Plum government jobs given to helpful legislators are the inspiration for a bill that would prohibit Montana lawmakers from accepting state jobs while serving in the Legislature. Quite possibly, that prohibition already exists in the form of a constitutional provision intended to maintain separation of powers in government.
House Bill 351 would make it illegal for any legislator to take a job in state government. Sponsored by Bozeman Republican Rep. John Sinrud, the bill springs from the last year's controversy over Senate President Mike Cooney, D-Helena, and Sen. Sam Kitzenberg, D-nee-R, Glasgow, getting state jobs without going through the normal, competitive hiring procedures. Cooney has a $75,000-a-year job as the Department of Labor's Business Standards Division administrator; Kitzenberg has a $43,000-a-year job as a Revenue Department analyst. Republicans found it hard to ignore the fact that those two men have been friendly to Democratic Gov. Brian Schweitzer - Kitzenberg especially so; after joining the administration and after the November election, he switched party to give Democrats control of the Senate. Seven other legislators also have jobs in various state agencies. It's no recent trend for legislators to work in state government. It's gone on in Democratic and Republican administrations alike. Former Gov. Judy Martz, for example, hired then-Senate President Tom Beck as her senior policy adviser. As often as not, the political multi-taskers start as state employees who later run for the Legislature.
The greatest concern, however, should be the blurring of lines that create checks and balances through the separation of powers.
That's the basis of a provision in the Montana Constitution that - taken at face value - seems to prohibit legislators from holding executive branch jobs. That provision is Article III, Section 1, the separation of powers clause. The key line is:
“No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
What does that mean? As far as we can tell, the Montana Supreme Court has never ruled on that point directly.
What we do know is that the same or similar language appears in many state constitutions. And at least several states interpret such language to mean legislators can't wear more than one hat in government. At least 10 states take separation of powers provisions barring dual office holding more seriously than Montana does.
Florida's constitution, for example, says, “No person shall hold at the same time more than one office under the government Š” The courts there have interpreted that as applying to elected and appointed offices in state, county and municipal governments.
The Texas constitution says, “No person shall hold or exercise at the same time more than one civil office of emolument,” except for jobs like notary public, National Guardsman, county commissioner. That provision has kept courts and attorneys general busy deciding exactly which dual service situations are prohibited, but many dual roles have been deemed illegal under the Texas constitution.
The separation of powers provision in the Indiana constitution also is very similar to Montana's. Referring to the different branches as “departments” of government, the Indiana constitution says, “Š no person charged with official duties under one of these departments shall exercise any of the functions of anotherŠ” That state's attorney general publishes a 10-page “Dual Office Holding Guide” intended to help people avoid crossing constitutional lines. Indiana interprets the prohibition as applying to a broad range of “public service positions.” Violators not only risk losing their jobs - they also face felony charges.
In these and other states, limitations on dual service generally apply to positions in which some portion of the state's “sovereign power” has been delegated. Applying such a standard in Montana would clearly rule improper, say, Sen. Cooney's also serving as administrator of the bureau governing business standards; likewise Sen. Kitzenburg's job involving appraisal of land for taxation. It might or might not apply, however, to a nurse in the state prison (Rep. Cynthia Hiner, D-Deer Lodge) or a chemist in a Public Health and Human Services laboratory (Rep. Jill Cohenhour, D-East Helena).
New Jersey has separation of power language in its constitution nearly identical to that in the Montana Constitution. But double-dipping is a longstanding tradition there: At least 120 New Jersey legislators have jobs elsewhere in government. As in Montana, the issue of dual office-holding is being fought out in the New Jersey Legislature. Gov. Jon Corzine is demanding that state's lawmakers pass a law prohibiting anyone from holding two jobs in government, and he's threatening to veto a property tax reform package if they don't.
Interestingly, dual office-holding is a non-issue at the national level. That's because the U.S. Constitution is particularly explicit as it applies to Congress: “No person holding any office under the United States shall be a member of either House during his continuance in office.” America's founders knew from experience - watching England's King George III control the House of Commons - that allowing the executive branch to gain control of the legislative branch is a recipe for tyranny.
Here in Montana, we're not saying that Gov. Brian Schweitzer is emulating George III, or even that his administration has been overtly strategic politically in finding jobs for legislators. And, as we mentioned above, he's hardly the first governor to give citizen-legislators a steady paycheck. But the practice of hiring lawmakers for state jobs looks bad, fosters public cynicism and is at least ripe for abuse and corruption. It's just a bad idea.
Which probably explains why the Montana Constitution already seems to prohibit it.
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