Molnar v. Fox

Molnar v. Fox, 2013 MT 132 (May 15, 2013) (5-0) (Rice, J.)

Issue: (1) Whether Fox had standing to file an ethics complaint against Molnar; (2) whether Molnar received unlawful gifts; (3) whether Molnar improperly used state facilities for political purposes; and (4) whether the penalty statute for ethics violation is unconstitutionally vague.

Short Answer: (1) Yes; (2) yes; (3) yes; and (4) no.

Affirmed

Facts: Brad Molnar served two terms as Public Service Commissioner for district #2, encompassing Billings and southeastern Montana. In the summer and fall of 2008, Molnar was serving his first term and was running for reelection. Mary Jo Fox, a resident of district #2 and campaign manager for Molnar’s opponent, filed four complaints against Molnar with the Commissioner of Political Practices, alleging (1) Molnar accepted two checks for $1,000 each from Northwestern Energy and PPL Montana, to support the Billings Brownout, then used the Brownout brochures in his campaign; (2) Molnar used his PSC email address, phone number, and computer in his reelection campaign; (3) Molnar used his PSC-issued cell phone to advertise for a roommate; and (4) Molnar used his PSC computer, laptop and email for campaign purposes.

The hearing examiner, Prof. William Corbett of the UM Law School, was appointed as hearing examiner. He conduced a three-day hearing, after which he issued a proposed decision determining that Molnar violated § 2-2-104, MCA, twice by receiving gifts of substantial value from Northwestern and PPL, and violated § 2020121, MCA, five times by using state facilities and equipment for election purposes. Prof. Corbett recommended a fine of $2,000 for the violations of § 2-2-104, and $3,750 for the violations of § 2-2-121.

The Commissioner made minor revisions to Prof. Corbett’s proposed decisions, and affirmed. The Commissioner also ordered Molnar to pay $14,945 for the costs of the hearing.

Procedural Posture & Holding: Molnar petitioned for judicial review of the Commissioner’s decisions. The district court affirmed, and Molnar appeals. The Supreme Court affirms.

Reasoning: (1) Standing before an administrative agency is governed by statute. Section 2-2-136(1), MCA, gives any “person” standing to filed an ethics complaint.

(2) A public officer breaches his ethical duty when he accepts a gift of substantial value that would tend to improperly influence a reasonable person to depart from the impartial discharge of his duty. § 2-2-104(1)(b)(i), MCA. A gift of substantial value is defined as any gift worth more than $50. The Commissioner has interpreted “gift” broadly to mean something voluntarily given to another without compensation. Under a deferential standard of review, the Court concludes that the Commissioner’s definition is proper. The Court affirms the holding that the gifts would tend to improperly influence a reasonable person in Molnar’s position.

(3) The Court holds that § 2-2-121(3) permits elected officials to user their time to pursue election activities as long as they do not use public facilities, equipment, supplies, or funds. Molnar’s use of his PSC email address and phone number was a use of public facilities. Additionally, Molnar’s use of his state computer and laptop was a use of public facilities.

(4) Molnar offers a very brief argument that fails to carry the burden of demonstrating the statute is unconstitutional.