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 own time.

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 decide.

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 issue.

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 gary@marbut.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.

Sincerely yours,

Gary Marbut

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
Various legislators
Scott Seacat, Legislative Auditor
MSSA Board of Directors
MSSA Members
News Media

This letter as an MSWord (.doc) file.