Mailed on MSSA letterhead
MSWord (.doc) version HERE.
November 13, 2006
Dennis Unsworth
Commissioner of Political Practices
1205 8th Ave
P.O. Box 202401
Helena, MT 59620-2401
Dennis,
Greetings from Missoula. Congratulations on your new position.
I understand that one of the functions of the Commissioner is to
receive and process registration for lobbyists, and that any person
must be so registered to legally be paid to appear before the
Legislature.
One would suppose that there are circumstances under which you would
decline to register a person who had submitted an application to be
registered as a lobbyist. An imaginary example might be a person
who failed to sign or otherwise complete the application form, or
failed to include a check to pay the requisite fee. Another
example might be a person under a court order prohibiting them from
lobbying because of adjudicated violations of lobbying laws.
I wish to call to your attention a statute in the Montana Codes
Annotated that specifically prohibits employees of the Montana
Department of Fish, Wildlife and parks from using their official
position for the purpose of "influencing the political actions of any
person or body."
87-1-204. Political activity of employees.
While retaining the right to vote as he may please and to express his
opinions on all political questions, no employee of the department may
use his official authority or influence for the purpose of interfering
with an election or affecting the results thereof or for the purpose of
coercing or influencing the political actions of any person or body.
I believe this statute says clearly and specifically that FWP employees
may not lobby the legislature. Therefore, I believe it would be
improper, perhaps even illegal, for you to allow FWP employees to
register as lobbyists.
I do understand that the Legislature needs to be able to request and
receive information from executive branch agencies. And, I
believe that FWP can provide information, but only when requested by
the Legislature, without lobbying or having their personnel registered
as lobbyists. However, any such FWP personnel providing
information at legislative request would need to testify on matters
before the Legislature as "informational witnesses", not as opponents
or proponents, AND that any information offered under those
circumstances would need to be neutral in terms of influential impact,
or balanced, or both neutral and balanced. Neutral or balanced or
both is the test the courts have devised to determine if or when
provision of information crosses the line into advocacy.
If I were in charge of FWP, under these circumstances, I would want a
written request for information from the Legislature for every occasion
when an FWP employee appeared before the Legislature during the normal
or extended work hours for that employee, and any time an employee is
providing information or comment upon legislation affecting, or
potentially affecting, FWP. Possession of such a file of written
requests, specific to date and topic of request for information, would
help protect FWP employees appropriately providing information from
accusations of having violated 87-1-204.
Under these circumstances, providing information only and only upon a
written request to do so, I believe FWP personnel can still do as much
as is necessary to provide information to the Legislature about
executive branch activities, without being registered as lobbyists and
without violating 87-1-204.
So, I reiterate that if or when FWP applies to register one or more of
their employees as lobbyists, I suggest that you decline any such
application because of 87-1-204.
Thank you for your interest in this issue. Please let me know
what your policy will be in response to this request.
Sincerely yours,
Gary Marbut
President
Cc: Greg Petesch, director, Legislative Legal
Services Office
Scott Seacat, Legislative Auditor
MSSA Board of Directors