Clearing out a confidentiality clause

Under a bill signed into law by Gov. Greg Gianforte late last week, ethics complaints filed against elected officials and public employees in Montana will no longer be held confidential by the Commissioner of Political Practices. House Bill 95 passed the Legislature without opposition, and the story behind its appearance in the Capitol this session is rooted in a single ethics complaint filed four and a half years ago by its sponsor, Rep. Brad Tschida, R-Missoula.

“It’s a very simple bill,” Tschida told the Senate State Administration Committee last month. “It’s just a clean-up bill.”

What needed cleaning up? The answer lies in a long and well-documented backstory, beginning with an ethics complaint filed by Tschida against former Gov. Steve Bullock in 2016. In that complaint, Tschida leveled several allegations of ethics violations against Bullock and then-Department of Commerce Director Meg O’Leary. Due to a confidentiality provision in state law, Tschida’s complaint couldn’t be released publicly until then-Commissioner of Political Practices Jonathan Motl issued a decision. 

According to court documents, Tschida emailed a copy of the complaint to members of the state House days before the 2016 election along with an accusation that Motl was intentionally delaying his decision. Weeks after the election, that decision finally came in the form of a dismissal of the complaint, with Motl stating that Tschida’s claims, timing and actions indicated an “attempt to embarrass” Bullock in the midst of his reelection campaign.

In response, Tschida filed a lawsuit against Motl and his COPP successor, Jeff Mangan, challenging the confidentiality provision of Montana’s ethics complaint law. In December 2017, U.S. District Court Judge Brian Morris split the difference in his ruling, finding that granting confidentiality to Bullock, an elected official, violated Tschida’s First Amendment right to engage in political speech, but that privacy protections should extend to non-elected public employees like O’Leary. Tschida furthered the fight to the 9th Circuit Court of Appeals, and in May 2019 the court came down fully on Tschida’s side, declaring Montana’s law “overbroad” and “largely ineffectual in protecting employees’ privacy interests.”

“The confidentiality provision is so weak that we have difficulty seeing that it serves any state interest at all,” the 9th Circuit added. 

Mangan promptly issued a memo stating that his office, in accordance with the 9th Circuit ruling, would commence listing ethics complaints on its website as soon as they were submitted. But when Tschida attempted to resurrect his complaint in 2019, Mangan declined to file it and promptly dismissed it, declaring the complaint to be “frivolous” and finding that Tschida failed to state any violation of the Montana Code of Ethics by either Bullock or O’Leary.

With the legal battle resolved and the state already complying, all that remained was for the Legislature to clean up a statute the court had deemed unconstitutional. The request to do so came directly from Mangan’s office, and a one-line piece of legislation — HB 95, which Tschida jokingly said could be called the “Bullock-Brad Battle Bill” — was born.

“We asked Rep. Tschida to carry the bill,” Mangan told lawmakers last month. “I thought it would be good that the Commissioner of Political Practices and the person that brought the lawsuit would do it together, to show that that’s how this process works.”