Electric City Weblog

Is it Legal?

First, we must consider the factual background. In response to a question at a City Commission Forum, a candidate, Fred Burows, stated that City tax receipts have increased by 44% in the last 5 years. The two incumbent Commissioners, Bill Bronson and John Rosenbaum, took issue with this assertion.

A few days later, City Staff provided the City Commission with a response to the assertion.

Is it legal?

Tough question. It’s pretty dang gray.

Montana’s Code of Ethics can be found in Title 2 of the Montana Code Annotated.

MCA 2-2-102 defines a “public employee” to include “any temporary or permanent employee of a local government.” Thus, City Staff members are “public employees.”

MCA 2-2-121, the rules of conduct for public officers and public employees found in Montana’s Code of Ethics, provides:

3) (a) Except as provided in subsection (3)(b), a public officer or public employee may not use public time, facilities, equipment, supplies, personnel, or funds to solicit support for or opposition to any political committee, the nomination or election of any person to public office, or the passage of a ballot issue unless the use is:
(i) authorized by law; or
(ii) properly incidental to another activity required or authorized by law, such as the function of an elected public officer, the officer’s staff, or the legislative staff in the normal course of duties.
(b) As used in this subsection (3), “properly incidental to another activity required or authorized by law” does not include any activities related to solicitation of support for or opposition to the nomination or election of a person to public office or political committees organized to support or oppose a candidate or candidates for public office.

So, to paraphrase, a “public employee may not use public time, facilities, equipment, supplies, personnel, or funds to solicit support for…the nomination or election of any person to public office…unless the use is…authorized by law; or…properly incidental to another activity required or authorized by law.” If we assume for the moment (more in a minute) that the “talking points” were designed to solicit support for the election of the present two incumbents, we need to determine whether such actions were either “authorized by law” or “properly incidental to another activity required or authorized by law.” Of course, given the assumption that the “talking points” were drafted to garner support, subsection 3(b) tells us that they could not be “properly incidental to another activity required or authorized by law.”

Thus, the preparation of “talking points” by City Staff designed to assist the incumbents must be “authorized by law” or it violates the Code of Ethics. I conducted a very brief search, and could not find any statute that authorizes this type of activity. My moderately educated guess is that there is no such statute.

We turn, then, to what I believe to be the fundamental question: Was the preparation of the “talking points” designed to solicit support for the election of the two incumbents, Bill Bronson and John Rosenbaum? This is where the issue gets a little gray. My personal opinion is that one could certainly make a very reasonable argument that the “talking points” were so designed. Why?

First, the “talking points” themselves refer directly to a political function, the Candidates Forum. By its own terms, it is responsive to a question that was asked of political candidates at a political function.

Second, it does not ‘correct the record.’ In other words, there is not a suggestion that the assertions made at the Forum were inaccurate. Instead, the document provides arguments to show other ways to evaluate the numbers to cast the City’s actions in a more positive light. In short, it offers spin.

Third, it is not a general, public refutation of the assertions made at the Forum, but was instead provided to the City Commissioners, two of whom are running for re-election to public office. While it is a public document, it is not a document that is usually propagated throughout the local media.

Fourth, the information contained in the “talking points” does not address any issue currently pending before the City Commission. In other words, it was not necessary to provide this information to the City Commission in the ordinary course of business; had there been no Candidate Forum, there would have been no “talking points.”

Finally, put yourself in the position of a challenger. You spend your own time and resources to research an issue, and you use your efforts to try to gain a political advantage. Yet, you learn that your own tax dollars were used to bolster the case of your opponents. Is that fair? Further, our Fiscal Services Director has a dog in the fight. Electric City Power, of which she has been a long-standing and strong supporter, is clearly implicated in the need for increased tax revenue. Not only does she have an interest in trying to ensure that a supportive City Commission remains intact, but she also has an interest in downplaying the ongoing drain on the City’s resources presented by her and Mr. Lawton’s brainchild.

Let me add two additional thoughts. First, there is no suggestion here that Bill Bronson or John Rosenbaum did anything wrong. They are certainly entitled to utilize the materials provided to them by City Staff, and unless they solicited the preparation of the “talking points,” they are not implicated in any way.

Second, I think the whole thing smells worse than a dead fish on an August afternoon. I think it is emblematic of what is wrong with our municipal government and demonstrates that certain City employees apparently feel a proprietary interest in taxpayer assets. I also think it is a fine example of petty politics, and occurs every day all over the USA. Yes, if I were the judge and jury, I would conclude the law was broken. I am not, though, so I think it’s pretty gray.

Nevertheless, the Code of Ethics provides a remedy. MCA 2-2-144 allows anyone who believes the law has been broken to report it to John Parker, our local county attorney. John is a good man and, whether I ultimately agree with him or not on a particular issue, I do believe he would give anything a fair hearing.

The real problem in City Hall is not to be found with the ones you vote for or against every other November. The real problem, I think, is to be found in the ones you can’t fire.

Posted in Great Falls City Government, Open Government | 6 Comments »