HELENA (Daily Montanan) The recent appointment of sitting Sen. Ryan Osmundson by Gov. Greg Gianforte to lead his administration’s budget office has again raised the question about the constitutionality of appointing mid-term legislators to civil office.
The framers of the 1972 constitution made it a point to address the possible conflicts with the separation of powers that may arise with legislators accepting appointments to civil offices.
“The delegates who framed this provision were concerned about the governor exerting undue influence over legislators by offering them the prospect of a job in the administration,” said constitutional scholar Anthony Johnstone, a faculty member of the University of Montana Alexander Blewett III School of Law.
He said the biggest question surrounding the legality of Osmundson’s appointment is whether the budget director position is considered a civil office of the state.
Gianforte’s office announced the appointment of Osmundson on Tuesday. Current budget director Kurt Alme announced he was stepping down after nine months, citing, in part, the difficult commute between Helena and Billings, where his family lives.
Osmundson, 42, has served in the Montana Legislature since 2011, where he has played a central role in shaping the state’s budget and currently serves as the chairman of the Finance and Claims Committee. According to LinkedIn and VoteSmart, Osmundson attended A&P, Aviation, Colorado Aero Tech from 1999-2001 and Montana Wilderness School of the Bible from 1997-1998, and he also has been the owner of Osmundson Ag Services since 2001.
The Buffalo Republican said he was sad to see Alme leave but is excited about the new position and looks forward to working with the Gianforte administration and the challenges of the job.
His biggest reservation in taking the job, he said, was the time commitment. “It’s a big job, so I would be crazy not to have a little bit of fear and trepidation going into it.” One adjustment he noted was transitioning from speaking for himself in the Senate to speaking on behalf of the administration in his new role.
“As a senator, you can have more opinions,” he said.
He said the constitutional question crossed his mind, but he does not believe his appointment is a violation of the constitution.
“In the research that we had done in the past, we landed that since there is no Senate confirmation, that it would not be an issue,” he said.
The governor’s office did not respond to a request for comment on whether it had any concerns about the constitutionality of the appointment or whether it had sought legal review.
A similar situation arose earlier this year when the Republican governor appointed State Rep. Jimmy Patelis of Billings to the Montana Board of Pardons and Parole. Patelis resigned from his legislative seat before the appointment and after asking legislative services’ legal staff for advice.
“The plain language of the Constitutional provision and the Constitutional Convention transcripts seem to prevent a member of the Legislature from taking any civil office during the length of the term, regardless of whether the member resigns,” a legislative attorney told Patelis in emails first reported by NBC Montana.
Gianforte’s office told NBC Montana it did not know about the legal opinion from legislative services and said Gianforte was “fully aware of the laws prohibiting legislators from serving as a ‘civil officer’ on boards” and told Patelis he would not appoint him unless he resigned.
Osmundson has not yet resigned from his Senate position but said he plans on doing so before taking over as budget director on October 1.
While discussing gubernatorial appointments at the 1972 Constitutional Convention, transcripts show delegate Thomas Joyce said, “the effect of it is that a member of the Legislature can’t be appointed to any other office. You cannot be appointed Secretary of State if a vacancy comes there; you cannot be appointed State Auditor; you cannot be appointed a District Judge; you cannot be appointed as a Supreme Court Judge. And that has been the law of Montana ever since 1890.”
Additionally, he said, it would be unconstitutional to resign from the office “which you were elected” and then be appointed.
As a result of the discussions during the convention, Part V, Section 9 of the Montana Constitution was created and states: “No member of the legislature shall, during the term for which he shall have been elected, be appointed to any civil office under the state; and no member of Congress, or other person holding an office (except notary public, or the militia) under the United States or this state, shall be a member of the legislature during his continuance in office.”
Addressing the role Senate confirmation plays in disqualifying a legislator from taking an appointment under Part V, Section 9, Johnstone said, “The constitution speaks for itself here. It says nothing about confirmation, it says ‘appointment.’” He added: “Resignation also doesn’t avoid disqualification: the text is ‘during the term for which he shall have been elected’ not the term he actually serves, which is consistent with the purpose of the rule.”
In a landmark 1927 Montana Supreme Court case regarding the legality of a legislator being appointed to serve on the Board of Railroad Commissioners, the court came up with a five-part test — the Barney test — to determine what constitutes a “public office of civil nature.”
- The office must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature;
- It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public;
- The powers conferred and the duties to be discharged must be defined, directly or impliedly, by the Legislature or through legislative authority;
- The duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature and by it placed under the general control of a superior officer or body;
- It must have some permanency and continuity and not be only temporary or occasional.
- In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority and give an official bond, if the latter be required by proper authority.
Under the test, the Supreme Court ruled that acting as an auditor for the Board of Railroad Commissioners was not holding a civil office but was an employee. The test was most recently used in 1988 when the high court ruled former Democratic Rep. Dorothy Bradley could simultaneously serve as a law clerk and master in Gallatin County. Masters of the court act as mediators and settle civil and criminal cases away from the courthouse.
“A Law Clerk, it is clear, acting as an employee of the court, is not exercising the sovereign power of the state, since he or she is subject to the supervision and control of the judge or justice who is the employer. The question remains whether a Master exercises a portion of the sovereign judicial authority. Again, it is clear that a Master is not a public officer,” the court ruled.
In the case of Patelis, a legislative attorney told him he believed the board position would constitute a civil office, based on the five-part test established by the Montana Supreme Court.
However, there is no legal ruling on whether the budget director constitutes a civil office. And Osmundson requested no legal opinion from legislative services prior to the appointment — opinions of legislative attorneys are not legally binding. Legislative Attorney Todd Everts said his office has “not issued an opinion specifically regarding whether the budget director position would potentially constitute a civil office.”