Molnar barred from workplace at Public Service Commission, federal judge says

Montana Public Service Commissioner Brad Molnar will remain temporarily barred from his office in Helena for professional misconduct, a federal judge said.

U.S. District Court Judge Donald Molloy said in an order last week that Molnar was correct in arguing that some of the statements he made were protected by the First Amendment — although not all.

Molnar argued his banishment from the workplace, a recommendation in a report the Public Service Commission adopted in May, was retaliation for his speech and sought to have Molloy overturn it.

He pointed to criticisms he made of the agency’s relationship with NorthWestern Energy and his statements to media without agency approval — the PSC prohibits commissioners from communicating with press unless they “coordinate” with the agency president or executive director.

But the judge said the commissioners who voted to prohibit Molnar from working in the office in person showed that they would have made the decision to relegate him to remote work because of other inappropriate actions and threats.

“This included … references to adopting ‘topless Tuesdays,’ and to a female staff member dreaming about another male Commissioner; his threats to personnel that he was going to personally pursue and ‘take out’ individuals that had made complaints against him; and an off-putting phone call he made to a staff member on her personal phone,” the order said.

The order is the latest iteration of a fight between Molnar and three other commissioners.

He has said the other commissioners are trying to silence him and edge him out because he is fearless in raising questions about NorthWestern Energy, but a report addressing misconduct allegations found Molnar violated workplace policies.

The report recommended Molnar improve his conduct and complete remedial training on civility and decorum. It recommended the PSC impose a remote work requirement on Molnar and ask Gov. Greg Gianforte to suspend him.

In the order, the judge denied a request from Molnar for a preliminary injunction to stop the defendants, Commissioners Jeff Welborn, Jennifer Fielder, and Annie Bukacek, from barring Molnar from the building.

But Molloy also said both Molnar and the other commissioners overstated their cases when it came to his speech.

“Contrary to Molnar’s position, not everything he says or does is protected by the First Amendment,” Molloy said. “Equally contrary to Defendants’ position, however, Molnar has a First Amendment right as an elected official to engage in speech on matters of ‘public concern.’”

The judge cited the report on which the other commissioners based their decision to prohibit Molnar from working in the office. It said in part that Molnar “has shown little interest in acknowledging or correcting his misbehavior.”

But the judge said excluding Molnar from the building “has the direct effect of preventing him from harassing or intimidating staff.”

At the court hearing, Molnar’s lawyer, Matthew Monforton, said Molnar regretted some of his statements, but in the order, the judge questioned Molnar’s contrition.

“Notably, while Molnar’s attorney was contrite regarding at least some of Molnar’s undisputed misconduct — specifically his inappropriate workplace ‘jokes’ — the record does not show similar efforts by Molnar himself,” Molloy wrote. “Managing not to be the subject of a formal workplace complaint for seven months is a minimum standard of conduct for an elected official, not an achievement.”

The report the commissioners adopted said Molnar should work remotely until an internal oversight team “finds that the risk of further retaliation or misconduct has been adequately mitigated.”

The report also recommended the Public Service Commission request Gianforte temporarily suspend Molnar, which the governor has authority to do, for a maximum term of one year.

A spokesperson for the Governor’s Office did not respond Monday afternoon to whether Gianforte has made a decision on the suspension request.

Monforton said Molnar won an earlier bid to attend the NorthWestern Energy and Black Hills Corp. merger hearings in person in a temporary restraining order, but he subsequently lost this round in court.

“We’re now gearing up for round three,” Monforton said.

However, he said the governor should stand down on any move to suspend Molnar.

“It would be a mistake for the governor to suspend the only commissioner who has both the knowledge and the willingness to ask the tough questions that need to be asked of the big utilities,” Monforton said.

In the order, the judge also denied a motion from Molnar to expedite discovery, reasoning the information requested would not advance the case.

PSC spokesperson Jamey Petersen did not comment on the case, but pointed to meaningful parts of the order for the Public Service Commission.

She noted the judge found “Molnar’s private harassment of his coworkers is not speech intended to enhance ‘the public’s evaluation of the performance of governmental agencies.’”

The judge also said, and Petersen noted, the record didn’t support Molnar’s argument that the PSC barred him from the office to try to keep him out of the merger hearing.

“The record shows independent yet contemporaneous developments in both Molnar’s workplace misconduct and the NorthWestern Energy merger,” the order said.