Montana legislator threatened with prosecution for talking about ethics complaint against governor

|The Volokh Conspiracy |

Montana state Rep. Brad Tschida filed an ethics complaint against Gov. Steve Bullock, claiming that the governor "has been illegally relying upon a state-paid attorney to represent him in [an] ethics matter." In response, Montana Commissioner of Political Practices Jonathan Motl has threatened to impose "severe penalties" on Rep. Tschida, on the theory that the disclosure was a crime. Indeed, Commissioner Motl has emailed over 90 legislators "reminding" them "that ethics complaints are confidential by law"; Mont. Code Ann. § 2-2-136(D) indeed provides that "The complainant … shall maintain the confidentiality of the complaint … until the commissioner issues a decision."

But how can this be? A representative (or anyone else) files a complaint alleging that a government official has committed misconduct—and he can't talk about the complaint?

Well, it can't be, as the U.S. Court of Appeals for the Ninth Circuit (which covers Montana) has expressly held in Lind v. Grimmer (9th Cir. 1994), striking down a similar Hawaii law: "to the extent Haw.Rev. Stat. § 11-216(d) prevents an individual from disclosing the fact that he filed a complaint with the Campaign Spending Commission, it is unconstitutional." The Third Circuit took the same view in Stilp v. Contino, 613 F.3d 405 (3d Cir. 2010), striking down a similar ban: "to the extent [the statute] prohibits a complainant from disclosing his own complaint and the fact that it was filed, unconstitutionally constrains political speech." See also Cox v. McLean (D. Mont. 2014); In re Warner (La. 2009); and Petition of Brooks (N.H. 1996).

And those court decisions are quite right. The government sometimes has authority to restrict people from revealing information that is disclosed to them in confidence by the government. But there's no basis for restricting people from publicizing accusations that they have conveyed to the government. And indeed, publicizing such accusations is often important political speech, whether in criticizing the person who is being accused, or in criticizing the commission that receives the accusation—for instance, if the complainant wants to argue that the commission is being slow or biased in its treatment of the accusation. One can imagine some restrictions imposed by the government as employer on government employees who use internal complaint mechanisms, but the Montana statute applies to all complainants, and in any event the government-as-employer rules don't apply to restrictions on legislators—see Bond v. Floyd (1966).

Fortunately, Tschida—represented by Montana lawyer Matthew Monforton (who won the Cox v. McLean case cited above)—is challenging the speech prohibition and Commissioner Motl's threat to enforce that prohibition, both on First Amendment grounds and on the grounds that the communications with his fellow legislators were protected by the Montana Constitution's Speech or Debate Clause. I look forward to seeing the government's response.

Here, incidentally, is the story behind the ethics complaint, as recounted in the motion; please recall that these are just allegations (some paragraph breaks added):

On or about September 19, 2016, Representative Tschida filed an ethics complaint against Governor Steve Bullock and a member of his cabinet, Commerce Director Meg O'Leary. The complaint arose from Governor Bullock's illegal use of a state-owned aircraft to fly him and Director O'Leary to Missoula in August 2014 for purposes of attending a concert performed by Paul McCartney.

The complaint alleges Governor Bullock and Director O'Leary attended the concert at the invitation of University of Montana President Royce Engstrom and Mary Engstrom, who invited Governor Bullock "and a guest to join them in the President's Box to watch Sir Paul McCartney as he performs his 'Out There' concert." The use of the state-owned aircraft by Governor Bullock and Director O'Leary and their acceptance of seating in the President's Box to attend the concert constituted illegal gifts under Montana law. After Representative Tschida filed the ethics complaint, Defendant Jonathan Motl ordered him not to disclose the existence of the complaint.

On September 23, 2016, Andrew Huff, who serves as Legal Counsel to Governor Bullock and is a state-paid attorney, appeared telephonically on behalf of the Governor and requested an extension to respond to the complaint, which Defendant Motl granted. Representative Tschida was concerned about what appeared to be yet another misuse of state resources by Governor Bullock for personal purposes—the use of a state-paid attorney to respond to allegations of personal ethics violations. Other Montana officials retain private counsel to respond to ethics complaints rather than rely upon state-paid attorneys. …

On October 24, 2016, Senator Dee Brown and Senator Bob Keenan, both of whom are members of the Montana Senate, sent a letter to Representative Tschida and other legislators to obtain support for convening a select committee to investigate allegations by state employees of misuse of state funds by Governor Bullock well as retaliation against state employees for blowing the whistle on him. These allegations included:

  • Former internal agency auditors being discouraged from investigating fraudulent payments;
  • Seven long-tenured auditors of the Department of Public Health and Human Services (DPHHS) being fired after raising red flags about agency activity;
  • DPHHS auditors being bullied by state officials after speaking up about potentially fraudulent payments made to undocumented welfare recipients;
  • Employees being stripped of responsibilities, isolated from colleagues and forced into retirement after refusing to perform fraudulent acts;
  • Officials accusing competent employees of insubordination as a means of getting rid of those who blow the whistle;
  • Auditors being discouraged or prevented from fully investigating questionable transactions, sometimes through bullying;
  • Confidential settlement payments being made to former state employees since January of 2013 as well as allegations that some of the settlements were the result of wrongful termination complaints brought against the state.

Representative Tschida responded on November 2, 2016, with his own letter confirming his support for a select committee. He included with that letter a copy of the ethics complaint as well as a letter from Defendant Motl to Mr. Huff, Governor Bullock's state-paid counsel, memorializing the extension Motl granted to Huff and Governor Bullock.

Evidence of Governor Bullock's illegal use of a state attorney to defend himself against ethics charges is directly relevant to the planned select committee. Representative Tschida would not have been able to disclose evidence of Governor Bullock's misconduct in the ethics proceeding without also disclosing the existence of the ethics proceeding itself.

Later on November 2, 2016, the Great Falls Tribune obtained a copy of Representative Tschida's letter and published a story about it. Defendant Motl informed the Tribune that he would seek a "severe penalty" against Representative Tschida for informing fellow legislators of the ethics complaint.

On November 3, 2016, Defendant Motl was interviewed on radio station KGVO in Missoula, Montana. During that interview, he stated the following with regard to Representative Tschida:

Defendant Motl: There's, uh, the main consequence that befalls an official who, um, violates a mandatory duty is official misconduct.

Interviewer: And that would be a charge in civil court?

Defendant Motl: No, it's criminal court.

Interviewer: It's a criminal court charge?

Defendant Motl: Yes.

Defendant Motl further stated that he did not expect anyone to file charges against Representative Tschida before Election Day. On that same day, Defendant Motl told the Helena Independent Record that Representative Tschida faced six months in jail for his communication with fellow legislators.

On November 4, 2016, Defendant Motl was interviewed by the Associated Press. During the interview, Defendant Motl claimed that Representative Tschida violated the gag rule again by recounting the contents of the ethics complaint in the complaint filed in this Court. He also claimed that Representative Tschida "has now brought Monforton into the mess." He stated further that "What we've got here is a pretty serious magnification of an original improper action by Mr. Tschida," and that "Monforton didn't improve Mr. Tschida's situation. He made it worse. And now he's involved in it himself." He repeated his assertion that Representative Tschida committed "official misconduct." Defendant Motl declined to say what penalties undersigned counsel could face, "the appropriateness or inappropriateness of anyone's actions will be straightened out afterward."