Commissioner Fielder calls on governor to suspend Molnar from PSC

Keila Szpaller

(Daily Montanan) Public Service Commissioner Jennifer Fielder has called on Gov. Greg Gianforte to immediately suspend PSC President Brad Molnar, alleging Molnar is stymying an internal investigation into his conduct.

But Molnar has described the demand as “patently unlawful” and a calculated move to oust him as the PSC prepares to consider one of the largest proposed regulatory deals in Montana — a merger between NorthWestern Energy and South Dakota-based Black Hills Corp announced last week.

In Montana, the governor has the authority to suspend a commissioner if the commissioner fails to perform their duties, as described in state law.

In an email, a spokesperson for the Governor’s Office said the governor will review the complaint from Fielder and is committed to due process.

The call for Molnar’s temporary suspension for his alleged interference with the process — and his retort that the demand to the governor is “more about discouraging rigorous oversight of regulated utilities” — is the latest development in the investigation of “unprofessional conduct” by Molnar.

Molnar publicly announced the investigation last month and admitted he was probably guilty of inadvertently offending others at times as a “redneck wearing a white shirt.”

However, he also said he believed the charges didn’t merit the legal bill — potentially $10,000 to outside counsel. Additionally, he argued a resolution should have started with a meeting instead of a full blown investigation.

Monday, Commissioner Randy Pinocci raised a similar matter. He said Fielder should have brought her concerns to the full board and Molnar himself before calling on the governor.

He also said Molnar should have had the chance to voluntarily step aside as president first.

“He didn’t get that opportunity because Fielder did all that behind everybody’s back including the entire organization of the Public Service Commission,” Pinocci said. “That makes us look bad.”

In a letter dated August 20, Fielder told Gianforte it was her “unpleasant duty” to call on the governor for Molnar’s suspension on behalf of a “response team” investigating Molnar.

A PSC policy describes the “response team” as made up of the PSC president (in this case, vice president since Molnar is president and respondent) and three staff members — the executive director, chief legal counsel, and human resources officer.

Fielder, vice president of the all-Republican five-member PSC, said the response team has been “working to carefully address” the misconduct allegations, but Molnar has interfered.

“Commissioner Molnar has been using his high-level position in a multitude of ways to thwart the investigation and stop it from reaching its conclusion,” wrote Fielder, acting chairperson of the “response team.”

She said normally, agency management would suspend someone who tried to interfere with an investigation, but only the governor can suspend a member of the Public Service Commission.

Fielder also said Molnar has received “countless polite reminders” about workplace conduct, “a handful of stern rebukes” and two written warnings “reminding him that retaliation is unlawful,” but he is “averse” to following agency policies.

She outlined eight actions she described as part of a “hostile pattern of activity to derail the investigation,” including threats of retaliation — an allegation Molnar’s lawyer described as “inflammatory” —  and that Molnar held a press conference “to blow up publicity” on a confidential matter.

She also said he made public comments “that were dismissive, untruthful and retaliatory,” and that he demanded the investigation be terminated. (Fielder’s letter said retaliation details were “pending completion of investigation.”)

“Commissioner Molnar’s ongoing attempts to use his high-level position within the agency to stop an investigation of his own misconduct are reprehensible,” Fielder wrote.

(Molnar has previously said a title he uses for himself in jest is one example of the alleged misconduct — “El presidente de la grande mucho macho man Molnar commander of all the forces of the five districts.” He said he is accused of being insensitive to women in leadership, but he uses the title because because the PSC leader used to be called a chairperson, and he believes that’s the proper title.)

Fielder said his actions have driven up the cost of the investigation and created “serious liability risks” for the response team and the state of Montana.

In a letter to Gianforte on behalf of Molnar, however, lawyer Matthew Monforton not only said the governor should reject Fielder’s request, he chastised Gianforte for “publicly celebrating” the proposed NorthWestern merger the same day it was announced.

“The PSC’s job is to scrutinize whether or not the proposed merger will benefit not just the utility, its shareholders, your political allies, and Wall Street speculators, but Montana ratepayers, too,” Monforton wrote.

Molnar was on the PSC in 2007 and he voted against a proposal to sell NorthWestern to an Australian company, Babcock and Brown Infrastructure.

“History vindicated that judgment: Babcock and Brown collapsed into insolvency just two years later,” Monforton wrote.

He said Molnar is currently the only commissioner who has previously reviewed a NorthWestern buyout proposal and “ the only commissioner who remembers what rigorous regulatory oversight of such proposals looks like.”

Monforton argued the governor should reject Fielder’s complaint, and he believes Gianforte’s legal counsel has “undoubtedly” informed him of its “frivolousness.”

In an email, the communications director for the Governor’s Office said the office will review the complaint itself.

“The governor’s office is committed to an impartial review of any complaints made under MCA 69-1-113, and the review involves only the matters raised in the complaint,” said Communications Director Sean Southard.

The Public Service Commission director and legal counsel did not respond to questions, including about the procedure for suspension of a commissioner and status of the misconduct investigation, but said the PSC strives for fairness and accountability.

“Unfortunately, because this is a pending administrative matter, the agency cannot comment on this topic at this time,” said PSC Executive Director Alana Lake in an email.

Monforton, however, argued the governor should throw out Fielder’s complaint, both because it is “substantively deficient,” but also because she sent it “unilaterally and secretly,” violating the PSC’s policy manual and the state Constitution’s Right to Know.

In Montana, a public officer cannot be suspended or removed without first being apprised of the specific allegations against him, Monforton wrote. He said suspension or removal also requires “actual evidence of misconduct.”

But he said Fielder didn’t inform Molnar of any problems, nor did she provide evidence beyond her own conclusions.

“We learned of Commissioner Fielder’s complaint only after your General Counsel, Anita Milanovich, provided us with a copy,” Monforton wrote. “Commissioner Fielder’s systematic concealment of her actions violates both the letter and spirit of Montana’s constitutional commitment to transparent government.”

However, Southard said the Governor’s Office will respect due process in its review.

“The office is also committed to due process by issuing required notice and providing an opportunity to be heard as this process moves forward,” Southard said in an email.

In his response to the governor, Monforton said many of the allegations Fielder made against Molnar are over actions that constitute protected First Amendment activity, from taking a legal position about his duties to holding a press conference.

“He has every right to assert legal positions about his role and responsibilities,” the letter said. It also said he doesn’t need to stay quiet. “Commissioner Molnar is under no obligation to remain silent about the illegal and corrupt ‘investigation’ pending against him.”

The letter said Commissioner Fielder’s characterization that the purpose of Molnar’s press conference was to “blow up publicity” “betrays improper hostility toward protected speech rights.”

In a phone call, Commissioner Pinocci said the rest of the commissioners should have had a chance to weigh in on the letter Fielder sent — to add to or subtract from it or reject it altogether.

He said she should not have acted unilaterally.

“This is bizarre. It is unacceptable,” Pinocci said.

The PSC did not answer a question about the steps its response team took prior to sending the letter to the governor. The response team responds to and investigates internal complaints.

Pinocci, though, said he should have had the opportunity to confront Molnar himself, and the tact Fielder took runs contrary to any process he’s seen in 30 years in politics and on governing boards.

“She ought to be ashamed of herself,” Pinocci said.

He said the situation looks worse because her letter came within 24 hours of the announcement NorthWestern was seeking the multibillion dollar merger.

“I’m telling you, this just looks bad. You write that down. Commissioner Pinocci has got a responsibility, a duty, to his ratepayer,” Pinocci said.

But he said he suspects Fielder may have other motives.

“Maybe she just wants to be president so she can be the bigshot at the wheel,” he said.

In her request to the governor, however, Fielder said the demand is related to Molnar’s behavior and an interest in completing the investigation, not his regulatory stances.

She said people have the right to a workplace “free from harassment and discrimination,” and the response team needs time to resolve the misconduct allegations without interference from Molnar.

“As a result of Commissioner Molnar’s own actions, it has become abundantly clear that this is not possible with his presence in the workplace,” Fielder wrote.

“In no way is this recommendation based on Commissioner Molnar’s regulatory decisions, nor does it come in direct response to allegations (the response team) is currently assessing regarding workplace misconduct.”