Mailed on MSSA letterhead
MSWord (.doc) version HERE.
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-Ã -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