Max Lenington, the Yellowstone County treasurer, assessor and superintendent of schools, did not violate county email policy or state laws when he sent an anti-Obama letter to The Billings Gazette and used his work computer to send the letter to other newspapers, a county attorney’s review found.
While the letter, published Aug. 25 and titled, “Why I hate Barack and Michelle Obama,” sparked a controversy, Yellowstone County commissioners concluded Monday that Lenington was within his rights to express his opinion and that his using county equipment to do it wasn’t excessive.
County Attorney Scott Twito said in a review from his office that he is “unable and unwilling to act as a gatekeeper for free speech. Lenington’s views may be embraced by some, despised by others, but he can make them.”
Commissioners Jim Reno and John Ostlund, both Republicans, however, decided during Monday’s discussion meeting that it was time for a review of the county’s 2007 email policy. Commissioner Bill Kennedy, a Democrat, was out of town.
Ostlund said there didn’t appear to be inappropriate use of computers and that he would “leave it up to the voters as to the content.”
The commissioners also directed the County Attorney’s Office to draft a reminder for employees on the county’s email policy.
Lenington, a Republican, did not attend the meeting and had not been briefed in advance of the results of the county attorney’s investigation.
The commissioners’ conclusion, Lenington said, is what he thought it would be.
“If I send political emails, that’s part of the job. In my mind, it was something that needed to be said,” he said.
Lenington’s letter prompted accusations of plagiarism by a conservative pundit, Mychal Massie. The county’s review did not address plagiarism accusations.
Deputy County Attorney Kevin Gillen told commissioners that given rapid changes in technology, it was probably a good time to review the email policy to see if needed updating.
The six-year-old policy recognizes “the inevitable private use” of county email by its employees. The policy, Gillen said, addresses the need for a “balanced approach” to email and Internet use by employees by “guarding against extensive use” of county email and stopping short of a “general and outright prohibition” of private emails by employees.
The county attorney’s review looked at 30 days of email traffic on Lenington’s computer and found 11 emails regarding his letter over a two-week period of time, Gillen said. Most of the emails were an attachment of his letter. The remaining emails are short – one or two sentences — from newspaper contacts or the pundit.
“I see no real excessive use. It just doesn’t seem to fly in the face of our email policy,” Gillen said.
The review also considered whether Lenington’s actions to distribute political content ran afoul of state law. Chief Deputy County Attorney Dan Schwarz told commissioners that it is allowed.
And under a 2001 amendment to the relevant state law, “for sure it’s allowed,” Schwarz added.
State law provides that a public employee retains free-speech rights but is prohibited from using public resources “to solicit support for or opposition to any political committee, the nomination or election of any person to a public office, or the passage of a ballot issue.”
Because Lenington’s actions did not do any of those things, he didn’t violate the law, the review said.
In a 2001 amendment to the law, the Legislature “took affirmative steps to allow an expansion of public employee speech” by allowing “political discourse so long as it was not in conjunction with a committee, ballot issue or nomination or election,” the review noted. The amendment allows public employees to “express personal political views,” the review said.
The county attorney’s review said Lenington met with his staff and “fully cooperated” with the investigation.
Lenington’s initial letter was dated Aug. 6 and was written at his home. Lenington said he scanned the letter into his work computer so he could use the printer, which is a better quality printer. He printed the letter and mailed it from his home address. He also sent the letter to the Great Falls Tribune and a Missoula newspaper.
That letter did not refer to his position as an elected county official. When The Gazette published the letter, it included a notice that Lenington was the elected county treasurer, assessor and superintendent of schools.
When none of the newspapers immediately published the Aug. 6 letter, Lenington said he got frustrated, updated the scanned letter to Aug. 12 and forwarded it to The Bozeman Daily Chronicle, the Helena Independent Record and the Wall Street Journal. None of those letters indicated Lenington was an elected official and it is not clear if any those publications published it.
Some of Lenington’s email correspondence to newspapers and Massie included information that he was an elected official while some did not.