How are conflicts of interest handled in a citizen legislature? It's complicated

Austin Amestoy: Welcome to the Big Why, a series from Montana Public Radio, where we find out what we can discover together. I'm your host, Austin Amestoy. This is a show about listener powered reporting. We'll answer questions large or small about anything under the Big Sky. By Montanans, for Montana, this is the Big Why.

Today, reporter Shaylee Rager is coming to us from the state Capitol in Helena. Hi Shaylee.

Shaylee Ragar: Hello from my basement office, Austin.

Austin Amestoy: Yeah, you've been hunkered down in that basement since January, Shaylee, covering the 68th Montana Legislature. And today we've got a question about how lawmakers do their work.

Shaylee Ragar: That's right. And I was excited to dig into this question from Missoula listener Amanda Cahill, who was wondering about …

Amanda Cahill: The history of legislative ethics regarding rules for legislators and being able to bring legislation that would benefit them financially.

Shaylee Ragar: Cahill is a professor of social work at the University of Montana, and she also does some lobbying for public health policy at the Legislature. So she watches the session closely. Basically, she's curious about conflicts of interest.

Amanda Cahill: Seems like it's becoming more and more common for legislators to do that, where, I don't know if we got rid of some rules around that or if there were unspoken kind of decorum rules that people just used to follow more closely. But it seems like that's really gone out the window.

Shaylee Ragar: Her question gets at how lawmakers govern themselves while they go about governing the state.

Austin Amestoy: So what kinds of ethics rules do lawmakers have to follow?

Shaylee Ragar: Lawmakers set some of their own rules, some rules are laid out in law and some are constitutionally required. So, the overarching theme is stated in the Montana Constitution, and that's that lawmakers need to prohibit conflict between public duty and private interest from members of the Legislature and all other state and local officers and employees. That constitutional mandate on ethics is a huge leap from where Montana started.

Austin Amestoy: How so?

Shaylee Ragar: You know about the Copper Kings, right, Austin?

Austin Amestoy: Oh, definitely. Yeah, they were some of the most influential figures in Montana history, and they made a fortune mining copper in the late 1800s, right?

Shaylee Ragar: Yes, those guys. Well, they used their fortunes to turn political tides in their financial favor. For example, in 1903, one copper corporation shut down all mining operations in Montana and forced the calling of a special legislative session to pass policy to their benefit, which lawmakers did. At the time, the law of the land was the 1889 Montana Constitution, which the Copper Kings had a big hand in writing. Renowned Montana historian K. Ross Toole describes this time period in the lecture archived by the University of Montana.

K. Ross Toole: This is a story unparalleled for its violence, unparalleled for its corruption, unparalleled for its viciousness in any other state in the Union.

What's so special about Montana's privacy protections?

The state constitution says the right of privacy is essential to the well being of a free society. Privacy affects issues from electronic data to abortion, and has come into play in decisions by the state Supreme Court. So why did Montana end up with such strong privacy protections and why does it matter today?

Shaylee Ragar: So to answer our listeners question, in the newer 1972 Montana Constitution, we see explicit language requiring that lawmakers adhere to a code of ethics. But since they are the enforcers of that code, there is a lot of gray area in the process.

Austin Amestoy: So what does that code of ethics actually look like in practice then?

Shaylee Ragar: Well, one example happened back in February when the Montana House of Representatives was debating a bill that aims to protect landlords, which opponents say is unfair to tenants. The bill is being carried by Representative Steven Galloway, a Republican from Great Falls and a landlord himself. Galloway didn't disclose that he's a landlord during the opening on the bill. Shortly after, House Minority Leader Kim Abbott stood up during debate.

Chairman: Minority Leader Abbott.

Kim Abbott: Thank you, Mr. Chair. I wanted to disclose that I own rental property and have a financial interest in this bill. Thank you, Mr. Chair.

Shaylee Ragar: Then Representative Eric Matthews, a Democrat from Bozeman, stood.

Eric Matthews: Full disclosure as well, I am a landlord on one property in my district.

Shaylee Ragar: Then Representative Donavon Hawk, a Democrat from Missoula.

Donavon Hawk: I would just like to disclose for the record that I am a landlord and have financial interest in this bill.

Chairman: If there are any other representatives that are landlords and have financial interests, please stand.

Shaylee Ragar: In total, about two dozen lawmakers stood up, including Galloway, who spoke about being a landlord in his closing argument.

Austin Amestoy: Wow. So what happened next? Do those disclosures stop lawmakers from voting?

Shaylee Ragar: No, all 100 members of the House voted on the bill and it passed 60 to 40. This example is illustrative of the squishiness of ethics rules. Lawmakers are mostly working on an honor system when it comes to disclosing conflicts of interest, and there isn't a clear threshold to define when they've crossed a line. State law says legislators may vote on an issue which the Legislature has a conflict with after disclosing the interest. The rules that govern the House say lawmakers who are present have to vote unless the member has disclosed a conflict of interest. So they have the option to just not vote, but I've never seen that happen. The Senate doesn't have an exception for lawmakers who are voting on conflict of interest legislation, but both chambers do have special ethics committees that are on standby to address big ethics questions.

Why is Montana known as the 'Big Sky State'?

Welcome to The Big Why, a series driven by your curiosity about Montana. We'll answer your questions, large or small, about anything under the Big Sky. This is our inaugural episode and we're answering a question that has to do with this show's name: Why is Montana known as the "Big Sky state"?

Austin Amestoy: Right, so those committees act as watchdogs specifically for ethics violations among lawmakers. What kinds of issues have those committees tackled?

Shaylee Ragar: Well, neither committee has met this session. Representative Casey Knudsen, a Republican from Malta, is chair of the House Rules Committee and says he can only remember one meeting of the Ethics Committee in the last few sessions. That was in 2019, and the lawmaker who had to go before the committee was cleared of any wrongdoing. Knudsen says lawmakers have to weigh conflicts of interest with the responsibility to vote on bills like they were elected to do.

Casey Knudsen: Really, if you're present in the chamber sitting in your seat, you have to vote. Now, if you stand up and disclose, 'hey, this impacts me directly. I'm a citizen Legislature, so I'm still voting on it.'

Austin Amestoy: So, this is sounding like a decorum issue like our listener asked about in her question and up for interpretation. Does everyone in the Capitol agree that this is the way things should be done?

Shaylee Ragar: No, actually, there was a proposal this session to establish a threshold aimed at preventing lawmakers from sponsoring or voting on bills that could result in the legislator, an immediate family member or their business earning $5,000 or more. Representative Ed Stafman, a Democrat from Bozeman, brought that proposal.

Ed Stafman: I think as legislators, we have two distinct obligations in this area. One is to act with propriety, of course, but the second is also to avoid the appearance of impropriety. Even if there is propriety, the appearance damages us as a body and as individuals.

Shaylee Ragar: And to answer the second part of our listener's question. It's not clear if there are more ethical questions arising today than in the past. And that's because it's not a well-defined issue that fits in a statistic.

Austin Amestoy: So, Stafman's proposal could eliminate some of the squishiness you were talking about.

Shaylee Ragar: It could, but that bill failed in committee and the opposition made the point that Montana has a citizen Legislature, which is what Representative Knudsen talked about. Montana is one of only four states that has a part time Legislature, meaning lawmakers don't make a living doing this work. Most have other careers or are retired, and they often bring legislation based on their professional experience. Republican Representative Paul Green of Hardin brought up the benefits of that when speaking in opposition to Stafman's bill.

Paul Green: That sets the bar pretty low when we're kind of counting on this body to have an area of expertise, usually they're the ones that are bringing these sorts of bills.

Austin Amestoy: He's saying conflicts of interest can happen and that they're just part of the job.

Shaylee Ragar: Right. And Representative Knudsen echoed that.

Casey Knudsen: You know, I'm a rancher, so I'll bring stuff dealing with water rights or, you know, the guy that's a subdivision planner brings stuff to deal with DEQ. And kind of the line that I've always had drawn, since it is kind of a big gray area, is as long as you're just not one of a small, very small group of people that directly is not just impacted by something but directly benefits. I think that's kind of the line.

Shaylee Ragar: There are avenues for lawmakers to address serious conflicts of interest, but it's up to the lawmakers themselves to decide when to act. State law lays out some guidelines, like whether the conflict impedes the legislator's independence of judgment or impacts public confidence in the integrity of the Legislature. But ultimately, the law states a Legislator may — not must — seek guidance from an ethics committee on those questions.

Austin Amestoy: Well Shaylee, thank you so much for digging into this question for us.

Shaylee Ragar: Happy to help.

Austin Amestoy: Now we want to know what makes you curious about Montana. You can submit your questions at our site, Big Why.org. Find us wherever you listen to podcasts and help others find the show by sharing it and leaving us a review.