Lawmakers to examine legislative ethics, misconduct rules
Provenza flap is the latest ripple in an ongoing conversation about how lawmakers are expected to behave — on and offline — and how leadership should address misconduct.
Rep. Karlee Provenza (D-Laramie) drew national attention, multiple formal complaints and at least one call for her ouster from committee assignments in early April for a controversial social media post.
The high-profile dust-up, and Speaker of the House Albert Sommers’ (R-Pinedale) decision not to punish the progressive, second-term lawmaker for a post some perceived as threatening, have intensified interest in what otherwise promised to be one the Legislature’s more obscure off-season assignments: Redrawing the boundaries of acceptable lawmaker conduct and reexamining the process for handling ethics complaints and other grievances.
Questions about the appropriate role of legislative leadership, the mechanisms of accountability and the nature of social media have already arisen — as has discussion of the constitutional right to free speech.
“With this constitutional right also comes personal responsibility. We must remember that even constitutionally protected actions have the potential to deeply hurt others,” Sommers wrote in his dismissal of the complaints against Provenza. “Free speech is at times a messy thing.”
The Management Council formed the Subcommittee on Legislator Ethics Complaint Procedure March 23 — little more than a week before the Provenza controversy flared to life — while setting the Legislature’s priorities for the time between sessions, also known as the interim.
“The subcommittee was created because we had a recognition that [Joint Rule] 22-1 is probably not as elegant as it needs to be,” Sommers told WyoFile, referring to the legislative rule addressing ethics complaints. “It’s not all bad. It’s not all good. But it’s bad enough that the Senate got rid of it” at the beginning of the 2023 general session.
“It has not achieved the objective of providing appropriate protections, appropriate transparency, appropriate recourse, [and an] ability to make reasonable decisions and take reasonable actions,” Sen. Chris Rothfuss (D-Laramie) said.
“The purpose of the ethics subcommittee is to try again,” said Rothfuss, who sits on the panel along with Sens. Tara Nethercott (R-Cheyenne), Eric Barlow (R-Gillette) and Reps. Clark Stith (R-Rock Springs), Mike Yin (D-Jackson) and Dan Zwonitzer (R-Cheyenne).
Provenza’s posts
Sommers began to receive complaints against Provenza on April 2, according to a Legislative Service Office memo. That morning, the Wyoming Freedom Caucus tweeted a screenshot of a meme Provenza shared on Facebook. The image showed an older woman wearing the colors of the transgender flag and holding a scoped black rifle with the caption “Auntie Fa Says Protect Trans Folks Against Fascists & Bigots!” The meme had come from another account as part of Transgender Day of Visibility on March 31.
Provenza has openly supported armed self defense for the LGBTQ community, via laptop stickers and lapel pins promoting the idea. The Freedom Caucus and the Wyoming Republican Party, however, criticized Provenza for making the post less than a week after a school shooting in Nashville, Tennessee where six people were killed. Both groups pointed to reports that the shooter identified as transgender. Along with their criticism, the Wyoming GOP provided a link on Facebook to the website where complaints can be filed against legislators. In its own formal complaint, the party asked that Provenza be stripped of all her committee assignments.
“Regardless of the intentions behind my post, it has undoubtedly had negative impacts that I regret and for which I feel great remorse,” Provenza said in an April 11 formal apology. “Because the post was shared so widely and printed in national news outlets, it has now been viewed by potentially millions of people across the country in a way that harms the integrity of the Wyoming House of Representatives and paints the great state of Wyoming in a negative light.”
Minutes after the Wyoming Freedom Caucus tweeted the screenshot, Greg Price, the communications director for its DC-based counterpart, also shared it on his Twitter, garnering 2.3 million views in addition to coverage by Fox News and Brietbart. Provenza received death threats amid the uproar, according to an April 3 statement by Sommers.
According to the memo, subsequent complaints referenced a video Provenza posted on her TikTok account in June 2022. The six-second clip shows either eels or sea snakes in an aquarium, according to the memo, along with voice-over audio. In the clip, one speaker says, “Could you give us some of your political beliefs?” while a second voice says, “Kill everyone now. Condone first degree murder.” The next part of the audio is cut off.
That post “appears to be completely nonsensical and cannot in any reasonable consideration be taken as a true threat under the law to anyone,” according to the memo attached to the legal analysis Sommers requested from LSO. In particular, Sommers asked for a review of “misconduct within the scope of legislative duties as well as the protections afforded to legislators under the First Amendment.”
Social media
The Legislature does not have specific rules or guidelines for how lawmakers can use social media.
“I do not believe it is my role as presiding officer to police all legislators’ online activity, especially when they are not performing legislative duties,” Sommers wrote in his dismissal statement. At the same time, Sommers believes an examination of the issue of social media with respect to legislative decorum is needed.
“They have a right to represent their public,” Sommers said. “But they don’t have a right to disrupt the entire body. It’s that balance that I want to talk about.”
While Rep. Jeanette Ward (R-Casper) “vehemently disagreed” with Provenza’s social media messaging, she supported Sommers’ decision to take no further action. Voters in Provenza’s “district can decide if they want her to continue to represent them next election,” Ward wrote on Facebook.
“I think the use of social media falls 100% under the 1st Amendment freedoms we enjoy as Americans,” Ward told WyoFile in an email. “I don’t support attempts to censor free speech on social media. Deliberate and direct incitement to violence (and that is a high bar) is an exception.”
Ward opposes rules or guidelines for lawmakers using social media, she wrote, and she would “support the free speech rights of my fellow legislators, even and especially with those whom I profoundly disagree.”
More questions than answers
When the subcommittee eventually meets, the discussion will likely go beyond the complaints lodged against Provenza.
“This is a much, much broader conversation overall than just, ‘should we or should we not be policing social media?’” subcommittee member Yin told WyoFile. “It’s ‘how do we deal with our own internal affairs as a whole?’”
As written, Joint Rule 22-1 applies to “misconduct involving legislative duties,” which includes “violence or disorderly conduct” among other things, according to the memo. Notably, its definition includes “during legislative meetings, session, or during the performance of legislative duties.” Sommers cited the last requirement and free speech protections for his reason to dismiss.
That said, Sommers also pledged to “take further action” against Provenza if she “engages in conduct on the internet or during her performance of legislative duties that fails to meet the decorum of the Wyoming House of Representatives.”
Because decorum is not explicitly defined in the Legislature’s rules, things are somewhat unclear for Provenza.
“What’s appropriate [for me] to post is, in some ways, kind of to be determined…” Provenza told WyoFile. “I certainly don’t have any intention of trying to be inflammatory. I also, in some ways, I’m on edge.”
Having gone through the complaint process, Provenza said, she now sees how “a motive or an intent that I do not have could be attributed to the words that I use, and that intent cannot matter and it can do damage.”
As for rules or guidelines for lawmaker social media use, Provenza is of two minds. On one hand, creating some kind of guidance could alleviate a concern she’s heard from constituents who have hesitated to testify at the Legislature, lest they become the subject of a lawmaker’s social media posts.
“On the other side of that, it’s super tricky because how do you know who gets to determine what is appropriate? What isn’t?” Provenza said. That’s especially concerning as a member of the minority party, she added.
“At any moment, any lawmaker really, could potentially be at the whim of the body as a whole and how they viewed that person’s post,” Provenza said.
There are a lot of worthwhile questions to tackle, Yin said. For example, since Joint Rule 22-1 relies on complaints being made, it’s possible that existing issues can go unaddressed in the absence of a complaint.
“In some ways, that can be compared to a [human resources] procedure,” Yin said. “Are there things that happen within the workplace or within your responsibility as a legislator or outside of that, and where’s the line? Do we need to cover things outside of your activities as a legislator? And if we do, how do we make sure that it’s not all encompassing, where we’re policing every single legislator for everything they do in their entire life?”
Yin also raised questions about hypothetical situations like lawmakers being criminally convicted during their tenures. Would that trigger a process even if there is no complaint? Yin said he’s not sure, but he’s eager to have the discussion.
Beyond hypotheticals, lawmakers have some real examples to work through. Incidents of assorted circumstances — both on and offline — have garnered complaints and varying degrees of disciplinary action in recent years. The Senate, for example, voted to strip Sen. Anthony Bouchard (R-Cheyenne) of his committee assignments during the 2022 budget session “for a continued pattern of intimidating and disorderly conduct and other behavior which is unbecoming of a member of the Senate.”
Public complaints were lodged against Sen. Troy McKeown (R-Gillette) during the 2021 special session, according to the LSO memo provided in the wake of the Provenza complaint. The complaints stemmed from a social media post that included a photo of armed soldiers storming trenches. Its accompanying text said, “when life gives you lemons FIX BAYONETS,” McKeown’s comments, “… the conservatives will no longer be bullied by the powers that be. Remember it’s the 3rd rib…”
McKeown’s post “was alleged to insinuate bayonet attacks against other senators for failing to vote on some issues,” the memo says. “No formal action was taken against the senator for the post.”
More recently, Rep. John Romero-Martinez, who once represented House District 44 in Cheyenne, was alleged to have threatened to kill a current and a former member of the Wyoming House of Representatives during the 2022 budget session. Romero-Martinez was moved from one committee to another, but no public discipline or action was taken against him.
The subcommittee has yet to schedule its first meeting. It will be open to the public.
This story was published on April 25, 2023.
