HELENA – Obstructing the release of information to legislators and retaliating against state employees who report potential problems would become illegal if two bills proposed by a Montana City representative become law.
“Every public officer or employee has a right to speak to any legislator regarding state business … including alleged misconduct, fraud, waste, abuse, or other matters of public concern (and) every public employee … has a right to do so without fear of reprisal,” reads the introductory language of House Bill 202, which Republican Rep. Kirk Wagoner introduced to the Judiciary Committee on Thursday. A related measure, HB 208, focuses solely on retaliation.
The two bills are designed to protect the free speech rights of state employees and to punish those who restrict them or retaliate against them. But testimony at Thursday’s hearing showed that implementing those protections can be complicated and costly. Wagoner carried a bill with the same intent last session and it failed.
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Wagoner also said his bill would make it easier for legislators to do their jobs because it would be illegal for a state agency to bar employees from speaking to them or at least from doing so without supervisor permission.
“It’s not forcing them to talk to us,” Wagoner said of his bill. “It’s saying if they want to, they can, and they would be protected in case their boss disagrees."
Carol Bondy, who was the Audit Bureau Chief at the Department of Public Health and Human Services for 14 years before having her job terminated in December 2015, said she supported Wagoner’s bill and that it would have protected her and colleagues from retaliation that escalated into their firing.
She sued the state in October, alleging she was wrongfully discharged for doing her job: uncovering misuses of state and federal funds at DPHHS. In the ongoing lawsuit, Bondy alleges top state officials sought to hide requested information from legislators.
According to the final determination in an unemployment benefits hearing in July, Bondy's termination was appropriate, in part, because she failed to report one of her subordinates for "secretly providing documents to a legislator." Other allegations of misconduct were not substantiated.
Bondy said the protections in Wagoner’s bill would have helped her keep her job – one she fought to get back at her own cost in the months-long administrative grievance and unemployment appeals processes.
Wagoner said his bill would provide “an alternate path” for employees who did not want to be caught for months without pay, like Bondy, while pursuing grievance and unemployment appeals.
Derf Johnson of the Montana Environmental Information Center said he also supported the concept of the bill, noting the nonprofit frequently works with state employees who are hesitant to share even routine public information.
“We’d like to see them protected,” he said. “We consider this a good government bill.”
Gov. Steve Bullock declined to comment.
“Because bills are not in their final form until they reach the Governor’s desk, the Governor does not comment on proposed legislation while it is still working its way through the Legislature,” spokeswoman Marissa Perry wrote.
The DPHHS has declined to speak about Bondy’s allegations, citing the ongoing lawsuit. In a statement Thursday, spokesman Jon Ebelt defended the agency’s responsiveness to legislators.
“It’s important to understand that DPHHS receives hundreds of information requests every year, including many from legislators,” he wrote. “In all cases, it’s our goal to always provide timely and accurate information, and as quickly as we possibly can. To accomplish this goal, we pause to discuss requests with staff first before moving forward. This ensures we are communicating internally to provide each requestor the most accurate and timely information possible.”
People who testified against the bill largely agreed that protecting state employees was a noble idea, but said the measure as written would be costly or so broad as to cover local government employees. Others questioned what the actual complaint process would be.
Lewis and Clark County Attorney Leo Gallagher opposed the "very vague" bill. He said the Helena Police Department would end up with the responsibility to investigate and his office would have to prosecute the new felony charge of “public obstruction.”
“There are already protections in the law, codified and in case law” he argued, citing the First Amendment, collective bargaining agreements and the Montana Wrongful Termination Act.
Similarly, Jamie MacNaughton, legal counsel at the Commissioner of Political Practices Office, worried the language would require that office to handle complaints as an ethics review and do so without additional staff.
Rep. Jenny Eck, D-Helena, questioned bill language that seemed to hold individuals accountable for obstruction rather than the state.
Others questioned who would pay for the legal representation of employees. Wagoner said whistleblowers likely would have to pay for their own legal representation while the state might end up representing the supervisors if they were following state policy rather than acting outside it.
Eck said she would request a fiscal analysis of the bill to estimate how much the state might spend defending employees in such cases. Fiscal notes can be death knells for bills, especially in a tight budget climate like this session.
Wagoner said he would work with opponents to tweak his bill. For instance, he said he would reduce the penalty so it was not a felony, specify the case would be a private action that could go straight to a judge without investigation, and clarify that the law does not cover local governments. Wagoner said he remained uncertain whether he would amend HB 202 to reflect those concerns or adapt HB 208, which has not yet been introduced.
The committee took no action on the bill Thursday.
