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Magnifying glass, transparency, right to know

It’s high time somebody got to the bottom of Montana’s secret settlements with state employees. A new panel created by legislative leaders is aimed at doing just that. Hopefully their investigation will uncover exactly how Montanans’ money is being spent, and hopefully they will share this information with the public immediately after it is shared with them. It should have been released already.

Journalists in Montana have continually run up against a wall when requesting basic information about specific settlements as well as more general data about the number and amounts of settlements. This is public money being paid out to public employees who are terminated from their jobs for a variety of unclear reasons. Incredibly, the state refuses to provide this indisputably public information.

This month, House Speaker Austin Knudsen and Senate President Scott Sales noted that, by all appearances, the state appears to be paying out significantly larger sums of settlement money than in previous years. They rightly wonder why.

The state budget office has tried to wave away such concerns by explaining that a second account created to make settlements more transparent also makes it appear that the state is paying more and larger settlements. That explanation might ring true if anyone outside the office were able to verify it. Even legislative auditors have yet to see a comprehensive accounting of confidential settlements, although a full performance audit is expected to be completed at some point later this year.

In the meantime, since the state refuses to cough up the details, it is left to news organizations to file Freedom of Information Act requests, which the state routinely denies, and then follow up with a lawsuit — each and every time a new settlement agreement is reached. It’s a time-consuming, expensive process that runs counter to the spirit of the law, legal precedent and common sense.

MCA 2-9-303(2) spells out the legal terms: “All terms, conditions, and details of the governmental portion of a compromise or settlement agreement entered into or approved pursuant to subsection (1) are public records available for public inspection unless a right of individual privacy clearly exceeds the merits of public disclosure.”

Thankfully, the newly created legislative panel will not have to wend its way through the same arduous process in order to get to the meat of the matter. The committee has the authority — and subpoena power — to look into all state settlements.

Yet state authorities have already hinted that they may not fully cooperate.

Gov. Steve Bullock’s budget director, Dan Villa, told an Associate Press reporter last month that the investigation is being driven by Republican legislative leaders’ partisan politics. He added that state authorities will cooperate with the panel “to the extent that they have questions that aren't politically motivated."

This can stop right now. Governor Bullock, a Democrat, is serving his second and final term due to term limits. He is not up for re-election. Further, the panel is comprised of four Democrats as well as six Republicans. While the Democrats on the committee are obviously outnumbered and any votes could potentially break along party lines, favoring Republicans, the point of a bipartisan panel is to prevent one party from directing all decisions.

And while there are a lot of problems with America’s political system, one of its strengths is the way politicians are held accountable by members of the opposing party. Republican legislators should hold a Democratic governor in check — and vice versa.

Most importantly, in this case — and it isn’t always the case — the Republicans are asking good questions.

After Bullock took office in 2013, some state employees who lost their jobs suggested they were pushed out because they had supported Bullock’s opponent in the 2012 governor’s race. They were never able to prove that was the case, but Republican legislators have kept a close eye on the settlements paid to departing employees ever since.

Last year, Senate Majority Leader Fred Thomas, R-Stevensville, requested a tabulation of state settlements and this past December, the Legislative Audit Division sent him their findings in a memo. They crunched the available numbers, although some numbers remain missing, and reported that between 2013 and 2017, the state of Montana paid a total of nearly $3 million out of two accounts designated for settlements.

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Compare that to the years between 2003 and 2012, when the state paid a total of $1.2 million. That’s an eye-catching jump by any measure. And already this year, state government settlements have topped $336,000.

The memo to Thomas included 51 separate settlements made in the past six budget years. Together, they added up to a total of $1.1 million, with more than $875,000 of this paid out during the 2017 budget year.

That was the year Montana Fish, Wildlife and Parks reached a settlement agreement with Chas Van Genderen, who was fired from his position as state parks administrator in 2015 for undisclosed reasons. In fact, the department initially refused to release the settlement at all. As part of the agreement, the state traded away the public’s right to know by including a confidentially clause in the agreement.

It was only after a Lee Newspapers attorney warned of legal action, and Van Genderen agreed to waive the confidentiality clause that the $137,500 settlement was made public — although the reason for his dismissal remains closed to the public.

Further, during the 2016 budget year, legislative auditors found evidence of an illegal settlement paid by the Department of Livestock to its former executive director, Christian MacKay. The Livestock Department, already in a financial hole of more than $300,000, wrongly used livestock enforcement funds to pay MacKay $204,000 after he resigned.

With this kind of track record, and the recent spike in settlements, there is more than enough reason to scrutinize the state’s process for reaching settlement agreements. Montanans have every right to know how their government operates and how it is spending public money.

The new legislative committee will determine whether to release the settlement data it receives to the public. If anyone should understand the importance of making this information available for review, it’s the members of this panel.

The Missoulian Editorial Board

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