Original sent on the letterhead of the
Montana Shooting Sports Association
January 23, 2007
Chris Smith, Deputy Director
Department of Fish, Wildlife and Parks
1420 E. 6th Ave
Helena, MT 59620
Dear Mr. Smith,
On January 11, 2007, there was a hearing before the Senate Fish and
Game Committee concerning Senate Bill 58. I was present at that
hearing and noted that you appeared and spoke as a proponent for SB 58,
in your official capacity as an employee of the Department of Fish,
Wildlife and Parks (DFWP)
I wish to call to your attention a statute in the Montana Codes
Annotated that specifically prohibits employees of DFWP 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. (Emphasis added)
The purpose of this letter is to demand that you and all other DFWP
employees comply with this law, and that you and all other FWP
employees cease and desist from any and all efforts to influence the
Legislature, committees of the Legislature, and individual
legislators. This letter is to also set a time certain for your
response, and to notify you and FWP that I will initiate legal action
to enforce 87-1-204 if I do not receive written assurance of DFWP
compliance with this demand by the date set below or if I observe or
have evidence of any further violations of 87-1-204.
First, allow me to clarify what is and is not included within this demand, so there will be no questions about what is at issue.
I do not believe that 87-1-204 prohibits any DFWP employee from
expressing his or her views when that employee is not on the job and
not holding himself or herself out to be an employee, official, or
person of official capacity with DFWP. I would define "on the
job" to be during the employees normal and regular work hours or when
that employee is directly or indirectly on the payroll for DFWP.
So, this demand is not at all intended to muzzle any DFWP employee from
engaging in activity protected by the First Amendment on the employee's
I do not believe that 87-1-204 prevents DFWP employees from providing
necessary information to the Legislature or legislators, when that
information is requested by one or more legislators, or when a DFWP
employee is testifying before a legislative committee as an
informational witness only, and when the information provided in not
advocacy - when the information is factual and not overtly persuasive
for or against a pending matter of public policy for the Legislature to
What is prohibited by 87-1-204, I believe, is influence and advocacy
for or against matters of public policy pending before and to be
decided by the Legislature. This would include any DFWP employee
during paid hours who testifies or speaks as a proponent or opponent of
any matter pending before the Legislature, or who provides information
that constitutes advocacy beyond fact or facts only on one side of the
Compliance deadline. I demand that you and other DFWP personnel
comply immediately upon receipt of this letter. I ask that you
notify me of your intent to comply by email within 24 hours of receipt
of this letter, emailing to email@example.com. I require that you
notify me in writing by U.S. Mail of your intent to comply with this
demand by January 30, 2007, replying to Gary Marbut, P.O. Box 16106,
Missoula, Montana 59808. If I do not receive one of these
notifications of intent to comply by the dates stated, I will commence
legal action to enforce the provisions of 87-1-204. The Complaint
for this is drafted.
Time is of the essence; effect of continuing violations. I assert
that time is of the essence in generating DFWP compliance with
87-1-204, and that any attempts to stall the corrections I request will
be seen as an overt attempt to violate the law further. Also, I
assert that every appearance you or DFWP employees make before the
Legislature attempting to influence legislation is a separate and
additional violation of the law, for each individual involved, and
should be viewed, redressed and treated as willful and overt intent to
violate Montana law and is an additional injury to myself and the
people of Montana.
I wish to raise two additional points, in case these should become important later:
1. About spending public funds to influence political processes,
the courts have held that both the proponents and opponents of an issue
have an "equal stake" in any public funds used to influence a political
decision. This is called the "equal stake doctrine."
Therefore, any application of public funds either must be distributed
equally between the proponents and opponents of an issue (such as in
the Secretary of State's Voter Information Pamphlet), or such use of
public funds is a violation of the public trust.
2. About spending public funds to influence political processes,
the courts have also held that generally such spending is not a purpose
for which the funds were appropriated by the appropriating body (the
Legislature in this case). If not appropriated for that purpose,
then any such misspending by public employees constitutes theft,
another violation of the public trust. This could likely be seen
as official misconduct under Montana laws.
I assume that you will understand these to be very serious
matters. I hope to hear response of DFWP compliance with 87-1-204
by the times specified.
Cc: Jeff Hagener, Director, DFWP
Bob Lane, Legal Counsel, DFWP
Governor Brian Schweitzer
Attorney General Mike McGrath
Senator Joe Tropila, Chairman, Senate Fish and Game Committee
Representative Mike Milburn, Chairman, House FW&P Committee
Scott Seacat, Legislative Auditor
MSSA Board of Directors
This letter as an MSWord (.doc) file.