The Montana Public Service Commission voted Wednesday not to rescind a letter sent to Gov. Greg Gianforte by the commission vice president last month asking him to suspend commission President Brad Molnar while an investigation into Molnar's professional conduct is ongoing.
The 3-2 vote not to rescind Commissioner Jennifer Fielder's letter to Gianforte happened after about three hours of a contentious meeting that showed firsthand the widening divides between some members of the five-person elected body -- currently composed of only Republicans -- that regulates Montana utilities.
In the end, the vote means that the governor can continue to consider a suspension for Molnar, though the PSC's own attorney even acknowledged that the law Fielder is attempting to utilize to suspend Molnar has never been tested in court before. The hearing was rife with questions about whether the letter was sent legally without a vote from commissioners.
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Commissioner Jeff Welborn, presiding as chairman of the hearing for the day, ended up casting the deciding vote, joining Fielder and Commissioner Annie Bukacek in opposing rescinding the letter. Molnar and Commissioner Randy Pinocci unsuccessfully voted to take the matter out of the governor's hands.
On July 29, Molnar and his attorney announced in a press conference outside PSC headquarters in Helena that Molnar was under internal investigation, contending the process was so secretive he was not being afforded due process and that the PSC was incorrectly interpreting the law regarding investigations into elected officials.
406 Politics Montana PSC president's conduct under investigation; Molnar alleges inquiry is 'illegal' Blair Miller
He and his lawyer, Matthew Monforton, have maintained since then that Molnar has not been told exactly what he is being investigated for and that he is not receiving due process. They have also voiced suspicions about the PSC's internal code of conduct and claimed that the investigation is being conducted in response to his fervent questioning of NorthWestern Energy, whom Molnar has accused some commissioners of being too cozy with.
The PSC has maintained throughout that it is committed to a fair and lawful process for Molnar and that it is following its own internal regulations and guidelines for when an employee files a complaint against another PSC employee regarding harassment, discrimination, retaliation, or other code of conduct violations. Fielder's letter asks the governor to consider suspending Molnar so the PSC's response team can finish the internal investigation, which the letter accuses him of stymying.
Two PSC staff members who work closely with the commission -- executive director Alana Lake and commission secretary Patricia Trooien -- were the first to testify at Wednesday's hearing, and both urged the commission not to rescind the letter and to allow Gianforte to consider a suspension.
Trooien, who has been with the PSC for nearly five years, pleaded with Molnar to cooperate with the investigation, saying she had seen his "good heart" and knew he had the capacity for compassion and fairness. But she said his refusal to cooperate was damaging him, fellow staffers and commissioners, and the agency at large.
"Commissioners, I ask all of you to carefully consider your actions today and consider the toll this situation has already taken on commissioners and staff," she said. "Recalling Commissioner Fielder's letter would effectively send a message to all staff loud and clear: You don't matter."
Lake said she was speaking on behalf of herself, not the commission, and reminded commissioners she as executive director has a legal duty to investigate such professional misconduct reports and to make changes if claims are substantiated.
She said Molnar had told her directly he'd "take out anyone involved" in the investigation against him, adding she had seen ongoing and escalating retaliation from the Laurel commissioner, as well as "skillful political theater" through his press conference and commission meeting statements.
"I urge the commissioners to carefully consider the gravity of these impacts, not only on our agency, but on the integrity of our state as a whole. And I urge the governor's office to take the difficult but necessary steps to support us in safeguarding this process and restoring confidence in our work," Lake said.
Most of the meeting centered on the five commissioners discussing Molnar's alleged actions that led to the complaints in the first place. Those remain confidential, but Fielder offered that there were incidents reported dating back to February that fell into the categories of sexual harassment (Molnar admitted being told he had made a joke involving "sexual innuendo"), discrimination or creating a hostile work environment.
Fielder said she had counseled him individually and with the PSC's chief lawyer about the alleged instances before the complaints were elevated to a formal process.
She also maintained that Molnar's press conference he held and other statements he's made since then have constituted retaliation because they might pressure the person who made the report, or witnesses in the investigation, not to come forward to report such allegations in the future.
Fielder also said the preliminary investigation, which is not complete, substantiated at least one retaliation claim against Molnar.
Molnar said he has not signed contracts for outside counsel to conduct the investigation, which he said needed to be approved by a majority of the body. He also believes that a majority of commissioners needed to be consulted and vote before Fielder could send the letter on the response team's behalf.
But Fielder said she believes that the law which is being utilized to try to get the governor to suspend Molnar has to do with the administrative process and not discipline, hence it should not be subject to a vote.
"The request to the governor is not a request to discipline President Molnar. It is simply a request to place him on administrative leave because he can't refrain from interfering in this process," she said.
406 Politics Updated: VP of Public Service Commission asks Gianforte to suspend commission president Victoria Eavis
Molnar said over and over that he would be OK with the response team's actions as long as the commission voted to ask for a possible suspension. Otherwise, he contended, the governor would be "overturning" his rightful election and disenfranchising the roughly 200,000 constituents Molnar represents.
"How can I retaliate against an action where I don't know what's going on?" he said. "It's trumped up. It was designed for the governor to put me on suspension, possibly without pay."
Bukacek, in an ongoing and public spat with Molnar, attended remotely but said she originally planned not to attend the hearing at all. She said she did so she could address "untrue statements" made by Molnar. She also confirmed she had made complaints against Molnar.
At one point in the hearing, she interrupted Molnar to say the meeting had already gone on for an hour and a half.
"I don't care. If you don't want to stay, shut it off," Molnar quickly retorted. Welborn stepped in to turn down the temperature.
Commissioner Randy Pinocci, who ended up voting with Molnar to rescind the letter, said he had previously felt railroaded by the commission when it didn't back him up when he was accused of filing complaints against a former commissioner.
"I don't want to see anyone in the situation I was in, and I think we should have had these meetings before that letter was sent," he said. "And it looks suspicious under the situation that the president was under a time of surgery when this letter was sent -- within 24 hours of a $4 billion deal of a merger with NorthWestern Energy. It just smells bad."
Welborn tried to secure concessions from Molnar that he would abide by the investigation if Welborn voted to rescind the letter, which Molnar somewhat coalesced to. But he also told Molnar the ongoing fight had disrupted the agency, and that if he had worked with investigators "we probably wouldn't find ourselves here."
Exactly how long it might take Gianforte to decide on whether to act is unknown. Fielder said Gianforte had asked for arguments on the matter from both parties -- something the governor's office did not confirm by deadline. But after the 3-2 decision from the PSC, the matter will remain in his hands. Fielder, near the end of the hearing, told the committee that the whole investigation should have already come and gone.
"This would have been done, water under the bridge, months ago if Commissioner Molnar had simply acted in a rational way as any other mature human being would act under the anticipated code of conduct policy and the response team process," she said. "But that's not happening."
Blair Miller is the editor for the Montana State News Bureau. Prior to that, he was a reporter at the Daily Montanan and a digital reporter, editor and photojournalist at TV news outlets in Denver, Albuquerque and mid-Missouri.
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