A member of Montana's House of Representatives resigned his seat late last month to accept an appointment to the Montana Board of Pardons and Parole, even after an attorney for the legislature questioned the constitutionality of the move, a Montana news outlet reported.
Republican Rep. Jimmy Patelis of Billings announced May 23 on social media that he was resigning from the House to accept Gov. Greg Gianforte's appointment to the parole board, effective Tuesday. The job pays about $87,000 a year, according to state employee data.
NBC Montana obtained emails from January indicating Patelis asked the Legislative Services Division for an opinion on whether it would be permissible for him to accept an appointment to the board.
The attorney responded that he believed it would violate Montana's Constitution, which does not allow a member of the Legislature to be appointed to a civil office “during the term for which he shall have been elected,” NBC Montana reported. Patelis was elected in 2020 for a two-year term that began in January.
Patelis then asked the lawyer asked if a lawmaker would be able to accept an appointment after finishing the legislative session and resigning from the Legislature. Under that scenario, Patelis wrote, the elected term would effectively have ended before confirmation for the new job would take place in the state Senate.
The attorney responded that “the plain language of the Constitutional provision and the Constitutional Convention transcripts seem to prevent a member of the Legislature from taking any civil office during the length of the term, regardless of whether the member resigns.”
The next step, the attorney wrote, would be to determine if a member of the parole board has a position of civil office.
Gianforte's spokesperson, Travis Hall, told NBC Montana that Patelis expressed interest in the appointment in November 2020.
The Department of Corrections advisory council advised the governor that while "Patelis was highly qualified, he was not eligible because he was a sitting legislator," Hall said.
“The governor-elect advised Rep. Patelis that he could not and would not be appointed to a position on (the board) unless and until he resigned from his position as a legislator, being fully aware of the laws prohibiting legislators from serving as a ‘civil officer’ on boards," Hall said.
However, transcripts of the 1972 Constitutional Convention show a conversation among delegates about the issue, with then-Delegate Noel Furlong asking if lawmakers could resign to accept such an appointment.
Then-Delegate Thomas Joyce responded: “No, you may not. Under the present Constitution, you could not do that." Joyce also noted they were retaining that provision from the state's original Constitution.
In the email to Patelis, the Legislative Services attorney also listed the reasons that state lawyers believe the parole board position would be a “civil office," based on a five-part test established by the Montana Supreme Court.
Patelis is listed on the Board of Pardons and Parole website as a board member, with his appointment running from June 1 through Jan. 1, 2027. His campaign website says he spent 35 years working in corrections, retiring as the chief U.S. probation officer for Montana.
Democrats were criticized when nine lawmakers took state jobs between 2006 and 2009, while Democratic Gov. Brian Schweitzer was in office.
Then-state Sen. Mike Cooney accepted an unadvertised and temporary job as head of the Department of Labor's Business Standards Division in 2006, the same year State Sen. Sam Kitzenberg of Glasgow was hired for a temporary job with the state Revenue Department.
After the November 2006 election, Kitzenberg switched from the Republican Party to the Democratic Party, breaking a 25-25 tie in the Senate. Kitzenberg dismissed criticism that the switch occurred because of his temporary state job, saying he just realized where his heart was politically.
In response, Republican Rep. John Sinrud of Bozeman introduced a bill during the 2007 session to prohibit legislators from accepting employment with the state during the legislators' terms of office. It passed the House, but did not proceed beyond a Senate committee.
In August 2007, then-Rep. Eve Franklin of Great Falls, a Democrat, resigned her seat after being hired as the state’s mental health ombudsman.
Other lawmakers also took jobs in state agencies, which is allowed under state law with a requirement that they not be paid for their state jobs while performing legislative duties.