The Politicization of Montana's Political Practices Commissioner

Anonymous

Tue, 05/10/2011 - 04:25

Campaign Finance

According to <a href="http://billingsgazette.com/news/state-and-regional/montana/article_b7ce…; target="”_blank”">an
article in the Billings Gazette last week</a>, 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 <a href="http://www.ktvq.com/news/ethics-complaint-against-governor-schweitzer-u…; target="”_blank”">an
Associated Press article dated March 2, 2011</a>, 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 <a href="http://ravallirepublic.com/news/state-and-regional/article_458ffca2-e16…; target="”_blank”">an
article on the Rivalli Republic website</a>, "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 href="http://thewesternword.com/2010/12/27/mt-political-practices-perception/…; target="”_blank”">a
blogger, in The Western Word, wrote</a> soon after the commissioner was
named:<ul>

[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.</ul>
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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