PSC vice president floats policy to lower bar for commissioner removal
Keila Szpaller
(Daily Montanan) The Montana Public Service Commission vice president wants to make it easier for the PSC to ask the governor to remove an elected commissioner.
PSC Vice President Jennifer Fielder said Monday the idea to amend a policy to require just three commission votes instead of four to request the governor suspend a commissioner would make it easier for the commission to “gain control of actions at the agency.”
If adopted, another proposed policy change to remove a commissioner as a PSC officer also would require just three votes instead of four.
The PSC is made up of five commissioners elected by district and currently all Republican.
Montana law gives the governor the authority to suspend a commissioner if a complaint is made “and good cause shown.” The governor also may appoint a replacement during the suspension if he believes one is necessary.
The proposed policy changes come in the midst of a political fight with PSC President Brad Molnar that has spilled beyond the agency to the Governor’s Office and the court.
Molnar is under investigation at the PSC for allegations of unprofessional conduct.
He has acknowledged making politically insensitive statements but has characterized the investigation — and hiring of outside legal counsel and a communications and management firm by the agency — as a costly overreaction.
The dispute made its way to the Governor’s Office when Fielder, on behalf of an internal “response team” handling complaints against Molnar, asked the governor to suspend Molnar so the team could do its work without alleged interference or retaliation.
Molnar has denied interfering with the investigation but has said he used free speech rights to publicly defend himself.
The fight landed in Lewis and Clark County District Court when Molnar’s lawyer argued the complaint to Gov. Greg Gianforte failed to follow PSC policy.
On behalf of Molnar, lawyer Matthew Monforton requested the court bar the governor from suspending Molnar to protect the democratic process.
District Court Judge Mike Menahan granted a temporary prohibition on suspension because the request didn’t come with four “yes” votes by the commission as required by PSC policy.
The request came from the internal “response team,” and a separate proposed policy change would allow the team itself to request the governor suspend a commissioner if it finds the commissioner is interfering with its work.
But the judge also said Gianforte could take up a complaint he received that was “properly filed” under the PSC policy in the future.
Monday, Fielder said she did not have any intentions “right now” to refile a complaint with Gianforte if the PSC modified its policies.
However, she said she is focused on working through the current issues before the PSC and cooperating with the court process.
“I’m certainly not whipping votes of commissioners to take any specific actions,” Fielder said.
She also said she herself had not communicated with Gianforte about the matter.
She said she was not at liberty to discuss whether any members of the internal “response team” had communicated with the governor or a representative of his office.
However, Molnar said he believes the report into his alleged misconduct is complete — and that it may have been complete even as his opponents argued to a judge that it couldn’t be finished due to his interference.
“They asked for an injunction to be lifted because they can’t complete the report unless I am stymied,” Molnar said.
Last Tuesday, the parties argued in court over whether the judge should continue to maintain the prohibition on blocking the governor from suspending Molnar. A decision is pending.
Molnar said he learned last Wednesday the report was already finished, and he believes it might have been done one day earlier — when his opponents were arguing the judge needed to stop him from getting in the way of completing it.
“The report is done. They lied to the judge,” Molnar said.
In an email last Wednesday obtained by the Daily Montanan, Commissioner Randy Pinocci said he also was concerned the report was complete but the “response team” was stalling its release to commissioners.
“I’m thinking there’s a possibility this report is done or simply needs a few touchups and then will be released after President Molnar is forced to step aside temporarily,” Pinocci said. “If we are purposely sitting on this report waiting for President Molnar to step aside, I do not believe this is proper.”
Pinocci could not be reached by phone for additional comment. He was the only vote at a Sept. 3 meeting in support of Molnar’s unsuccessful bid to recall the complaint to the Governor’s Office.
Fielder said Monday she could not comment on whether the report was complete as it was part of the proceedings of the “response team.” However, she said the team still has work to do.
“We are attempting to complete the work that’s assigned, but the work is not finished yet because of so many attempts at disruptions,” Fielder said.
Molnar said he is concerned he may not see the report at all, and a policy change could mean he loses elected office despite the will of the voters in his district.
“Of course, the governor can relieve an appointed person,” Molnar said. “It’s a lot different when it’s an elected person.”
He said the action would effectively mean he’s fired.
“(But) you can’t fire an elected official. You can only suspend them without pay, and then they’re simply gone,” Molnar said.
The “response team” has commissioner members and staff members, and Molnar said he doesn’t believe staff should be able to ask the governor to suspend a commissioner.
He said he also doesn’t believe the governor should get to appoint a new commissioner with a 3-2 vote of the PSC.
Fielder said she would comment further on the proposed policy changes at a yet-to-be-scheduled public meeting.
In general, she said the PSC code of conduct has been effective in some cases, but not all.
“It’s also become time consuming and expensive to deal with this complaint — or series of complaints — with our current president,” Fielder said.
She said the bar for disciplining a commissioner is high and needs to be high, but she also said a majority of a quorum can make a decision on most major regulatory matters — or two out of the five commissioners.
“Some (policy) adjustments I think would be helpful to make the policy actually work more effectively for the agency and the public we serve,” Fielder said.
She said the proposed policy change would require at least 10 days of public notice before the PSC takes action.