Judge bars Gianforte from suspending PSC president
Keila Szpaller
(Daily Montanan) A district court judge has blocked Gov. Greg Gianforte from suspending Public Service Commission President Brad Molnar after ruling a complaint to temporarily remove him is invalid.
In granting a temporary restraining order on Thursday, Lewis and Clark County District Court Judge Mike Menahan said state law requires “good cause” and a valid complaint to remove a commissioner.
But the judge said the suspension request from PSC Vice President Jennifer Fielder to Gianforte was “procedurally defective” because it was made without a properly noticed meeting and without a “yes” vote of four commissioners — as mandated by Public Service Commission policy.
The judge said Molnar, an elected member of the PSC, was in danger of irreparable harm.
“Despite these procedural violations, Governor Gianforte has not dismissed the complaint and has requested briefing from both parties, creating immediate risk of unlawful suspension,” Menahan wrote.
Wednesday, the Public Service Commission voted 3-2 to reject Molnar’s bid to recall the complaint to the governor.
Fielder made the suspension request on behalf of an internal “response team” investigating Molnar for “unprofessional conduct.”
She and others argued Molnar was interfering with the investigation, and the temporary suspension was necessary for the response team to complete its work unimpeded.
Molnar argued at least some of the actions in question — such as holding a press conference about the investigation and raising concerns about due process — are protected speech.
His lawyer, Matthew Monforton, had earlier said Gianforte should have immediately dismissed the complaint from Fielder. He praised the restraining order Thursday.
“The court confirmed that even governors must follow the rules, and Montana voters’ choice must be respected,” Monforton said.
PSC spokesperson Alana Lake said the agency looks forward to presenting the facts in the case to “ensure the truth is heard in this matter.”
“We are deeply disappointed that this situation distracts from the important work of our agency,” Lake said in an email. “Every day, our staff is focused on protecting ratepayers, ensuring safe and reliable utility services, and holding companies accountable to the public interest.
“We will continue to do what we have always done: Operate in a manner grounded in law, fact, and fairness.”
The judge said granting a temporary restraining order was necessary because the voters of Molnar’s district could lose representation if he is suspended — “a harm that cannot be remedied by later restoration to office.”
He also said a suspension would nullify the November 2024 election results in PSC District 2, in southeastern Montana, and Molnar has duties that cannot be performed retroactively.
The judge said the matter is time sensitive because it comes on the heels of an announced merger between NorthWestern Energy and Black Hills Corp, a proposal that requires approval by the PSC.
Molnar was a member of the Public Service Commission in 2007 when it considered and rejected the sale of NorthWestern Energy to Babcock and Brown, a company that later went bankrupt.
“The timing of the threatened suspension would remove Commissioner Molnar’s unique institutional knowledge during the critical $3.6 billion NorthWestern Energy merger review, depriving Montana ratepayers of his proven expertise in scrutinizing utility acquisitions,” the order said.
Fielder has said the response team made its decision to file a complaint with the governor after it received “substantiated evidence” Molnar was engaging in retaliation — a claim his lawyer has described as “inflammatory.”
A PSC spokesperson also has said the complaint is related only to Molnar’s unprofessional conduct and is not connected to the proposed merger.
The order said it does not prevent Gianforte from exercising his authority to consider “properly filed complaints that comply with all applicable procedural requirements.”
But it said Molnar was elected into the post of commissioner and then as PSC president, and he will continue to serve in that capacity “during the pendency of this order with all rights, duties and responsibilities.”
The order also said the PSC policies are important to democracy.
“This Court finds that the procedural safeguards established by PSC Rule 2.17 serve essential democratic functions by preventing individual commissioners from acting unilaterally to remove elected colleagues, ensuring transparency in attempts to nullify election results, and providing due process protections,” the order said. “Allowing Defendant Fielder to bypass these mandatory requirements would render such safeguards meaningless and create a dangerous precedent for circumventing democratic process.”
The order noted Fielder had marked the complaint to the governor as “CONFIDENTIAL” and failed to notify Molnar about it.
However, the judge said if legitimate concerns about Molnar exist, Fielder is free to pursue relief through proper procedures.
In this case, he said the balance of equities “tips decisively in Commissioner Molnar’s favor.”
“He seeks only to enforce existing legal requirements, specifically that government officials must follow their own mandatory procedural rules,” the judge said. “Defendants suffer no cognizable harm from being required to comply with the PSC’s own established procedures.”
The Daily Montanan has requested comment from the Governor’s Office.