Mayor, city officials broke laws

Libby’s mayor, along with six current and former city employees and officials could face civil and criminal prosecution, including fines and possible removal from office as a result of their interference in Libby’s 2013 mayoral election.

A ruling released Tuesday by Montana’s Commissioner of Political Practices, Jonathan Motl, found Libby Mayor Doug Roll, former City Council members Vicky Lawrence and Robin Benson, current City Council members Barbara Desch, Bill Bischoff and Peggy Williams and former city attorney James Reintsma to be in violation of Montana’s campaign practice laws. 

The ruling finds the City of Libby and the individuals named above improperly used government resources to influence the 2013 Libby mayoral election in which Roll narrowly defeated Councilman Allen Olsen by 13 votes. It is the result of a complaint filed with the commissioner by Libby resident Arlen Magill in September 2014.

“I would like to thank Commissioner Motl for doing a thorough investigation,” Magill said. “This is a win for Libby and for all of Lincoln County. I don’t think it’s going to be politics-as-usual anymore. We need to hold the mayor and council to a higher standard, to the oath that they swore.”

Magill alleged the mayor, city attorney and the members of the 2013 City Council improperly used city resources to oppose the candidacy of Councilman Olsen. Specifically, Magill claimed Reintsma’s suit challenging Olsen’s residency within city limits 12 days before the election on behalf of the City of Libby was an illegal interference in the election.

Motl agreed.

“The commissioner determines there are sufficient facts to show that city attorney, James Reintsma, acted in violation of Montana’s campaign practice laws when he, while on the job, engaged in use of public resources for the express advocacy purpose of opposing the election of mayoral candidate Olsen,” Motl wrote in his ruling.

The commissioner didn’t stop with Reintsma.

“The commissioner determines that there are sufficient facts to show that the city, including its mayor and City Council members, acted in violation of Montana’s campaign practice laws when they engaged in unreported and undisclosed use of public resources for the express advocacy purpose of opposing the election of mayoral candidate Olsen,” Motl ruled in his second finding.

The commissioner cites Title 13 of Montana Code Annotated, specifically Section 13-35-226(4):

“A public employee may not solicit support for or opposition to … 

the nomination of any person to public office…”

Reintsma, Motl ruled, was a public employee at the time the suit was filed, and it was not filed as a personal suit between Reintsma and Olsen, rather, it was filed on behalf of the City of Libby, with the city listed as the sole plaintiff in the case. The use of Reintsma’s paid time as city attorney, as well as the payment of associated fees constitutes the improper use of government resources.

“There is no doubt that public resources were used in a lawsuit brought by a public employee (the city attorney) and public officials (the mayor and five council members of the City of Libby) against a council member and mayoral candidate, Allen Olsen. The public resources used included the paid time of the city attorney and the associated filing and litigation costs involved in the lawsuit. The entity using the public resources was the City of Libby and its officials because the city was named as the plaintiff in the lawsuit against candidate Olsen,” Motl wrote.

Under Montana law, soliciting support for or opposition to a candidate is considered express advocacy, which is prohibited by public employees or officers in their official capacities.

Reintsma’s request to enjoin the county clerk from counting any ballots cast for Olsen, as well as his request to have Olsen’s seat on the City Council vacated by the judge 12 days prior to the election constituted express advocacy, according to the ruling.

“The commissioner determines that the use of the word ‘vacate’ and the exhortation to not ‘count any vote for defendant Olsen…’ are magic words advocating against candidate Olsen in the Nov. 5 election. The commissioner determines that the complaint is express advocacy and therefore constitutes an election expense under the Buckley express advocacy standard,” Motl wrote.

An exception is allowed to the use of public resources when it is considered performing activities “properly incidental to another activity required or authorized by law,” but the commissioner ruled this case did not meet the allowable criteria for such an exemption.

“Such allowed incidental activity can involve use of public resources so long as the use does not constitute express advocacy,” Motl wrote. “… This fact of public resource use in this matter, however, crosses the express-advocacy line.”

The liability of Roll, Lawrence, Benson, Bischoff, Desch and Williams stems from a memorandum sent by Reintsma on letterhead of the City Attorney’s Office, to the City Council dated Oct. 18, 2013, in which he detailed the allegations he would later use to file the complaint.

In that memorandum, Reintsma told the City Council and the mayor that he would proceed with the suit should Olsen not resign his position and remove himself from the election within one week.

“Mr. Olsen has the option of resigning his seat on the council and removing himself from consideration in the upcoming election or he can have the district court make a determination for him,” Reintsma stated in the memo. “I will file the appropriate paperwork in district court next week if Mr. Olsen does not concede the points in this memorandum.”

Neither the mayor nor any member of the City Council besides Olsen expressed any opposition to Reintsma’s actions and the suit was filed Oct. 24, 2013.

“The City of Libby, Mayor Doug Roll and five members of the 2013 Libby City Council (Robin Benson, Barbara Desch, Vicky Lawrence, Peggy Williams and Bill Bischoff) are also responsible for the campaign practice violation stemming from the complaint. The complaint was filed by the City of Libby through its paid city attorney. The City of Libby is recited as the plaintiff in the first paragraph of the pleading,” the ruling reads. “At no time did the City of Libby, Mayor Roll or any of the five certain City Council members state or indicate that they did not support the complaint.”

The ruling was referred to Lincoln County Attorney Bernard Cassidy on May 12. Cassidy has 30 days to review the ruling and evidence. During that 30-day period, Cassidy can decide to prosecute the case or waive it back to the Commission of Political Practices. Should Cassidy either waive the case or do nothing within the 30 days, Commissioner Motl is authorized to prosecute. Cassidy said he was reviewing the information, but was not prepared to discuss it at this time.

Motl said he will pursue this case.

“In my two years in office and in the 20 before that in which I’ve been involved, I’ve never seen an issue this egregious,” he said. “One candidate used the resources of government against another. That doesn’t sound like American political practices to me, outside of maybe Chicago.” 

Motl said the process, should Cassidy not pursue the case, is pretty straight-forward. He will sit down with the parties and attempt to negotiate a workable settlement. If an agreement is not reached, the matter will be decided in court.

The settlement, he said, would include monetary recompense as well as some form of “equitable remedy.” That remedy, he said, could include a promise to resign or to not seek re-election.

Councilman Olsen said he feels vindicated by the commissioner’s decision.

“I am tired of the dirty politics,” he said. “The conflict of interest and procedure laws have been stomped to death in this town. This hasn’t just damaged me, it’s damaged and embarrassed the entire community.”

Olsen said he has begun discussing the matter with his attorney, Doug Scotti, and is evaluating his legal options against the city and the named individuals at this time.

Reintsma resigned his position as city attorney at the end of 2014, reportedly to practice law in Oregon. Attempts to reach him were unsuccessful and a search of the online Oregon State Bar website turned up no results.

Libby’s new city attorney, Allan Payne, said he couldn’t comment on the case as he had not read the ruling and was not involved in the issue as it predated his contract with the city. 

Mayor Roll’s deposition in the initial suit, dated May 13, 2014, however, tells a different story. In the deposition Roll indicates, under oath, that Payne has provided him with free legal advice by both phone and email, specifically with regard to the challenge to Olsen’s residence. 

Council members Bill Bischoff and Barbara Desch declined to comment on the matter. Former councilwoman Robin Benson also declined to comment. Mayor Roll, Councilwoman Peggy Williams and former Councilwoman Vicky Lawrence did not return messages.

Councilman Brent Teske was elected in 2013 and was not involved in the issue, but will likely have to deal with the repercussions to the city, especially should Olsen proceed with legal action. Several messages left for Teske went unreturned.

Councilwoman Dejon Raines, appointed earlier this year to replace Benson, said she had read the ruling but was declining to comment until she receives more information from Cassidy or the commissioner.

Lincoln County Commissioner Mark Peck said he is not willing to weigh in on the factual basis of the complaint and ruling, but was concerned by the ramifications of the issue.

“Without having the facts, I will not pass judgment,” he said. “However, regardless of the outcome, these issues further erode the citizens’ trust in government and we already have too little. Transparent and ethical behavior by public officials is critical to effective government and a strong, vibrant community.”