The Politicization of Montana's Political Practices Commissioner

According to an article in the Billings Gazette last week, the Montana Political Practices Commissioner will have to step down from her position, because her nomination by the governor was not approved by the state legislature. Her office, which handles ethics, campaign finance, and lobbying matters, has jurisdiction over local elected officials.

The story of her nomination and non-approval is not one to increase public confidence in the state's ethics program.

Legislative Nominations of Ethics Professionals
According to the governor, the list of four people from whom to select an ethics commissioner, given to him by the two top party leaders from each house, included a former secretary of state who had had legal problems, an ex-lawyer who had been disbarred in two states, a woman completing law school, and the governor's choice, who is married to a state senator, has been an active campaigner and legislative aide, and was a member of her party's state board.

This sends a message to the public that the legislature does not care about appearances of impropriety or, in the case of the law student, in having an ethics commissioner with experience. It is no wonder that the party in power refused to approve the nomination of an active political figure from the other party, but the party in power does not appear to have acted responsibly with its two selections, either.

What occurred makes it clear that selections for the job should not come from the legislature. In fact, they should not come from anyone who is under the commissioner's jurisdiction.

An Ethics Professional with Conflicts
According to an Associated Press article dated March 2, 2011, the acting commissioner (she was nominated in December) denied a request from the governor to dismiss an ethics complaint that had been filed against him. What if she had dismissed the complaint? It would have looked like a reward for having selected her from the list of candidates. And it would have looked like a partisan decision. An ethics program cannot afford to have this happen.

But you can't expect an official not to ask for a complaint against him to be dismissed.

A solution to this sort of situation was raised by the commissioner, but not in this matter. According to an article on the Rivalli Republic website, "when conflicts arise, Hensley intends to recuse herself and find a retired district judge to hear the complaints. That's what she plans to do with two complaints against Sen. Kendall Van Dyk, D-Billings, because she donated to his campaign."

She could have done this with the complaint against the governor, as well. But she likely felt that, since she was not going to dismiss the complaint, there would not be an appearance of impropriety. But the content of a decision should not affect whether an official withdraws from participation in a matter.

The problem with such an ethics commissioner is that she or her husband will have relationships with too many people involved in matters that come before her. You cannot keep turning matters over to retired judges.

Expertise and Appearances
The commissioner is quoted in the Rivalli Republic article as saying, "I'm very proud to be the wife of Steve, a sitting senator, but I'm my own human being with my own opinions. ... The fact is I have to work harder and prove myself. I have to make an extra effort to double and triple check things before I make a decision."

It does appear that she has been working hard and is a competent administrator. But it does not appear that she truly understands government ethics. It is not enough to be your own human being with your own opinions. Government ethics involves appearances, and any time she makes a decision in favor of someone from her party, especially a colleague or former colleague of her husband, it will appear to the public that she is not acting objectively. No amount of work and no amount of integrity can change this.

This situation also shows the advantages and disadvantages of expertise. She is quoted as saying, "I'm not really susceptible to the guile and artifice that complainants and respondents want to pull. I know where to pull the threads to unravel and ask the right questions. I have working relationships with a lot of the political players in the state on both sides of the aisle."

It's good that someone in charge of campaign finance advice and enforcement understands what happens in campaigns. But since the commissioner's understanding comes from relationships with the political players in the state, it comes at the cost of losing credibility, and of politicizing what should be an apolitical position.

Her expertise would be more useful if she were to offer it to her successor, training that individual and making herself available to answer questions about the tactics of campaigns. It is a common mistake to believe that expertise is required of those making decisions rather than of those advising.

Here's what a blogger, in The Western Word, wrote soon after the commissioner was named:

[A]nyone who files a complaint who does not come from Hensley’s political side of the fence will have the feeling that they won’t get a fair shake because of her strong ties to the Democrats.

Additionally, those who are from her side of fence political fence, will have the feeling they have a friendly ear to quickly hear their concerns.

Perception is everything.

Robert Wechsler
Director of Research-Retired, City Ethics

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