The second round in the Phil Hart vs. House Ethics Committee debacle had a much more surprising outcome than the first two-hour gathering in late July, which voted 4-3—along party lines—to dismiss conflict of interest allegations against Hart.
At Wednesday’s meeting, the seven-member committee voted unanimously to recommend to House leadership that Republican Hart from Athol be removed from the House Revenue and Taxation Committee due to his ongoing dispute with the Idaho Tax Commission over thousands of dollars he owes in back taxes. The vote came after the ethics committee had adjourned for a 15-minute break to allow Hart to discuss stepping down from the taxation committee with his attorney, Starr Kelso—which Kelso ultimately declined, on Hart's behalf.
The ethics committee decided to reconvene via teleconference Wednesday afternoon after the Idaho Board of Tax Appeals ruled earlier this month that Hart had not filed his tax appeal in a timely manner, disregarding his invocation of “legislative privilege.” The privilege refers to Article 3, Section 7 of the Idaho Constitution, which protects lawmakers from legal proceedings during legislative sessions, or 10 days before they start, so as not to conflict with their public duties. Hart contended that, because the deadline for his appeal was within the 10-day window from the start of the legislative session, he could wait until after the session to file it.
The committee had awaited the Board of Tax Appeals’ decision before debating two remaining ethics issues: whether Hart’s invocation of legislative privilege was inappropriate and whether his continuing position on the House Revenue and Taxation Committee conflicted with his ongoing legal proceedings with the tax commission.
Regarding legislative privilege, Assistant Chief Deputy Attorney General Brian Kane cautioned the committee that Art. 3, Sec. 7 was a constitutional right, and, therefore, should have no limits set on its use.
“If you look through the House’s rules, there are no limits or explanations for how, for example, Art. 3, Sec. 7 can be invoked or should be invoked, so you’re really putting Rep. Hart’s invocation of Art. 3, Sec. 7 in hindsight and essentially saying … ‘We’re going to hold you to a standard we fashioned today’ … In essence, we would be Monday-morning quarterbacking the actions of Rep. Hart thus far in establishing his constitutional right as a legislator.”
Democratic Rep. Wendy Jaquet from Ketchum disagreed.
“Even though we don’t have any precedent, I think our constituents feel that this is a person that has taken advantage of something that he shouldn’t have taken advantage of … He’s basically saying I don’t care about the institution of the Legislature; I don’t care about what my actions do to with regard to other legislators. I’m just going to continue to do this because I don’t believe I should pay my taxes,” said Jaquet.
Democratic Rep. George Sayler, Republican Rep. Bert Stevenson and Republican Rep. Thomas Loertscher all argued that making a decision about the constitutionality of Hart’s invocation of legislative privilege was outside the jurisdiction of the committee.
“I think we need to remain within the charge of our committee, which is to decide if Mr. Hart violated the use of legislative immunity and, given the fact that to my knowledge there’s no court decision in Idaho that relates to the application of that, that seems to be a very difficult issue also,” said Sayler. “I’m a little leery of trying to define that application; as a committee that’s beyond our charge. But, I certainly think it needs to be addressed at some point.”
The board ultimately voted 5-2 on a motion to dismiss the complaint that Hart had misused his legislative privilege, with Democrat Sayler joining Republicans Loertscher, Stevenson, Rep Dell Raybould and Rep. Rich Wills in favor, and Democrats Jaquet and Rep. Bill Killen opposing.
The committee did agree, however, that Hart’s personal tax troubles conflicted with his public position on the House Revenue and Taxation Committee, voting unanimously to recommend that Hart be removed from the committee.
“I’m not sure that this committee can do anything more than to recommend to leadership that perhaps he not be assigned to that committee in the future, I think at least until such time as his issues with the tax commission are resolved, even then, perhaps, with some reluctance,” said Stevenson.
In a response to the meeting, Hart’s attorney issued a statement later Wednesday arguing that the committee had overstepped its boundaries in their vote.
“Any purported action taken by the ethics committee regarding Mr. Hart, such as recommending that he no longer serve on the House Revenue and Taxation Committee, has no basis in law or procedure and exceeds the committee’s authority under Rule 76.”