Montana Capitol

The Montana Capitol in Helena

Democratic Gov. Steve Bullock’s administration has paid more than $900,000 in settlements to state employees over the last three years, according to public records. On most, state agencies won’t say why.

The state has paid 42 employees settlements totaling more than $745,000. Each is listed as “confidential” in the state’s checkbook, which has been published online since 2013, the year Bullock first took office. The payments range in amounts from $120 to $122,000.

One former employee who received a large settlement payment said, in some cases, state agencies use the confidential payments to cover up misdeeds. And an expert attorney in Montana public records law said the employees’ names must be disclosed. But the governor disagrees.

In September, the Chronicle filed public records requests seeking details of the payments with six state agencies that had issued them: the departments of Justice, Revenue, Natural Resources and Conservation, Transportation, Public Health and Human Services, and Fish, Wildlife and Parks.

Each request was rejected.

“I regret to tell you that because this is a personnel matter, I am not able to give you any more details about what is already on the state of Montana’s transparency checkbook website,” wrote Mary Ann Dunwell, a spokeswoman for the Department of Revenue and a Democratic lawmaker in Helena. “As you outlined in your email of September 27, 2016, the website shows an amount of $122,765 on 9/3/2015 to a ‘confidential payee,’ which was categorized as ‘other expense — employment settlements.’”

A former state employee, speaking to the Chronicle on the condition of anonymity for fear of being sued by the state, said they were fired in 2015 after nearly 10 years on the job. The state agency cited mandatory staff reductions in the termination. The former employee filed a complaint with the Human Rights Bureau that alleged discrimination.

“Less than 24 hours later (the agency) called and offered a settlement,” the former state employee said. The settlement amount, more than $50,000, was contingent in part upon a contract to never disclose the settlement. And the former state employee believes that the firing was in retaliation for whistleblower activities. The employee’s settlement was verified by the Chronicle with official documents.

And at least some of the other settlements also included non-disclosure clauses.

Ron Aasheim, a spokesman for the Department of Fish, Wildlife, and Parks, rejected a public records request on a $25,000 settlement payment in 2015, saying that “for the request here, we have a signed general release from the employee which contains the following language: ‘It is further understood and agreed that neither the parties to this agreement nor their attorneys shall discuss with anyone other than those referenced in this agreement, or publicize in any way the terms of the settlement set forth in this agreement.’ Because we have a legal, binding settlement agreement, we cannot further discuss this employee’s personnel matters.”

Ronja Abel, a spokeswoman for Bullock, said state employees who are laid off are eligible for payouts and that state employees who see any inappropriate activity are “encouraged to blow the whistle to ensure a work environment that respects all employees and taxpayers.”

“The State of Montana has a responsibility to ensure a work environment that’s fair to both taxpayers and all 11,000 employees. Unfortunately, some former employees have axes to grind and are out for political retribution, which undermines all employees,” Abel said in an email Wednesday.

Abel said the $745,000 in payments is a minuscule fraction of the state’s total personnel services budget over the last three years, and that state law does not allow state agencies to release information regarding the employee settlements.

Mike Meloy, a Helena lawyer who represents the Montana Freedom of Information Hotline, said the state agencies are likely in violation of the state’s open records laws.

Montana’s Constitution reads: “No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the public’s right to know.”

Meloy said the Montana Supreme Court has adopted a legal analysis for balancing individual privacy and public disclosure that has already been used by the state’s attorney general to decide that the names of state employees and their salaries are open public records.

“If you apply that same analysis to a settlement, the same result would pertain, that is: Does a person have a right to privacy with respect to the fact they have been working for the state and are no longer working for the state and have received taxpayer monies in connection with their leaving?” Meloy said. “The answer to that question is clearly that they don’t have a right to privacy.”

Some of the details, employee job performance evaluations for example, could be withheld, the attorney said. But in a dispute between an employee and a government agency, when taxpayer funds are used to reach a settlement, the demands of individual privacy would not likely exceed the public’s right to know, Meloy said.

“There’s a statute that applies this balancing test to settlements that the tort claims division makes with somebody who makes a claim against the state,” Meloy said. “So most wrongful discharge claims, not discrimination claims, go through the process that results in a settlement with the state, and the statute says that the settlement is not confidential unless the demands of individual privacy clearly exceed the merits of public disclosure.

“There isn’t a statute for settling human rights claims, but my guess is the court would look to the same policy in resolving whether or not a particular settlement document is open for public inspection... and it doesn’t make any difference that there’s a confidentiality provision in it. A state official can’t unilaterally override the Constitution.”

Troy Carter can be reached at 582-2630 or tcarter@dailychronicle.com. He’s on Twitter at @cartertroy.

Troy Carter covers politics and county government for the Chronicle.

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