Big Sky Times

The Montana lawmaker whose bill to disclose information about state legal settlements was vetoed by Gov. Steve Bullock -- who has close ties with a man twice forced out of government positions over sexual harassment allegations - recently said he will try again.

The political landscape could be very different when the state legislature meets in its next session in 2021, Montana state House Rep. Bill Mercer (R-Billings) told Big Sky Times.

"I have a pretty strong feeling that if we have a Republican governor, that a lot of people who opposed the bill will, all of a sudden, think that it's a really great idea," Mercer said. "And that's unfortunate, because it shouldn't have any partisan cast at all."

Montana State House Rep. Bill Mercer (R-Billings), who sponsored HB 532 | leg.mt.gov

Mercer said he was "extremely frustrated" that the legislation didn't enjoy wider bipartisan support.

"To my way of thinking, this really has nothing to do with partisan affiliation," he said. "The question is, are we going to allow government to operate in darkness and not have any real sense of what is really being pursued in the way of litigation where dollars are being spent  to resolve the cases."

House Bill 532, which Mercer introduced last legislative session, would have required Montana's Department of Administration to disclose online information about monetary settlements the state makes. HB 532 also would bar nondisclosure agreements in state settlements, except in those cases involving minors, and would require state settlements records be retained for two decades, rather than the current five years.

HB 532 passed the Senate in a 29-21 vote and the House in a 58-39 vote in April but Bullock vetoed the bill the following month.

Bullock also issued an executive order requiring employee settlements to be made public and that part of the state's so-called "transparency portal," transparency.mt.gov, include information about settlements, with such records to be maintained for at least three years.

In his veto letter issued at the time, Bullock said HB 532 had been "an unfortunate casualty of the decision by Republican leaders in the legislature to hold bills from my desk until the legislative session adjourns." He also suggested the legislation would have gone beyond transparency and would have required state employees to disclose information otherwise considered confidential.

"I would have liked to return HB 532 with amendments and ultimately to sign it into law," Bullock said in his veto letter. "In principle, I agree with many of the aims of the bill's sponsor. I do not believe that the State of Montana should enter into confidential settlements, unless there is a compelling personal privacy interest."

Mercer said he didn't entirely buy into the reasons given for opposing HB 532.

"I know what they said was the biggest reason to reject it -- and that did not seem to be significant to me -- but I hate to begin to say someone has an ill motive or some sort of personal reason," Mercer said. "I would prefer to stand with the idea that it should not matter who the governor is; it shouldn't matter who they are or what their party is; it shouldn't matter how long they've been in office or not."

HB 532 was designed to "enhance" the public's right to know, which already is part of Montana's Constitution, Mercer said.

"It should be viewed positively by a governor in the first term or the last term, regardless of how they think this is going to result in documents being disclosed because, at the end of the day, that's one of the hallmarks of state government," he said.

Bullock, 53, barred by constitutional term limits from running for a third term as governor and currently in a largely failing bid for the Democrat nomination for president of the United States, has good reason to understand HB 532's requirements. In his first term as Montana's governor, his administration employed a man who now is infamous for sexual harassment allegations.

In December 2014,  Kevin O’Brien abruptly left the governor's administration where he worked as the Bullock's chief of staff. He then went to work for the Democratic Governors Association in Washington when Bullock became chair of that body.

About a year later, O'Brien was fired after an investigation alleged he had sexually harassed a governors' association co-worker.

The following month, O'Brien became deputy chief of staff to New York Mayor Bill de Blasio and was promoted to acting chief of staff in 2017, but he didn't last long in that position.

This past January, de Blasio acknowledged that his administration kept secret that O'Brien had been forced to resign following accusations of sexual harassment by two women.

Had O'Brien gotten into similar trouble during his time on Bullock's staff, under HB 532 any settlement involving allegations similar to those he later faced would have been disclosed.

Montana already has a history of such settlements.

In 2017, Montana state Senate Majority Leader Fred Thomas (R-Stevensville) asked for a legislative audit that subsequently revealed 51 settlements, totaling $3 million, for confidential employee settlements paid by the state between 2013 and 2017.

In February, the Associated Press reported Montana's executive branch employees annually received an average of $650,000 in settlements between 2013 and 2017 and $200,000 in 2018.

Meanwhile, Montana residents are long accustomed to open government, Mercer said.

"We have among the most aggressive sunshine provisions in the Montana Constitution as you can find in any Constitution in the U.S.," Mercer said. "We have enshrined the public's right to know."

Mercer declined to be drawn into whether Bullock may have other reasons, besides those disclosed, to veto HB 532.

"I'm loathe to say, 'Yeah, there was a specific reason that personalized this, something that happened in the last seven years,' because I don't know," Mercer said.