Ninth Circuit: Ethics complaint against Bullock, O’Leary was public information

Gov. Steve Bullock

(CN) A Ninth Circuit panel overturned a lower court decision Wednesday in a ruling with implications for how state confidentiality provisions apply to unelected officials versus elected ones.

The three-judge panel ruled unanimously that a Montana state law requiring ethics complaints be kept confidential while the matter is decided by an independent body violates the First Amendment, regardless of whether the complaint involves elected or unelected officials.

“The confidentiality provision of (the law) is overbroad and, at the same time, largely ineffectual in protecting employees’ privacy interests,” U.S. Circuit Judge William Fletcher wrote on behalf of the panel.

The case stems from an acrimonious political dispute between Republican legislator Brad Tschida of Missoula and Montana Gov. Steve Bullock, a Democrat, and his commerce director, Meg O’Leary.

Tschida filed an ethics complaint accusing Bullock and O’Leary of using a state-owned airplane to fly to Missoula to attend a Paul McCartney concert in 2014. Tschida filed his complaint with the state Political Practices Commission in November 2016, which at the time was led by Jonathan Motl.

Because 2016 was an election year and Bullock was seeking re-election, the process was particularly fraught.

When Motl accepted the complaint, he told Tschida it must be kept confidential until his office ruled on its merit. Tschida then accused Motl and his office of foot-dragging to delay the ruling until after a contentious election.

Tschida then released the complaint ahead of the election, despite warnings from the practices commission. Motl later said in a radio interview the state would consider criminal penalties for Tschida’s defiance of the confidentiality provision, but no charges were ever filed. The ethics complaint was later dismissed as frivolous.

Rep. Brad Tschida, R-Missoula

Tschida then filed a civil suit, claiming the confidentiality provision relating to ethics complaints was a violation of the First Amendment.

On summary judgment, a federal judge found the confidentiality law violated the First Amendment, but only as to elected officials – in this case, Bullock – and not appointed officials like O’Leary.

But on Wednesday, Fletcher and the panel found the lower court’s interpretation incorrect and instead focused on the nature of the information the provision was intended to protect.

“Having concluded that the protection of certain kinds of personal information about unelected public employees is a compelling interest, we next turn to whether the confidentiality provision of (the law) is narrowly tailored to serve that interest,” Fletcher wrote. “We conclude that it is not.”

In other words, Fletcher said, unelected officials are entitled to privacy as it relates to medical information or other personal information. But the provision in question is a blanket confidentiality requirement and therefore overbroad, the panel found.

“There is no attempt in the provision to distinguish between constitutionally protected personal information and information that may be revealed without violating the Constitution,” Fletcher wrote.

The ruling is a partial victory for Tschida, since the panel affirmed a finding of qualified immunity for Motl – agreeing “it was not unreasonable for Commissioner Motl to rely on the constitutionality of Montana’s duly enacted confidentiality statute.”