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Brad Molnar v. Mary Jo Fox

May 15, 2013

BRAD MOLNAR, PETITIONER AND APPELLANT,
v.
MARY JO FOX, RESPONDENT AND APPELLEE.



APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 10-1718 Honorable Susan P. Watters, Presiding Judge

The opinion of the court was delivered by: Justice Jim Rice

Submitted on Briefs: January 23, 2013

Decided: May 14, 2013

Filed:

Clerk

Justice Jim Rice delivered the Opinion of the Court.

¶1 Brad Molnar (Molnar) appeals from the order of the Thirteenth Judicial District Court affirming the decision of the Commissioner of Political Practices (the Commissioner) holding that Molnar violated the Code of Ethics. We affirm and address the following issues:

¶2 1. Did the District Court err by concluding that Fox had legal standing to file ethics complaints against Molnar?

¶3 2. Did the District Court err by concluding that Molnar received unlawful gifts in violation of § 2-2-104, MCA?

¶4 3. Did the District Court err by concluding that Molnar improperly used State facilities for political purposes in violation of § 2-2-121(3)(a), MCA?

¶5 4. Did the District Court err by concluding that the penalty statute for ethics violations, §2-2-136, MCA, was not unconstitutionally vague?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Molnar served two terms as a Public Service Commissioner (PSC), representing District #2, which encompasses Billings and southeastern Montana. The PSC is comprised of five elected commissioners who supervise and regulate the operations of public utilities, common carriers, railroads, and other regulated industries. During the summer and fall of 2008, Molnar was serving his first term at the PSC and was also a candidate for re-election to his position. Mary Jo Fox (Fox), a resident of District #2 and campaign manager for Molnar's opponent in the election, filed four complaints against Molnar with the Commissioner, alleging that Molnar had violated the statutory Code of Ethics by accepting gifts of substantial value from two corporations with which the PSC regularly dealt, and by using state resources to aid his re-election campaign and for personal business. Molnar denied any wrongdoing.

June 12, 2008 Complaint

¶7 Fox's first complaint alleged that Molnar accepted unlawful gifts from corporate entities to support an event called the "Billings Brownout." Molnar was the principal organizer of the event, wherein Billings residents and businesses voluntarily reduced electrical consumption for an hour-by turning lights off, for example-to raise awareness about energy conservation. Molnar solicited funds in support of the Brownout from several businesses. Fox took issue with Molnar's receipt of money from NorthWestern Energy (NorthWestern) and PPL Montana (PPL). Molnar approached one of NorthWestern's corporate officers, William Thomas, during a break in a PSC hearing in which NorthWestern was participating. Molnar explained the Brownout event and asked Thomas for "money for brochures" for the event. Thomas agreed, and NorthWestern sent a check for $1,000 to Molnar, made personally to him. Molnar deposited the check into his personal bank account. Molnar also requested $1,000 from PPL. PPL generates electricity at its coal-fired and hydroelectric power plants in Montana. While not directly regulated by the PSC, PPL regularly appears before the PSC for hearings, and intervenes in administrative proceedings. PPL agreed to help fund the Brownout and sent a $1,000 check to Molnar, also made personally to him. Molnar likewise deposited this check into his personal bank account.

¶8 Molnar printed brochures that described the Brownout event, explained how to conserve electricity, and thanked sponsors. The brochures bore Molnar's name and picture, and read, in part:

Public Service Commissioner

Brad Molnar

Invites you to join your neighbors and take part in the

Great Billings Brownout

¶9 The Brownout took place on December 6, 2007, and was, by all accounts, a success. In the spring of 2008, Molnar used some of the Brownout brochures by leaving them at homes while campaigning door-to-door for re-election. Meanwhile, in response to another request by Molnar, NorthWestern sent a check for $1,000 to Molnar to help sponsor a proposed event called the "Laurel Brownout." However, when NorthWestern learned that Molnar was using the Brownout brochures in his campaign, it demanded repayment of the entire $2,000 donated to the two Brownout events. Molnar sent a personal check of $1,000 to NorthWestern as a refund for the Billings Brownout donation and returned the $1,000 check NorthWestern had just sent him for the Laurel Brownout. Molnar continued to use the brochures, but after NorthWestern and other Brownout contributors complained about the use of the brochures in his campaign, Molnar affixed an adhesive sticker over the complaining contributors' names that read:

The "Brown out" may be over.

But the energy tips are still good!

BRAD MOLNAR

Your Conservation Candidate For

Public Service Commissioner

October 9, 2008 Complaint

ΒΆ10 Fox's second complaint accused Molnar of using his PSC e-mail address, PSC phone number, and PSC computer in his re-election campaign. Molnar created a four-page fundraising letter (the Fundraising Letter) dated July 21, 2008, in which he solicited campaign funds. The Fundraising Letter listed Molnar's PSC email address and his PSC telephone number as his contact information. During this same time period, Molnar also listed ...


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