Ethical and criminal investigation into state senator in limbo

The Montana Senate stepped into a couple of ethical messes this session, but the lawmaker at the heart of the issue appears to be holding onto his seat just fine.

Republican leaders in the Senate said the Montana Constitution gives them the power to punish or expel Sen. Jason Ellsworth, but they can’t take advantage of it.

Given their concerns about financial and ethical improprieties, why can’t they give him the boot?

“Well, that’s obvious,” said Senate Majority Leader Tom McGillvray, R-Billings.

With Democrats and nine of their own members against them, at least on this front, the GOP leadership doesn’t have the votes.

To some Republicans, it’s also frustrating.

“You gave power to this side (Democrats),” said Sen. Mark Noland, R-Bigfork, during a hot debate on the Senate floor last week. “They control us. We’re out. That’s how I feel.”

Just last week, with help from some Republicans, Senate Democrats pushed off an internal ethics probe, calling for due process, and referring the matter to the Department of Justice.

The Legislative Auditor found Ellsworth, R-Hamilton, abused his power in negotiating a $170,000 contract with a colleague and wasted state resources, but currently, that’s just a document on a shelf.

Ellsworth has denied any wrongdoing, and his lawyer said the auditor’s findings are defamatory.

In the Senate, Democrats have backed Ellsworth, but in the House, the top Democrat is underwhelmed by the slow inquiry into Ellsworth’s “corruption scandal.”

Minority Leader Katie Sullivan, D-Missoula, said Ellsworth’s actions have derailed work on tax relief, housing affordability and child care — for weeks — and he needs to be held to account.

“Given the allegations of Ellsworth’s abuses of power, misuse of taxpayer dollars, and ensuing chaos, he must be investigated immediately and should not hold a position of power until the investigation is complete,” Sullivan said in a statement last week.

With an internal investigation suspended and any outside review in legal limbo, answers to whether criminal or ethical misconduct allegations — made by the ethics committee — have merit appear to be out of reach at least for the time being.

Other avenues

On the criminal side, a referral to an outside law enforcement agency could be made by the Legislative Audit Division, and has been in the past.

Angus Maciver, the Legislative Auditor, said that his office has referred its investigative findings to local, state and federal agencies in previous matters when warranted. The auditor’s office did not initially take such actions in the Ellsworth investigation, but is considering whether circumstances have changed.

“The Senate’s actions have raised questions that have been posed to us, and we’re considering those,” Maciver said. But, “We don’t really want to comment about it until we’ve made some kind of decision.”

Maciver did say that given the scope of the allegations and subsequent review, the matter could potentially be taken to either the DOJ, county attorney or county sheriff.

He added that his office is investigating additional allegations against Ellsworth beyond strictly the procurement process, although he declined to specify them.

The Lewis and Clark County Attorney’s Office did not return requests for comment this week.

However, Lewis and Clark County Sheriff Leo Dutton said typically, the county attorney would refer an investigation to his office, although he hasn’t seen a referral related to the Senate at this point.

Dutton also said anyone can lodge a complaint with the Sheriff’s Office, and he hasn’t received any direct reports from legislators either.

Last week, the Senate voted to pause its own investigation and send the matter to the DOJ, but Tuesday, Senate President Matt Regier said he is waiting for clarity from the Attorney General’s Office about whether the DOJ can legally take on the referred investigation.

The DOJ did not respond to questions from the Daily Montanan.

In Montana, another entity, the Commissioner of Political Practices, has authority to ensure political accountability, but only to a certain point.

A person may allege an ethical violation, but state statute ties the hands of the commissioner when it comes to judges and legislators.

Montana law says (Montana Code Annotated 2-2-136): “The commissioner does not have jurisdiction for a complaint concerning a judicial officer if a judicial act is involved in the complaint or a legislator if a legislative act is involved in the complaint.”

Montana Commissioner Chris Gallus said the statute is written to avoid him “tinkering in all of the goings-on at the Legislature” or interjecting himself when the judiciary and Legislature have their own internal processes.

“The message is that they are going to handle that themselves,” Gallus said.

Mounting woes

This week, additional documents came to light that show Ellsworth introduced the same colleague with whom he inked the $170,000 contract to the Clerk of the Montana Supreme Court for a communications job.

The job never existed, but it would have been worth roughly the same amount of money for a biennium, some $87,000 a year, as proposed by Ellsworth’s colleague.

Clerk of Court Bowen Greenwood said he didn’t need a communications person, but Ellsworth said he thought it might be helpful if the Clerk of Court ended up having more work from decisions made by an interim committee.

Ellsworth also signed a budget support letter for the position in September, and news of the proposal this week prompted a renewed call for an ethics inquiry by the Majority Leader McGillvray.

Senate Minority Leader Pat Flowers, D-Belgrade, earlier argued the DOJ was the more appropriate venue given the Senate ethics committee’s allegations of criminal misconduct, not just an ethical breach.

On the floor last week, President Pro Tempore Ken Bogner, R-Miles City, tried to launch a DOJ inquiry and keep the ball rolling on the bipartisan Senate ethics committee’s work too, but his proposal failed.

The questions raised by the job with Clerk of Court don’t change the way Flowers is thinking about the possibility of an internal probe.

He maintains the Department of Justice is the proper entity to investigate and expects it will take the matter seriously and provide a timely response.

“I think spinning our wheels in the ethics committee or further politicizing it in this body gets in the way of a meaningful and timely investigation,” Flowers said.