Gaps in complaint process make it unclear how public can flag ethics violations by legislators

July 04--MISSOULA -- In 1993, Montana legislators created a hotline for the public to report "waste, fraud and abuse" in state government.

The website lists information on how to file complaints about Montana employees, statewide elected officials, attorneys, bankers, non-profits, child abuse, contractors, discrimination, elder abuse, foreign lotteries, gas pump accuracy, healthcare professionals, highway patrol, insurance companies, judges, utilities, public assistance programs, pay disputes, water wells, wildlife, and workers compensation.

But want to file an ethics complaint against a legislator?

You won't find directions anywhere on MT.gov.

Even many legislators interviewed did not know how to do so. Some thought complaints must be filed to the Commissioner of Political Practices. But that office has no authority over the ethics of legislative acts. The responsibility to guard against abuses of power by legislators lies with legislators: the House and Senate Ethics Committees that have not met since 2001.

Montana received a failing grade from the nonpartisan Center for Public Integrity in its 2015 investigation of state government transparency and ethics.

Some legislators admit Montana has room for improvement.

Legislators routinely vote on policies that would personally benefit their businesses because of the narrow definition of a conflict under state law. Rules do not block them from voting even if they declare a conflict. And no one ensures state officials fill out disclosure forms completely.

If someone were to spot a violation, there are no public instructions about how to file a complaint.

If a complaint makes its way to the ethics committees, they can dismiss it without calling a meeting or documenting the reasoning for a decision. There is no requirement to notify the filer of the outcome.

Unlike ethics complaints filed against other state officials, there is no public listing of reports against legislators and how they were resolved, nor are there confidentiality protections for involved parties. Even if a complaint is filed, ethics committees tasked with reviewing them cannot meet outside the 90-day legislative session held every two years.

More than a dozen legislators interviewed had not heard about most of those issues.

"Really? I didn't know that," said Senate Ethics Chairman Nels Swandal, a Republican from Wilsall. "I'm sure we could come up with some answers."

Helena attorney Jonathan Motl, who served as the Commissioner of Political Practices until recently, described conflicts of interest as "an area that needs to be looked at" statewide, including among legislators who operate with separate oversight. In recent years, commissioners have focused their small staff almost entirely on enforcing campaign finance laws.

"It's an area of concern to Montanans," he said, reflecting on his three years watchdogging Montana elections and handling a few ethics complaints against statewide officials. "Ethics. That word is what makes government work. Governance depends on the ethics of action, which gives the public confidence in government. That's why it's so important."

Motl said his office received several phone calls this year from people wanting to file complaints against legislators. He told them to email complaints to the chairs of legislative ethics committees or the Legislature's attorney. Only one did. Two complaints erroneously filed with the commissioner about legislators were forwarded to the Legislature.

"Anybody can file a complaint for whatever reason they feel is justified," said Rep. Theresa Manzella, R-Hamilton, who was the subject of one of those complaints. "She (the complainant) took it to the COPP, and they said no violations. She then took it to legal counsel, who said no violations. Then she put it before the ethics committee and was told a third time there were no ethics violations."

Manzella's account of events is flawed but highlights common misconceptions about the process among legislators interviewed. When asked about the discrepancies, Manzella said she had not studied the rules in detail and had not recently reviewed the documents in question.

The complaint against Manzella was filed by Paula Nelson of Darby. She first submitted a complaint to the Commissioner of Political Practices, who told her that office could not process it. As directed by the commissioner, she sent an email to the Legislative Services Division and members of the House Ethics Committee, although they already had received a copy from Motl.

Nelson was concerned Manzella had used "taxpayer provided stationery with, assumedly, taxpayer provided postage" to send thank-you notes following a fundraiser for an injured community member, an event with no direct connection to state duties.

House Ethics Chairman Bill Harris, R-Mosby, and Legislative Counsel Todd Everts met briefly to discuss the issue and draft a response letter. Harris wrote back to Nelson, explaining that the use of "stationery and envelopes for constituent communication...is not prohibited."

Nelson declined an interview request.

Michael Spreadbury also submitted a complaint this year. He accused Rep. Daniel Zolnikov, R-Billings, of carrying a bill that "actively promotes" the interests of ride-sharing company Uber. Zolnikov said during the initial hearing that he had driven for Uber for a short while to better understand the service.

Spreadbury, who owns a Helena limo company, said Zolnikov earned enough money from those rides to constitute a financial interest that should exclude him from participating in the legislation.

Harris and Vice Chairwoman Ellie Hill-Smith, D-Missoula, reviewed the complaint personally and decided not to convene a committee meeting. They concluded that the bill, written by the Public Service Commission, not Zolnikov, would not have benefited Uber significantly and that Zolnikov had followed legislative rules by disclosing his personal tie to the company. In the previous session, Smith had been instrumental in rewriting state law to allow ride-share companies to operate in Montana.

"There's no way to move forward in Montana without some sort of conflict. We're a small state," Spreadbury said, acknowledging the "natural" challenges citizen legislators face. "I don't know what the penalties are, but I don't think Daniel Zolnikov should honestly be in the Legislature anymore."

He did not know that his complaint had been forwarded from the commissioner's office to the House Ethics Committee, received no call or email to discuss the complaint, and did not know it had been dismissed.

Zolnikov called the complaint "absurd" and echoed many other legislators who do not think conflicts should automatically disqualify someone from participating in bill drafting or votes.

"There were insurance agents on the committee who knew insurance. Is it a conflict of interest if they carry a bill about insurance? Or is it the smartest thing because they can tell if the lobbyists are telling the truth or not?" he said. "It's a double-edged sword."

Nearly every legislator interviewed believed they do an adequate job of policing their own members, mostly through informal conversations.

"You don't come up here to personally benefit yourself. It typically costs you more money to be up here than if you stayed at home and paid attention to your knitting," Senate President Scott Sales, R-Bozeman, said. "You'd get called on it. These are some of the most conscientious people I've ever served with, regardless of political persuasion."

Sunlight Foundation Executive Director John Wonderlich questioned the willingness of legislators to call out colleagues for ethical violations "when every other piece of their legislative work is about getting along."

"Legislators are notoriously bad at overseeing their peers," said Wonderlich, who leads the country's primary nonpartisan nonprofit that advocates for government transparency and the public's right to know.

One example of how legislators manage those decisions can be found in 2010. It involves Harris, the current House Ethics Chairman.

A week after being elected to his first term, the Mosby outfitter introduced a draft of his first bill: It would rescind a ballot measure voters had just approved to end outfitter-sponsored hunting licenses. Some outfitters feared a loss of business from the passage of the initiative because it ended guaranteed access to 5,500 big game and deer licenses for their nonresident clients.

At the time, Harris said the change would make securing customers "more cumbersome" and cost some outfitters money.

Despite a report in the Billings Gazette that sparked conversation statewide about whether the bill was self-dealing, legislative leaders were reluctant to block him from introducing the measure or to file a formal complaint with the ethics committee that could have ruled whether to allow Harris to carry the bill. Privately, some legislators encouraged him to drop the measure, according to people who served at the time.

Shortly after introducing the bill in March, Harris tabled the proposal, which was opposed even by the main outfitters lobbying group.

"I had always planned to table it," Harris said recently, describing his bill as an attempt to clarify how the state would reimburse outfitters, if at all, for hundreds of thousands of dollars in licenses already purchased. "I didn't try to be secretive about any of it. I don't see a problem with that, where it was so blatantly damaging to people. They got robbed by a change in the law."

Sen. Mike Phillips, D-Bozeman, saw the episode as an example of how legislators successfully pressure colleagues to do the right thing but also as a case where more formal action might have been warranted if Harris had not tabled his proposal. That year, Phillips served on the House Rules Committee, which can call on the Ethics Committee to meet in such cases, but remembered no serious discussions to do so.

"It struck me as a clear violation of the conflict of interest rules," Phillips said. "We haven't needed to meet because people found the error of their ways on their own and stood down on their own like Rep. Harris.

"Some people have probably kept their head down, not drawn attention to their conflicts, and benefited from the passage of legislation. I've never gotten the impression it's a problem," he said.

Wonderlich found it unlikely that legislators were heading off all conflicts with hallway conversations. Even if they were, he said that informal system provides no guarantees for the public and leaves criminal investigators with less material to draw from should they try to build a case against someone whose ethical violations were also criminal acts. Inadequate conflict of interest laws make the Legislature vulnerable to abuse and too weak to respond should that self-policing culture fail in the future, he said.

"I'm sympathetic to the idea that ethics should be responsive to people's norms and expectations," Wonderlich said, noting that the U.S. House, for instance, exempts pediatricians from rules that ban working while in Congress because it is widely accepted that the job has little potential to corrupt. "You can acknowledge life's complexities and that people are human and still have a process."

He said Montana legislators were arguing for "a non-process" rather than rules "based on public expectations that help us be confident in our representatives."

Center for Public Integrity Executive Editor Gordon Witkin said Montana's failure to define a process for the public to file complaints speaks volumes.

"If you care about accountability and transparency in government, there has to be a clear, well-publicized path for citizens to file ethics complaints about legislators and have them seriously adjudicated," he said.

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