'No violation' in email use, attorney said

At the request of the Board of Commissioners for Lincoln County, attorney Jonathan Smith reviewed several emails sent between Bill Bischoff, a county employee and Libby City Councilman, and several current and former members of the Libby City Council, as well as Libby Mayor Doug Roll. Smith’s review concluded there were no violations of either statute or policy in Bischoff’s use of county email servers.

“I have reviewed the emails received by me last week and have the following comments in response to your questions,” wrote Smith in a June 16 letter to the commissioners. “I found no statute or policy violation by the use of the county email system in my review. Statutes prohibit use of public time and equipment for personal business and for political purposes. Nevertheless, the Supreme Court has recognized that state regulations regarding public employee use of public time and facilities contemplate employee use for personal reasons so long as it is ‘kept to a minimum, and does not interfere with the conduct of state business.’ The county officers/employees who were also City of Libby officers/employees apparently used the county’s email facilities to communicate city-related information. It did not appear that such use was excessive or interfered with county business and thus I would consider that it came within the personal use exception.”

Smith also noted there was no use of county email by Bischoff he felt constituted a campaign violation under the jurisdiction of the Commissioner of Political Practices.

“I did not see any violations that fall under the Commissioner of Political Practices,” Smith wrote. “One e-mail did seek information about a potential candidate, and might be argued to be in violation of proscriptions involving use of county facilities for political purposes. While I do not recommend such use of public e-mail, it did not appear to directly solicit support for or opposition to any political committee, the nomination or election of any person to public office or the passage of a ballot issue.”

Smith did not specify the e-mail in question in his letter to the commissioners, and was unreachable prior to press time.

Commissioner Mark Peck said the reference was to an e-mail conversation between Bischoff and former Libby City Councilwoman Vicky Lawrence. Lawrence e-mailed Bischoff Sept. 22, 2014, asking for advice in crafting a letter of support for Robin Benson’s candidacy for Lincoln County Clerk and Recorder.

“I am thinking of mailing out letters of support to friends and acquaintances,” Lawrence wrote to Bischoff. “Besides referencing the things I said about Robin’s qualifications in my letter to the paper, what could I say that is more specific about problems in the clerk’s office – for example, the limited hours spent in the office, the budgets that are prepared late, etc. Could you help me with some wording?”

Bischoff responded to Lawrence’s request, providing a sample letter referencing the county’s budget issues and endorsing Benson as the candidate best able to solve those problems. The e-mail, sent from Bischoff after the close of business hours, was sent only to Lawrence suggesting wording she could use in her letter. It was not sent to voters, nor was it sent to anyone else by Bischoff.

“I would say something like this,” Bischoff wrote to Lawrence. “Lincoln County is facing substantial budget shortages over the next several years. This will require substantial communication with county department heads and the Board of Commissioners to address this situation to attempt to identify other sources of revenue and identify possible cuts. This should be an ongoing process throughout the budget year.

“Once the budget is adopted by the commissioners, the process shouldn’t just stop until the next budget year. There should be an ongoing monthly review of where the county’s at. Are our revenues coming in as predicted? Are departments overspending their budgets? Are we doing everything we can to save taxpayer money?

“That isn’t being done now. The budget process has been delayed in recent years and follow-up reviews are lacking. The county clerk and recorder should take the lead in this process. Working with Robin many years on the City Council, I know she will create a process that will have timely reviews and many discussions on how to address shortfalls or overspending.

“The process won’t be easy. Funding opportunities are limited. But I know Robin will initiate a better and more thorough process that would bring more public accountability to all taxpayers and create an atmosphere within the county of working together to solve problems.”

Peck said such use of county facilities was not prohibited by the county’s existing technology use policy, but also said it could be considered splitting “very fine hairs” in the context of violating Montana’s proscription against using public facilities for express advocacy during a campaign.

“It’s pretty general,” Peck said of the policy. “It leaves it up to the individual as to what’s reasonable. It was OK at the time it was enacted, but it’s not sufficient today.”

Peck said the county has been re-evaluating a number of its internal policies and this issue has pushed the technology use policy to the top of the pile.

“We’re looking at all the county’s policies, but the review by Jonathan Smith pushed us to move this forward,” he said.

One item in the draft policy dated June 10 falls under the heading of “general use and ownership.” It specifies all data created or added to county facilities becomes the property of the county and is subject to review at any time.

“While the county desires to provide a reasonable degree of privacy, users should be away that the data they create and/or place on county equipment remains the property of the county. All files are subject to review by the IT department at any time,” the draft policy reads.

The proposed policy also includes a line item in the unacceptable use category.

“All users who are employees or elected officials of an outside agency of any kind are specifically prohibited from using any county resources to conduct the business of that agency.”

The new policy is still in the draft stage, but Peck said updating the policy is a priority for the commissioners.