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November 16, 2006


Dennis Unsworth
Commissioner of Political Practices
1205 8th Ave
P.O. Box 202401
Helena, MT 59620-2401

Dennis,

I recently wrote to you discussing the issue of FWP employee lobbying of the Legislature.  Allow me to raise another, related concept.

In a variety of cases, the courts have looked at what is unacceptable influence by public employees, on the job and using taxpayer resources, upon the process of public policy formulation.  I will get to what guidelines the courts have established in a moment, but first allow me to set the stage with the maxim that government is a creature and creation of the people, is a servant of the people, and is founded on their will only (M.C., Article II, Section 1.)  This means that the servant should not drive policies which constrain and direct the servant, at the risk of turning this principle on its head.

In looking at public employee influence on elections and policy formulation, especially when any taxpayer funds are consumed or expended, the courts have agreed on two general principles (not in particular or relevant order):

First principle.  Both the proponents and opponents of a public policy issue have an equal stake in any taxpayer-derived resources utilized to influence the outcome of a public policy debate (called the "equal stake doctrine").  Therefore, any use of taxpayer-derived resources vis-à-vis the formulation of public policy must be neutral, or balanced, or both.  This policy was applied in Montana in Benson, et al v. Montana where an election on a constitutional initiative was voided because public employees had illegally influenced the outcome of the election by expending taxpayer resources urging voters to "Vote NO" on the initiative at the election.

Both this argument and basic fairness requires that those entrusted with the strings to the public purse must not use the power of the public treasury to influence public policy decisions properly decided by the peoples representatives, the Legislature, or by the people themselves at an election.  And, the power of the public treasury includes the paid time of public employees during the time when they are working on the public payroll at taxpayer expense.

Second principle.  When the Legislature appropriates funds for expenditure by executive agencies, no legitimate part of the purpose of that appropriation is to influence public policy and public decision-making bodies, such as the electorate or the Legislature.  Although the Legislature may appropriate funds generally for "administration" of an agency's mission, or for something else such as public relations, the Legislature does not specifically appropriate funds for the purpose of lobbying the Legislature.  Such a purpose would not be proper, and is not a specific line item in executive branch budgets.  Thus, the courts have held, expenditure of public funds or public employee time to influence public decision-making is an unlawful expenditure of public funds.  Any such expenditure is theft just as clearly as if a public employee dipped into the public treasury to buy his spouse a fur coat or something else totally unrelated to the specified purposes of the appropriation.

I do not assert that these principles would apply to the time of elected officials, although the principles would probably apply to any public funds used by elected officials to advocate for or against public policy decisions.  I do not assert that these principles would apply to any public employee pursuing a private agenda on his or her own time, when not on the public payroll and not using public funds in any other way.  And finally, I do not assert that these principles apply to a public employee who is simply providing information to a decision-making body (such as the Legislature) upon request, when the information provided does not advocate, or have the appearance of advocating, a pro or con position on a pending matter of public policy formulation and decision.

I request that when you receive applications from governmental agencies to register lobbyists that you be careful to ascertain that the payments to pay for these registrations are drawn on accounts for which it is an appropriate and stipulated purpose to influence the Legislature.  More specifically, I request that you reject the lobbyist registration applications from any governmental agency or for the employees of any governmental agency unless it can be demonstrated that any government payments used to pay for the registration are drawn on an account with a legislatively-approved budget line item specifically for lobbying the Legislature.  I encourage you to avoid coming to be in a position similar to that of someone fencing stolen goods.  If you have any question about whether or not a particular agency's budget contains a line item specifically for lobbying the Legislature, I recommend that you inquire of the Legislative Auditor, Scott Seacat, or of the Legislative Fiscal Analyst, Clayton Schenck.

Please let me know what your policy will be in response to this request.

Sincerely yours,





Gary Marbut
President

Cc:    Scott Seacat, Legislative Auditor
    Clayton Schenck, Legislative Fiscal Analyst
    MSSA Board of Directors