A leadership skills workshop for lawmakers was delayed earlier this year out of a lack of clarity about the ethics of legislators attending professional development activities sponsored by outside groups.
The question arose after Leadership Montana contacted the Commissioner of Political Practices about an event it planned for this past October. The group reached out a couple weeks before the event, seeking clarification about laws concerning gifts to elected officials. It asked whether it was OK for a legislator to attend an educational opportunity offered free of cost.
Montana's ethics code for legislators, elected officials and state employees bars accepting a gift worth more than $50, though there's an exception made for educational activities that don't come with any strings attached.
According to emails between Leadership Montana and the commissioner, the event originally proposed had a value of $1,000 for each legislator, which included meals, lodging at West Creek Ranch in Emigrant, materials and facilitation.
Leadership Montana had previously discussed the event back in the spring with the Legislature's Legal Services Office. Director and code commissioner Todd Everts said Tuesday he told the group it was not his role to give them advice, but that they could ask a lawmaker to request guidance from him.
Several did, and Everts and his legal staff determined that attending the event and having it be paid for by Leadership Montana would not have violated any ethics laws.
In a September email to Jeff Mangan, the commissioner of political practices, Leadership Montana president and chief executive officer Chantel Schieffer indicated the group expected the event to raise some questions. Leadership Montana has not ever lobbied the Legislature and is prohibited from doing so as a 501(c)3 nonprofit organization.
"In anticipation of curiosity on the part of the public, some lawmakers have already asked for an opinion from the Code Commissioner around participating in our training," Schieffer wrote. "… I understand that this sort of training may elevate to the public eye. Indeed, we are happy to shine a light on our process."
Since Mangan's role is to act as a judge in responding to ethics complaints, he can't provide advisory ethics opinions, and Leadership Montana didn't formally request one. But Mangan did bring his concerns to lawmakers and Everts. Because of the confusion and tight timeline before the event was to be held, Leadership Montana decided to delay.
In lengthy memos citing laws and the ethics code, and a two-hour discussion with the Legislative Council on Tuesday, Mangan and Everts disagreed on several things surrounding the retreat. That included whether it amounted to lawmakers participating in "legislative acts."
That term isn't defined in the ethics code. What meets the definition of a "lavish or extravagant" gift also isn't clarified, nor is an "educational activity."
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Because of the disagreement over whether the event constitutes lawmakers acting in their legislative capacity, there's also disagreement over who would have jurisdiction in this case to decide whether something is in line with the ethics code. If lawmakers are engaging in "legislative acts," the Legislature itself would police them. If they're acting outside that capacity, it would fall to Mangan.
Everts and Mangan agree they want to see the Legislature create some clarity around the issue by coming up with definitions for the terms in question.
The Legislative Council, a bipartisan group of legislative leaders that provides direction to the Legislature and oversees operations, directed its staff to come up with recommendations on how to accomplish that in the 2021 session.
“The reason there’s ambiguity in this is because ‘legislative acts’ is not defined in the code of ethics and we don’t have guidance,” Everts said.
Mangan told the council Tuesday that he was not weighing in on the merits of the Leadership Montana retreat or whether it qualified as an "educational opportunity." Everts was clear to say that the discussion was only about educational events and not the entire ethics code.
But Mangan did want lawmakers to be aware of something hovering over the debate: a decision from the U.S. 9th Circuit Court of Appeals earlier this year affirming that ethics complaints against Montana elected officials must be made public when lodged, and the potential for weaponizing those complaints in a year when voters will choose who fills 125 of the 150 seats in the state Legislature.
State Rep. Casey Schreiner, a Great Falls Democrat who was minority leader in the House last session, is presiding officer of the Legislative Council. He said Tuesday he understood the concern over the possibility of ethics complaints being used against a candidate. Schreiner is also running for governor in 2020.
“We are in a hyper-partisan situation now where we have ethics complaints filed that are for frivolous purposes,” Schreiner said. Other lawmakers on the committee said they were frustrated about missing the training opportunity.
“The practical effect is it limited educational options for members who are currently serving,” said state Rep. Kim Abbott, D-Helena.
Lawmakers did resolve the issue related specifically to the Leadership Montana training, voting unanimously Tuesday on a motion to make clear they view the retreat as a legislative act and appropriate to attend.
“I want to make sure we at least went on record for that particular event … I want that clear before we adjourn today so people can start getting going on the planning for that event," state Sen. Jon Sesso, a Butte Democrat and minority leader in the Senate last session.
Leadership Montana has two retreats for lawmakers now planned in 2020 at the West Creek Ranch.
“The clarity that came from yesterday’s committee hearing gives us an opportunity to move forward,” Schieffer said.