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Court: Montana ethics complaints are public information

May 29, 2019

HELENA, Mont. (AP) — A federal appeals court on Wednesday struck down a Montana law requiring that any ethics complaint made against a state official be kept confidential, ruling that the law violated free-speech rights.

The opinion by the three-judge panel of the 9th U.S. Circuit Court of Appeals effectively makes all allegations of ethical breaches by elected and unelected state officials public information.

That goes further than a 2017 judge’s ruling that said complaints against elected officials should be public, but those against unelected officials should remain confidential.

Since 2001, state law has required that ethics complaints filed with the state commissioner of political practices be kept confidential until the commissioner issues a ruling. That means neither the person who filed the complaint nor the person against whom the complaint is made is allowed to discuss it until the case is resolved.

State attorneys who defended keeping the confidentiality requirement for complaints filed against unelected state workers said they have a compelling interest to protect those employees’ privacy. The 9th Circuit panel agreed, but said the confidentiality law was overbroad and ineffectual.

“The confidentiality provision is so weak that we have difficulty seeing that it serves any state interest at all,” Judge William Fletcher wrote in the ruling.

The law was challenged by state Republican Rep. Brad Tschida of Missoula, who filed a complaint in 2016 about Gov. Steve Bullock’s use of a state plane to take himself and then-Commerce Director Meg O’Leary to a Paul McCartney concert in Missoula in 2014.

Tschida revealed the existence of the complaint in an email less than a week before the 2016 elections, in which Bullock was running to retain his seat.

Bullock said he had done nothing wrong and that he and O’Leary were on state business at the invitation of the University of Montana. Then-Commissioner of Political Practices Jonathan Motl later dismissed Tschida’s complaint.

Motl said in interviews that Tschida had violated the law by talking about the complaint, which prompted Tschida to file his lawsuit.

Tschida said he is pleased with the court’s ruling and that it’s a victory for free speech.

“All of us who serve in some professional capacity as a legislator or a government official better wear our big boy pants and understand that something like this is going to come up,” he said. “If you don’t want to be identified, perhaps it’s better not to run for office.”

He added that the case is an example of too much power concentrated in the commissioner’s hands, and repeated a complaint made by Republicans that the Bullock-appointed Motl targeted conservatives.

Motl, who has left office, has repeatedly denied party bias in decisions. His successor, Commissioner Jeff Mangan, said there are not any current confidential ethics complaints that must be made public because of the new ruling.

“We’re just reviewing the decision, and we’re going to put out guidance as far as what that means for state employees,” he said.

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