Molnar v. Fox , 370 Mont. 238 ( 2013 )

May 15 2013
DA 12-0373
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 132BRAD MOLNAR,
Petitioner and Appellant,
v.
MARY JO FOX,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 10-1718
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kenneth D. Peterson; Attorney at Law; Billings, Montana
For Appellee:
Joel E. Guthals; Guthals, Hunnes & Ruess, P.C.; Billings, Montana
For Amicus Curiae:
Jay P. Dufrechou; Dufrechou Law Firm, P.C.; Helena, Montana
(Montana Commissioner of Political Practices)
Submitted on Briefs: January 23, 2013
Decided: May 14, 2013
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Brad Molnar (Molnar) appeals from the order of the Thirteenth Judicial District
Court affirming the decision of the Commissioner of Political Practices (the
Commissioner) holding that Molnar violated the Code of Ethics. We affirm and address
the following issues:
¶2 1. Did the District Court err by concluding that Fox had legal standing to file
ethics complaints against Molnar?
¶3 2. Did the District Court err by concluding that Molnar received unlawful gifts in
violation of § 2-2-104, MCA?
¶4 3. Did the District Court err by concluding that Molnar improperly used State
facilities for political purposes in violation of § 2-2-121(3)(a), MCA?
¶5 4. Did the District Court err by concluding that the penalty statute for ethics
violations, §2-2-136, MCA, was not unconstitutionally vague?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Molnar served two terms as a Public Service Commissioner (PSC), representing
District #2, which encompasses Billings and southeastern Montana. The PSC is
comprised of five elected commissioners who supervise and regulate the operations of
public utilities, common carriers, railroads, and other regulated industries. During the
summer and fall of 2008, Molnar was serving his first term at the PSC and was also a
candidate for reelection to his position. Mary Jo Fox (Fox), a resident of District #2 and
campaign manager for Molnar’s opponent in the election, filed four complaints against
Molnar with the Commissioner, alleging that Molnar had violated the statutory Code of
Ethics by accepting gifts of substantial value from two corporations with which the PSC
2
regularly dealt, and by using state resources to aid his reelection campaign and for
personal business. Molnar denied any wrongdoing.
June 12, 2008 Complaint
¶7 Fox’s first complaint alleged that Molnar accepted unlawful gifts from corporate
entities to support an event called the “Billings Brownout.” Molnar was the principal
organizer of the event, wherein Billings residents and businesses voluntarily reduced
electrical consumption for an hour—by turning lights off, for example—to raise
awareness about energy conservation. Molnar solicited funds in support of the Brownout
from several businesses. Fox took issue with Molnar’s receipt of money from
NorthWestern Energy (NorthWestern) and PPL Montana (PPL). Molnar approached one
of NorthWestern’s corporate officers, William Thomas, during a break in a PSC hearing
in which NorthWestern was participating. Molnar explained the Brownout event and
asked Thomas for “money for brochures” for the event. Thomas agreed, and
NorthWestern sent a check for $1,000 to Molnar, made personally to him. Molnar
deposited the check into his personal bank account. Molnar also requested $1,000 from
PPL. PPL generates electricity at its coal-fired and hydroelectric power plants in
Montana. While not directly regulated by the PSC, PPL regularly appears before the PSC
for hearings, and intervenes in administrative proceedings. PPL agreed to help fund the
Brownout and sent a $1,000 check to Molnar, also made personally to him. Molnar
likewise deposited this check into his personal bank account.
3
¶8 Molnar printed brochures that described the Brownout event, explained how to
conserve electricity, and thanked sponsors. The brochures bore Molnar’s name and
picture, and read, in part:
Public Service Commissioner
Brad Molnar
Invites you to join your
neighbors and take part in the
Great Billings Brownout
¶9 The Brownout took place on December 6, 2007, and was, by all accounts, a
success. In the spring of 2008, Molnar used some of the Brownout brochures by leaving
them at homes while campaigning door-to-door for reelection. Meanwhile, in response to
another request by Molnar, NorthWestern sent a check for $1,000 to Molnar to help
sponsor a proposed event called the “Laurel Brownout.” However, when NorthWestern
learned that Molnar was using the Brownout brochures in his campaign, it demanded
repayment of the entire $2,000 donated to the two Brownout events. Molnar sent a
personal check of $1,000 to NorthWestern as a refund for the Billings Brownout donation
and returned the $1,000 check NorthWestern had just sent him for the Laurel Brownout.
Molnar continued to use the brochures, but after NorthWestern and other Brownout
contributors complained about the use of the brochures in his campaign, Molnar affixed
an adhesive sticker over the complaining contributors’ names that read:
The “Brown out” may be over.
But the energy tips are still good!
BRAD MOLNAR
Your Conservation Candidate For
Public Service Commissioner
4
October 9, 2008 Complaint
¶10 Fox’s second complaint accused Molnar of using his PSC e-mail address, PSC
phone number, and PSC computer in his reelection campaign. Molnar created a four-
page fundraising letter (the Fundraising Letter) dated July 21, 2008, in which he solicited
campaign funds. The Fundraising Letter listed Molnar’s PSC email address and his PSC
telephone number as his contact information. During this same time period, Molnar also
listed his PSC email address as his contact information on his campaign website:
http://molnar4psc.com (now defunct).
October 16, 2008 Complaint
¶11 Fox’s third complaint alleged that Molnar unlawfully used his PSC-issued cellular
phone to advertise his personal rental property. During his first term on the PSC, Molnar
placed a newspaper advertisement soliciting a roommate to share a Helena residential
unit that he leased. In the advertisement, Molnar listed his PSC cellular phone number
and recorded a message on its voicemail for prospective roommates. Molnar used the
PSC cell phone and voicemail because his former roommate had moved out and
disconnected the residential landline.
October 27, 2008 Complaint
¶12 Fox’s fourth complaint also accused Molnar of using his PSC-issued computer
system, laptop computer, and email system for campaign purposes. Fox attached
numerous emails to her complaint.1 During the summer of 2007, Molnar exchanged
1
Fox obtained from the PSC emails and documents from Molnar’s computer through a public
information request.
5
emails with a representative of the Great Falls Rotary Club about an upcoming talk he
was giving to the group. While the initial emails covered subjects typical of a speaking
engagement—e.g., speaking topics, location, and directions—Molnar’s emails following
the talk turned political:
As you know, my position is an elected one and I’m up next election cycle.
And earned media is free media. Would it be possible for you, or one of
the others that seemed to enjoy my talk, to drop an editorial to the papers
listed below? Just a simple thing about how lucky they are to have a
commissioner that is so darn knowledgeable and willing to travel on his
own dime to educate the public. . . . Please?
Molnar thereafter listed the newspapers he wanted the editorial letter sent to, all within
PSC District #2.
¶13 Between May 12 and May 13, 2008, Molnar sent three emails related to his
campaign to the Billings Outpost newspaper (Billings Outpost emails) through his PSC
email account. The first email was a campaign “press release” accusing his opponent of
being too cozy with the companies regulated by the PSC. In the second, Molnar postured
for an upcoming debate with his opponent:
Dear Editor,
Mr. Tussing desires to debate me? OK. Perhaps two debates. We can rent
a phone booth to accommodate those that care about his revisionist rant of
“deregulation” legislation passed eleven years ago and we can use the
MSUB Theater to address those that are concerned about future policies
and how they will be personally affected.
The third email to the Billings Outpost was another campaign editorial.
¶14 Molnar also used his PSC email to make arrangements to attend the Miles City
Bucking Horse Sale and parade. The record includes a photograph showing Molnar
6
wearing a “Brad Molnar” campaign t-shirt and walking in the Bucking Horse Sale parade
with other candidates. Molnar reported the gasoline expenses incurred in traveling to and
from this event as a campaign-finance expenditure.
¶15 William L. Corbett, a professor of law at the University of Montana (Professor
Corbett), was appointed as hearing examiner, and conducted a three-day hearing on Fox’s
complaints in November 2009. In March 2010, Professor Corbett issued a proposed
decision, determining that Molnar violated § 2-2-104, MCA, two times by receiving
“gifts of substantial value” from NorthWestern and PPL, and violated § 2-2-121, MCA,
five times by using state facilities and equipment for election purposes, as follows: the
Fundraising Letter, the campaign website, the Great Falls Rotary solicitation for a
campaign letter to the editor, the Billings Outpost emails,2 and the Bucking Horse Sale
campaign arrangements. Professor Corbett recommended that Fox’s October 16, 2008
complaint be dismissed because Molnar’s “very limited use” of the PSC cellular phone to
find a roommate amounted to permissible, de minimus personal use of state equipment.
Professor Corbett recommended a fine of $1,000 for each violation of § 2-2-104, MCA,
($2,000), and a fine of $750 for each violation of § 2-2-121, MCA, ($3,750), for a total
fine of $5,750.
¶16 The Commissioner made minor revisions to Professor Corbett’s proposed decision
and affirmed the result. In addition to the fines, the Commissioner ordered Molnar to pay
$14,945 for the costs of the hearing. Molnar petitioned for judicial review of the
2
Professor Corbett treated the three emails to the Billings Outpost as one violation because they
were sent in such “close proximity” to each other.
7
Commissioner’s decision, and the District Court affirmed the Commissioner’s order.
Molnar appeals.
STANDARD OF REVIEW
¶17 The same standards of judicial review of a final agency decision apply to the
district court and this Court. Williamson v. Mont. Pub. Serv. Commn., 2012 MT 32, ¶ 25,
364 Mont. 128, 272 P.3d 71. Judicial review of a “final agency decision must be
conducted by the court without a jury and must be confined to the record.” Williamson,
¶ 25 (citing § 2-4-704(1), MCA). We review agency findings of fact under the clearly
erroneous standard. Williamson, ¶ 25. A finding of fact is “clearly erroneous” if “it is
not supported by substantial evidence in the record, if the fact-finder misapprehended the
effect of the evidence, or if a review of the record leaves the court with a definite and
firm conviction that a mistake has been made.” Williamson, ¶ 25. We review agency
conclusions of law de novo, to determine if the agency correctly interpreted and applied
the law. Williamson, ¶ 25.
DISCUSSION
¶18 Article XIII, Section 4 of the Montana Constitution requires that the Legislature
“provide a code of ethics prohibiting conflict between public duty and private interest for
members of the legislature and all state and local officers and employees.” In 1977, the
Legislature enacted Montana’s Code of Ethics (the Code or Code of Ethics). See Laws of
Montana 1977, ch. 569, §§ 1-11 (codified at §§ 2-2-101, MCA through 2-2-304, MCA).
The Code recognizes that public confidence in the integrity of state officials, legislators
8
and state employees is paramount to the overall effectiveness and legitimacy of the
government. Section 2-2-103(1), MCA. The Code prohibits “conflict between public
duty and private interest,” § 2-2-101, MCA, by providing rules of conduct “the
transgression of any of which is a violation of the public duty[.]” Section 2-2-103(3),
MCA. The Commissioner is charged with investigating alleged violations of the Code.
Section 2-2-136(2), MCA.
¶19 1. Did the District Court err by concluding that Fox had legal standing to file
ethics complaints against Molnar?
¶20 The District Court concluded that Fox had standing to bring her ethics complaints
because the Code of Ethics permits any “person” alleging a violation to file a complaint.
Molnar argues that allowing any person to bring an ethics complaint runs afoul of the
usual standing requirement that the complaining party be harmed in some way particular
to her, and not merely in the same way as the general public.
¶21 Recently, in Williamson, we addressed standing in the context of administrative
proceedings. There, a group of individuals filed a complaint with the PSC against
NorthWestern, seeking to force NorthWestern to replace existing streetlight bulbs with
energy-efficient LED bulbs. Williamson, ¶ 6. The individuals claimed that
NorthWestern’s use of the existing, inferior bulbs affected them through higher property
tax bills and damage to the environment. Williamson, ¶ 14. NorthWestern moved to
dismiss the complaint because these harms did not meet the typical standing requirement
that the alleged harm be “distinguishable from [an] injury to the public generally.”
9
Williamson, ¶ 15. We distinguished judicial standing requirements from those applicable
to statutory administrative proceedings:
While acknowledging that . . . standing requirements arose as limitations on
the judicial power of Montana’s courts, NorthWestern seeks to import them
into PSC proceedings. This is incorrect. “The judicial power of the state is
vested in one supreme court, district courts, justice courts, and such other
courts as may be provided by law.” Mont. Const. art. VII, § 1. The PSC is
not a “court.” It is an Executive Branch agency.
Williamson, ¶ 29. Because the PSC is an administrative agency, standing was governed
by the statute designating those permitted to bring a complaint. Williamson, ¶ 31. That
statute, § 69-3-321(1), MCA, provided that a complaint could be brought by a party
“directly affected” by the challenged policy. Williamson, ¶ 32. Under the facts, we
concluded that the individuals bringing the complaint were not “directly affected” by
NorthWestern’s use of the existing streetlight bulbs because the alleged harms—higher
property taxes and environmental damage—were “too attenuated” and “speculative” to
be considered to directly affect them. Williamson, ¶¶ 34-43. Because the allegations
failed to meet the “directly affected” standard, we held that the complainants lacked
standing under the governing statute. Williamson, ¶ 43.
¶22 The analysis here is even more straightforward. The Office of the Commissioner
is an “administrative agency.” See § 2-15-411, MCA (establishing the Executive Branch
agency of the “commissioner of political practices”). Whether Fox has standing to bring
an ethics complaint against Molnar depends on the statute that designates who may
initiate an ethics complaint before the Commissioner. Williamson, ¶ 31; Baxter
Homeowners Assn. Inc. v. Angel, 2013 MT 83, ¶ 17, ___ Mont. ___, ___ P.3d ___.
10
Section 2-2-136(1), MCA, provides, in pertinent part: “A person alleging a violation of
this part by a state officer, legislator, or state employee may file a complaint with the
commissioner of political practices.” By its simple terms, § 2-2-136(1), MCA, grants any
“person” standing to file an ethics complaint. See also Admin. R. M. 44.10.604(1) (“A
complaint may be filed with the commissioner by any person alleging a violation of the
ethics code by a state officer, state employee, or a legislator . . . .”) (emphasis added).
The District Court correctly determined that Fox had standing to bring an ethics
complaint to the Commissioner against Molnar.
¶23 2. Did the District Court err by concluding that Molnar received unlawful gifts in
violation of § 2-2-104, MCA?
¶24 The District Court concluded that the $1,000 Molnar received from both
NorthWestern Energy and PPL were “unlawful gifts.” Molnar first asserts that these
monies were not “gifts” under the Code. Alternatively, Molnar argues that even if the
monies were gifts they were not “unlawful” because (1) the $2,000 would not have
improperly influenced him to favor these companies in PSC proceedings, and (2) the
money was used for educational activities permitted by the Code.
¶25 Under the Code, a breach of public duty occurs when a “public officer . . .
accept[s] a gift of substantial value . . . that would tend improperly to influence a
reasonable person in the person’s position to depart from the faithful and impartial
discharge of the person’s public duty.” Section 2-2-104(1)(b)(i), MCA. A “gift of
substantial value” is defined as “a gift with a value of $50 or more for an individual.”
Section 2-2-102, MCA.
11
¶26 The Code does not define “gift,” and Molnar urges us to adopt a narrow definition
that would prohibit transfers only when the donee received the item or money “without
restrictions.” Molnar argues that he did not receive the $2,000 “without restrictions”
because NorthWestern and PPL donated the funds for the legitimate purpose of
promoting “cost-effective energy conservation[.]” Admin. R. M. 42.29.106. However,
Molnar misapprehends the focus of the inquiry. The Code governs the conduct of public
officers and employees, not the conduct or motivations of donating parties. The focus of
the Code is what the public officer has received.
¶27 The Commissioner has interpreted “gift” broadly to mean “something voluntarily
transferred by one to another without compensation.” In re Complaint of the Mont.
Democratic Party v. Judy Martz, at 16-17 (Sept. 25, 2002); In re Complaint of L. David
Frasier v. Barb Charlton & Mark Simonich, at 7 (May 2, 2005). The Commissioner used
that interpretation in this case. “[A]dministrative interpretations are not binding on the
courts,” but “they are entitled to ‘respectful consideration.’” Mont. Power Co. v. Mont.
PSC, 2001 MT 102, ¶ 25, 305 Mont. 260, 26 P.3d 91 (citation omitted). “[T]he long and
continued contemporaneous and practical interpretation of a statute by the executive
officers charged with its administration and enforcement constitutes an ‘invaluable aid in
determining the meaning of a doubtful statute.’” Mont. Power Co., ¶ 24 (citation
omitted). The Commissioner is an executive officer “charged with the administration” of
§ 2-2-104(1)(b)(i), MCA. In giving respectful consideration to the interpretation given
12
by the Commissioner in the past, we conclude that he properly defined “gift” under the
statute.
¶28 Molnar thus accepted “gifts” of substantial value. NorthWestern Energy and PPL
Montana each “voluntarily transferred” $1,000 to Molnar personally, and he deposited
those monies into a personal bank account. Molnar did not exchange anything of that
value with the companies. The amounts of these transfers were “substantial” because
they had “a value of $50 or more.” Section 2-2-102(3)(a), MCA.
¶29 Next, whether Molnar’s acceptance of the two $1,000 gifts was unlawful turns on
whether that money “would tend improperly to influence a reasonable person in
[Molnar’s] position to depart from the faithful and impartial discharge of the person’s
public duty.” Section 2-2-104(1)(b)(i), MCA. Under the plain meaning of this provision,
the inquiry is not whether the gifts, in fact, influenced Molnar to depart from the faithful
and impartial discharge of his public duties (a subjective standard), but, rather, whether
the gifts would tend to improperly influence a “reasonable person” in Molnar’s position
(an objective standard).
¶30 The PSC exerts economically significant regulatory authority over NorthWestern,
including the rates that NorthWestern can charge. As Molnar admitted during his
testimony, the PSC, technically, would have to decide whether NorthWestern could
ultimately include the $1,000 gift to Molnar as an eligible expenditure in its rate base. If
so, NorthWestern’s customers would ultimately pay for the contribution to the Billings
Brownout. A reasonable person acting in Molnar’s position would likely support
13
inclusion of the expenditure within the rate base, given his promotion of the event. This
would necessarily constitute a departure from an “impartial discharge” of Molnar’s duties
as a PSC Commissioner. In other words, Molnar’s acceptance of gifts for that purpose
would given him a vested interest in the expense determination. As Professor Corbett
reasoned, for a regulator to look to the regulated as a source of money is fraught with
problems of improper influence:
A regulator who views those regulated as the source of current and future
money gifts would be influenced by the transaction. The Latin maximum
quid-pro-quo—something given for something given—is unmistakable. It
is reasonable to conclude that an elected regulator who solicits money from
the regulated will look for and find some way to repay the implied
obligation. The repayment may not amount to a large gesture. It may be a
quick look away, a nod of the head, or the acknowledgement one team
player gives another. But the fact that they are in it together will not be
forgotten, and in some way, the gift will be acknowledged. While
individual intentions and motivations may remain strong to the contrary,
the opportunity of a small deviation or slight hesitation from the faithful
and impartial discharge of public duty may result. The deviation or
hesitation may be so small that no one in the room will notice, and even the
parties may not fully recognize the departure from public duty, but there it
will be—the quid pro quo.
We conclude the District Court correctly held that NorthWestern’s gift would tend to
improperly influence a reasonable person in Molnar’s position. Section 2-2-104(1)(b)(i),
MCA.
¶31 Unlike NorthWestern, the PSC does not directly regulate PPL. However, the
record demonstrates that PPL “regularly” appears before the PSC as an intervening party.
PPL lawyers call and cross-examine witnesses in these proceedings. While Professor
Corbett addressed his above-quoted example to parties “regulated” by the PSC, we see no
14
reason why this logic would not also extend to parties whose interests include intervening
and regularly participating in PSC proceedings, such as PPL. Given the similar closeness
of this relationship, we cannot conclude that the Commissioner erred in holding that the
donation of $1,000 would tend to improperly influence a reasonable person in Molnar’s
position toward PPL.
¶32 Alternatively, Molnar argues that even if the $2,000 he received from
NorthWestern and PPL were “gifts,” they were lawful because the money was to be used
to educate the Billings community about energy conservation, including printing of
educational materials (brochures) for the event. Molnar correctly points out that some
gifts valued in excess of $50 are permitted by the Code. Section 2-2-102(3), MCA,
provides that the term “gift of substantial value” does not include:
(iii) educational material directly related to official governmental
duties; [or]
. . .
(v) educational activity that:
(A) does not place or appear to place the recipient under
obligation;
(B) clearly serves the public good; and
(C) is not lavish or extravagant.
¶33 However, we conclude these exemptions do not apply here. Money given directly
and personally to Molnar does not constitute “educational material” or “educational
activity” contemplated by the statute. Molnar essentially asks us to revise the statute by
adding the word “for” in each of these exemptions, thus permitting the personal receipt of
money that is ultimately used “for” educational activity or “for” educational material.
However, it is axiomatic that in the “construction of a statute, the office of the judge is
15
simply to ascertain and declare what is in terms or in substance contained therein, not to
insert what has been omitted or omit what has been inserted.” Section 1-2-101, MCA.
This case demonstrates the necessity of carefully applying the statute as written. If we
were to read the educational exemptions as broadly permitting the transfer of money
directly to state officers so long as the money was ultimately used “for” educational
material or activity, the prohibition against receiving substantial gifts could be easily
circumvented, as here. Molnar’s brochures were partly educational, but also partly
self-promotional. They contained conservation tips but also included a picture of Molnar
and a reference to his position on the PSC. Elected officials could easily include
“educational” content in otherwise self-promotional materials to come within a broad
reading of the educational exemptions, allowing the exception to swallow the rule.
¶34 The District Court correctly concluded that the exemptions did not apply because
money transferred directly and personally to Molnar was neither an educational activity
nor educational material. The gifts to Molnar were thus made in violation of the Code of
Ethics.
¶35 3. Did the District Court err by concluding that Molnar improperly used State
facilities for political purposes in violation of § 2-2-121(3)(a), MCA?
¶36 The District Court held that Molnar improperly used State resources for political
purposes by: (1) including his PSC email address and PSC phone number on the
Fundraising Letter, (2) using his PSC email address on his campaign website, (3) using
his PSC email address to solicit a campaign editorial from the Great Falls Rotary Club,
16
(4) using his PSC email to send the Billings Outpost emails, and (5) using his PSC email
to arrange accommodations for a campaign appearance at the Bucking Horse Sale.
¶37 The Code of Ethics prohibits any public officer or public employee from using
“public time, facilities, equipment, supplies, personnel, or funds to solicit support for . . .
the election of any person to public office . . . .” Section 2-2-121(3)(a), MCA.
¶38 The statute’s first prohibition is the use of “public time” to engage in
election-related activities. For the typical public employee, this restriction would apply
to those hours for which the employee receives compensation from his or her employer.
However, as Molnar points out, elected officials do not have specified hours of
employment, vacation leave or other off-duty time, and are thus considered to be on
“public time” at all times. Applying a “public time” prohibition to elected officials
results in a readily apparent absurdity: elected officials could never use their time to seek
reelection without violating the Code of Ethics. “Statutory construction should not lead
to absurd results if a reasonable interpretation can avoid it.” Bitterroot River Protective
Assn. v. Bitterroot Conserv. Dist., 2008 MT 377, ¶ 72, 346 Mont. 507, 198 P.3d 219(citing Mont. Sports Shooting Assn. v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d
1003). Such an interpretation would also raise constitutional concerns. See City of San
Diego v. Roe, 543 U.S. 77, 80, 125 S. Ct. 521, 523 (1995) (“A government employee
does not relinquish all First Amendment rights otherwise enjoyed by citizens just by
reason of his or her employment.”). We attempt to interpret a statute “so as to avoid an
17
unconstitutional interpretation whenever possible.” State v. Samples, 2008 MT 416, ¶ 14,
347 Mont. 292, 198 P.3d 803.
¶39 These same concerns were noted in a Montana Attorney General’s opinion
interpreting this statute:
Although “public time” is not defined, a reasonable construction would be
those hours for which an employee receives payment from a public
employer. Elected officials, of course, do not have specific hours of
employment nor do they receive vacation leave or other time off duty. They
receive annual salaries rather than hourly wages. Thus, they could be
considered to be on “public time” at all times. However, as long as public
facilities, equipment, supplies, or funds are not involved, elected officials
are not restricted in the exercise of political speech by the provisions of
Montana law.
Mont. Atty. Gen. Op. 51-1, 2005 Mont. AG LEXIS 1 at **4-5. We agree. To avoid
absurdity and constitutional problems, we construe § 2-2-121(3), MCA, to permit an
elected official to use his or her time to pursue election-related activities so long as the
official does not use “public facilities, equipment, supplies or funds.” In this case,
whether Molnar violated § 2-2-121(3), MCA, depends on whether he used public
facilities in his reelection campaign, not whether he used his time.
¶40 Molnar’s Fundraising Letter bore his PSC-issued email address and phone
number, and his campaign website bore his PSC-issued email address. The Letter
explicitly solicited financial support for Molnar’s 2008 reelection and, true to its purpose,
Molnar’s campaign website likewise advocated for his reelection to the PSC with bold
writing at the top “Brad Molnar for Public Service Commissioner.” Molnar thus
employed public facilities to further his reelection effort.
18
¶41 Molnar argues that state rules regarding telecommunications use permitted the use
of his PSC email address and phone number, which he describes as a minimal use. The
state telecommunications rule provides: “The use of the state’s telecommunication
systems for essential personal business must be kept to a minimum, and not interfere
with the conduct of state business.” Admin. R. M. 2.13.102 (2012) (emphasis added).
Thus, while the regulation permits the use of state phones, internet and email to conduct
minimal personal business, it does not authorize any political uses. This distinction is
clear and important.
¶42 Molnar also argues that, even if he improperly used the PSC’s telecommunications
system, the proper enforcement entity was the PSC, not the Commissioner. He cites
Admin. R. M. 2.13.103 (2012), which provides that “[a]ll state agencies are individually
responsible for enforcing rules relating to the use of the state’s telecommunications
systems.” However, while this regulation imposes an affirmative duty on each state
agency to enforce the state policy governing use of the state telecommunication system, it
does not preempt enforcement of the ethical statutes by the Commissioner. Violation of a
telecommunication policy may or may not also constitute a violation of the Code, and
jurisdiction here by state agencies is overlapping in that regard.
¶43 Molnar argues that Fox failed to prove he actually sent out the Fundraising Letter.
The record, however, shows that Molnar received a phone call from reporter Mike
Dennison, who had received the Fundraising Letter and contacted Molnar to inquire
about the letter and informed him it was illegal. There was thus sufficient evidence to
19
demonstrate the Letter had been sent or used. Finally, Molnar argues that if he did
violate the Code in this manner, his violations were de minimus. However, as the
Commissioner noted: “there is nothing minor about the violations. A re-election
campaign document and website that directs citizens to contact the candidate at their
official state office is exactly what the Code of Ethics was designed to prohibit.”
¶44 The District Court correctly concluded that Molnar used public facilities to solicit
support for his reelection to the PSC in violation of § 2-2-121(3)(a), MCA, when he
posted his PSC email address on his campaign website and listed his PSC address email
and phone number as his contact information in the Fundraising Letter.
¶45 The remaining violations pertain to the Billings Outpost emails, the Great Falls
Rotary Group email, and the emails Molnar sent to make accommodations for the
campaign event at the Bucking Horse Sale. Molnar argues that he did not violate § 2-2-
121(3)(a), MCA, by sending these emails because there is no proof that he was “on the
job” or at his “place of employment” when he sent them.3 However, § 2-2-121(3)(a),
3
Molnar cites to several decisions by the Commissioner in support of his position. Each is
distinguishable, however. First, Molnar argues that the Commissioner’s decision In re
Complaint of Michael Fasbender against Ken Toole (Feb. 21, 2012), held that an elected official
does not violate the statute unless the official uses the public facility during working hours. But,
that is not the principle articulated in that case. Rather, In re Complaint of Fasbender stands for
the proposition that anyone, including elected officials, may use pictures taken in State-owned
buildings for campaign purposes so long as the area is open to the general public. The
Commissioner reasoned that it would make little sense to allow the general public to use
photographs taken inside and outside public buildings but prohibit incumbents seeking reelection
from doing so. Here, however, Molnar’s PSC email address is not open for use by the general
public. The other Commissioner decisions cited by Molnar are likewise unhelpful to him
because they involve a campaign contribution statute and not an ethics statute. The statute at
issue in those cases, § 13-35-226(4), prohibits a public employee from soliciting support or
opposition to a candidate while “on the job or at the place of employment.” See e.g. In re
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MCA, does not prohibit the use of public facilities only while on the job or while at work.
The statute clearly prohibits all use of “public facilities” for campaign purposes. It is
improper for an elected official to send a campaign email from a State account at any
time of the day. Likewise, geographic location is irrelevant under the statute. State
“facilities” such as email accounts and laptop computers may readily be accessed and
used at locations outside of state buildings. It is unlawful for an elected official to use
state facilities for political purposes whether in a government office or elsewhere.
¶46 The District Court did not err in affirming the Commissioner’s conclusion that
Molnar violated § 2-2-121(3)(a), MCA, by using “public facilities” to solicit support for
his reelection.
¶47 4. Did the District Court err by concluding that the penalty statute for ethics
violations, §2-2-136, MCA, was not unconstitutionally vague?
¶48 The Commissioner ordered Molnar to pay a $5,750 administrative penalty for his
seven violations of the Code of Ethics. The Commissioner also ordered Molnar to pay
$14,945 to the State as partial reimbursement of the costs in this matter. Molnar offers a
very brief argument, with little citation to authority, that this penalty and cost assessment
should be reversed because the Code’s penalty provision is unconstitutionally vague for
failing to specify whether the Commissioner may impose a separate fine for each
violation or only a single fine regardless of the number of violations.
¶49 “[A]ll statutes carry with them a presumption of constitutionality.” Mont. Auto
Assn. v. Greely, 193 Mont. 378, 382, 632 P.2d 300, 303 (1981). Thus, a party
Complaint against Dave Galt, at 2 (Jul. 26, 2004). The ethics statute at issue here, § 2-2-121(3),
contains no such language.
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challenging the constitutionality bears the heavy burden of proving the statute is
unconstitutional “beyond a reasonable doubt.” Hernandez v. Bd. of County Commns.,
2008 MT 251, ¶ 15, 345 Mont. 1, 189 P.3d 638. We conclude that Molnar’s brief
argument fails to carry the burden of demonstrating that the statute is unconstitutional
and that the Commissioner’s imposition of separate fines was otherwise unlawful.
¶50 We affirm the District Court on all issues raised on appeal.
/S/ JIM RICE
We concur:
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ LAURIE McKINNON
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