MISSOULA — Legislative candidate David Lewis wrote “none of your business” or “NOYB” on every line of the state disclosure form designed to deter abuses of power by public officials.
The form was accepted and filed without question. No one told the Billings candidate that his non-answers broke state ethics law. Had he been elected, it is unlikely the violations would have been flagged or would have triggered any penalties.
Montana’s system to monitor conflicts of interest among legislators received a failing grade in an analysis by the nonpartisan investigative reporting outfit, the Center for Public Integrity.
Some legislators ignore or flout the rules that do exist and no one has been sanctioned for breaking them in decades – if anyone is monitoring at all. Although legislators cannot take their seat without filing a financial disclosure form, no one ensures state officials fill them out completely.
The two-page document was intended to be the baseline by which the public can gauge if elected officials and state employees misuse public posts. It is a key component of the law designed to fulfill a requirement in the Montana Constitution that they must work for the public and not themselves.
“It identifies the private interests that may impact a legislator’s ability to serve the public trust,” said Helena attorney Jonathan Motl, who served as the Commissioner of Political Practices until recently.
Candidates are required to list financial ties that could become conflicts when making decisions, such as employment, investments, properties and organizational memberships. Although most of that information is publicly available, the form consolidates it for voters without the time or expertise to search through property records and business filings that can be obscured through multiple layers of ownership.
Open-government advocates also argue that disclosing potential conflicts deters elected officials from questionable actions in the first place because they are more cognizant of areas where they might face ethical challenges.
Lewis, the Billings candidate, said he did not complete the form as required for two main reasons.
First, he said, he filed only as a placeholder candidate for the Republican Party in case someone else decided to run. He was surprised when he came so close to winning, securing 41 percent of the vote in a race for House District 54 against Democrat Margaret MacDonald.
Second, Lewis said he finds disclosure requirements fundamentally flawed. He sees the form as an effort by state government to control who is qualified for office and to make it easier for political parties to find new material for campaign attacks.
He also panned campaign finance rules and disclosure requirements that he thinks protect the power of the traditional political parties and do nothing to stop unethical contributions because those with means simply exploit loopholes.
Lewis said the public should be responsible for “doing your homework” by poring through public records without assistance from disclosure forms. Uncovering public corruption should be the responsibility of the press, not state government, he argued.
“I don’t need to make the job easier for anyone. I don’t need to expose myself,” he said, drawing a parallel to President Donald Trump’s decision not to disclose his tax returns despite a decades-long tradition of public transparency. “How do these things help protect the public anyways? They don’t.”
He noted that public disclosure laws did not stop former Denver Mayor Frederico Pena from deciding to build Denver International Airport on land owned by contractors and banks that contributed heavily to his campaign. The scandal was investigated and brought to light by local news media -- with reporting that relied heavily on public financial and campaign disclosures.
Aside from questions about whether ethics laws should be strengthened or ended entirely, Lewis’ string of NOYBs serve as an extreme example of flaws in the system designed to serve Montanans’ right to know.
Disclosure forms are filed with the Commissioner of Political Practices. Yet, that office has no explicit authority to audit them, to ask legislators to fill out missing information or to sanction those who refuse. It also has not enforced what level of detail is required on the D-1 form.
The power to police legislative ethics lies with legislative ethics committees. Since the current version of the law was approved in 1993, they have never reviewed or enforced disclosure-form requirements.
In many states with stronger laws, ethics compliance is monitored by an independent commission with some level of enforcement power.
Unlike Lewis, most Montana leaders do fill out the disclosure form. But some provide more information than others. In some cases, the form is not clear about what details should be provided. In others, legislators seemingly ignore the directions.
One section asks elected officials to list all property they own except their personal residence, including second homes, rentals, commercial buildings and mineral leases. Of the 77 legislators who reported owning property, 29 provided addresses, 24 named a city or county but did not list addresses, and 24 did not provide any location information.
A search of Montana property records showed that at least 14 people who did not report owning any property beyond their home did in fact own multiple properties. That tally might be higher if they own properties through trusts, companies or under a spouse’s name. It also does not include people who reported some properties but not all of them.
Among those who provide abundant detail is Sen. Ed Buttrey. The Great Falls Republican lists the addresses of a condo in Bigfork, a house in Whitefish, 12 boat slips, and 15 presumably rental properties in Great Falls. Similarly, Sen. Jon Sesso, D-Butte, lists rental properties and the building for a restaurant managed by his wife.
By contrast, Rep. Jim Hamilton, D-Bozeman, listed a rental “office building in Bozeman” and a “cabin and 40 acres... in Ringling” without addresses. Rep. Dan Bartel, R-Lewistown, listed properties without any geographic identifiers, only writing: resident house, cabin, mining claim, 2nd home, rental house, and rental commercial real estate.
Similar variances are seen in response to other disclosure questions.
For instance, many legislators report they have a retirement plan but only a handful identify the name of the fund or company that manages those investments. Even fewer attached a list of the companies or properties in which they have invested, as part of a retirement plan or otherwise.
Many state legislators proudly list roles in community organizations on campaign websites, but not all of those groups are shared on disclosure forms.
To veteran Bozeman Democrat Sen. Mike Phillips, the correct thing to do is be clear.
“They shouldn’t leave anything blank and they should fill out the forms. If you don’t want it to be anybody’s damn business then don’t put your name on the ballot,'' Phillips said. "You give up a great deal of your privacy when you seek a public office.
"What representatives sometimes fail to realize is we’re just employees. The districts we’re from voted for us. We’re employed by all the citizens of Montana. My boss deserves the right to know what I do with my time that may impact my ability to do my job.''
Who will close the gaps in legislative oversight is less clear.
Some legislators interviewed suggested they could discuss the issues at the July meeting of Legislative Council, which oversees rules and procedures for the body, among other duties. Others did not think changes were needed, seeing the existing system as functional if imperfect.
Motl, the former commissioner, believed that office could take on a more active role in monitoring disclosure forms as well as other enforcement areas that have been neglected for years.
“The public’s attention has justifiably been focused on campaign finance,” Motl said, describing the need to resolve a backlog of complaints, the rewrite of Montana’s law after a U.S. Supreme Court decision gutted the previous one, an investigation into illegal campaign coordinating, legislative efforts to neuter or restructure the office, and then a relatively “clean” set of campaigns in 2016.
“I think once you see campaign finance become less of an issue you’re going to see attention paid by the public to ethics and lobbying.”
Commissioner Jeff Mangan, who took over the post this summer, said the completeness of disclosure forms had not been on his radar and was far down his initial list of priorities.
“At this point, I don’t have any plans,” he said. “It’s something I plan to take to the next legislative interim committee since it’s come up, to ask how they would like for us to deal with this.”
Without a significant investment in new staff, he questioned how his office would verify the submitted forms.
“It’s a lot of work. How do you determine what’s sufficient versus deficient disclosure?” he asked. “We have a duty to the citizenry to be as open as possible. That’s easier said than done.”
Tomorrow: It's not easy for citizens to file ethics complaints against legislators.