep the mood about the rules, the evidence and things of that nature. I failed it a couple of times, of course, during the back and forth debate. But the reason why I’m speaking against this motion, [00:30:56]I think it’s so critical and important that we have this is because I could see myself in the same situation one day. I could see a filing coming against me of severe sanctions. And whether I’m guilty or not, whether I did something wrong, I want to know that the procedures and rules that we have put in place are followed and done to the best of our ability. [25.8s] That things like due process, the rules we voted on, the nature of that is followed so I can defend myself or anybody in this room can. I hate to say it, but we’re not adhering to that principle. We’re not adhering to the rules and due process that we set. I know it’s contentious. I know it’s back and forth. But there was basic guidelines we put in place on how this process will go. I didn’t get upset or make a big deal whenever I did a substitute motion, or the motion to allow me to stand in for Senator Clark. I understood it was his body’s will whether I’d be able to do that or not, because that’s the decision and the process we have in place. But now we come to this specific motion. We’re going to skip over things like witnesses who have vital testimony that I believe wasn’t sussed out in the Senate Ethics Committee. Now, I am not indicting, nor will I indict the work the Senate Ethics Committee did. I think every man and woman who served on that committee did it with honor, did it with integrity, and did it with purpose on the serious nature of what they’ve been charged to do. But I also know our process allows us to debate, question, argue and counter what those findings are and to bring witnesses in defense of that to allow a modicum of due process for those who are accused and will be disenfranchising thousands of constituents. I have a presentation on the actual merits of the case, discussing whether it was frivolous, whether it was spurious, did the Senate Ethic committee add in the word retaliatory and why that is wrong. I did that to get the best kind of possible defense at this time and to make sure that process was followed, like we give to every criminal defendant or anybody in a civil or any other cases. They have that right. If we allow this motion to go forward, [00:33:31]we’re saying to the Senate that one day you may be the one on the line and you may be the one in trouble. And instead of following and giving you what you’re due, we’re going to do it on the fly. [12.7s] And I think it taints the great work that the committee did. I think it taints the process we have followed. And whether Senator Clark was going to be found sanctioned or not at the end of it, at least at the end of the day, he could say the process was followed and the same process and adherence that we all must do. Thank you for your time, and I would ask you to vote against this motion. 

 

Hickey All right. Senator Garner has spoke against the motion. Senator Blake Johnson, you want to speak for the motion, correct? 

 

B Johnson Yes, sir. 

 

Hickey You’re recognized, sir. 

 

B Johnson Senators, like I stated earlier, I don’t come to this well very often. [00:34:24]But this is an administrative process, and I don’t want to hear another word about due process or constitutional rights when in an administrative process. This is not a court of law. This is a penalty hearing. And he, Senator Clark, and I admired him since we sat on that education committee for four years, he had the ability to be here, just like every one of us. I got off the combine twice to be here. I got one time of the year to plant a crop, and I got one time of the year to get a crop out. I have not had a vacation in six years, but I’m here. [45.7s] I don’t want to hear another word about due process whenever I’m here and it’s not an accusal. This is not in an accusal. This is a penalty. And I never got to argue a penalty whenever my father came down with the penalty. [00:35:32]We gave this to the body of the committee. The body of the committee has brought a recommendation. If any other voice wanted to be heard, it should be here today. If it’s not here, it’s not any of the Senators sitting in this room’s fault, but the one of his own. [17.6s] I appreciate Senator Dismang’s motion and I would ask you to vote for it. Thank you. 

 

Hickey Senator Blake Johnson has spoken for the motion. Does anyone want to speak against the motion? Senator Dave Wallace wants to speak for the motion. Senator Wallace, you’re recognized to speak for the motion. 

 

Wallace Thank you, sir. [00:36:18]Members, actions have consequences. This goes back to this summer. A bad decision was made. The Senate made a decision. Senator Clark did not like that decision. I sit next to the man. I thought he was a friend, consider him a friend. But what was said, what was done, the actions taken, what we have read. The interpretation that was a Bible story, some people could say it was a manifesto. Depends on how you look at it. Depends where you’re looking at it from. Actions have consequences. [51.9s] We need to look at this. We need a vote on this. And I am in favor of the motion. 

 

Hickey Senator Wallace has spoken in favor of the motion. Anyone want to speak against the motion? Senator Hammer, you’ve indicated you want to speak for the motion. You’re recognized, sir. 

 

Hammer [00:37:44]On the subject of how important is this, it’s important enough for you to be here. [6.9s] I remember back during the special session, we all just kind of lived on needles waiting for the session to be called, and I remember when the special session got called, a lot of people had to change your plans, it was because they were anticipating it. I can’t think of going through a process like this if I’m the one that started it that we’re all having to deal with that the person that started it isn’t here himself that I wouldn’t think in the back of my mind, You know what? I need to make sure that everything I’ve got on the table is expendable [00:38:24]because if my reputation is on the line, if I’m going to be called into question, if my family’s name is going to be associated with my actions, I don’t want it to be because I think, well, maybe I need a lawyer here, maybe I need to do this. It’s like, the world stops for me to be here to answer for my actions. [25.9s] Now, that’s the way I feel. Whether you feel that way or whether Senator Clark feels that way, I can’t say. But it’s important enough that you are here. It’s important enough, and I’m not sure that everybody in this chamber above or below, are his constituents. But it’s important enough for some of his constituents to be here. And it’s also of issue to those that may not be here that his actions are going to have a direct ability to take care of all of his constituents. If my 87,000 constituents were dependent upon me being here or not being here, I’d be here. I’d be here. My family may not like it, but I should have explained to my family why I’m doing what I’m doing in that process. It’s important enough for us all to be here. I also want to remind you how important the decision that we’re about to make is. [00:39:56]In testimony, in testimony it was stated that 32 to 33 of us are subject to go through the very same thing. [8.8s] I want you to soak that in for a minute. How important is it? It’s pretty important. Statement was made that 32 to 33 of us are already in the process of getting that same way. How important is it for us to set the bar and to say, look, if something is going to be done from a frivolous nature, if something is going to be done from a spurious nature, we need to kind of set what we want the expectations to be. Spurious is defined as not being what it purports to be, false or fake. Frivolous is having no sound basis as in fact or law. That’s been established. Those two things have been established. Ethics Committee weighed the seriousness of bringing an ethics violation against another Senator and using the committee process. [00:41:02]The question you need to consider in deciding to vote for or against this is, Have we been used? Has the institution of the Senate been used? And for what purpose and what reason and to whose advantage and what causes being advanced because we’ve been used? Intro language to ethics rule says ‘The holding of public office is a public trust created by the confidence which the electorate places in the integrity of the Senators who serve in the Arkansas Senate. Members of the Senate are expected to carry out the duties in a manner that brings honor integrity to the body.’ And when they don’t, guess what? You have to stand before the body and give an account. And if you choose not to stand before the body, guess what? Unless you’re laying in a funeral home somewhere, it’s your responsibility to be here. [56.5s] Do you feel it was your responsibility to be here? Do these people in the gallery feel it was their responsibility to be here? Do the 87,000 constituents feel it’s the duty to be here? Mine do. My family even feels it’s my duty to be here. Committee felt Senator Clark’s action in targeting Senator Flowers is abuse of ethics rule. [00:42:27]Seven bipartisan members, several, which if they’re not staunch friends or at least colleagues that respect each other regardless of the party line. The committee felt it couldn’t stand by and allow this process to be used for retaliatory means. What is it that got us to a spurious? What is it that got us to a frivolous? It began with a retaliatory nature. [28.8s] You can even read the words yourself. The committee felt the comments and the actions of Senator Clark, including bringing these ethics petitions for the purpose of retaliation were bringing dishonor and disruption to the institution of the Senate. [00:43:17]And they also felt a moral obligation not to allow Senator Clark to, quote, “burn the house down.” The finding of a petition as spurious and frivolous was included in the ethics rules for a reason. And this rises today to that level for the reason why. This is not an ethics complaint. This is accountability in action. The committee recommended imposing serious penalties to demonstrate how very serious Senator Clark’s words, actions and transgressions of our code of ethics is. And may I remind you, this was a unanimous bipartisan decision with no dissention among the members of the committee. And this is the second time in this body’s history that we have been sitting in this General Assembly that we’ve had to do this. And I guess the one thing that drives it home more than anything else in my mind, because I’ve got to be honest with you, it’s a struggle. When friends have to sit and hold friends and make determinations, if it isn’t a struggle, you are one calloused individual. We ought to have to go through a painful process. [71.4s] We ought to have to expose ourself to the challenges of the discussion that’s going on here today, so that for whatever conclusion we reach, we’ve reached it in a thorough manner. [00:44:40]But I guess the one thing that just rings in my head I can’t get out of, is that I would bring accusation and charges against a fellow Senator knowing that there’s 32 to 33 that are sitting out there that possibly may be made on who knows what basis. And then to sit and absolve the Senator that brought the charges against, as if, oh, well, I was wrong. I had no merit for it. I even agree with the conclusions. I can’t get my mind around that one. [34.3s] And that’s why I’m gonna vote for this motion. 

 

Hickey Senator Hammer has spoken for the motion. Anyone else want to speak against? Anybody else want to speak for? Okay. Madam Director, I’m about to ask you to call the roll. I want to make sure that all the members understand the motion. So do you have that in front of you, Senator Dismang? If you don’t mind, I want you to state that motion one more time, because we’ve been, we’ve been around back and forth. So let’s do that, and then we’re going to have a roll call. Okay. Members, if you would please listen to the motion closely. 

 

Dismang And members, and I think clarity needs to be that the motion for immediate consideration was withdrawn. I think it was alluded to that we were moving for immediate consideration. That is not the case. This is the actual motion. I move that the Senate find, find that Senator Alan Clark has violated the Senate’s code of ethics, specifically Senate Rule 24.13 by filing a spurious, frivolous and retaliatory ethics petition against Senator Stephanie Flowers. 

 

Hickey Okay. Thank you for repeating that. Okay. Motion. Members, I ask that every one of you take your seats. I’m going to read this so there’s no confusion. The pairing of votes shall not be recognized. Each Senator present shall verbally respond when– it’s very important with the when– his or her name is called by voting with one of the following responses: yea, nay, present or abstain. Madam Director Garrity, would you please call the roll? Thank you, Senator Teague. 

 

Garrity Ballinger? Ballinger votes nay. Beckham? Beckham votes nay. Bledsoe? Bledsoe votes yea. Caldwell’s on leave. Chesterfield? Chesterfield votes yea. Clark? Clark? Davis? Davis votes yea. Dismang? Dismang votes yea. Elliott? Elliott votes yea. English? English votes yea. Flippo? Flippo votes yea. Flowers? Flowers votes yea. Fulfer? Fulfer votes yea. Garner? Garner votes no. 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? Ingram votes yea. Irvin? Irvin votes yea. Blake Johnson? Blake Johnson votes yea. Mark Johnson? Mark Johnson votes no. Leding? Leding votes yea. Pitsch? Pitsch votes yea. Rapert is on leave. Rice? Rice votes yea. Sample? Sample votes yea. Stubblefield is on leave. Sturch is on leave. Sullivan? Sullivan votes yea. Teague? Teague votes yea. Tucker? Tucker votes yea. Wallace? Wallace votes yea. 

 

Hickey Okay. [00:49:11]Members, by a vote of 26 yeas, 4 nays and 1 abstention, that motion carries and is adopted. [6.7s] At this time, I am going to recognize you at the well, Senator Hammer. Okay. Members, I’m going to read this while Senator Hammer is coming to the well. Since the previous motion, passed then under Senate Rule 24.11, if a Senator has been found to have violated the Senate, Senate’s Code of Ethics, the Senate will proceed to discipline the member. As such, I’ll recognize Senator Hammer for a motion. Senator Hammer, you’re recognized for your first motion. 

 

Hammer Mr. Chair, I have two separate motions regarding penalties due to the high vote count required for one of the penalties recommended by the committee. 

 

Hickey You’re recognized for your first one. 

 

Hammer First motion, having found that Senator Alan Clark’s ethics violations against Senator Stephanie Flowers, were spurious and frivolous under Senate Rule 24.13, I move that Senator– that the Senate impose the following penalties on Senator Clark: [00:50:22]immediate loss of seniority, moving Senator Clark to position 35 for the remainder of the 93rd General Assembly; and number two, recommendation to the 94th General Assembly that Senator Clark’s loss of seniority be sustained as the first order of business at the organizational meeting to be held in November and that he remain at position 35 during the 94th General Assembly. [19.4s] That’s my motion, Mr. Chairman. 

 

Hickey Okay. You’ve heard Senator Hammer’s motion. Any questions? 

 

Teague Could he read it one more time please? 

 

Hickey Yes, sir. Yes, sir. Do you mind, Senator Hammer? 

 

Hammer The Senate, having found that Senator Alan Clark’s ethics violations against Senator Stephanie Flowers were spurious and frivolous under Senate Rule 24.13, I move that Senate impose the following penalties on Senator Clark: immediate loss of seniority, moving Senator Clark to position 35 for the remainder of the 93rd General Assembly and a recommendation to the 94th General Assembly the Senator Clark’s loss of seniority be sustained as the first order of business at the organizational meeting to be held in November and that he remain at position 35 during the 94th General Assembly. 

 

Hickey Is that appropriate, Senator Teague? 

 

Teague Thank you. 

 

Hickey Okay. Yes, sir. All right. Any questions? Seeing none, any member want to speak for or against this? Okay. Members, the penalties in this motion require a majority to be adopted per Senate Rule 24.10f. The roll will now be called. I want to read this again, although you’re getting tired of it. I ask that all members take their seats. The pairing of votes shall not be recognized. Each Senator 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? Balinger votes nay. Beckham? Beckham votes nay. Bledsoe? Bledsoe votes yea. Caldwell’s on leave. Chesterfield? Chesterfield votes yea. Clark? Clark? Davis? Davis votes yea.  Dismang? Dismang votes yea. Elliott? Elliott votes yea. English? English votes yea. Flippo? Flippo votes yea. Flowers? Flowers votes yea. Fulfer? Fulfer votes yea. Garner? Garner votes nay. 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? Ingram votes yea. Irvin? Irvin votes yea. Blake Johnson? Blake Johnson votes yea. Mark Johnson? Mark Johnson votes nay. Leding? Leding votes yea. Pitsch? Pitsch votes yea. Rapert is on leave. Rice? Rice votes yea. Sample? Sample votes yea. Stubblefield is on leave. Sturch is on leave. Sullivan? Sullivan votes yea. Teague? Teague? Teague votes yea. Tucker? Tucker votes yea. Wallace? Wallace votes yea. 

 

Hickey Okay. [00:54:20]Members, by a vote of 26 yeas, 4 nays and 1 abstaining, the motion carries. [5.3s] Senator Hammer, I’ll now recognize you for your second motion. 

 

Hammer Mr. Chairman, do I go ahead? 

 

Hickey Yes, sir, you’re recognized. 

 

Hammer The Senate having found that Senator Alan Clark’s ethics violations against Senator Stephanie Flowers were spurious and frivolous under Senate Rule 24.13, I move that the Senate impose the following penalties on Senator Clark: suspension for the remainder of the 93rd General Assembly effective immediately upon adoption of these findings, and recommendation to the Senate to include the loss of reimbursement for conference registration fees or travel reimbursement related to in-state or out-of-state travel, attendance and participation at legislative committee meetings or meetings of the Senate with the exception of any Senate organizational or Senate orientation meetings of the 94th General Assembly, including access to the member and staff only areas of committee rooms and facilities and access to and use of Senate, the Bureau of Legislative Research, Legislative Audit and other legislative facilities and equipment and staff resources, including the Senate email account. That’s the motion, Mr. Chairman. 

 

Hickey Okay. You all heard Senator Hammer’s motion. Any questions? Seeing none, anyone speak for or against this? Okay, members, the penalty in this motion requires an affirmative vote of 2/3 of the membership to be adopted. Per Senate Rule 20.14f, the roll will now be called. I’ll ask that all members take their seats. Senator Hammer is proceeding to his. 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. Madam Director Garrity, would you please call the roll? 

 

Garrity Ballinger? Ballinger votes nay. Beckham? Beckham votes nay. Bledsoe? Bledsoe votes yea. Caldwell is on leave. Chesterfield? Chesterfield votes yea. Clark? Clark? Davis? Davis votes yea. Dismang? Dismang votes yea. Elliott? Elliott votes yea. English? English votes yea. Flippo? Flippo votes yea. Flowers? Flowers votes yea. Fulfer? Fulfer votes yea. Garner? Garner votes nay. 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? Ingram votes yea. Irvin? Irvin votes yea. Blake Johnson? Blake Johnson votes yea. Mark Johnson? Mark Johnson votes nay. Leding? Leding votes yea. Pitsch? Pitsch votes yea. Rapert is on leave. Rice? Rice votes nay. Oh, sorry. Rice votes yea. Sample? Sample votes yea. Stubblefield is on leave. Sturch is on leave. Sullivan? Sullivan votes yea. Teague? Teague votes yea. Tucker? Tucker votes yea. Wallace? Wallace votes yea.

 

Hickey Okay. [00:58:40]Members, by a vote of 26 yeas, 4 nays, and 1 abstaining, the motion carries. [6.5s] At this time, I need to take– I need to take a brief recess because I have a letter that I need to read to all of you all. I ask that none of you leave. So let, let me do that, because I need to work on this depending on the outcome of how this works. So I need about 15 minutes. We’ll come back in– we’re going to come back in at 1:10, and then we’ll proceed with our other business. 

 

[Recess] 

 

Hickey Members, if you don’t mind, please take your seats. Okay members, I first want to read a letter that will be sent to Senator Clark. Of course, it will be addressed to him personally whenever it’s sent. But I want to read it in here instead of just sending it myself. So, The Senate, having found that Senator Alan Clark violated the Senate Code of Ethics, specifically Senate Rule 24.13, by filing a spurious, frivolous and retaliatory ethics petition against Senator Stephanie Flowers, the Senate imposed the following penalties as a result of this violation: immediate loss of seniority, moving him to position 35 for the remainder of the 93rd General Assembly, a recommendation to the 94th General Assembly that his loss of seniority be sustained as the first order of business at the organizational meeting to be held in November and that he remain at position 35 during the 94th General Assembly, and effective immediately, suspension for the remainder of the 93rd General Assembly, which will end in 11:59:59 p.m. January 8, 2023. This suspension includes a loss of reimbursement for conference registration fees or travel reimbursements related to in-state or out-of-state travel, attendance and participation at legislative committee meetings or meetings of the Senate with the exception of any Senate organizational or Senate orientation meetings of the 94 General Assembly, including access to the member and staff only areas of committee rooms and facilities and access to and use of Senate, the Bureau of Legislative Research, Legislative Audit and other legislative facilities, equipment or staff resources, including his Senate email account. Senator Clark’s personal items that he may want, that he may have and want to remove from his Senate office or desk or from his Capitol Hill apartment during his suspension– suspension will be– he shall be provided access to the Senate chamber, his Senate office and Capitol Hill apartments until 4:30 p.m. on October 3, 2022. He will also turn in the following items by the above date and time to the Capitol Police Office: any Senate issued electronic devices, including a laptop, and iPad, his Senate license plates, key cards to the Capitol and Capitol Hill apartments, keys to his office and Capitol Hill apartment and any other item issued to him in his capacity as a Senator. In addition, the following will occur immediately: he will be prohibited from accessing his Senate email and Senate computer accounts, contacting or working with Senate Bureau or Legislative Research and Legislative Audit staff, except during the Senate orientation and organizational meeting, and accessing legislator only, legislator only areas within the Capitol and Big Mac buildings except during the Senate orientation and organizational meeting. Again, this letter will be sent to Senator Alan Clark. Okay, at this time, members– yes, sir. 

 

Ingram Re-read that part about the expiration of the suspension. 11:59:59. I think you said 2023. Wouldn’t it be 2022? 

 

Hickey It’s next, next year. Yes, sir. Members, we’re supposed to go into session on January 9, and what that does is takes us up to the last minute before we go into the 94th. Yes, sir. All right, members, at this time we’re going to go– we got a little bit more on agenda. I have a Senate rule that I’m gonna request, so we’ll have to– I’m going to ask you to suspend the rules. I’m going to ask Senator Dismang, if he would step forward, if appropriate, as, as of right now so I can present that. And then after I do that, I believe there’s another one. I’ll step back to the Chair and recognize that Senator. 

 

Dismang Senator Hammer, you’re recognized for a question. 

 

Hammer Just a clarification. Which one? 

 

Dismang Members, if everybody can go ahead and take their seats. We’ve got a couple of questions. I think maybe you want to provide some clarification that I’m not even sure I know how to do. But Senator Hammer, you’re recognized for a question. 

 

Hammer Thank you, Mr. Chair. Would the Chair clarify which one we are actually supposed to have in our hand please?

 

Dismang As soon as I find out, I will. I’ll find something that will allow me to differentiate that from the other. But I’ve not seen any– either of the proposals. One has Senator Mark Johnson at the top corner. I’m assuming that’s one, and there’s going to be another that’s going to say Senator Hickey. Members, just want to verify, does everybody have a copy of Senator Hickey’s proposed rule change? If you do not have one, raise your hand. Everybody is good to go? Senator Hickey, you’re recognized for a motion. 

 

Hickey Yes. The first motion that I need to do is we need to suspend the rules so that we can hear this suggested change to our Senate ethics rule. 

 

Dismang All right. Thank you. Members, we have a motion to suspend the rules to hear proposed rule change to Senate Rule 24 by Senator Hickey. Is there discussion on the motion? Senator Chesterfield, I think– oh you’re waiting on the copy. All right. Seeing no questions in the discussion, seeing none, all those in favor signify by saying aye. All those opposed? Motion carries. 

 

Hickey Yes. Members, proposing this rule change, basically, what this says is just [01:25:37]on– if you’ll see the top line, what it says is it takes three or more members to– you know, who have good reason to bring an ethics complaint according to our rules that we have in place. [9.9s] If you look down below, we also added this because there was some confusion where we put the secretary of the Senate shall deliver a copy of the petition to the Chairman of the Ethics Committee. That was not in our other rules. So, you know, we had a– we need a process in place of how that’s done so that the secretary would actually deliver it to Senator Hammer, you know, so that we actually have that in writing. And then there is– everything else is basically turning things to a plural. And there is just one typo change that is on the very last page. If you look down at the bottom, it originally had said ‘and,’ and it should say ‘all’ right there. So with that, I’ll attempt to answer any questions. 

 

Dismang Members, any questions? Senator Elliott, I see you first. You’re recognized for a question. 

 

Elliott Thank you, Mr. President. I’m just wondering if you would just make a friendly amendment changing Chairman to simply Chair. 

 

Hickey Which petition? 

 

Elliott In the middle of the page, “the Secretary of the Senate shall deliver a copy of the petition”–

 

Hickey I think that’s appropriate. 

 

Elliott Okay. 

 

Hickey That was actually a typo. So I will amend my motion to say that, that there will be– the petition would be delivered to the, to the Chair, not the Chairman. 

 

Dismang If everyone can just go ahead and make a note on that, that way we would be adopting this piece of paper at some point. Senator Chesterfield, you’re recognized for a question. 

 

Chesterfield Mr.Chair, let me be clear with Senator Hickey. [01:27:24]This precludes any one individual from bringing an ethics violation claim? Is that what we’re saying here? [5.2s]

 

Hickey [01:27:30]Yes, ma’am, it does. [0.6s]

 

Chesterfield [01:27:32]And may I ask the rationale for that? [1.5s]

 

Hickey [01:27:34]I think that you’ve seen it with what’s transpired. I believe that, you know, we all operate as a body in here anyway, and it takes multiple, multiple members to do anything. We all know that one member basically never does anything by themself, be it a bill draft or rules or whatever. [20.0s] And I just think that, you know, we’ve learned a lot through this process. And I think this is part of the learning process that we found. [01:28:04]And, you know, I’ve had people ask me, well, you know, why would you say three, or why wouldn’t you say four? And basically, from my standpoint, it’s just the biblical saying that, you know, a strand of three cords is not easily broken. [12.7s] Not to say it couldn’t be. All penalties would, would still apply. This is just requiring the three. 

 

Dismang All right, Senator Hammer. And then we’ll get to Senator Garner. 

 

Hammer Thank you, Mr. Chairman. Senator Hickey, I’d just kind of like to hear your thoughts. If I’m a Senator that thinks that maybe somebody else has done something wrong, who are the other two I’m supposed to trust to go to and say, Hey, I think this is going on? Or how do you see that played out? 

 

Hickey I think that’s up to us. I think we all know each other here, Senator Hammer. And, you know, I think that we all know that if we believe something like this going on that, you know, I would go to a certain two members. Senator Garner might, Senator Ballenger would, Senator Rice, and so on down. I think that, I think that would all work itself out the way that it would need to. 

 

Hammer Follow up, Mr. Chair? 

 

Dismang Yes, sir. 

 

Hammer Through this process, there’s some possible other changes that are going to be coming. [01:29:21]This is honestly, why, why are we doing this now versus waiting to what might possibly come given the fact we’re this close to the end before the next General Assembly will be coming in? [13.3s]

 

Hickey [01:29:35]I just, I just seen with what, what we’ve went through as a body over the past couple of months, that this was an important need that we needed to address now. [7.4s]

 

Hammer Okay. Thank you. Thank you, Mr. Chair.. 

 

Dismang Senator Garner. 

 

Garner Thank you, Mr. Chairman. The thing that concerns me is that I can think of about 100 different scenarios where there would be an incident with only one Senator being involved or knowing the material facts of what happened. We can all let our mind run very quickly on how that could work. [01:30:02]The issue is that we’ve just learned this body will give out fairly severe punishment for frivolous or spurious issue. You also put that these people who signed their name on there could also face that punishment, even though they may think it’s a good faith argument when they signed on to it. I mean if there’s an instance between two Senators completely off campus, completely somewhere else, no material witnesses see that, how can we confidently put our name on a document that could then turn around and turn out to be frivolous or spurious and be used against us? [31.6s]

 

Hickey Right. I mean, I think that’s up to the other two members how they want to, want to approach that to make 100% sure that, you know, that those facts can be proven. I mean, just because I mean, I heard you used the example about seeing someone. [01:30:48]You know, I think that those facts are going to have to be proven, and that is really the basis of this. Because, you know, I think that we need to guard against– and I’ve heard Senator Hendren say, you know, weaponizing this– and we do. [12.6s] I think this is a guard against this. What hasn’t been talked about here, and I hate to bring it up. You know, [01:31:09]Senator Flowers actually went through, what, a month to six weeks of having to endure this. [6.5s] And I think that this is something that that body– that this body needs to recognize also is because she had to endure what all has transpired. She had to endure 20 hours of– 19 to 20 hours of the Ethics Committee meeting where she didn’t know actually what was transpiring either. Although she knew that she was not guilty of what she had been accused of, she still had to endure that. So I think anything that we can do to actually still have our Ethics Committee in place– because we all understand why this is here. As Senator Irvin alluded to during her comments today, this was put in place because we had multiple members out there that were doing things and this body recognized that we needed, needed to have a process in place. I think this will strengthen our process. I think that it will also require whoever wants to bring this, the two other individuals that they’re going to get to sign on with them, to go through that, to vet it, to actually go back and forth and to say, what do you think about that, and, you know, so they can bounce it off of them. So I believe that, again, I believe this will strengthen our process. 

 

Garner Thank you. 

 

Dismang Senator Pitsch and then Senator Elliott. 

 

Pitsch My, my comment is I think it’ll help. I’m wracking my brain trying to remember who I made the suggestion to, but I suggested five members. Can you give us a little– when we were in committee discussions and break. Can you tell us why three? And I notice that you say three or more. 

 

Hickey Yeah. And that was what I, that was what I said because so many members had asked me. You know, again, actually, members I struggled with this, you know, on how to, how to do this. This isn’t something I just came up with a whim. [01:33:03]I’m actually on a tractor bush hogging, and again it was truly biblical, you know, in that nature. Because I remembered the Bible verse– and if I quote this wrong– basically, that a chord, a strand of three cords is not easily broken. [13.0s] Because I originally was thinking two. I was thinking four. You know, thought that might be too many. So that, right or wrong, that’s how I come to the reasoning of doing the three. 

 

Pitsch Thank you, sir. 

 

Dismang Senator Elliott, you’re recognized for a question. 

 

Elliott Thank you, Mr. Chair. Senator Hickey, I was just trying to figure out this process of, if there are three people, and when you sign on, I’m assuming you wouldn’t think it’s something ridiculous. But in the process, for example, if the three of us right here have signed on and I find out it is frivolous, I would have the right to withdraw my name whether or not the others do or not? Is that addressed or is there some assumption?

 

Hickey It’s not addressed. But, of course, mine is just for the initial filing. So you know that, you know that– so the filing was there. Whenever you get into, as we’ve seen today, if you were to get into the committee process and you see that, you see that there’s other evidence been brought forward that, you know, contradicts what you originally believed, then, yes, it would be, it would be up to you at that point to get off. I think the other members would continue to stay on if they wanted to continue the process, much as we seen today, that would be, would be up to them. 

 

Elliott And that’s because originally there were three people who filed it. 

 

Hickey That’s correct. What this is and, again, I think that we have to– I think once it gets to the committee process that it has to be allowed to play out. But each one of those members, if there’s other evidence, would be able to come off. But if there’s one that stays, then we could basically wind up in the position that we are today. But before a member is accused of something, again, on the initial thing, I believe this will serve to limit things that could possibly be frivolous. 

 

Elliott And just a quick follow up. And it would not require that going forward, as I think I understood what you said, that you go reach back and get some other third person to replace somebody that might have dropped off?

 

Hickey That’s not my– no, it’s not written that way. And that’s not my intention. No, ma’am. 

 

Elliott All right. Thank you. 

 

Dismang Senator Hammer, you’re recognized for a question. 

 

Hammer Mr. Chair, may I ask our legal counsel a question for historical purposes? Can I ask Steve a question if the Senator will yield? 

 

Dismang You’re recognized for the question and we’ll– 

 

Hammer Going back to the days when the ethics conversation first started– I think it goes back into the 90’s at some point– was it, was it a rule then that it was one Senator or was it multiple Senators that were signed on to when this conversation originally started? 

 

Cook The original, the original Senate Code of Ethics was adopted before the ’99 session. And at that time, the rule read that if you petitioned the pro tem with 18 or more signatures on a petition that the pro tem would call a business meeting to address the petition. So basically it was a petition signed by at least 18 senators to convene a business meeting to address an ethics violation. 

 

Hammer Okay. I’d like to ask a question of Senator Hickey when he gets back in the podium, please. 

 

Dismang All right. Senator Garner, you’re recognized for a question. 

 

Garner Yes, sir. This doesn’t relate to this. I’m going to ask leave for myself. I have to go. I just want to make sure I was on the record if we have any kind of vote or anything. 

 

Dismang All right. Senator Hammer, you’re recognized. 

 

Hammer I’m sorry. I’m sorry, Mr. Chair. 

 

Dismang You’re recognized. 

 

Hammer Hearing the historical and where we are today and where you’re wanting to take us, this is more back to the middle balance between what it was, what we evidently moved away sometime and where, where we are now, where you’re wanting to get us. Is that, is that a fair assumption? 

 

Hickey I wouldn’t say it’s quite to the middle, but it– 

 

Hammer Yeah, I mean, 18 to 3 is not the middle. 

 

Hickey Yes, sir. And I’m not, I’m not being flippant with that. But it, but it is, it is a little bit, a little bit stronger process that you would have to go through. 

 

Hammer All right. Thank you. Thank you, Mr. Chair. 

 

Dismang All right members, do we have any other questions? Would anyone like– Senator Flowers, you’re recognized. 

 

Flowers I can’t find it in the rules. And this is a question for legal counsel, I think, Mr. Chair, about making verbal accusations and about a member accusing the member of ethical violations. So how is, if that is a part of our rules– I can’t find it– but it seems like I’ve read that before in our rules. 

 

Dismang I think– you may speak to this– but I think, you know, there’s a– it was referenced earlier by Senator Hammer. There’s a whole separate section of our rules that didn’t have to do with a frivolous complaint or whatever, whatever you want to call it. That, that’s not what that was about. It was behavior unbecoming of a Senator– I don’t remember the exact words– which then can be brought before the body. Now, I think you may be alluding to something like that, that that could be considered underneath that section of our rules. But I’ll let– 

 

Flowers I’m just trying to figure out how does the proposed rule not contradict the other rule? Because I’m concerned about three members collaborating and speaking among themselves about making allegations or accusations against a member that’s not on the piece of paper yet, that’s not in the form of a petition, and then spread out to the media or other rumors get started. That concerns me that we would have three people collaborating. I don’t understand the purpose of this rule. 

 

Dismang I’m not, I’m not sure that we could prohibit three members from getting together and gossiping about another member. I think this is specifically for three members required to come together and jointly sign a petition, an ethics petition, to the secretary that will ultimately go before the Ethics Committee. [01:39:59]I think the intent of the rule is to ensure that someone– for me, would be to ensure that someone’s saying, stop, have we asked all the questions, have we gone through this, did we, for instance, just take the time to call Senator Flowers to find out a little bit more about this? Surely amongst three members, there’s enough common sense to maybe get away from some of the emotion that may be involved. [22.7s] I think that’s the intent of this is to make sure that things are vetted before we just automatically throw something up to the Ethics Committee and put this body, the public and everyone else through something that was not necessary because cooler heads weren’t prevailing. Is that fair, Senator? 

 

Flowers [01:40:42]I would respond that I don’t necessarily agree with that, that you’re going to find common sense among three members. [9.3s]

 

Dismang [01:40:51]Fair enough. I think it would be very, very contingent on the three. I would grant you that. [8.4s]

 

Flowers I think it lends itself to a lot of conspiracy type theories and setting someone up. But I just would like to know, how do we prevent that? Because I’m not so sure about three members. 

 

Hickey Senator Flowers, I think that’s probably a question for me, if you don’t mind if I answer it. I think we have, right now one can do it. So basically what I’m trying to do is limit against that by just adding the other two. So as was, as was given– as has just happened with you, one member brought that against you. If we pass this, then it would require those three to actually do the written filing so that they all three would do it. So that– it’s actually trying to limit against that a little bit more. 

 

Dismang Senator Irvin, you’re recognized for question. 

 

Irvin Just actually, in your binders under Senate rules and procedures on page 9 is where it discussed about bringing a manner verbally. “A Senator shall not make an allegation of a violation verbally in a meeting of the Senate or by any other means outside the petition and committee process of these rules. And if a Senator”– or in this case, if this is adopted, Senators– “who improperly brings an allegation of a violation, they may be subject to any of the penalties set forth in Section 24.11 of this rule.” So I just wanted to point that out, that that is already adopted and part of the rule. Thank you. 

 

Dismang All right. Who’s up next? Senator Clarke Tucker. 

 

Tucker Thank you, Mr. Chair. Senator Hickey, I’m just following up on a point that Senator Elliott made about withdrawal. And I just– I want to make a suggestion that I don’t think would be controversial, but just would clarify what your intent is. If you look at the last paragraph before 24.10. 

 

Dismang Say it again for 24– 

 

Tucker Point 10. 

 

Dismang Okay. 

 

Tucker That paragraph starts– are you with me, Senator Hickey? 

 

Hickey Yes, sir, I am. 

 

Tucker “An allegation of violation may be withdrawn”– you see that? 

 

Hickey Yes, sir. 

 

Tucker So my suggestion would be to adjust that to say, “An allegation of violation may be withdrawn by one or more of the claimants.” 

 

Hickey Yeah. I think– should we say that or should we just say the allegation of violation that they’re allowed to– is that the way we want to put it? An allegation violation may be withdrawn by the claimants, withdrawn by one or more of the claimants. It’s just, it’s not, it’s not my intent, though, that, that if one person, if it’s, if it’s already been filed, if it’s been delivered to the ethics Chair, you know, I wouldn’t want it to be inferred that– 

 

Tucker You could add a second sentence that says the proceeding will only terminate if all of the claimants withdraw. 

 

Hickey Sure. And, I mean, I would be more than happy to do that if that’s what the membership wants. Again, y’all, we’re just trying to, trying to get through all this. 

 

Tucker So, so my suggestion then would be, “An allegation of violation may be withdrawn by one or more of the claimants,” and then the rest of that sentence stays the same. And another sentence after that would be added that says, “The proceeding will only terminate if all of the claimants withdraw the complaint.”

 

Hickey Yep. And I would, I would, I would agree to that amendment. 

 

Dismang Can we get a– staff, can we have that on a piece of paper? That way I can read that back when we’re making the final vote. I’m not going to ask them to hand out something else, but I will read that and touch up on the two changes that I think we have so far before we take a vote. Senator Hammer, you’re recognized. 

 

Hammer Thank you. Continuing on that thought just to play this thing out. So you’ve got three Senators that initiate action. Somewhere in the process, one realized, oops, this ain’t right. And they back off and they ask their name to be withdrawn. Would it be your interpretation of what you’re presenting today that that one Senator that dropped off would be free of any future punishment that may come if it’s determined that the other two that have stayed on it is frivolous? 

 

Hickey Most certainly. Yes, sir. Most certainly. 

 

Hammer Okay. Once that– follow up, Mr. Chair. Once, once that one Senator drops off and it becomes two, would that, how would that play out as far as violating the rule? Because then at that point, you don’t have three or more. You only have two. 

 

Hickey Again, this is just for the filing. 

 

Hammer That, that’s what you’re– that’s what Senator Clark– or Tucker–

 

Hickey Yes. Yes. The, the language that Senator Tucker had suggested will kind of clear that language up. 

 

Hammer Okay. Very good. 

 

Hickey It won’t kind of clear it up, it will clear it up. 

 

Hammer Thank you. 

 

Dismang Members, do we have any other questions? All right, Senator Johnson, you’re recognized for a question. 

 

M Johnson And this is just a clarification, Mr. Chairman. Senator Hickey, I’m going to use an analogy, and you tell me if I’m hearing this right. Three individuals file a lawsuit against somebody, and it’s tried, it goes to court. The judge receives it, the clerk receives it. So you got a lawsuit. One of the plaintiffs decides to drop out of the lawsuit. That doesn’t mean the lawsuit is dismissed. Is that analogous to what we’re talking about? 

 

Hickey I’m not– to be honest, Senator Johnson, I’m not familiar with the courts proceedings. Like I say, it’s just this is, as Senator Blake Johnson said, an administrative proceeding that we do in here with the Senate body so– 

 

M Johnson I’m only saying is it analogous? 

 

Hickey Well, I don’t know. I would rather just stick with the way it is. But I don’t like to say lawsuit and all that. We understand this is an ethics violation. 

 

M Johnson I’m not alluding to this being a lawsuit. I’m simply saying that if three individuals take an action, the action is filed, and then one pulls out, the action doesn’t go away is all. Regardless of what venue it’s in. 

 

Hickey I think you could consider, consider your analogy correct. 

 

M Johnson Thank you, sir. 

 

Hickey Yes, sir. 

 

Dismang We have any other questions? All right, seeing none, would anyone like to speak against the rule change? Speak for it? All right, members, I want to quickly go through and make sure that we understand what’s– what we’re going to be voting on is not exactly on this paper. So take off your, you know– take out your pens or pencils. And it’s on the first page. It’s going to change from Chairman to Chair. And then on the second page, the language is going to read– and this is on the second paragraph on the top. Here it’s going to read, “An allegation of violation may be withdrawn by one or more”– that’s the first change– “of the claimants at any time prior to the final vote of the Ethics Committee during the hearing procedure. Withdrawal of the allegation of violation shall be reported by the Ethics Committee to the president pro tem of the Senate. The”– and this is the new language, the new second sentence– “The proceedings will only terminate if all claimants withdraw from the petition.” Is that correct? Senator? Just text it to me.

 

Tucker I’m adding, I’m adding one other suggestion based on Senator Hammer’s point, which I thought was an excellent point. And I’m adding a sentence that says, “Any Senator who withdraws his or her name will not be subject to punishment for violating Rule 24.13.” So I think that reflects your intent and the answer to Senator– 

 

Dismang Can we discuss that for just a second? it’s just, if you don’t mind giving me a little latitude as Chair for this discussion on that. My only concern would be is three members, again, doing some cute things, filing an Ethics Committee complaint, frivolously knowing they were, and then all backing out of that complaint after they’d started the ball rolling. [01:49:58]That would be my only– you know, the headlines have already been made, everything’s happened. And they know the rule, and so they just all three back out. And we’ve had a great time torturing another Senator [9.5s] if that makes sense. It’s my only concern about that language. I would argue that for us as a membership, what we just went through demonstrated, I think, the need for a member to come explain themselves for why they took a particular action against another member, and in doing so, it would be us to determine if that was a frivolously filed complaint or whatever it may be. Just my two cents. 

 

Tucker It’s not my– 

 

Hickey No, I’m– if I may. You all, again, we’re in the Senate business meeting. This is important. As I said earlier, no one member down here does anything by himself, and that’s being demonstrated. I welcome what you’re, what you’re saying for us to work through this, because we need to get this right. Thank you. 

 

Dismang So, so the additional language would essentially exonerate someone from having a frivolous complaint filing or whatever it may be charged against him if they withdraw their name. So the simple withdrawing of the name would exclude them from being, you know, part of that. 

 

Tucker Yes, sir. I hear what you’re saying, Senator, and I don’t necessarily disagree. The way the rule is now is that you can withdraw any time prior to when the vote is taken, and you, you’re not subject to any punishment at that time. So my thought in adding that sentence is to reflect what the current rule is. If you want to change the rule beyond that, you know, I think you make a valid point. But that’s, that’s my thought process. 

 

Hickey And if I may, I mean, if Mr. Cook can correct me, I know that we’re talking about the ethics right here and we’re trying to get these straight. But, you know, if this body of 18 members, we don’t have to have any of this in place, you know, under– I believe that we have the authority under anyway under the Constitution to discipline our members. So if there’s some extraordinary circumstance where we see that it looks like that someone has filed this, dropped it, or whatever, this body still has that ability to discipline the member any way they want. All we’ve got to do is come together. So just because it’s not written exactly right, if we find that, then we can proceed that way. 

 

Hammer May I? 

 

Dismang You’re recognized.

 

Hammer May I address the Chair? 

 

Dismang Yes, sir. 

 

Hammer So I’m thinking the way– I’m trying to get my mind around it– the way it is now, a member, one, or if this goes through, three, file a complaint, the way the rules are currently, they could take it right up, as was illustrated a while ago, right up to the time that the gavel sounds and pull it out. And whoever that member is that has gone through that experience. You’re right. The press is out there. Hopefully after today, some of that will be changed. So what I’m trying to get my mind around is, one or three, what difference does it, does it make? And are we really addressing your concern by moving it from one to three? And how are we going to address your concern? 

 

Dismang I have lots of concerns. So I’m not sure which one you’re specifically referring to. But so for the one or three, I mean, again, I don’t need to debate that from the Chair. I mean, I think I understand the intent and all I was trying to do is outline what I think the intent of Senator Hickey was with moving it to three. I mean, I believe that the thought is that surely when there’s a group of three people, someone speaks up and says, maybe we shouldn’t do it this way before we all sign a piece of paper. 

 

Hammer May I ask Senator Hickey a question? 

 

Hickey Yes, sir. 

 

Hammer Under what you’re proposing, thinking about the language that Senator Tucker is talking about, if all three came right up to the last minute and said, you know what, we pull out, we’re not going to do it, the effect is going to be the same as what we just experienced. Or is that being– in your mind, is that being addressed by what Senator Tucker is proposing? 

 

Hickey Well, I mean, no, if that, if that happened– I mean, I guess I’d have to say that if you’ve got– it’s going to be– I hate to say it this way, but if you’re going to get– it’s going to be harder to get three rogue members than one, I mean, that files a frivolous type complaint. I do– I think, I think that on the, on its face and in its simplest form, that, you know, basically, we’re just, we’re just trying to get the conversation going and where it will be vetted more amongst those three members. You know, if one of them says, well this, they say, well, how do we know 100% sure that that’s correct. What, what do we need to do to strengthen that, or if it’s not there, then we don’t need to say it. 

 

Hammer So I appreciate that. I’m just thinking that even if we move it to three without addressing the other issue, three could do the same damage as one. And I do appreciate the intent of what you’re doing. I’m just trying to address that. Did we really fix that issue or if that’s going to be something that we need to come together as a committee along with some other recommendations to deal with?

 

Dismang And just for some clarification here, the way that that rule actually reads– I don’t have it in front of me but confirmed with Mr. Cook is–  you’re not absolved from filing a frivolous complaint. You still filed the complaint. If you pull your name back, you can still be charged with, with filing a frivolous complaint. I mean, I think the point that everybody in this room was trying to make was, you know, we have a discussion on penalties and whatever else, and to have done so would have changed maybe the perception of the committee previously. But it’s still– there’s nothing that’s going to prevent someone from being charged with filing a frivolous complaint just simply because they removed their name. That would be up to the body. And Senator Tucker. 

 

Tucker Just– I mentioned this to Senator Dismang. But I think I’m– not the whole amendment, but just the part that adds that last sentence to say you’re absolved if you withdraw, because that’s not actually in the current rule, to Senator Dismang’s main point. And to your point, Senator Hickey, because if doesn’t say in the current rule, If you withdraw, then you’re absolved. So I think– I thought I was– so I’m withdrawing that last sentence because it actually would go further than what’s in the current rules. So I’m narrowing my suggested amendment back to just say one or more can withdraw, but the proceeding will only terminate, however, if all of the claimants withdraw the complaint. But there’s no additional language about being absolved under Rule 24.13. 

 

Hickey So it’s just the first sentence that you suggested? 

 

Tucker Yes, sir. 

 

Dismang The first– the change to one or more in the first sentence and the addition of the final sentence that says an allegation may be withdrawn– no, no, no, no– the procedure will terminate, however, if all claimants withdraw the complaint. 

 

Hickey Again, again, members, we’re trying to get our ethics– we’re trying to get this so that it’ll take three to file. And we keep saying this over and over. If, if 18 of you all tomorrow decide that you want to bring, you want to punish Hickey for something, then that’s going to be your right, Ethics, Ethics committee or not. That’s, that’s that has, that has been given to us under the Constitution. 

 

Dismang Senator Wallace and then Senator Irvin. 

 

Wallace Perfect is the enemy of good. This is better than what we have, and I think it will prevent what we have gone through the past few months. I think it’s a good rule. 

 

Hickey Thank you. I appreciate that. It’s, again, you all, it’s, it’s hard to get anything perfect like this. I mean, a lot of this has to be based upon the character of the members.  

 

Dismang Senator Irvin, you’re recognized for a question. 

 

Irvin Just clarification. And again, that’s on page 9 in your binders. But for clarification, the withdrawal, again, doesn’t prevent somebody from still being issued penalties under 24.13. And you cannot withdraw it once a final vote has been made by the Ethics Committee. 

 

Dismang Correct. Yeah.

 

Irvin Which is separate than the Senate. So I appreciate the rule. I think it’s actually a good rule, a change to the rule. 

 

Dismang Okay. Thank you. Members, do you have any other questions? And does everyone understand the changes that we made on the piece of paper? So the first is “Chairman” to “Chair,” adding “one or more” and that that final sentence about if three withdrawal, then it will be terminated. Members, anyone want to speak against? For? Seeing none, all those in favor, signify by saying aye. All those opposed. Motion carries. All right, Senator Johnson, I think you are–

 

Hickey Okay, at this time, Senator Johnson, if– 

 

M Johnson I might shorten this if you’ll recognize me for point of personal privilege. 

 

Hickey Instead of passing this out? 

 

M Johnson Yes, sir. 

 

Hickey Yes, Senator Johnson. You’re recognized. 

 

M Johnson Thank you, Mr. Chairman. The first rule change you were passed out by mistake is my rule change. I would actually ask at some point, if it’s passed out, please take a look at it. I’m not going to ask the Senate to vote on it today. I would even say it’s a work in progress. I’m very concerned when we do things in this chamber that violate due process, regardless of the fact that, you know, Senator Blake Johnson said this isn’t a court of law. No, it’s not. But we try to operate fairly. And the due process is exactly that, it’s process. The rule change that I’m going to work on, and I would invite comments from any of you about it, would basically open up these proceedings. [02:00:40]The Ethics Committee would hear testimony in public, be a public meeting, just like we have testimony on bills and everything. It would be live streamed. [13.7s] The respondents would be able to have their attorney and their attorney could speak and they could ask questions of witnesses. These are just simple due process procedures. I do not claim to have it all figured out, but as Senator Wallace used the term a while ago, you don’t want the perfect to be the enemy of the good. Now, I will not bring it up today, but I ask all of you to think about this. And we come in in November, I’d like to have something pulled together. And I would appreciate all of your, your input on how we can improve this. I think it’s important that the Senate do the Senate’s business in public. Transparency is the best policy. The, the change would be, it would be just like a jury. Once the Ethics Committee has heard the testimony and then they could go into deliberations in executive session. But then, just like every city council and quorum court in the state of Arkansas does, they would have to come out and vote in public. So that’s the essence of the rule change that I’m looking at. I trust my colleagues to, to get your fine tooth combs out and come up maybe with some better ones. But, but the intent that I would have and would not ask you all to even go into this seeing something as simple as Senator Hickey’s good rule change that changes it to three, that’s not a magic number, but took a little time to get to that. So I will not burden you all today with doing this, but it is something I think is important. And I ask for your input and your ideas and thoughts and perhaps we can come up with something that, again, will not necessarily be perfect but will be an improvement. So thank you, Mr. Chairman. And I’m not going to answer any questions. Thank you, Mr. Chair. 

 

Hickey Senator Hammer, you’re next. 

 

Hammer Question to the chair, please. 

 

Hickey Yes, sir. 

 

Hammer It’s a procedural question. I respect the 35 members in here. This is a business meeting. But we’re discussing rules that are changed to the ethics. And to my knowledge, this is first time I’ve seen both of these today. I know there’s talk in the halls of stuff. But are we going to come, are we going to come straight into the body as a whole to have these discussions? Or will any of these be referred to the committee and then come back here? Either way is fine. I’d just like clarity because if there’s other members that are going to be dropping things in– 

 

Hickey If I, if I understand it correctly, it will be referred to the, it should be referred to the Ethics Committee. The rules were suspended today. So that’s why we heard the one on the floor. Senator Johnson was not presenting his. He was just asking for a point of personal privilege. 

 

Hammer Okay. 

 

Hickey So I hope that answers your question, Senator Hammer. 

 

Hammer Thank you. 

 

Hickey Senator Irvin. 

 

Irvin Along those lines. That was my question would be, did Senator Johnson want this to be referred to the Rules Committee? Because– not yet? Just because he wanted input. So this actually had been discussed at length four years ago. And so just a matter of input, you may want to look– talk to some of the folks that were on the first Ethics Committee because we did talk about this at length. So that might give you some more insight. But we’re– I didn’t know if we needed to make a motion to refer this or not.

 

Hickey He– I don’t think he’s– I don’t think his draft is where he thinks it should be. But that’s a very good point. And once it gets there, then probably need to get with the current ethics committee. Of course, Senator Hester will be having to appoint a new ethics committee for the 94th General Assembly. 

 

Irvin Okay. Thank you. 

 

Hickey Anyone else have any, anything else? Now we are under D on other business. Is there any other type of business that anyone needs to discuss? All right. I greatly appreciate everybody being here. And with that, we’re adjourned.