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The Board of Regents

The Board of Regents meets at City College in this September 2016 file photo.

Montana regents can support a referendum to renew the state’s six-mill higher education levy, but they can’t advocate for it during a board meeting.

The Board of Regents, the appointed governing body for the Montana University System, crossed the line from permissible discussion of levy information into prohibited advocacy in portions of board meetings held in May and November 2017, according to a decision Commissioner of Political Practices Jeff Mangan released last week.

In a 29-page decision that includes several pages of regents meeting transcripts, Mangan found statements by Regents Robert Nystuen, Martha Sheehy, Paul Tuss, Casey Lozar and former Regent Bill Johnstone that are impermissible under the state ethics law.

For example, at one point Nystuen said of the pro-referendum effort: “So there are opportunities for people to donate to this campaign, we certainly need the endorsements, we’ve got some pretty exciting news coming around the corner with regard to this effort. This is not a Bobcat-Griz, Rs versus Ds initiative, this is all-in for higher education in the state of Montana.”

The regents apparently were under the mistaken impression that they were not subject to the ethics law because they aren’t public employees. In the transcript, Nystuen says to other regents that they aren’t state employees so they can “get behind this.”

However, Jaime MacNaughton, COPP attorney, determined that the unpaid regents count as state employees because the board has rule making authority.

The board asked for guidance on complying with the ethics law, and agreed to pay the $3,000 fine he assessed, Mangan said.

Basically, the ethics law forbids use of state facilities and equipment to advocate for or against candidates or ballot issues. In this case, the state provided the space, recording equipment and paid staff to conduct the board meetings. The impermissible discussion in May 2017 was within a 20-minute portion of the meeting, while in November, the discussion spanned less than 5 minutes.

As important is it is for regents to avoid violating the ethics law, it’s also crucial that they speak up as private citizens — not using any public resources — to give their perspective on sufficient funding of higher education.

If the regents weren’t supporting the 6-mill levy renewal, voters may well wonder why they should support it.

The levy contributes about $19 million a year to public higher education and was placed on the November ballot by the Legislature. This levy has been renewed every decade since 1948.

“It’s absolutely OK for them to express their opinions,” Mangan told The Gazette Monday. “Where it crossed the line was it moved into advocacy … in two different meetings.”

Regents Chair Fran Albrecht told The Missoulian that the board appreciates the clarity the decision provides, adding: "The Board and the Montana University System will use this summary decision to help ensure compliance as we move forward."

The COPP ruling on the regents should be instructive for other public boards. The state ethics law applies to local government officials and employees as well as to those working for the state.

Mangan said his office has been receiving more calls about the propriety of local officials supporting or opposing ballot issues. The ethics law forbids use of public equipment, including computers, email and office space for election advocacy.

To avoid the possibility of an ethics violation and fine, state officials and employees must be careful to provide the public with accurate information — without telling people to vote for or against.