Ethics complaints filed against elected officials will be public going forward after an order Monday from a federal judge in Helena.
Since 2001, state law has dictated ethics complaints be confidential until a ruling is issued. That notion was challenged by state Rep. Brad Tschida, a Republican from Missoula. Days before the November 2016 general election in which Gov. Steve Bullock won re-election, Tschida discussed his ethics complaint against Bullock before it was ruled on.
Tschida later argued the law, saying that not being able to discuss the ethics complaint while it was pending violated his First Amendment right to free speech, an argument with which U.S. District Court Judge Brian Morris agreed.
“Montana’s confidentiality provision restricts speech regarding alleged wrongdoing by public officials,” Morris wrote.
Morris’ order means future ethics complaints against elected officials will be public, but not those against state employees. The judge wrote that state employees, unlike elected officials and politicians, “have not sacrificed their privacy by ‘injecting themselves into public debate,’” Morris wrote. Campaign finance complaints have long been public when filed and are not affected by the order.
The bulk of ethics complaints are made against un-elected state employees. Between Jan. 1, 2012 and June 1, 2017, 41 ethics complaints were filed alleging violations by 85 individuals and organizations. Of those, only 22 were elected or appointed officials.
Complaints previously were kept private because of their often “speculative, embarrassing, and harassing” content, according to court documents.
Jeff Mangan, who was appointed Commissioner of Political Practices earlier this year, said his office will make ethics complaints against elected officials going forward public. There are no pending ethics cases awaiting adjudication.
For ethics complaints involving state employees, results of investigations will continue to be released and use initials to identify the employee. In cases where a complaint is filed against an elected official and state employee, the complaint could be divided to make part public and part private.
Mangan said no decision has been made regarding an appeal at this time.
On Tuesday, Tschida's lawyer, Matthew Monforton, criticized Motl's actions.
"Motl claimed, a week before the election, that Tschida would be criminally prosecuted for exposing Bullock's and O'Leary's abuse of the state plane. That threat didn't pan out, nor did it derail Tschida's re-election."
Tschida sued the former Commissioner of Political Practices, Jonathan Motl, in November 2016. Tschida said Motl threatened him by telling reporters Tschida could face fines or jail time for disclosing an ethics complaint before it was decided.
Tschida said at the time he was forced to discuss the complaint because Motl had not taken action on it before the pending November 2016 general election.
On Sept. 19, 2016, just less than a month before the general election, Tschida filed an ethics complaint with the Commissioner of Political Practices that claimed Bullock, who was running for re-election, had used the state airplane to fly himself and Meg O’Leary, then director of the Commerce Department, to Missoula in 2014 for a Paul McCartney concert in Missoula. His complaint contended the concert was not official state business.
The complaint also said Bullock used money from the Democratic Governors Association, of which he was chairman at the time, to pay for a trip for him and O’Leary to Puerto Rico.
Bullock’s office has repeatedly said the Missoula trip was to conduct state business where Bullock and O'Leary met with economic development contacts, and that the governor has never been to Puerto Rico.
Tschida filed a revised complaint Sept. 21 that did not include the claim of travel to Puerto Rico because it could not be substantiated.
Motl investigated and dismissed the amended complaint Nov. 21, saying it did not state a violation of ethics laws, lacked sufficient allegations and was frivolous.
In letters to Tschida, Bullock and O’Leary when both complaints were filed, Motl reminded all parties that ethics complaints were private until adjudicated.
On Nov. 2, however, Tschida disclosed the amended complaint by sending it in an email to members of the state House. In that email, he also accused Motl of delaying a decision on the complaint. Some newspapers ran stories later that day discussing the email from Tschida and the complaint, even though it was supposed to be confidential.
In his decision, Morris notes Rep. Tschida “likely disclosed the filing of his amended ethics complaint on the eve of the 2016 general election in order to affect the outcome of the election.”
Morris also wrote Tschida’s amended complaint provided a “textbook example of speculation used for maximum potential embarrassment and harassment. ...”
“Tschida further coarsened our political discourse with entirely speculative claims regarding the governor and O’Leary and their unsubstantiated use of state-owned aircraft to facilitate 'a personal relationship.’ Montana’s elected officials may take cold comfort in the notion that even a false statement may be deemed to make a valuable contribution to public debate as it brings about ‘the clearer perception and livelier impression of the truth, produced by its collision with error.’”
Concerns over making ethics complaints public include the argument that public disclosure of filings could somehow make the fillings themselves more legitimate by appearing to lend the state’s acceptance of the claims. Others have argued making the complaints public would allow for people to make wild accusations to score political points.
Morris wrote, however, that “the governor, as Montana’s top elected official, must endure a ‘heightened level of criticism’ regardless of how baseless these accusations may be.”
Mangan said that frivolous complaints will be dismissed, though the person who was the subject of the complaint would have no recourse through the Commissioner of Political Practices office.
The privacy provision was amended into state law in 2001; at the time then-Sen. Dan Hargrove described ethics complaints as “different than the rough and tumble finance laws.”