Posted by: Patricia Salkin | August 18, 2008

No Ethical Violation Where County Attorney Served on Board of Organization Promoting Sustainable Development

After serving for ten years as the elected county attorney, DePuy resigned her position and began working in the newly created part-time position as a county attorney doing civil work, including advising the Park County Commissioners and the county planning staff on various legal issues, including land use and development issues. During this time she also served in a volunteer capacity as a board member of a group named Corporation for the Northern Rockies (CNR), a non-profit organization that promotes sustainable development and protection of Montana’s landscape. According to Park County Concerned Citizens (PCCC), CNR seeks to stop development of rural land. CNR has not engaged in any lobbying before the Park County Commissioners nor has it engaged in any litigation with or against Park County. PCCC sought an investigation of what they believed to be unethical conduct on the part of DePuy.  After the Attorney General’s office declined to pursue the matter, PCCC contacted the County Attorney’s Office which led to an investigation by the Yellowstone County Attorney’s office.  The investigation concluded that neither DePuy nor the Park County Commissioners had engaged in any wrongdoing. They concluded that when she resigned as County Attorney and immediately was hired as Civil County Attorney, she remained employed by Park County and continued to represent the interests of the county.  PCCC then filed a complaint alleging that DePuy improperly took advantage of her position as County Attorney to create a new Civil County Attorney position and then become employed in that position, in violation of § 2-2-105(3) of the Montana Statutes, and second, that it was unethical and in violation of § 2-2-121(5) of the State Statutes for DePuy to render legal opinions on land use issues while serving on the board of CNR.  The District Court noted, “This lawsuit seems to have been ill-conceived,” and some of the evidence “suggests that this is, in fact, a personal attack on Ms. DePuy filed because of suspicion and speculation, but without evidence of wrongdoing.”

 

In concluding that there was no unethical conduct, the Montana Supreme Court first examined Section 2-2-105(3) of the Montana Code Annotated which, provides: “A public officer or public employee may not, within 12 months following the voluntary termination of office or employment, obtain employment in which the officer or employee will take direct advantage, unavailable to others, of matters with which the officer or employee was directly involved during a term of office or during employment. These matters are rules, other than rules of general application, that the officer or employee actively helped to formulate and applications, claims, or contested cases in the consideration of which the officer or employee was an active participant.”  The Court noted that the Preamble to a 1995 amendment to the statute noted that the Montana Constitution intends to “prohibit[] conflict between public duty and private interest for . . . all state and local government officers and employees.”  The Court reasoned that both “the Constitution and this statute are intended to prevent public employees from taking advantage of a government position to benefit themselves when they leave their prior employment.”  Since PCCC did not offer any evidence to show that when DePuy was hired as Civil County Attorney she somehow gained an advantage, unavailable to others, over some matter handled by Park County or the Park County Attorney’s office, no violation occurred.

 

 

Section § 2-2-121(5) of the Montana Code Annotated provides that “A public officer or public employee may not participate in a proceeding when an organization, other than an organization or association of local government officials, of which the public officer or public employee is an officer or director is: (a) involved in a proceeding before the employing agency that is within the scope of the public officer’s or public employee’s job duties; or (b) attempting to influence a local, state, or federal proceeding in which the public officer or public employee represents the state or local government. “ The Court concluded that DePuy provided uncontradicted evidence that CNR was not, and had not been, “involved in a proceeding” in Park County, and that CNR was not, and had not been, “attempting to influence” a proceeding in Park County. Further, the Court noted that PCCC did not dispute DePuy’s evidence, rather they simply argued that there is an “inherent” conflict in DePuy serving both as a County Attorney handling civil matters and acting as a board member of CNR. This argument, said the Court, has no basis in the statute.

 

The Court further concluded that DePuy was entitled for attorneys fees since the lawsuit was frivolous.

 

Park County Concerned Citizens v. DePuy, 2008 WL 2738454 (MT. 7/15/2008 ).

 

The opinion can be accessed at:

http://fnweb1.isd.doa.state.mt.us/idmws/docContent.dll?Library=CISDOCSVR01^doaisd510&ID=003789903

 


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