The latest arguments in an unprecedented battle between the president and vice president of the Montana Public Service Commission took place in the Lewis and Clark County courtroom Tuesday morning.
Using what attorneys have called an untested law governing the suspension of public service commissioners, Public Service Commission (PSC) Vice President Jennifer Fielder last month sent a letter to Gov. Greg Gianforte in her official capacity asking him to temporarily suspend President Brad Molnar from his position as a human resources investigation into Molnar’s workplace conduct is ongoing.
Molnar and his attorney, Matthew Monforton, did not learn of the letter until the governor’s attorney reached out to them asking for a response. Once Monforton was made aware of Fielder’s letter, he sued her and Gianforte, and Lewis and Clark District Court Judge Mike Menahan granted a temporary order stopping Gianforte from being able to act on Fielder’s request.
While Molnar and Fielder typically sit at the same table on the commission, they sat on opposing sides in the courtroom Tuesday as their attorneys made arguments about whether or not to make the temporary block on Gianforte more permanent.
Natasha Jones, the attorney representing Fielder in court Tuesday, said all her client wants is for Molnar to be put on temporary administrative leave while the PSC’s internal investigative team completes its work.
Molnar has been embroiled in an HR investigation since June after PSC employees allegedly complained about his workplace conduct. Those employees have declined to divulge any details about the allegations citing internal confidentiality rules, but there have been repeated suggestions — including from Jones on Tuesday — that Molnar engaged in “discriminatory speech, retaliatory speech” and “harassment,” including “sexually charged” comments.
“In the normal private sector, these things just happen,” Jones told the court. “A person is simply placed on administrative leave.”
Monforton focused his arguments Tuesday around the idea that Molnar’s constituents would be “disenfranchised” if Molnar was suspended even temporarily, as well as the idea that because Fielder did not notify Molnar of the letter or hold a vote on whether or not to send it, it violated the PSC president’s due process rights and the commission’s internal rules.
“One commissioner’s secret, unauthorized complaint will likely disenfranchise almost 200,000 voters,” Monforton said. “Employees would in essence have a veto over the voters who have placed Commissioner Molnar there,” he later added.
But Jones said that for Monforton to make that argument before the court, his constituents should be the plaintiff, not Molnar himself. And she went a step further, arguing that Molnar needs to be responsive not only to his constituents, but also to the rules of the PSC.
“[Molnar] won’t be harmed,” Jones said. “You know who will be harmed? The employees of the [PSC] who are suffering daily retaliations at the hands of Commissioner Molnar.”
Monforton said that the entire matter is a “gross violation of due process,” in part because the commission did not hold a vote on whether to send the letter, and he added that Fielder’s quiet sending of the letter was “simply reprehensible.”
“They completely short-circuited that because they know that there are not four commissioners who are willing to suspend commissioner Molnar,” Monforton said. The PSC voted 3-2 earlier this month not to rescind the letter.
But Gianforte’s attorney, Dale Schowengerdt, said “the due process was in process” because Gianforte had asked for a response in writing from Monforton and Molnar, which they provided.
“The consequences of a suspension or removal, that’s all premature,” Schowengerdt said. “The governor hasn’t done anything, so until the governor acts, that would be speculation.”
Citing his due process concerns over the lack of a vote on sending the letter, Monforton pointed out that Fielder could have filed the complaint with the governor as a private citizen, instead of in her official capacity on the commission.
“If any of the allegedly aggrieved employees want to file a complaint to the governor in their own individual capacity, they can do that,” Monforton said. “But if someone is going to invoke the name of the PSC, the prestige of the PSC, to file a complaint with the governor against Commissioner Molnar, they have to follow the PSC rules. Is that simple.”
Following the hearing, Fielder told reporters that it’s “tempting” to file another complaint with the governor as a private citizen, but indicated that she is not planning to do that.
The PSC has also been making headlines because NorthWestern Energy, the state’s monopoly utility, has two high-profile matters before it. One of those is a proposed $3.6 billion merger between NorthWestern and Black Hills Corp., which the commission has to approve, and Molnar and Monforton have for weeks claimed that Molnar’s fellow PSC members and employees are attempting to stymie his power as president as these matters come across their desks.
“There is absolutely no relationship between this situation and NorthWestern energy,” Jones told the court.
“Complaints were made formally, and that triggered a process, because the [PSC] has employees, and those employees are entitled to a safe work environment free from discrimination, harassment, retaliation,” she continued. “There are rules in place that allow those employees to safely make complaints, even when the subject matter of the complaint is a commissioner.”
Menahan said he plans to rule in mid-October at the latest, and until then, the temporary restraining order will remain in place blocking Gianforte from intervening.
Victoria Eavis is a reporter for the Montana State News Bureau. She previously worked for the Casper Star-Tribune in Wyoming, covering state politics and Liz Cheney’s fall from power. She can be reached at victoria.eavis@helenair.com.
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