HELENA – The state political practices commissioner has dismissed a Republican lawmaker’s complaint that Democratic Secretary of State Linda McCulloch improperly use public resources to solicit opposition to a ballot issue.

Commissioner Jonathan Motl on Friday found insufficient evidence to justify a civil or criminal prosecution against McCulloch as Senate President Jeff Essmann, R-Billings, had sought in his complaint filed Nov. 3, the day before the general election.

Essmann contended that McCulloch improperly used her office’s summer newsletter, sent by email starting in April to 100,000 voters, to oppose Legislative Referendum 126. The ballot issue sought to end the ability of people to register to vote up until Election Day and would have moved the registration deadline to 5 p.m. the previous Friday.

Voters rejected LR-126 by 57 percent to 43 percent.

At issue was language in McCulloch’s newsletter that said: “We are lucky to live in a state that allows folks to register to vote right up through the close of polls on Election Day. It’s a smart law that guarantees no voter is denied their right to cast a ballot. Since 2006, more than 29,000 Montanans have registered and voted on Election Day ...”

Essmann, who will serve in the House in 2015, had called McCulloch’s emails “a misuse of her elected office.”

In dismissing the complaint, Motl concluded the newsletter contained no express advocacy.

“There is no reference to a ballot vote in general or LR-126 in particular in the (secretary of state's) newsletter language,” Motl said. “There is no exhortation urging a vote for or against anything.”

As for McCulloch using public funds and staff to prepare the newsletter, Motl said there’s nothing wrong with the use of public resources “to accomplish a legitimate public purpose task, even if the task leads to information or data that may find its way into discussion in a political campaign.”

Government agencies like McCulloch’s office are natural repositories of information related to their areas of authority.

“Accordingly, agencies should be expected to (and commended when they do) provide information and data to the public that is of use to an elector when making an election decision,’ Motl said.

McCulloch was pleased by Motl’s decision.

“I’m glad it’s over with,” McCulloch said Montana. “I feel bad for the time this silly complaint occupied for the commissioner of political practices. I will continue as I always have as Montana’s chief elections officer to ensure that Montana’s elections remain fair, accurate and accessible to all eligible voters.”

Essmann said the ruling shows why the political practices office needs to be restructured.

“You’ve got a partisan Republican (Essman) who looks at it in one matter who sees the problem, and you’ve got a partisan Democrat (Motl) who looks at it and doesn’t see a problem,” Essmann said “It should be reformed so there is a bipartisan commission responsible for making decisions on whether cases should be prosecuted or not, so it’s just not just in the eye of the beholder.”

Essmann said he believes a bill will be introduced in the Legislature to propose such a restructuring of the office, but said he wasn’t comfortable identifying the sponsor at this point.

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