Sheehy v. Comm'r of Political Practices for Mont.

• Decision Date: 12 February 2020
• Docket Number: DA 19-0169
• Citation: 2020 MT 37,458 P.3d 309,399 Mont. 26
• Parties: Martha SHEEHY, a member of the Montana Board of Regents, Petitioner and Appellee, v. The COMMISSIONER OF POLITICAL PRACTICES FOR the STATE of Montana, through Jeffrey A. Mangan, acting in his official capacity as the Commissioner of Political Practices, Respondent and Appellant.
• Court: Montana Supreme Court

399 Mont. 26

458 P.3d 309

2020 MT 37

Martha SHEEHY, a member of the Montana Board of Regents, Petitioner and Appellee,

v.The COMMISSIONER OF POLITICAL PRACTICES FOR the STATE of Montana, through Jeffrey A. Mangan, acting in his official capacity as the Commissioner of Political Practices, Respondent and Appellant.

DA 19-0169

Supreme Court of Montana.

Submitted on Briefs: October 23, 2019

Decided: February 12, 2020

For Appellant: Jaime E. MacNaughton, Special Assistant Attorney General, Commissioner of Political Practices, Helena, Montana, Kirsten Madsen, Assistant Attorney General, Agency Legal Services Bureau, Helena, Montana

For Appellee: Kyle Anne Gray, Brianne C. McClafferty, Holland & Hart LLP, Billings, Montana

For Amicus The Lee Newspapers: Kelly J.C. Gallinger, Aaron M. Dunn, Brown Law Firm, P.C., Billings, Montana

For Amicus Montana Board of Regents: Cherche Prezeau, Colin Phelps, Christensen & Prezeau PLLP, Helena, Montana

Chief Justice Mike McGrathdelivered the Opinion of the Court.

¶1 In April 2018, Montana’s Commissioner of Political Practices, Jeffrey Mangan, issued a Summary Decision of Complaint Without Informal Contested Case Hearing ("Summary Decision") against Montana Board of Regents of Higher Education("the Board") member Martha Sheehy("Regent Sheehy") alleging that Regent Sheehy violated Montana’s Code of Ethics ("Ethics Code"), governed by Title 2,chapter 2, part 1, MCA.After receiving a complaint, the Commissioner concluded that Regent Sheehy, and other Regents, improperly used state resources to support the passage of the 2018 6-Mill Levy ballot initiative.However, while the Commissioner found that other Regents also violated the Ethics Code, the Summary Decision and enforcement action was centered solely on Regent Sheehy.

¶2The District Court reversed the Commissioner’s Summary Decision on the basis that its decision was in violation of the constitutional and statutory provisions relating to the Board, in excess of the statutory authority of the Commissioner, procedurally unlawful, clearly erroneous, and arbitrary, capricious or characterized by abuse of discretion.The Commissioner appeals.

¶3We restate the following issues on appeal:

Issue One: Whether a member of the Board of Regents is considered a public employee subject to the Montana Code of Ethics.

Issue Two: Whether the Commissioner of Political Practices has jurisdiction over members of the Board of Regents to enforce the Montana Code of Ethics.

Issue Three: Whether Regent Sheehy’s questions concerning the 6-Mill Levy violated the Montana Code of Ethics.

¶4We reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On May 26, 2017, and November 16, 2017, the Board held regularly scheduled public meetings.The Board is "responsible for long-range planning, and for coordinating and evaluating policies and programs" for the Montana University System ("MUS").Mont. Const. art. X, § 9.There are seven regents that serve on the Board and each is appointed by the Governor, and confirmed by the Senate, to seven-year overlapping terms.The agenda at each of the meetings at issue included a discussion and update on the 6-Mill Levy by Molly Bell("Bell") of Hilltop Public Solutions.The 6-Mill Levy is voted on every ten years by Montanans and was on the 2018 statewide ballot.It provides around 10% of the total state funding for the MUS or approximately $19 million a year.

¶6 In March 2018, Timothy Adams("Adams") filed a complaint with the Commissioner alleging that members of the Board, including Regent Sheehy, violated the Ethics Code by soliciting support of the 6-Mill Levy ballot issue while using public resources during the Board’s meeting on May 26, 2017.During the May 2017 Board meeting, Regent Sheehy asked two questions of Bell, which the Commissioner deemed a violation of the Ethics Code.First, Regent Sheehy asked: "Some of us are serving on the committee [the committee supporting passage of the 6-Mill Levy], some of us more actively than others.I’ve been unable to come to most of your meetings so far, but is there anything else we can do as Regents to support this effort?"Regent Sheehy then followed up with a second question: "As you start the effort, do you have any impressions as to how informed the electorate is, how much work we have left to do?"

¶7 The Commissioner found in its Summary Decision on April 25, 2018, that, while Regent Sheehy volunteers her time as a member on the Board, she was a "public employee" subject to the jurisdiction of the Commissioner.The Commissioner further found that, though Bell’s presentation to the Board was incidental to the Board’s duties, Regent Sheehy’s questions amounted to an ethical violation by soliciting support for a ballot issue in asking her questions while using public time, facilities, and equipment.

¶8 On May 25, 2018, Regent Sheehy filed a petition with the District Court seeking judicial review of the Commissioner’s Summary Decision and declaratory relief.Regent Sheehy brought five separate claims and moved for summary judgment on two dispositive claims: 1) that she is not a "public employee" or a state employee subject to the jurisdiction of the Commissioner; and 2) that, regardless, she did not violate the Ethics Code.

¶9 On February 22, 2019, the District Court issued a declaratory ruling in favor of Regent Sheehy’s two claims.The District Court ruled that the Commissioner did not have jurisdiction over Regent Sheehy since under § 2-2-136(1)(a), MCA, it is clear that the Legislature did not intend to grant the Commissioner jurisdiction over "public employees," and the Commissioner’s jurisdiction to enforce the Ethics Code extends only to a "state officer, legislator, or state employee."The District Court also determined that Regent Sheehy is not a "public employee" and that, regardless, Regent Sheehy did not violate the Code of Ethics.The Commissioner now appeals.

STANDARDS OF REVIEW

¶10This Court reviews a final agency decision and a district court’s findings of fact under the same standard of review.Molnar v. Fox , 2013 MT 132, ¶ 17, 370 Mont. 238, 301 P.3d 824.We review the findings of fact to determine whether they are clearly erroneous and the conclusions of law de novo to determine whether they are correct.

Molnar , ¶ 17.The interpretation of a statute is a question of law that is reviewed for correctness.Mont. Dep’t of Revenue v. Priceline.com, Inc. , 2015 MT 241, ¶ 6, 380 Mont. 352, 354 P.3d 631.Regarding constitutional interpretation, we exercise plenary review.Cross v. Van Dyke , 2014 MT 193, ¶ 5, 375 Mont. 535, 332 P.3d 215.

DISCUSSION

¶11 Under the 1972 Montana Constitution, the Board is vested with the "government and control of the Montana university system" and is "responsible for long-range planning, and for coordinating and evaluating policies and programs for the state’s educational systems."Mont. Const. art. X, § 9.The Board has the "full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system ...."Mont. Const. art. X, § 9.¹

¶12 The 1972 Montana Constitution also established that the "legislature shall provide a code of ethics prohibiting conflict between public duty and private interest for members of the legislature and all state and local officers and employees."Mont. Const. art. XIII, § 4(emphasis added).As provided in the Montana Constitutional Convention Notes, the Ethics Code provision applies to not only legislators but also "other public officials ."Mont. Const. art. XIII, § 4(emphasis added).Indeed, the framers’ concern centered on conflicts of interest arising between public duty and private interest.Verbatim Transcript of February 23, 1972, 4 Montana Constitutional Convention , at 796-97(1981).As such, the Ethics Code enacted by the Legislature in 1977 is an aspect of Montana’s Sunshine Laws and is liberally interpreted in favor of openness.See Verbatim Transcript of February 23, 1972, 4 Montana Constitutional Convention , at 796(1981);Associated Press v. Crofts , 2004 MT 120, ¶ 22, 321 Mont. 193, 89 P.3d 971.

¶13 In interpreting statutes, our role is to "ascertain and carry out the Legislature’s intent."Mont. Fish, Wildlife & Parks v. Trap Free Mont. Pub. Lands , 2018 MT 120, ¶ 14, 391 Mont. 328, 417 P.3d 1100(citation omitted).First, we look to the plain language as enacted by the Legislature and "interpret the statute as a whole, without isolating specific terms from the context in which they are used by the Legislature."Trap Free , ¶ 14.Where the statutory language is clear and unambiguous, "the statute speaks for itself."Trap Free , ¶ 14.However, where the plain language of the statute is ambiguous, we will rely on "other canons of statutory construction."Trap Free , ¶ 14.

¶14Issue One: Whether a member of the Board of Regents is considered a public employee under the Montana Code of Ethics.

¶15 The Commissioner asserts that the District Court erred by holding that a Regent member is not a public employee subject to the Ethics Code.The Commissioner argues that a Regent member fits the definition provided in the Ethics Code of "public employee" since a Regent member is "a member ... of a board, commission, or committee with rulemaking authority."Section 2-2-102(7)(c), MCA.We agree.

¶16 The purpose of the Ethics Code is to prohibit "conflict between public duty and private interests" for "other officers and employees of state government."Section 2-2-101, MCA.The Ethics Code specifically defines a public employee as "a member ... of a board, commission, or committee with rulemaking authority."Section 2-2-102(7)(c), MCA.

¶17The statute is clear and unambiguous.The plain language of the Ethics Code indicates that it applies to Regent Sheehy and members of the Board since they are members of a board with rulemaking authority.The Board’s rulemaking authority is clear in that it is authorized to "adopt rules consistent with the...