Molnar v. Fox
| Citation | 370 Mont. 238,301 P.3d 824 |
| Decision Date | 14 May 2013 |
| Docket Number | No. DA 12–0373.,DA 12–0373. |
| Parties | Brad MOLNAR, Petitioner and Appellant, v. Mary Jo FOX, Respondent and Appellee. |
| Court | United States State Supreme Court of Montana |
OPINION TEXT STARTS HERE
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).
¶ 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?
¶ 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 regularly dealt, and by using state resources to aid his reelection campaign and for personal business. Molnar denied any wrongdoing.
¶ 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 residentsand 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.
[370 Mont. 241]¶ 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
¶ 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
¶ 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:// molnar 4 psc. com (now defunct).
¶ 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.
¶ 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 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 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 Commissioner's decision, and the District Court affirmed the...
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