Missoula City Council president to enforce ban on electioneering during meetings

City Council president Marilyn Marler said she will enforce the ban on electioneering during council meetings, as has been the case in past years. (Martin Kidston/Missoula Current)

A candidate for Missoula City Council is on notice to avoid electioneering during the public comment portion of council meetings, as the city has long considered that a violation of state election laws.

But Jesse Ramos, a candidate in central Missoula’s Ward 4, said he believes his First Amendment rights allow his introduction as a City Council candidate before making comments.

“I don’t think I’m being transparent if I go up there and don’t mention that I’m running for City Council,” said Ramos, a Missoula financial services adviser. “I think I need to be open and honest.”

Ramos posts MCAT recordings of his council comments on his personal and campaign Facebook pages, and opens each comment by stating his name and address and mentioning he is running for City Council in Ward 4.

Near the end of last Monday night’s meeting, Councilwoman Marilyn Marler said she planned to investigate the legal authority behind the council’s ban on electioneering, then would enforce it during subsequent meetings.

Marler is not running for re-election to her Ward 6 seat, so said she could broach the issue without a conflict of interest. She also is the council president.

After working with City Attorney Jim Nugent to find the citation in state law, she called and emailed Ramos to discuss the issue.

“All he has to do to comply is to avoid saying he’s a candidate for City Council,” Marler said. “I think it’s a good rule. When we talked on the phone, I encouraged Jesse to keep coming and to speak up, just not with the campaign format.”

In an email to Missoula Current, Nugent said the city of Missoula interprets subsection 2-2-121(3) of Montana Code Annotated as applying to all city officers, elected officials, employees and candidates for municipal office “as a matter of equal treatment pursuant to law.”

The subsection prohibits the use of “public time, facilities, equipment, supplies, personnel or funds to solicit support for or opposition to any political committee, the nomination or election of any person to public office, or the passage of a ballot issue.”

“It is the use of public time or public resources in the presentation or furtherance of political speech that is prohibited by subsection 2-2-121(3) MCA,” Nugent explained. “It is not a person’s personal political speech that is prohibited. Public time, public facilities, public equipment, public supplies, public personnel or public funds are not to be utilized for political purposes. It is the use of public time or public resources in the presentation or furtherance of political speech that is prohibited.”

By identifying himself as a political candidate for City Council when speaking during public comment, Ramos “explicitly inserts political candidacy into his public comment and then basically appears to assert a political campaign position in his public comments, which potentially activates legality concerns about the public comment.”

In an email to Ramos, Marler explained the state statute this way:

“Per Montana law (2-2-121(3) MCA), a person cannot use publicly funded resources for campaigning. Since the City Council meetings are publicly funded for the purpose of conducting city business, that means campaigning isn’t appropriate there.

“When you identify yourself as a candidate for office, and later post the videos of your testimony on your campaign Facebook page, it is clearly campaigning. People are also not allowed to pass out campaign materials at a council meeting (I’m not saying you do this). There are candidate forums for that purpose.”

Again, Marler encouraged Ramos “to continue attending and speaking up,” but warned that “it is a very gray area if you do it as part of your campaign. As the council president, I am going to continue speaking up about this on Monday nights, just so everyone knows the rules.”

In an interview, Ramos said he isn’t sure whether he will continue identifying himself as a candidate prior to his comments, but that he does intend to continue utilizing the public comment portion of the agenda to make his views known to the council and the general public.

Council meetings are broadcast live on MCAT, and the recordings are then available via MCAT and the city’s website. (The city owns Missoula Community Access Television.) Under council rules, comments are limited to 3 minutes each.

Marler copied Wilkins, Nugent and city clerk Marty Rehbein on her email to Ramos.

In his response to Marler, Ramos said he believes the ban on campaign identification “sounds much like suppression of free speech.”

“The fact that you are now concerned about the taxpayer is ironic,” said Ramos. “Please, let me know. How many people that are on city payroll are at these council meetings? And of those, how many are paid by the hour? How much, really, would it cost to add 45 minutes to the meeting, if each of the 15-plus candidates spoke (a concern Marler expressed in her original email)? Your point of wasting taxpayer money by making comments during public comment is a veiled way of suppressing my freedom of speech.”

Marler, however, told Missoula Current that it wouldn’t matter if the expenditure associated with electioneering at council meetings was 5 cents or $5, it is still prohibited by state law.

“It can’t be any,” she said. “There are rules. That’s why government employees can’t use their government emails to send a campaign message. It’s not about how much one email would cost, it’s about not using public funds or facilities at all.”

Ramos said he will be at Monday night’s council meeting and will offer comments during the allotted time during the meeting. But he planned to consult with an attorney before deciding whether to identify himself as a candidate. (Update: At Monday’s meeting, Ramos identified himself as a “Missoula citizen” rather than as a candidate.)

“I don’t understand what the concern is,” Ramos said. “I’ve been doing the exact same thing for the last six weeks. Now all the sudden, they’re concerned.

“I’m very open and honest. “I try to follow the rules. Win, lose or draw, I’m going to continue doing the same thing every Monday. Heaven forbid, you should hear from the citizens. That’s what City Council members are paid to do. They’re not going to silence me.”

The Ward 4 race has the most crowded field of candidates in the Nov. 7 general election. Longtime incumbent Wilkins is seeking re-election. A retiree, he faces challenges from blogger Greg Strandberg, builder Chris Badgley and Ramos.

Ramos and Wilkins have developed a prickly relationship in recent weeks, clashing on at least one occasion following a committee meeting. Wilkins also has defended his record on a couple of occasions during the council members’ comment section of Monday’s meetings. That, too, is prohibited if couched as a campaign statement.