0
Michael L. Rabb
Montana Law Company
602 Ferguson Ave., Ste 5
Bozeman, MT 59718
Telephone: (406) 585-5598
Telefax: (406) 585-2811
rabbCilllaw-advisor.com
Quentin M. Rhoades
Nicole Siefert
RHOADES & SIEFERT, P .L.L.C.
430 North Ryman, Second Floor
Missoula, Montana 59802
Telephone: (406) 721-9700
Telefax: (406) 728-5838
qnu(wmontanalawyer.con1
nicole@montanalawyer.com

Attorneys for Arthur Wittich
MONTANA FIRST JUDICIAL DISTRICT COURT
LEWISANDCLARKCOUNTY
The COMMISSIONER OF
Cause No.: BDV-2014-251
POLITICAL PRACTICES FOR
THE STATE OF MONTANA,
through JONATHAN R. MOTL,
acting in his official capacity
PRINCIPAL BRIEF IN
as the Commissioner of
SUPPORT OF ARTHUR "ART"
Political Practices,
WITTICH'S ALTERNATIVE
MOTION TO DISMISS, OR IN
Plaintiff, CounterLIMINE,
RE SPOLIATION OF
Claimant Defendant,
EVIDENCE
v.

ARTHUR "ART" WITTICH,

Defendant and
Counter-Claimant.

 Defendant, Arthur "Art" Wittich, submits in support of his alternative
motion to dismiss this case, or in limine for an order barring Plaintiff from
testifying in this case, on grounds of spoliation the following:
PRINCIPAL BRIEF

PROCEDURALANDFACTUALBACKGROUND
When Plaintiff Jonathan R. Motl was appointed the Commissioner of
Political Practices in the summer of 2013, he arrived with a heady agenda.
He told the professional staff his aim: unseat Art Wittich, and "people like
him," and bar them "from ever holding office." (Aff. of Julie Steab (January
12, 2016),

ii 4, attached hereto as Ex. A.) And he knew how he was going to

do it. Deborah Bongofsky had filed a campaign practices complaint against
an opponent, Dan Kennedy, as a result of the 2010 Republican primary
campaign. Motl knew exactly how he would decide the complaint. He told
his staff, "I know what the decision will be, I just need to find the facts to
support the decision." (Id. at ii 5.) Moreover, Motl decided to contrive to
have Bonogofsky orally extend the complaint to "others similarly situated,"
so he could use Bonogofsky's complaint against people whom she had
never met, much less run against. (Motl deposition pp. 40-41, attached
hereto as Ex. B.) As Motl admitted in his deposition, he telephoned to
Bonogofsky and told her "what the evidence showed and she agreed that it
2

ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 was good to expand to [Wittich]." (Id., at 231: 22-25, 232: 1-4.)
By October, 2013, alarmed by Motl's biased approach toward those
with whom he disagreed, Steab resigned her position with the COPP.
While she was employed with COPP, however, Steab sent and received "a
great deal of email." (Deel. of J. Steab (Jan. 21, 2016),

~

3, attached hereto

as Ex. C.) She never deleted folders, to include folders of archived email which should all still remain backed-up. (Id.) Nevertheless, Steab's email
apparently soon disappeared. In May, 2014, Wittich sought in discovery
"all communication" the Office of the Commissioner of Political Practices
had with Ms. Bonogofsky. (Wittich's Request for Production No. 4, see
copy attached as Ex. D.) On June 9, 2014, Motl responded saying "This
information is being assembled and will be produced for inspection."
(Motl's response to RFP No. 4, attached hereto as Ex. E.) Later, on July 25,
2014, Motl supplemented his response, offering two emails. Neither were
to or from Julie Steab. But one was from Mary Baker to him about Julie
Steab. (See Motl's Bates No. "EMAIL00001," included in Ex. F, attached
hereto.) In an effort to "assemble" this correspondence, Mary Baker,
another COPP staffer, was apparently assigned to "take a look at Julie
Steab, our former investigator's, email's [sic] for correspondence involving
parties engaged in current litigation." (Id.) Baker "completed a search of

3
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
Ms. Steab's in-box and associated folders," however, "and was unable to
obtain any emails that pertain to pending litigation." (Id.) "In fact, the
archive folder is no longer available." (Id. (emphasis added))
There is only one way the destruction of the email folder of a key
witness in this case could have become "no longer available": purposeful
spoliation. As it turns out, Steab did not delet~ any email archive folders
when she left the COPP. (Deel. of Steab (Jan. 18, 2016), attached as Ex. C,
'II 4.) Moreover, in the course of an official investigation, Steab learned

from the State of Montana's Internet Technology Services Division (ITSD),
that all the email from the State of Montana email accounts is backed up
daily and stored for up to ten years in a remote facility in Miles City,
Montana. (Id., '115.) Thus, even if someone from the COPP with access to
the Stcab email archive despoiled it so as to make it "no longer available," it
should still be backed up at the remote facility. If it is not, the most likely
reasonable inference is that it was purposefully despoiled. For these
reasons and the legal analysis discussed below, the Court should hold an
evidentiary hearing to determine whether spoliation occurred, and if so,
impose the sanctions requested herein.

II
4
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
DISCUSSION

Spoliation is committed when a party either negligently or
intentionally fails to preserve evidence. Oliver v. Stimpson Lumber

Company, 1999 MT 328, ~ 31, 297 Mont. 336, 993 P.2d 11. For purposes of
proving spoliation of evidence, a duty to preserve evidence arises where
"there is a duly to do so based upon a contract, statute, regulation or some
other special circumstance/relationship." Id.

at~

42 (emphasis added).

As with most jurisdictions, Montana takes a decidedly dim view of

document spoliation:
Relevant evidence is critical to the search for the truth. The
intentional or negligent destruction or spoliation of evidence
cannot be condoned and threatens the very integrity of our
judicial system. There can be no truth, fairness, or justice in a
civil action where relevant evidence has been destroyed before
trial. Historically, our judicial system has fostered methods and
safeguards to insure that relevant evidence is preserved.
Ulti-mately, the responsibility rests with both the trial and
appellate courts to insure that the parties to the litigation have a
fair opportunity to present their claims or defenses.

Oliver, ir 3i.
The remedies for these serious wrongs are provided for under the
Montana Rules of Civil Procedure. Id.,

~

32. "Trial judges are well

equipped under the Montana Rules of Civil Procedure to address the
problem as it occurs and deal with it accordingly, even entering default
when the circumstances justify such relief." Id. For example, if a party
5
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 consciously withholds information properly subject to discovery, an order
of"[d]ismissal with prejudice is an appropriate sanction." Jerome v.
Pardis, 240 Mont. 187, 192, 783 P.2d 919, 923 (1989). Default is also
available whenever parties "callously disregard the rights of their
opponents and other litigants seeking their day in court." Cass v.
Composite Industries ofAmerica, Inc., 2002 MT 226,

~

19, 311 Mont. 406,

56 P.3d 322. Thus, under Montana law, when it has become obvious that a
litigant has failed to save evidence required under law to be retained, or
othenvise covered-up the truth, default and dismissal are the just and
expedient results.

Id.,~

20. See also, Xu v. McLaughlin Research Inst.for

Biomedical Sci., Inc., 2005 MT 209,

~

20, 328 Mont. 232, 119 P.3d 100.

Federal authorities agree. For example, where a party has not saved
or preserved evidence, federal courts have full authority to impose default
and dismissal as sanction. See Marketing Specialists, Inc. v. Bruni, 129
F.R.D. 35, 53 (W.D.N.Y.1989). Furthermore, where a party has destroyed
evidence prior to issuance of a discovery order, and thus is unable to obey,
sanctions are nevertheless still appropriate "because this inability was
self-inflicted." Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72
(S.D.N.Y. 1991). See In re Air Crash Disaster near Chicago, Illinois on
May 25, 1979, 90 F.R.D. 613, 620-21 (N.D.Ill.1981). Judge Lynch, of the

6
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 U.S. District of Montana, recently put it this way:
In appropriate circumstances the court may also dismiss an
action or enter a default judgment. Leon, 464 F.3d at 958
(citation omitted); See also Halaco Engineering Co. v. Castle,
843 F.2d 376, 380 (9th Cir.1988). One such circumstance
would be where the spoliated evidence relates to the matters in
controversy in such a way that its spoliation threatens to
interfere with the rightful decision of the case. See United
States v. National Medical Enterprises, Inc., 792 F.2d 906, 912
(9th Cir.1986) (citing North American Watch Corp. v. Princess
Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986), F]elstad v.
American Honda Motor Co., 762 F.2d 1334, 1338 (9th
Cir.1985), and Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d
585, 591 (9th Cir.1983)).
Peschel v. City Of Missoula, 664 F. Supp. 2d 1137, 1142 (D. Mont. 2009).
Thus, where a party has failed to preserve, or actively spoliated, evidence
that is material to the outcome of a case, the consequences should not fall
on the innocent party. Rather, they should be shifted to the despoiling
party by means of default.
Three factors are relevant in deciding whether default is warranted.
Smith v. Butte-Silver Bow County, 276 Mont. 329, 339-40, 916 P.2d 91, 97
(1996). Under the "Smith test," courts should consider:
(1)

The extent and nature of the actual discovery abuse;

(2)

The extent of the prejudice to the opposing party which resulted
from the discovery abuse; and

(3)

The consequences expressly warned of by the court, if a
warning was actually issued.

Culbertson-Froid-Bainville Health Care Corp. v. JP Stevens & Co. Inc.,
7
ARTHUR "ART" WITTICH'S ALTERNATNE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
2005 MT 254, 329 Mont. 38, 43, 122 P.3d 431, 435 (citing Smith, supra).

Nature of the abuse. In this case, the extent and nature of the
actual discovery abuse is uniquely disturbing. Motl professes to hold his
office as a "public trust" with the people of the State of Montana. Clearly,
he is duty bound to treat all his constituents equally, regardless of party
affiliation, or ideological creed. He is a licensed attorney, who has been in
practice for many decades. He is fully aware of the standards set forth
above, or should be. Motl's duty to preserve evidence is both a legal and
professional one. He has been ordered to pay fines for violating campaign
practice law. In the matter of the Comp. against Mont-PIRG, et al,
Summary of Facts and Statement of Findings, Before the Commissioner of
Political Practices, State of Montana (August __ , 2002), (see copy
attached as Ex. G). Motl was found in the case to be deliberately
intransigent in supplying required information. (Id., pp. 9-11. (discussing
how "Jon Motl... ha[s], until recent months resisted and delayed providing
crucial information related to this investigation,'' describing "misleading
and evasive information provided by Mr. Motl," and noting a "lack of
candor not expected from public advocates of full disclosure of campaign
finances and practices").) Motl was also found to have violated Montana
campaign law regarding corporate contributions, and failing to disclose
campaign expenditures. (Id., pp. 46-48, 52-54.) These experiences, and
8
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
the public reprimand of Motl's past lack of candor, belie any attempt by
Motl to downplay his awareness of the discovery obligations of his office.
The nature of the discovery abuse, moreover, is malicious. Motl
arrived in office with an agenda, from Day One, to target conservative
Republicans regardless of his duty of fairness and objectivity. In service of
his aims, he has relied on novel interpretations of law, tenuous inferences
and inadmissible evidence. He has made the gravest of accusations in this
case: that conservative Republican candidates who ordered direct mail
services from Direct Mail Communications, Inc., during the 2010 election
cycle accepted tens of thousands of dollars in campaign assistance from a
shadowy group of nefarious "corporate entities," and are guilty of "quid pro
quo corruption." Finally, he wants them all - especially the popular leader
Wittich - removed from office. As part of his program in pursuing these
claims, Motl stays in constant contact with the news media, feeding them
his conclusions as if he has arrived at them in an objective, omniscient
fashion, leaving the accused all tried and convicted in the news media long
before their cases can ever be adjudicated in court. (Ex. H, attached.) This
conduct implies that the discovery abuse here is not mere negligence or
carelessness in adhering to the rules of discovery. Rather the reasonable
inference is that Motl's spoliation stems from a deliberate attempt to
hamper the opposing party.
9
ARTHUR "ART" WI1TICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
And Julie Steab is a whistle-blower on Motl's campaign to target
Wittich and the conservatives. But, conveniently for Motl, her entire State
of Montana email archives, authored during the course of her work for
Motl, are now "no longer available." Worst of all, this can be no accident.
The Steab email archive, including not only "transitory records" but also
"official records" (see, State of Montana E-Mail Guidelines (Mont. State
Records Committee (Sept. 2006), p. 4, attached as Ex. I), appears to have
been intentionally deleted by someone in Motl's office with access to
Steab's email system. And, ifit truly is "unavailable," it would have been
purposely deleted from the daily back-up email facilities of the State of
Montana. The purposeful destruction of public records and information which belong to the people of the State of Montana - is a felony. MONT.
CODE ANN.§ 45-7-208.' Beyond the criminal implications of disposing of

1

MONT. CODE ANN.§ 45-7-208 provides, in pertinent part:

(1) A person commits the offense of tampering with public

records or information if the person: ...
(c) purposely destroys, conceals, removes, or otherwise impairs
the verity or availability of a record, document, or thing; ...
(2) A person convicted of the offense of tampering with public

records or information shall be imprisoned in the state prison
for a term not to exceed 10 years or be fined an amount not to
exceed $50,000, or both.
10

ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
public records, it also comprises civil discovery abuse of the most serious
kind.

Prejudice to the opposing party. The prejudice to Wittich is
clear. This case is largely a contest over Motl's credibility. Motl also admits
that in the thousands of pages of documents he has reviewed, from Rep.
Wittich (and another 13 conservative Republican candidates he has now
accused of coordinating with corporate entities), he has not seen any
document where Wittich (or any one of them) knew about - let alone
consented to - whatever political support these entities may have intended
for them. (E.g., Depo. Transcr. J. Motl (Dec.
102:6 - 145:20.)

1, 2015),

attached as Ex. B,

Motl has likewise identified no witnesses - not one -

whom he claims will testify that they received, overheard, or participated in
any conversations or communications with Rep. Wittich or anyone else to
such effect. (E.g., Id.,

124:1-125:16; 129:3-19.)

But he argues the lack of evidence establishes - in his own opinion corruption by Wittich. (Commissioner's Brief in Opposition to Wittich's
Motion for Rule 37 Sanctions (Dec.

21, 2015),

pp. 5-6.)) Because his own

"opinion" is the only evidence to support his allegation, he filed this lawsuit
absent any complaint against Wittich by a member of the public (in
violation of MONT. ADMIN. R. 44.10.307(2) and (3)), then abandoned his
role as prosecutor, hired outside counsel, and identified himself as the sole
11
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 expert witness on liability. As Steab is the whistle-blower, her email
archive contains key evidence in this case in the form of communications
about Bonogofsky's complaint, Motl's motivations, and the investigation and is critically important to exposing Motl's real agenda. (Deel. of J. Steab
(January 18, 2016),

~~

9-10.) Specifically, these emails include email from

Steab to Motl, and vice versa, that she printed and put in her desk to keep a
record of her conversations with him and his directives to her. (Id.) When
she left the COPP office, however, most of the emails she had printed were
missing. (Id.) Still, there should be an electronic record of these
documents. Moreover, Steab's email archives should contain emails
between her and Motl regarding the investigations of Debra Bonogofsky's
complaint against Dan Kennedy, as well as the series of investigations
initiated by Commissioner Motl against people "similarly situated." (Id.)
Finally, Steab's email archives should also include emails between her and
other COPP staff regarding her concern over handling of investigations by
Motl.
The loss of the whistle-blower's external communication v.1th
Bonogofsky and witnesses, and internal communication with Motl and her
co-staffers regarding Bonogofsky, Wittich and others, is of critical
importance to establishing the dynamic in the office, corroborating Steab's
testimony, establishing her competence within the office, and showing she
12
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 0
is not a disgruntled employee. Now, all of this evidence, according to
COPP's own staffer Mary Baker, is "no longer available." (See Motl's Bates
No. "EMAIL00001," included in Ex. F, attached hereto.) If an evidentiary
hearing by the Court confirms the emails were destroyed, such action is
spoliation of extraordinary magnitude, eliminating Wittich's access to
materials of unique importance to his defense in this case. The key,
material witness against Wittich in this case is Motl, and the key evidence
Motl seeks to present is Motl's "expert" opinions. Julie Steab's email
archive would be an invaluable tool in allowing the jury to fairly access
Motl's credibility. Spoliation ofSteab's email archive plainly deprives
Wittich of key evidence necessary to do so, for which there is no adequate
substitute.
Consequences warned of by the Court. In this case, there was

no express warning by the Court. Yet no warning is required to impose
sanctions. "Neither the language of Rule 37(b)(2) nor our precedent
requires a district court to expressly warn a party before imposing
sanctions." Peterman v. Herbalife Int'l, Inc., 2010 MT 142, ii 23, 356 Mont.
542, 234 P.3d 898 (citing Culbertson, ii 15). "However, ifthe court opts to
expressly warn of sanctions, the sanctions imposed must be consistent with
the warning." Id. Since no warning was given, this factor is less important.
But it is also important to understand that the State of Montana is vividly
13
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 aware of the consequences of discovery abuse, as are its seasoned
attorneys. For example, in a case where it suffered the ultimate sanction
for not properly responding to requests for production, it received the
starkest of admonitions:
Because the State's discovery abuse here was so blatant and
systematic, and because it undermined the integrity of the
entire proceeding, the only proper sanction is a default
judgment on the issue of liability, just as we approved in Schuff
and Culbertson. Any less severe sanction would be inconsistent
with the rule that punishment for discovery abuses must be
made unbearable in order to thwart the inevitable temptation
which zealous advocacy inspires.

Richardson v. State, 2006 MT 43, ~ 65, 331 Mont. 231, 130 P.3d 634.
Clearly the State of Montana knows full well the scope of its duties to
preserve evidence. C.f., Spotted Horse v. BNSF R.R. Co., 2015 MT 148, ~
22, 379 Mont. 314, 320, 350 P.3d 52 (sophisticated and recurrent parties to
litigation are deemed to be aware of their "obligation to preserve
evidence"). In Richardson, moreover, a mere concealment of evidence
required the severest of sanctions. Here, evidence has not been merely
concealed - the reasonable inference to be drawn is that, given the nature
of the State of Montana's email back-up system and its purpose to prevent
inadvertent loss of evidence, the whistle-blower's email archive may have
been intentionally and purposefully despoiled.
Less lenient sanctions are not warranted. Although the most likely
14
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 inference is that the Steab archive was purposefully spoliated, it is also
possible it was accidently deleted from the COPP's local email archives.
Such a circumstance might warrant a less severe reprimand, such as, for
example, barring Motl from testifying as to opinions in this case. See,

Spotted Horse, ii 39 (absent evidence of intentional spoliation, trial court
did not abuse discretion in imposing sanction lesser than default
judgment). But this is why the State of Montana maintains a robust backup
facility off-site. Accidents happen, and so the State has a work around
remedy to allow it to restore any email records that are accidentally deleted.
For that back-up system to have been foiled in this case requires concerted
effort by someone ·with access to the State's systems. If that indeed
occurred, the sole reasonable inference to draw in this case is purposeful
conduct, warranting, as in Richardson, the ultimate sanction of dismissal.

Cf., Richardson, ii 65 (reversing district court's order refusing default
judgment as ultimate sanction for blatant discovery abuse).
Finally, if the Court finds that the email records were lost through
innocent but incompetent records retention in the Office of the
Commissioner of Political Practices, it should bar the official in charge Motl - from offering any opinion evidence in this case. If Motl is not even
competent to manage records retention in his own office, he is
insufficiently competent to offer testimony at trial as an "expert" witness.
15
ARTHUR "ART" WITTICH'S ALTERNATIVE MOTION TO
DISMISS, OR IN LIMINE, RE SPOLIATION OF EVIDENCE

 CONCLUSION

Accordingly, the Court should conduct an evidentiary hearing, and
upon a finding of purposeful spoliation, dismiss the complaint; or in the
alternative, if the spoliation is not found to be active and intentional, then
bar Motl, the official in charge of records retention for his office, fro1n
testifying to any opinions in this case.
Dated this

21

51

day of January, 2016.
Respectfully Submitted,
RHOADfS &SIEFERT, P.L.L.C.

B~~~

Quentin M. Rhoades
Nicole L. Siefert
Attorneys for Arthur Wittich

16

PRINCIPAL BRIEF IN SUPPORT OF ARTHUR "ART" WITTICH'S MOTION TO
DISMISS FOR SPOLIATION OF EVIDENCE

-

 0
CERTIFICATE OF SERVICE
I

hereby certify that on this 2181 day of January,

2016, I

served upon

the following a true and correct copy of the foregoing by mailing said copy
to the following addresses:
Jaime MacNaughton
PO Box 202401
Helena, MT 59620-2401
Gene R. Jarussi
John Heenan
BISHOP & HEENAN
1631 Zimmerman Tr.
Billings, MT 59102

Quentin M. Rhoades

17
PRINCIPAL BRIEF IN SUPPORT OF ARTHUR "ART" WITTICH'S MOTION TO
DISMISS FOR SPOLIATION OF EVIDENCE

 Michael L. Rabb
MONTANA LAW COMPANY
602 Ferguson Ave., Ste 5
Bozeman, MT 59718
406-585-5598
406-585-2811 fox
rahb@law-advrsor.com

Quentin M Rhoades
Nicole Siefert
Rhoades & Siefert, P.L.L.C.
430 North Ryman, Second Floor
Missoula, Mf 59802
406-721-9700
406-728-5838 fax

qmr@montanalawyer.com
nicolc@montanalawycr.com
Attomeysfor Defendant

MONTANA FIRST nJDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY

••••••• * ........ *
The COMMISSIONER OF POLITICAL
PRACTICES FOR THE STATE OF
MONTANA, tbroughJONA1HANR. MOTL,
acting in his official capacity as the
Commissioner of Political Practices,

)
)
)
)
)

Cause No. BDV-2014-251
AFFIDAVIT OF
JULIE STEAD

)

Plaintiff,

)
)

vs.

)
)

ARTHUR "ART" WITTICH,

)
)

Defendant.

)

STATE or MONTANA

)

County of Jefferson

)

: SS.

I. Julie Steab, being duly swom, state the following:

A.lrodovit of J•li• Steab

l'ag• 1

Exhibit A-1

 I'
II

I.

I am over the age of eighteen, competent to testify, under no disability that would

l

impair by ability to recollect and testify, and have personal knowledge of the facts set forth

l

herein.

I

I
I

2.

I began worldng for Jonathan Motl shortly after his appointment in 2013 by

I

l

Governor Bullock to office of Commissioner of Political Practices.

3.

I have several years of investigative experience in campaign finance, including six

years as a contract investigator for the Attorney General's Office, Agency Legal Services
Bureau. and three years as a staff investigator for the Commissioner of Political Practices.

4.

Shortly after I began working for Commissioner Motl, he expressed his keen

dislike for Art Wittich.

Commissioner Motl expressed, while discussing Art Wittich, that

"people like him need to be wtseated and barred from ever holding office." Through nwncrous
conversations with Commissioner Motl, I understood that people like Art Wittich included
individuals such as Mike Miller, Scott Sales, Ron Murray, Joel Boniek, etc.

S.

Shortly after I began working for Commissioner Motl (within two or three

weeks), he expressed to me regarding the Bonogofsky complaint; "I know what the decision will
be, I just need to find the facts to support the decision."
6.

During my time at COPP, candidates would often have trouble with reporting

requirements related to ''pa:ls the hat" fundraisers.
7.

It was common for candidates to pay for expenses out-of-pocket and later

reimburse themselves out of campaign funds.

8.

I am willing to testify, declare, depose, and certify before any competent court,

judge, tribunal, officer, or person in any case now pending or which hereafter be instituted to the
truth of the particular fllcts hereinabove set forth.

AJ!ldavit of Jutte Steab

Exhibit~~2

 I
I!

9.

l have eJCecuted this Affidavit on the day and year fim hereby written below.

DATED this 12th day of JanllllI}', 2016.

II

I
I

I
I

STATEOFMONTANA

)

Connty of Jefferson

)

: SS.

This instrwnent was signed and sworn to or aftinned before me on the 12th day of
January, 2016 by Julie Steab_

Ok

Q

~:f. '.

p C•-fl

Notary Public for the State of Montana

Affldll'it of Juli• Steab

 0
CERTIFICATE OF SERVICE

I hereby certify that on this 1z1!' day of January, 2016 a true and correct copy of the
foregoing document was duly served upon the following individual(s), at the address, and in the
manner, indicated.
Jamie MacNaughton
Attorneys for the Commissioner
of Political Practices
PO Box 202401
Helena, MT 59620

.1ef First-class mail, postage prepaid
o FedEx
o Hand delivery

Gene R. J arussi
John Heenan
Bishop & Heenan
1631 Zimmerman Tr.
Billings, MT 59012

ii( First-class mail, postage prepaid

o
0

o
o
o
o

Fax: - - - - - Email to - - - - - FedEx
Hand delivery
Fax: _ _ _ _ __
Email to: ge_ne1arussi(ihbishopandheenan.com

By:
Amanda Menasco

Affidavit of Julie Steab

Page 4

ExhibitA-4

 0
JONATHAN MOTL

THE COMMISSIONER OF POLMCAL PRACTICES, et al. v. WITTICH 12/1/2015

MONTANA FIRST JUDICIAL DISTRICT COURT
LEWIS AND CLARK COUNTY
The COMMISSIONER OF
POLITICAL PRACTICES FOR THE
STATE OF MONTANA, through
JONATHAN R. MOTL, acting in
his official capacity as
the Commissioner of
Political Practices,

Cause No.
ADV-2014-251

Plaintiff, Counterclaimant
Defendant,
-vsARTHUR "ART" WITTICH,
Defendant, Counterclaimant
and Third-Party Plaintiff.

I

Taken at 30 South Ewing Street
Suite 100
Helena, Montana
Tuesday, December 1, 2015 - 9:12 a.m.
VIDEOTAPED DEPOSITION
OF
JONATHAN MOTL

Reported by Emily Brandon, Jeffries Court
Reporting, Inc., 1015 Mount Avenue, Suite C,
Missoula, Montana 59801, (406) 721-1143,
Freelance Court Reporter for the State of Montana,
~esiding in St. Ignatius, Montana,
JCrcourE@montana.com
JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-1

 Page 11 (Pages 38-41)
JONATHAN MOTL

THE COMMISSIONER OF POLmCAL PRACTICES, et al. v. WITTICH 12/1(2015

Page 40

Page ::!8

2
A. To the extent that emails tell
3 something, then, yes, I have the emails. And --

Q. The ones that employed her business for
1
2 Direct Mail services in the 2010 republican
3 primary that you've spoken of.

4 and - and that's -- I have never talked to
5 Allison LeFer, so I don't know iivhat she said

A. Based on the documents, those weren't
4
5 the only customers.

6 orally to anybody.

6

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Q. Have you asked anyone, Mr. O'Neill or
8 Mr. Hofer or Mr. Fusaro, have you asked them what
9 Allison Lefer told her customers about

A. I believe -- I -- The way that the
7
8 entity operated was it didn't advertise, it didn't

1 about Christian Lefer?

Q. Well, how would those customers know?

9 reach out to the public, that it was infonmation
10 that was shared privately.

10 Christian LeFer?
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A. I haven't. The only information I have
12 about what Allison LeFer told anybody is in the

13 emails.
Q. Why haven't you asked anyone about that?
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A. I would have if there would have been an
IS
16 opportunity, but -- but -Q. You didn't have an opportunity to talk
17
1
118 to Mr. O'Neill?
A. What we've been -- What the office has
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20 been able to - to produce in terms of information
21 is in the document ~rchives that we produced.

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Q. Well, there's a lot of paper there, I
23 will admit, but I don't see any communication by
24 Ali LeFer -- And I know your knowledge of these
25 documents is much more syncopated than mine.

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Q. Well, let me ask you about you -- your
supplemental report -- Now, you've been studying
this case for how many years?
A. Which case?
Q. The one that originated with a complaint
by a woman named -- if I pronounce it correct -Bonogofsky -MR. JARUSSI: Bonogofsky.
Q. (BY MR. RHOADES) Thank you.
Bonogofsky, that's how you pronounce it. So she
initiated a complaint against Art Wittich, right?
She initiated a complaint -- Just let me be more
specific.
She initiated a complaint against
Art Wittich with the Commissioner of Political
Page 41 '

Page 39

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But I don't see any communication from
Allison Lefer to her customers telling them that
National Right to Work or Christian Lefer or any
of these other entities -A. Oh-Q. Would you let me finish my question?
-- or any of these other entities are
Involved with her company. So If you know of
those communications from Allison Lefer to her
customers, would you point that out to me?
A. Yes, and now I understand what your
question is. ls there any information like that
in there? No, there's not. Would I expect

14 there's any information? Absolutely not.

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The closest you get to anything of that
angle is an email by Christian LeFer when he's
talking about a Judas in the ranks who has
basically described his role because he doesn't
want any information about his role out there. So
would I expect there to be that sort of direct

21 information in these documents? No.

22
Q. Well, how would her customers know all
23 this information that you say you know about
24 Direct Mail?
25
A. Which customers are you referring to?

1 Practices; is that correct?
2
A. I don't think it's quite that simple.
3
Q. Well, how did your office come to
4 investigate Mr. Wittich?

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A. Ms. Bonogofsky filed a complaint against
an individual, a legislative candidate in the
Billings area, by the name of Dan Kennedy. When
she filed the complaint, she also filed it against
all other candidates so situated. Mr. Wittich was
one of those other candidates so situated.
Q. And when you say "so situated," what do
you mean by that?
A. I know now from the -- from all of the

14 document archives, the original document archive

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that we had was the Colorado documents.
Q. How did you get those?
A. Those were mailed to the office before I
was there.
Q. By whom?
A. And I believe that that's described in
writing. I don't recall any of the transfers. I
wasn't Involved In It. But we have affidavits
that we've produced that are of record that

24 describe how the documents arrived, possession of

25 them.

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-2

 Page 27 (Pages 102-105)
THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

JONATHAN MOTL

Page 104

Page 102

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Dennis Fusaro.

Q. So repeat that for me because I missed
it. You said that Art Wittich violated practice
law by accepted in-kind -A. Paid personal services.

Q. In-kind paid personal services, okay.
And you think there are documents that
reflect Mr. Wittich accepting that?
A. I know there's documents that reftect
that, I don~ think.
Q. So can you think of one document that
reflects that?
A. The series of emails and exchanges
between he and Andrew O'Neill regarding the
personal services that -- the paid personal

services that Andrew O'Neill provided him on
website design, graphic design, the letters from

Jedd Coburn that -Q. So let's stick with the emails from
Andrew O'Neill. I've seen an email exchange with
Andrew O'Neill and Art Wittich talking about the
website design.
A. (Nods head.)
Q. You said also graphic design. I haven't
seen one or those. Did you produce those today?

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Andrew O'Neill provided to Mr. Wittich for graphic
design, including the website.

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I've had. I will give you Bates numbers on those,

Q. And we've marked those here today as -A. We have not marked those.

Q. Well, where are they?
A. They're in easily-accessible package of
the documents in the thumb drive that you were

provided at the exact same time that I was
9 provided and you've had access just as long as
but they're definitely in that thumb drive you
have. You have the documents in your possession.

Q. Well, you know, I'm asking you to
identify documents that you're relying upon, okay.
So me having documents in my possession, with due
respect, doesn't really mean much if you can't

identify them. So that's why I'm asking you
questions about the documents you rely upon; do

you understand?
A. And I've just described them to you as
best as I can describe them to you at this time.

Q. And you didn't bring them with you
today, correct?

A. I did not.
Q. Why not?

Page 1U3

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A. The Andrew O'Neill documents have not
been produced, but you should be able to print
those out easily yourself.
Q. So you saw an email between
Andrew O'Neill and Art Wittich talking about
graphic design?
A. I believe that Mr. Wittich yesterday
testified as to graphic design. He agreed that
Andrew O'Neill did his logo.
Q. That's your understanding of his
testimony?
A. That's right.
Q. So what other documents would show
in-kind paid personal service by Andrew O'Neill
for Art Wittich that Art Wittich accepted?
A. They would all be in those email
exchanges between Art Wittich, Andrew O'Neill.
Q. Do you know of any specific documents
that show that, besides what you've already
described?
A. The portion of the Andrew O'Neill
document archive that specifically deal with
Art Wittich, that those are the emails that I am
specifically -- and the attached documents that
deal with the paid personal services that

Page 105

1
A. They're a small document file that I
2 presumed you would already have looked at
3 yourself. They were not buried in a large
4 500-or-more group of documents in a different sort
5 of document file. They were simply right there.

6 They're Andrew O'Neill and they're labelled
7

B
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Art Wittich. 11

Q. Well, since you didn't bring them with
you today, is it fair to say you're not relying
upon them?
A. No, it's not at all. I am relying on
them. I specifically said In that testimony that
I'm relying on the Andrew O'Neill and Nolan Green

14 document archive.

15
Q. Well, I thought you said earlier you
16 brought today the documents you're relying upon.
17
A. Illustrative. I brought documents that
18 were illustrative.

19
Q. Did you bring one with you today that
20 illustrates Art Wittich accepting paid in-kind -21 excuse me -- in-kind paid personal services from a

22 corporate entity that he didn't report?
23
A. Why don't you use one of the ones that
24 you used in Mr. Wittich's deposition yesterday,
25 because that1s part of that group of documents.

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-3

 Page 28

(Pages 106-109)

THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

JONATHAN MOTL
Page 108

Page 106

1

Q. Do you understand my question?
I do.
Did you bring -I did not bring them. other than that,
already -- some of them are already part
of Mr. Wittich's deposition.
Q. And why don't you tell me why you didn't
bring them today.
A. I just -- I already did.
Q. Okay. So you think that there's some
from the deposition yesterday that would
illustrate that?
A. That's right.
Q. Can you just describe those documents so
maybe I can figure out what they are?
A. If you can hand me -- or Mr. Jarussi
might know the numbers by heart.
Q. Well, one of the things that I'll
correct you on is I didn't present these documents
at the deposition yesterday. Mr. Jarussi did. So
you may have misspoke when you said that I did,
but I just want to make that clear on the record.
So you heard some talk about some emails
between Art Wittich and Andrew O'Neill yesterday
during the deposition; is that right?

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A.
Q.
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5 they"re

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Page 107

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A. That's correct.
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Q. And you think that those emails were
3 attached as exhibits; is that right?
4
A. They were certainly discussed.
5
Q- And besides those emails, are there any
5 others that you think demonstrate that Art Wittich
7 accepted in-kind paid personal services?
8
A. He accepted the in-kind paid personal

9 services of Jedd Coburn in drafting his letters.
Q. How do you know that Mr. Wittich knew
11 who drafted those letters?
12
A. He accepted -- He accepted copyrighting
13 from -· in the production of those letters.
14
Q. How do you know Mr. Wittich knew who
copyrighted
those letters?
115

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1 because he hasn't produced any emails, I think he
said he got it hardcopy. But then he said he
edited the letter, agreed that he did very minor
editing on some of the letters, and that it was
then published as Mr. Coburn wrote it.
Q. How do you know that Mr. Wittich knew
Mr. Coburn wrote it?
A. And as I have said, it really didn't
matter whether he knew Mr. Coburn wrote it or not.
10 What he did know is that he got a copy from a
11 corporation, from an entity, and he knew that
12 corporate entity wrote the copy.
Q. What entity?
13
A. It would have been Direct Mail, if you
14
15 would accept his explanation. I believe he fully
15 knew it was drafted by Jedd Coburn.
Q. Why do you believe that?
17
A. Because he probably got it forwarded to
18
19 him by an email. That would be my guess. But
20 sticking with what we do have on the record, we do
21 know that he received a letter, a copy of which
22 was written by another individual and that we know
23 he received that letter from Direct Mail. And
24 likely the form in which he's testified he
25 received, it was written, that it he got a

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A. You know, it wouldn't have mattered

whether he did or didn't know. What he did know
Is that he was dealing with a number of

corporations and that those corporations wrote the
copy -Q. How do you know he knew that?
A. He said yesterday that he didn't write
the copy. That he would have received the copy
likely hardcopy. He was pressed by counsel to

whether he got it in an email or hardcopy, and

l-'ase 109

1 hardcopy of it.
2
Q. Just so I understand. You believe that
3 Mr. Wittich knew that Mr. Coburn wrote the copy,
4 but you admit that's a guess?
5
A. It may not be a guess. I may be able to
6 give it as an opinion when I finish reviewing all

7 of the documents,
8 an opinion.
9
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but right now I don't have it as

Q. Why did you use the word "guess?"
A. Because it is a guess at this point. It

11 may be an opinion when I've reviewed the full

12 Andrew O'Neill document archive.
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Q, All right. So you guess that
Mr. Wittich knew that Mr. Coburn wrote the copy?
A. That is the most logical conclusion you

get looking at all the documents, right.
Q. That's your guess, right?
A. It's a logical conclusion. It's not a
guess. A guess is when you have no foundation.
An opinion is when you're using -- You know what
an opinion is. I think --

Q. I also know what a guess is, and that

23 was the word you used. And I'm asking you why you
24 used the word "guess."
A. Then it isn't a guess.
25

JEFFRIES COURT REPORTING, INC.
(406) 721·1143

Exhibit B-4

i

 Page 29

(Pages 110-113)
JONATHAN MOTL

THE COMMISSIONER OF POLmCAL PRACTICES, et al. v. WITTICH 12/1/2015

Page 110

Page 112

Q. You're taking that back?
A. Yes.
Q. You retract the testimony that it's a

1 here's what I believe: I believe that Mr. Wittich
2 knew that he accepted "the works." I believe that
3 when he accepted "the works," he knew he was

4 guess?
5
A. Yes, right.
6
Q. You know, I -- You've been in a
7 deposition before many times, right?
8
A. I"ve taken depositions. I think l"ve
9 only been deposed once before, that I know of,
10 maybe twice.
11
Q. How many scores of depositions have you

4 accepting assistance from a group of corporations.

1

2
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12 taken?
A. Hundreds.
Q. Hundreds. So you understand that
15 you're, as a witness, under oath?
16
A. That's correct.
17
Q. And you're retracting that statement

5

Q. Do you know of any communication from

6 Mr. Wittich to anyone where he said, I'd like "the
7 works?"
8
A. The title for "the works" on the top of
9 it is "wants the works." It is -- The verb
10 "wants" can only be attributed to one person and

11 that is to Mr. Wittich.
12
Q. So do you know of any communication -A. I just gave you the one.

13

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Q. Well, I'm familiar with a document that
15 says "the works."' And -16
A. It says, "wants the works."
17
Q. Says, "wants the works."
18
That's not a communication from
19 Mr. Wittich, is it?

18 that you said that it was your guess that
19 Mr. Wittich knew that Mr. Coburn wrote the copy?
20
A. I am retracting that, right.
21
Q. All right. So Mr. Wittich testified
22 that he thought that the copy was written by
23 Ali LeFer or someone working for Direct Mail.
24
Do you remember him saying that?
25
A. I don't specifically remember that, but

20

A. That is a communication that -- It is a

21 document that reflects communication with

22 Mr. Wittich.

23
Q. Let me ask you this question: Do you
24 know of any communication from Mr. Wittich to
25 anyone where he said, I want "the works?'"

Page 111

Pase 113

1 that would be logical.

1

2
Q. That's a fair characterization of his
3 testimony?

2 communications, so that's why we've had to go to

3 secondary sources. He provided no emails. He's

4
A. I don't remember one way or the other if
5 he testified that.

5 anything.

6
Q. Let me ask you this: Is it fair to say
7 that Mr. Wittich testified that he thought that
8 the copy that he was receiving came from
9 Direct Mail?
10

A. I don't remember if he said that either.

11
Q. And do you remember if he said that he
12 thought that either Ali LeFer or some other
13 employee of Direct Mail was writing the copy?
14
A. I don't remember him testifying to that
15 either.
16
Q. If he did testify to that, would you

17 think that that's accurate?
18

A. No.

19
20

Q. Why?

A. Because the copy wasn't written by
21 anybody from Direct Mail. It was written by
22 Jedd Coburn from National Right to Work.

23
Q. And you believe or you guess that
24 Mr. Wittich knew that, right?
25

A. So we're talking a specific -- And

A. Mr. Wittich didn't provide any of his

4 fought emails. So, no, because he didn't provide

6

Q.

Okay. If I understand that answer

7 correctly, it is this: You know of no
8 communication from Mr. Wittich to anyone where he

9 asked -- that is Mr. Wittich asked anyone for
10 something called "the works;" is that true or

11 false?
12
A. There are no communications from
13 Mr. Wittich.

14
Q. So do you know who Mr. Wittich was
15 communicating with in 2010 where that message
16 would have been communicated if it happened?
17
A. He was communicating with Mr. LeFer.
18
Q. And you've got his emails, right?
19
A. We've got some of Mr. LeFer's emails.
20 We do not have the central computer that shows
21 what his entire candidate file was for
22 Mr. Wittich, no.
23
Q. You've got something like 3,200

24 emails -25

A. We've got emails from --

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-5

 0

0

Page 30 (Pages 114-117)

THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

JONATHAN MOTL

Page 116

Page 1:.4

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Q. May [ finish my question? You produced
on a thumb drive something like 3,200 emails In
which Mr. Lefer was either receiving or sending
email, correct? 3,200 where Mr. LeFer was either

author or recipient; is that correct?
A. I don't know the number. We have
produced emails.

Q. It1s thousands, isn't it?
A. I can't say that for certainty, but I

wouldn't be surprised. I haven't counted them.
11 But if I will -- If you need them counted, I will,

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Counsel.
Q. Well, you just push a button and it
tells you, right? You open Outlook •• You open
the computer, you press the button and it tells
you how many files are in the file.
You've seen that?
A. Yes, but not all of them involve
Mr. LeFer, so you'd have to look at them and
determine which of them involve Mr. LeFer. They
don't all.
Q. Mr. O'Neill gave you a subdirectory
called "LeFer," right?
A. He did.
Q. And in that subdirectory are

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ordered "the works?"
A. Yes, I just said, "wants the works."
Q. Well, that's a spreadsheet that
Art Wittich did not create, fair?
A. I think it's responsive to your
question, though.
Q. Well, let's talk about the document.
Do you need to look at it to refresh
your recollection of the document?
A. You can hand it to me, if you would.
MR. RHOADES: Okay, it's 51.
Mr. Jarussi, do you need a break? Are
you okay?
MR. JARUSSI: I'm fine. Just curious of
the time.
MR. RHOADES: Lers go off the record.
VrDEOGRAPHER: We're now off the record.
The time is 11:29.
(Whereupon, the proceedings were in
recess at 11:29 a.m. and subsequently reconvened
at 11:35 a.m., and the following proceedings were
entered of record:)
V!DEOGRAPHER: We are now back on the
record. The time is 11:35.
Q. {BY MR. RHOADES) Now, Mr. Motl, we-·

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communications that he had with Mr. Lefer.
A. Not all of them have Mr. LeFer on the
email.
Q. They're either sent by Mr. Lefer,
received from Mr. Lefer or Mr. Lefer was copied
with them, correct?
A. I don't know that to be true.
Q. There's thousands of them, right?
A. I would say that particular document
file is between 500 and a thousand.
Q. All right. And --

A. No, no, it's more. It's -- One, two,

13 three, four, so it's probably about 2,000.
14
Q. And in all of that email, you never find
15 a single solitary one, do you, that says that
16 Art Wittich asked for "the works?"
17
A. I haven 1t reviewed them. I reviewed one

Page 117

1 you were referring to a document that you said is

2 a communication from Mr. Wittich indicating that

3 he wants 11the works, 11 and it's an email that's
4 been marked as Exhibit 51. It's from Jeremy Hofer

5 to Gene Jarussi dated July 26th, 2015.
6
Do you see that?
7
8

A. I see the document.
Q. Now, is this the email that you say

9 indicates or consists of a communication from
10 Art Wittich to someone saying he wants something

11 called 11the works?"
12
A. I never said that in my testimony.
13
Q. So what is Exhibit 51?
14
A. What this indicates is that the
15 corporate sponsors of the 2010 republican primary
16 candidates identified certain candidates who want

20 now?

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"the works," and listed among those candidates by
that group of corporate sponsors ls Art \Nittlch.
Wants -- Under column H, the word "wants" is the
title of the column. And then if you follow down

21
A. I believe we received them on
22 November 19th. It was November.
23
Q. And you ··Whatever time you spent
24 looking at them since then, you've never found a
25 single solitary one that said that Art Wittich

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through the various candidates, ''the works" is
listed and the last person listed is Art Wittich
at Column Number 138.
Q. So this indicates that Christian LeFer
wants "the works" for Art Wittich, correct?

18 of the four accordion files.

19

Q. So you've had those emails for how long

JEFFRIES COURT REPORTING, INC.

(406) 721-1143

Exhibit B-6

 Page 31

(Pages LB-121)
JONATHAN MOTL

THE COMMISSIONER OF POLmCAL PRACTICES, et al. v. WITTICH 12/112015
Page 118

1
A. No, in my judgement what it indicates is
2 that Art Wittich wants "the works."
3
Q, Well, this is -- Do you have a digital
4 copy of this similar to what you supplied us

1 that is consistent and is accepted by the
2 commissioner as a document dealing with the 2010
3 campaigns.

5 re<ently on the jump drive with the Andrew O'Neill
6 emails?

14 digital -- there was an email sent to Mr. Jarussi

15 with the digital infonnation that consists of this
16 document, and then it looks like somebody printed
17 it off and put a Bates number on it. But I'm not
18 aware of this digital version of this ever having
19 been produced to anyone.

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25

Q. Did you print this off yourself?
A. This particular one, I don't know. No,

5 I wouldn't have me myself, personally, no.
Q. So someone told you they printed it off?

A. Somebody on my staff would have printed
9 it off, that's correct.

12 maybe you don't understand It this way, but what
13 it looks like to me is a digital -- there was a

21

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5
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B

7
A. This would be the Jeremy Hofer archive,
8 and I don't know the answer to that question. If
9 we do, did you want it? Is that what you're
10 asking?
11
Q. Well, because what it looks like -- and

20

Page 120

Are you aware of that?
MR. JARUSSI: Can I interrupt?
MR. RHOADES: Sure.
MR. JARUSSI: Did you talk to Mr. Rabb?
MR. RHOADES: Yeah, I talked to him
yesterday. They said you never gave them any

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Q. And they told you that these three pages
all go together?
A. That's correct.

Q. They told you that this spreadsheet that
is the second and third page of Exhibit 51 was
attached to the email that is the first page of
Exhibit 51?
A. That's correct.

Q. But you can't testify to that of your
own knowledge, can you?
20
A. I can testify that it was handled
21 properly by the Commissioner's office and that 1s
22 as It's represented to be.
23
Q. Can you testify of your own knowledge -24
A. I did not do it, no.
25
Q. So let me ask the question and then you

Page 119

1 digital files. That's why I'm asking Mr. Motl.
2 Maybe he did or maybe he -3
MR. JARUSSJ: All production would have
4 come from me. You want it in digital form? I'm
5 just virtually certain I would have sent digital,
6 plus then printed off and Bates numbered these
7 documents that were also produced.
8
Q. (BY MR. RHOADES) Let me ask Mr. Motl
9 this question: Do you know of -- Have you ever
10 looked at the digital version of this document,
11 you personally?
12
A. No, I haven't.
13
Q. Why not?
14
A. I certainly will, but I didn't see any
15 need for it. This 1s pretty clear what the
16 document is.
17
Q. Well, you haven't talked to Mr. Lefer
18 about this document, have you?
19
A. I haven't talked to Mr. LeFer at all.
20
Q. And you haven't talked to Allison LeFer
21 about -22
A. I haven't talked to Allison LeFer.
23
Q. This is just ink on paper until somebody
24 authenticates it, right?
25
A. It's not ink on paper. It is a document

Page 121

1 answer, okay?
2
can you testify of your own personal
3 knowledge that Exhibit 51 is a print off of an
4 email with a spreadsheet attached that consists of
5 Exhibit 51?
6
A. Yes, I can, because it was reproduced in
7 the form that you see it.
8
Q. Byyou?
9
A. Not by me personally.
10
Q. So you can't testify of your own
11 knowledge. You're relying on someone else, right?
12
A. No, I am relying on an office, and you
13 are entitled to rely on an office. You can't do
14 all the work yourself, and I am confident that it
15 is what it is.
16
Q, Let me clarify my question. I'm not
17 asking you about your entitlement. I'm just

18 asking you the fact.
19
Can you testify of your own knowledge?
20

21

A. Yes, I can.
Q. And your knowledge is what? What

22 someone told you, right?
A. No.
Q. Someone in your office.
25
A. My knowledge is practices and procedures

23
24

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-7

 Q

Page 32

(Pages 122-1251

THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

JONATHAN MOTL
Page 124

?age lt:2

1
2
3
4
5
6
7
8

in my office, and whether or not this is accepted

as a normal document produced and handled as a
campaign practice document. It is.
Q. So tell me why you think that the second
and third page of Exhibit 51 is a spreadsheet that
was attached to an email from Christian Lefer to
Allison Andrew on May 11th, 2010?
A. Because it was routinely printed off of

9 that image by the staff at my office.

1
2
3
4
5
6
7
8
9

Q. And are there any other reasons why you
10
11 believe that?

10
11

12

12

A. No, that is the reason.

Q. Do you have any personal knowledge that
14 the second and third page of Exhibit 51 is the
15 spreadsheet that appears to be referred to in this
16 email that appears to have been sent by
13

13

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25

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Christian Lefer to Allison Andrew on May 11, 2010?
A. Custom and practice in my office.

Q. So you haven't gone to the digital file
yourself and opened it and double checked to make
sure this is the right set of documents that go

together?
A. I haven't opened that digital file, no,
myself personally.

Q. But you probably will now, right?

even say it's in some archive where Mr. Wittich
communicated to anyone that he wants anything
called "the works?"
A. If you just take Mr. Wittich's
deposition alone, Mr. Wittich is agreeing that he

took almost all of the paid personal services that

the corporate groups listed as available to the
candidates they selected.
Q. So you answered my question about a
document with testimony from Mr. Wittich. I'm
asking you about a document. Any document?
A. Yes, okay, so the documents that show
that Mr. Wittich received paid personal service in
the form of copyrighting of the candidate letters,
the documents show that Mr. Wittich received paid
personal services in the form of third-party
attack letters, the documents show that
Mr. Wittich received paid personal services in the

form of an attack slick, the documents show that
Mr. Wittich received paid personal services in the
form of graphics and web services, and the

documents show that Mr. Wittich received paid
personal services in the form of data walking
lists.
Q. Now, is there a single solitary document
Page 125

Page 123

1
A. I probably will.
Q. And so you're interpreting this document
2
3 to indicate that Mr. Wittich communicated to
4 Christian Lefer that he wanted something called
5 "the works,n right?
A. That's what it says.
6
7

Q. Well, it could also be, could it not, an

8 indication from Christian Lefer saying that he,
9 Christian, wants "the works" for Mr. Wittich,
10 correct?
11

A. I don 1t believe that to be the case. It

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wouldn't make sense.
Q. But it's also possible that that's what
he meant, right?
A. No.
Q. Impossible?
A. It wouldnt make sense that way.
Q. Doesn't fit your theory, right?
A. No, it doesnt fit an objective,
logical, fair explanation of this document when
you look at it in the context of the other
documents.

Q. So is there any other document that you
can point to that you've seen or that you might
remember or you can describe in 9eneral terms or

1
2
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9
10
11

12
13

authored by Mr. Wittich in which he communicates

an intention to accept any of what you just
described?
A. Counsel, I've said we don't have any
documents authored by Mr. Wittich.
Q. I just want to be clear. You don't know
of a single solitary document authored by
Mr. Wittich, whether you got it from Mr. Andrews
or Mr. Hofer or from any other source, including
subpoenas on email server companies, where you see
Mr. Wittich communicating to anyone an Intention
to accept that which you've just described?
A. I believe I've answered that question.
Q. Not a single document, is there?
A. He hasn't produced a single document,
that's correct.
Q. You've never seen a single solitary
document-A. Mr. Wittich has not produced any
documents, so, therefore, I've never seen -Q. So let me -- So you haven't seen -- You
haven't seen a single document that said that,

14
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21
22
23 right? That's the question.
24
A. And I believe I've answered it twice.
25 Mr. Wittich has not produced any documents.

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-8

 Page 33 (Pages 126-129)
JONATHAN MOTL

THE COMMISSIONER OF POLITICAL PRACTICES, etal. v. WITTICH 12/1/2015

Page 128

Page 126

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Q. The answer is ••yes?"
A. The answer is Mr. Wittich has not
produced any documents. I'll stay with that
answer.
Q. You're going to stick with that one,
huh?
A. Right.
Q. So you've talked to a lot of people who
would have been the person to which Mr. Wittich
would have communicated this intent, right?
In other words, you've talked to
Mr. O'Neill and he said, yeah, Mr. Wittich told me
that he wanted "the works."
Did he say that?
A. What Mr. O'Neill said is consistent with
what the emails from Mr. Wittich to Mr. O'Neill
say1 which is that he was ordering paid personal
services in graphics and website design. That's
what he was dealing with Mr. O'Neill on.
Q. So Mr. O'Neill said Mr. Wittich asked
for "the works?"
A. Mr. O'Neill did not say that and I did
not ask him that question.
Q. Whynot?
A. Because he wasn't the person that

Q. Do you know if anyone on your behalf has
1
2 subpoenaed any witnesses in this case?
A. Witnesses?
3
4
Q. Yeah.
A. For trial?
5
Q. No, for depositions or your interviews.
6
7 You subpoenaed -- A subpoena was issued to
8 Mr. O'Neill, right? You know that?
A. Yes.
9
Q. And you talked to Mr. O'Neill, right?
10
A.
Q.
13 right?
A.
14
15
Q.
16 of?
17
A.
11

12

I talked to Mr. O'Neill.
And there was one issued to Mr. Fusaro,
Mr. Fusaro.
And were there any others that you know

Subpoenas have to be served to opposing
18 counsel, so you would have been served any
19 subpoenas that were issued.
Q. Sure. I'm asking you about your
20
21 knowledge, not mine.
22
A. I would not issue those subpoenas.
23 Mr. Jarussi would in the course of litigation, and
24 I would have received a copy of it. Now, he would
25 have talked to me about it beforehand, of course,

Page 127

1 Mr. Wittich would have been dealing with.
2
Q. How do you know that?
A. Because he had a specific role within
3
4 the paid personal services provided to corporate
5 sponsored candidates in the 2010 republican
6 primary elections.
Q. What about Mr. Hofer? You've seen
7
8 communications from Mr. Hofer, right?
A. I have.
9
10
Q. A bunch of them, right?
11
A. Well, the Hofer archive. You've seen
12 those, too.
13
Q. There's lots and lots of communications
14 in there, right? And not a single one from
15 Art Wittich to anybody whD was in cDmmunication
16 with Mr. Hofer where Mr. Wittich said, I want "the
17 works;" isn't that correct?
18
A. There is no such communication in the
19 Hofer archive.
Q, There's no such communication in any of
20
21 the archives that you've looked at, is there?
22
A. In the archives we have, there is no
23 such communications. But we only have a small
24 portion of what existed in Christian LeFer's
25 central file, computer file on Mr. Wittich.

Page 129

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but it would have been handled by the rules of
civil procedure.
Q. And how many subpoenas were issued to
witnesses asking for their documents in this case?
A. Nolan Green, Jeremy Hofer, Dennis Fusaro
and Andrew O'Neill.
Q. The responses from all of those
subpoenaed is you didn't see one communication
from Art Wittich asking for "the works," did you?
A. With that particular phrase in it, no.
Q. And you didn't see one communication
from Art Wittich asking for anything except
website design, did you?
A. I can 1t say for certain. I'd have to go
back and review. He definitely asked for website
design and graphics assistance.
Q. And nothing else?
A. I can't say that for certain. I don't
recall. I'd have to look at the others.
Q. Well, if there was such a communication,
it would be kind of important for your case,
wouldn't it? I mean, here's the smoking gun:
Art Wittich ordering "the works." Or here's the
smoking gun: Art Wittich ordering something he
didn't pay for. That would be important for your

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-9

 Page 34 (Pages 130-133)
THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WJTIICH 12/1/2015

JONATHAN MOTL

Page 130

r1

I2
3
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11

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I23
124
25

Page 132
i

case, right?
A. I've already answered as to "the works."
Q. All right. So refresh my recollection,
what are the things that you think Art Wittich
received that he didn't pay for?
A. Well, we've covered the first four, and
then we just started on the corporate sponsored
personal services. And what he received that he
didn't pay for are those items listed in
Mr. Pearson's expert report based on my report to
him, but -Q. You're not relying on Mr. Pearson's
expert report for anything but value, are you?
A. That's correct.
Q. So my question is this: List for me the
things that Art Wittich received that he didn't
pay for.
A. He received copyrighting on all eight
candidate letters. Up until he produced the
document archive -- I think it was last
Thursday -- the Wittich document archive, the 65
pages -- we did not know that he had received the
wife letter. So in addition to the copyright cost
for the wife letter, there's also a polling cost.
So he received the value of polling on

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times that many -- at least five times that many
survey forms into the district, got those
returned, entered those into a computer database.
And by that computer database were able to
identify the four groups of Issue ID voters that
Mr. Wittich's candidate letters were sent to and
the attack letters based on those were sent to, as
well. So the cost and that survey work is
incorporated and that's paid professional services
that he did not pay for. And -Q. Anything else?
A. And, finally, the consulting -- the
general advice that allows a candidate to conduct
limited door-to-door and sign posting as their
entire campaign while the bulk of the contact with
voters is carried out by another entity.
Q. So who supplied the copyrighting for
Mr. Wittich?
A. On the seven candidates letters that
would all be by Mr. Coburn, Jedd Coburn from
National Right to Work.
Q. Who did the polling on the wife letter?
Well, let me ask you this: What is polling?
A. In the initial Christian LeFer document,
it's one of those you have in front of you, he

Page 131

1 the wife letter, plus the copyrighting on the wife
2 letter. He received the copyrighting on the other
3 six candidates' letters, which meant he received

4 all candidate letters, including copyrighting on
I 5 seven letters.
Q. Anything else that he received that he
6
7 didn't pay for?
A. Then in addition to the seven candidate
8
9 letters, he received the value of ten attack
10 letters.
Q. Anything else?
11
A. Three attack slicks.
12
Q. Anything else?
13
A. The website and graphics design
14
15 associated with 1t.
Q. Anything else?
16
17
A. The issue letters were all issue ID'd,
118 and by that there was an initial survey conducted
19 by the corporate groups into Mr. Wittich's senate
20 district in which they identified people who had
21 affinity toward the position that Mr. Wittich
22 would take on those issues. And in order to get
23 that survey, there were 2,596 identified senate
24 district voters on the four issues.
25
In order to do that, they sent out five

Page 133

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says that the points raised in the wife letter
were polled.
Polling is when you take a position or
make a statement in a letter that you believe
resinates with the voters and you poll to find out
if it's true or not, that it does resinate with
them.
Q. So you think there was polling for
Mr. Wittich?
A. Well, I don't think there was polling.
I know there was polling on the wife letter -- on
the positions and phrases used in the wife letter.
Q. How do you know that?
A. Because it's in the Christian LeFer
memo.
Q. Towhom?
A. To those that they're inviting to become
part of the corporate sponsor group candidates.
Q. So Christian Lefer wrote to Art Wittich
to invite him?
A. Christian LeFer produced a memo that was
intended for the purpose of any invitee into the
corporate sponsor group of candidates.
Q. How did that get to Mr. Wittich?
A. That would have been delivered to him by

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-10

'

 Page 35 (Pages 134-137)
THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

JONATHAN MOTL
Page 136

Page 134

1 Mr. LeFer.
2
Q. Have you seen a document that reflects
3 that?
4
A. No.
5
Q. Okay.
6
A. Other than the document itself, that
7 when -8
Q. Well, there's no way for you to prove
9 that the document that you're referring to, which

10 we've marked •• lust let me finish my question,
11 please.
12
Is this the document you're referring to
13 that we marked as 102?
14
A. There's a number of documents. Let me
15 see if this is illustrative. It is, and you're
16 referring to Deposition Exhibit 102, the second
17 page. "Everything we do for invitees."
18
Q. Right. So you don't know of a single
19 solitary communication from anyone to Mr. Wittich

20 saying, I'd like to invite you to receive these
21 services, do you?
22
A. We have been unable to discover such a
23 document. We do not -- No, in the documents we
24 discovered, there is no such communication.

25

Q. There's no such document in the tens of

1 wife letter.
2
Q. So was there anything else having to do
3 with the candidate letters that Mr. Wittich

4 received?
5
A. I think we've covered that. We've
6 covered the cost of identifying the issue ID'd
7 list of senate district voters that issue ID'd
8 letters were sent to. We've covered the cost of
9 polling associated with the wife letter, and then
10 we've covered the cost of writing each of the
11 seven letters.
12
Q. So it's not fair to set that out as a
13 separate •• the six candidate letters as a
14 separate instance. Those·· Whatever was illegal
15 about those had to do with what you just
16 described, right, those three things?
17
A. That would have been the paid personal
18 services that weren't reported or disclosed.

19
20
21
22
23
24

Q. So what about the intended attack
letters?
A. "The works" -- The best example of "the
works" that we have by production of letters is
the Esp family archive. From that archive we're
able to identify the full reach of the attack

25 letters used in "the works" campaign. In other

Page 135

1 thousands of pages that you've received, is there?
2
A. We have no such document.
3
Q. So you think it would have been
4 Christian LeFer who supplied the polling, or whom?
5
A. The polling would have -- The only thing
6 we know is it was polled. It says right on the
7 wife letter that it is a polled letter.
8
Q. Who did the copyrighting for the wife

9 letter, in your view?
10

A. I don't know that. Likely Jedd Coburn,

11 but there Isn't an email showing that he did it.

12
Q. Do you know if it was Mrs. Wittich?
13
A. The original copyright would have been
14 by somebody other than Mrs. Wittich. And
15 Mr. Wittich testified to that, that when the
16 letter came in, it was then edited by her.
17
Q. But you have no idea who would have done

18 that, except your speculation that it was
19 Mr. Coburn, right?
20
A. Mr. Coburn did all of the other
21 copyrighting.
22
Q. All right. So you said there were six

23 candidate letters. Who preformed those?
24
A. Those were all by Mr. Coburn. And
25 there's seven candidate letters if you indude the

Page 137

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words, the full-blown corporate sponsor campaign,
and there are ten of those.
Q. Who was Mr. Wittich running against in
the primary in 2010?
A. He was running against three
individuals.
Q. Right. Who were they?
A. Mr. Moran, Mr. Ponte and I don't know
who the third one is.
Q. You don't remember?
A. I'd have to review. I mean, I have it
in my decision, but, no, I don't remember.
Q. So you have attack letters attacking
these other candidates? Have you seen those?
A. I have seen those in the Esp family
archive.
Q. There's an attack letter against
Mr. Moran?
A. No, the attack letter in the Esp family
archive demonstrates the full reach of the attack
letters. We have one attack letter in -Actually, two attack letters in Mr. Wittich's
campaign attacking candidate Moran.
Q. Who wrote the letters?
A. Western Tradition Partnership.

JEFFRIES COURT REPORTING, INC.

(406) 721-1143

Exhibit B-11

 Page 36 (Pages 138-14i)
JONATHAN MOTL

THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

Page 140

Page 138

1 with Mr. Wittich served as the -- as the - It's

Q. Who signed them?
A. Dan Fuchs.
Q. So there's two, not ten, right?
A. There's one of the five corporate

3
4
5 entities that write attack letters.
· 6
Q. So in Mr. Wittich's case, how many
7 attack letters were sent?
8
A. Five -- Ten, ten attack letters by five
I 9 corporate entities.
Q. Do you have copies of them?
10
A. No, I'm basing that on opinion.
11
Q. So here's my question: Do you have
12
13 attack letters for Mr. Wittich's case?
A. We have one attack letter by one of the
14
15 five corporate entities. That corporate entity
16 being Western Tradition Partnership.
Q. And it was sent in the spring of 20107
17
18
A. It was sent during the republican
19 primary election.
Q. Signed by Mr. Fuchs?
20
A. Right.
21
Q. So you have one?
22
A. Two, there were two of the same attack
023
24 letters -- Well, there are ten attack letters sent
25 by five corporate entities. Each corporate entity

I

2 an artlftclal entity created and controlled by the
3 same corporate group.
4

Q. Have you seen the articles of

5 incorporation for it?
6
A. I have. I don't remember them, but I
7 have seen them.

Q. Who is the person who was the
9 incorporator?

8
10

A. I think it was Jeremy Hofer, and then

11 later he substituted in Allison LeFer.

12
13
14
15
16
17
18
19

Q. And that's -- Assembly Action Fund is
Mr. Hofer?
A. Yes.
Q. so do you have a -- any sort of a
communication from Mr. Wittich to Mr. Hofer?
Mr. Hofer supplied you with a bunch of documents,
right, bunch of emails?

A. Right.

Q. So there must be in there, is there not,
21 an email or communication from Mr. Wittich to
20

22 Mr. Hofer saying, do the attack slicks for me?
23
24

A. No, there's no such thing.
Q. Well, how would Mr. Wittich communicate

25 to Mr. Hofer his desire for that then?

Page 139

1 sent two attack letters. The difference is

2 Western Tradition Partnership sent its attack
3 letters to the entire issue list; whereas, each of

4
5
6
7
8
9
10
11
12

13
14
15
16
1
17
1 18
19

the other four only sent their attack letters to a
specific issue that they were addressing.
Q, This is something Mr. Wittich ordered?
A. It was something that Mr. Wittich was
given as part of "the works."
Q. These two letters that Mr. Fuchs signed?
A. Yes, and the others, in my opinion.
Q. The eight that you haven't seen a copy
of?

A. That's correct. I haven't seen a copy
of any of the candidate letters either, except in
the Colorado archives. But I haven't seen them
from Mr. Wittich. Mr. Wittich doesn't have any
letters.
Q. How about three attack slicks? Do you
have any attack slicks against any of the

20 candidates that Mr. Wittich was running against?

21
A. One attack slick by Assembly Action
22 Fund.
23
Q. Who is Assembly Action Fund?
24

A. It is a corporation in which one of the

25 employees of the corporate group that was involved

Page 141

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A. Mr. Wittich communicated his desire for
"the works." And if we had access to
Christian LeFer's central computer with all of the
entire electronic file for Mr. Wittich in it, I
suspect there would be that sort of communication
for Mr. Wittich in there, but we don't, so we're
going on my opinion.
Q. Your suspicion.
A. No, my opinion.
Q. Well, you said the word "suspect." Why
did you use the word "suspect?"
A. I didn't use the word "suspect" in
regard to my opinion. My opinion is that
Mr. Wittich received all ten attack slicks in his
campaign. That's what "the works" meant.
Q. Who told you that's what "the works"
meant?
A. You can see what "the works" meant in
terms of Direct Mail from the John Esp Family
archive. That is the only candidate who kept a
full -- as close to a full reoord as he could of
the Direct Mail, which is only one portion of what
"the works" meant.
Q. So then you say there's website and
gra11hic design. That was O'Neill who supplied

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-12

 Page 37 (Pages 142-145)
JONATHAN MOTL

THE COMMISSIONER OF POLITICAL PRACTICES, et al. v. WITTICH 12/1/2015

P3.ge 144

Page 142

1 that?
2
A. That"s correct.
Q. Anyone else that worked on that?
3
4
A. Not to my knowledge.
Q. Do you know if Christian LeFer worked on
5
6 it?
7
A. I'm sorry, all of O'Neill's work went
8 back through Christian Lefer. Christian Lefer or
9 Ali would have definitely been involved in it as
10 well.
11
Q. Who did the issue ID letters work that
12 you described?
13
A. That would have been Andrew O'Neill.
14
Q. Did he tell you that, that he did that?
15
A. Yes. And he would have been assisted by
16 the other campaign assistants, probably Jeremy
17 worked on it, Nolan worked on it. They would have
18 been data enterers.
19
Q. Did Mr. O'Neill tell you that
20 Mr. Wittich asked him to perform this function?
21
A. No.
22
Q. Who asked Mr. O'Neill to perform that
23 function?
24
A. His supervisor was Christian LeFer.
25
Q. So who did Mr. O'Neill tell you asked

1

1 Christian LeFer s direct assistant, telling all

z

candidates to calm down, that they were doing an
3 absentee ballot chase, and that would have been
4 the first letters that went out on behalf of
5 Mr. Wittich.
Q. So Sarah Anderson sent an email to
6
7 Mr. Wittich?
A. Sarah Anderson 1s email was to
8
9 Andrew O'Neill, but it was an email that was
10 intended to be sent to candidates because it said,
11 please relax, we're -- So there's no direct proof
12 it went to Mr. Wittich.
Q. If you don't have a communication from
13
14 Mr. Wittich to anyone asking for any of this, why
15 are you prosec:uting him?
16
A. I think we've just been discussing why
17 all morning. I'm prosecuting Mr. Wittich not as
18 myself personally. I'm prosecuting Mr. Wittich in
19 violation of the public trust obligation on behalf
20 of the people of Montana as Commissioner of
21 Political Practices for specific campaign practice
22 violations, which we've discussed this morning,
23 and for the general and significant campaign
24 practice violation of accepting corporate
25 contributions in form of non-reported and

Page 143

1 him to perform that function?
2
A. That functon -- He did not tell rne
3 that. But he worked directly for Christian Lefer,
4 so it would have been Christian Lefer.
5
Q. Did you see an email from Christian
6 LeFer to Andrew O'Neill telling Mr. O'Neill to
7 perform that function on behalf of Art Wittich?
8
A. No. You have the Andrew O'Neill -- I
[ 9 havent reviewed them all, but as of this date, I
10 havent seen that email.
11
Q. Do you believe it exists?
12
A. I have no reason to believe it exists
13 one way or the other. I haven't reviewed all of
14 the emails.
15
Q. So and then you said some consulting
16 advice. You said it was limited door-to-door and
17 sign posting.
18
Who provided that to Mr. Wittich?
19
A. I'm not sure I understand that question.
20
Q. So maybe clarify. What was the
21 consulting advice that Mr. Wittich received from
22 these corporate entities?
23
A. That would have been general campaign
24 strategy advice. The indication that we have on
25 that is an email from Sarah Anderson, who was

Page 145

1 non-disclosed paid professional staff services,

2 which we've been discussing for a considerable
3 length of time.
4
Q. What makes you think he intended to
5 receive all of this stuff that you say he got?

6

A. Because he-· We have been discussing

7 it.
8
Q. He never once asked for it.

9

A. You don't know that and I don't know

10 that. What you've been able to establish is that
11 we have no emails on that.

12
Q. You"re right, I don"t know that, but I
13 have seen no evidence in the tens of thousands of
14 pages that you've produced that say that either.
15
Have you?
16
A. Yes.
17
Q. What are they?
16

A. And we've just been discussing that.

19
Q. This? There's nothing more?
20
A. I've responded.
21
MR. RHOADES: Let's take a lunch break.
22
VIDEOGRAPHER: This now ends Disk
23 Number 2. We're off the record. The time is
24 12:09.
25

(Whereupon, the proceedings were in

JEFFRIES COURT REPORTING, INC.
(406) 721-1143

Exhibit B-13

 DECLARATION OF JULIE STEAH
Per MONT. COD1;~\NN. § 1-6-105 the undersigned declares under oath as follows:
l.

I am over 18 years of age and competent to testify as to the matters herein.

The matters described herein are personally known to me. If I were called to testil)·
under oath, I would testify consistently with the matters contained herein.
2.

I was the staff Investigator for the Montana Commissioner of Political

Practices ("COPP") from January 2011 through October 2013. I provided contract
investigator se1Yices to COPP from 1996 through 2002 while I was employed with the
Montana Attorney General, Agency Legal Services Bureau.

3.

I sent and received a great deal of email while employed with COPP. My

email address wasistq1J?.@mt.gov.
4.

1 did not delete my COPP email archive folder (or any other folder) when l

left the Agency.
5.

Any of my email that was deleted should still be backed up. I was

informed by an employee of the State of Montana Internet Technology Serviees Division
("ITSD''), that all email from State of Montana email accounts such as mine> is backed up
daily and stored for seven to ten years at a remote facility in Miles City, Montana. To
the best of my recollection, the ITSD employee who provided that information to :ne

'"ns Irv Vavrusk.a.
6.

l have no personal knowledge of the !TSO email backup system; however,

if the course of an official investigation and related conversation with the ITSD
employee, the information set forth in paragraph five above is the information I was
t,11ven.

7.

Based on the information from the ITSD employee, it is my understanding

Exhibit C-1

 thut if anyone with access to my COPP email deleted my archive folder, the email should
still be recoverable from the off-site backup archives in Miles City, Montana.
8.

To the best of my knowledge, if my COPP email archives are not available,

it is most likely because someone deleted them from my computer and/or from the
backup system.
9.

Because I was concerned about Commissioner Motl directing

investigations and initiating complaints, I made a deliberate effort to communicate with
him via email so I would have a record of those conversations and his directives to me.
printed many of those emails and put them in my desk. When I left COPP, most of the
emails l had printed were missing; however, a couple were there with somo of the
directives from Commissioner Motl.
lO.

My email archives should contain emails between myself and

Commissioner Motl regarding the Bonogofsky, et al., investigations as well as
investigations initiated by Commissioner Motl against people like ,Joel Boniek. My
email archives should also include emails between myself and other COPP staff
regarding my concern over handling of investigations by Commissioner Motl.

I DECLARE UNDER PENALTY OF PER.JURY THAT THE FOREGOING IS
TRUE AND CORRECT.
, 11

;,-. )

Executed this_.,,_,_._ day of January, 2016, in Montana City, Jefferson County,
State of Mon tan a.

Exhibit C-2

 Carrie R. Wasserburger
Wittich Ogburn, P.C.
602 Ferguson Ave., Ste 5
Bozeman, MT 597 l 8
406-585-5598
406-585-2811 fax

wasserburger@law-advisor.com
Attorney for Defendant
MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY

****************
The COMMISSIONER OF POLITICAL
PRACTICES FOR THE STATE OF
MONTANA, through JONATHAN R. MOTL,
acting in his official capacity as the
Commissioner of Political Practices,
Plaintiff,
vs.
ARTHUR "ART" WITTICH,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)

Cause No. ADV-2014-251

DEFENDANT ARTHUR "ART"
WITTICH'S FIRST DISCOVERY
REQUESTS TO PLAINTIFF
COMISSIONER OF POLITICAL
PRACTICES

Pursuant to M.R.Civ.P. 26, 33, 34 and 36, Defendant Arthur "Art" Wittich ("Wittich")
hereby propounds the following discovery requests to Plaintiff Commissioner of Political
Practices ("COPP"). Responses and any objections must be served on Wittich within 30 days
after service of these requests.
For purposes of these discovery requests and all future requests served upon you, the
following instructions and definitions shall apply:

INSTRUCTIONS
A. The information requested herein is not restricted to personal knowledge, but includes
information in the possession of your attorney and extends to information or documents that
you or your attorney can obtain upon reasonable inquiry. These requests extend to
documents if you physically possess the document or a copy thereof, if you have access to
the document or a copy thereof, or if you have the right to obtain the document or copy
thereof from any other person or public or private entity having physical possession of it.
Wittich's First Discovery Requests
to Commissioner of Political Practices

Page 1

Exhibit D-1

 INTERROGATORY NO. 5: Please state the manner in which Bonogofsky filed her
complaint against Dan Kennedy (e.g., in person, by mail. by email, etc.).
ANSWER:
INTERROGATORY NO. 6: Please state the manner in which Bonogofsky filed her
complaint against Wittich (e.g., in person, by mail, by email, etc.).
ANSWER:
INTERROGATORY NO. 7: In paragraph 24(a) of your Complaint, you state that
Bonogofsky's complaint against Dan Kennedy "was applied" to additional candidates, including
Wittich. Please explain how Bonogofsky's complaint "was applied" to Wittich.
ANSWER:
INTERROGATORY NO. 8: Please describe by date, manner, and brief description,
each communication that you have had with Bonogofsky as it relates to her claims against
Wittich.
ANSWER:
INTERROGATORY NO. 9: Please identify every document, tangible thing, or
electronically stored piece of information that you have in your possession, custody, or control
which supports your claims against Wittich.
ANSWER:

REQUESTS FOR PRODUCTION
REOUEST FOR PRODUCTION NO. 1: Please produce every document that you
have in your possession, custody, or control which supports your claims against Wittich.
RESPONSE:

Witticb's First Discovery Requests
to Commissiont!'r of Political Prai;tices

Page S

Exhibit D-2

 REQUEST FOR PRODUCTION NO. 2: Please produce every document that you
have in your possession, custody, or control which may be used as evidence in a trial on this
matter.
RESPONSE:
REQUEST FOR PRODUCTION NO. 3: Please produce every document upon which
you relied in filing the Complaint against Wittich.
RESPONSE:
REQUEST FOR PRODUCTION NO. 4: Please produce a copy of all written
correspondence between you and Bonogofsky, which includes any and all correspondence with
previous Comn1issioners.

RESPONSE:
REQUEST FOR PRODUCTION NO. 5: Please produce a copy of the complaint filed
by Bonogofsky against Wittich, including any evidentiary material filed with the complaint.
RESPONSE:
REQUEST FOR PRODUCTION NO. 6: Please produce a copy of the complaint filed
by Bonogofsky against Dan Kennedy, including any cvidcntiary material filed with the
complaint.
RESPONSE:

REQUESTS FOR ADMISSION
REQUEST FOR ADMISSION NO. l: Please admit that you read the Instructions and
Definitions included with these discovery requests.
RESPONSE:

\Vittich's First Discovery Requesls
to Commiliiliiioner of Political Practices

Page 6

Exhibit D-3

 REQUEST FOR ADMISSION NO. 2: Please admit that you did not provide Wittich
with a copy of the complaint filed hy Bonogofsky against Wittich within five days after
receiving her complaint.
RESPONSE:
REQUEST FOR ADMISSION NO. 3: Please admit that to date you have not provided
Wittich with a copy of the complaint filed by Bonogofsky against Wittich.
RESPONSE:
REQUEST FOR ADMISSION NO. 4: Please admit that the complaint filed by
Bonogofsky against Wittich does not specifically name Wittich as an alleged violator.
RESPONSE:
INTERROGATORY NO. 10: If your response to any of the immediately preceding
Requests for Admission is anything other than an unqualified admission, please state with detail
and particularity which portion is true and which portion you claim is false. For each portion
which you claim is false or which you deny, please state with particularity those witnesses,
communications, documents and/or facts, other than subjective belief, which would support
your denial of the request.

RESPECTFULLY SUBMITTED this 8th day of May, 2014.
WITTICH OGBURN, P.C.

By:
(l{.f{frrger
Attorney for Defendant

Wittich's First Discovery Requests
to Commissioner of Political Practices

Page 7

Exhibit D-4

 CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of May, 2014 a true and correct copy of the foregoing
document was duly served upon the following individual(s), at the address, and in the manner,
indicated.
Jonathan Motl
Jamie MacNaughton
Attorneys for the Commissioner of Political
Practices
PO Box 202401
Helena, MT 59620

Wittich's First Discovery Requests
to Commissioner of Political Practices

x First-class mail, postage prepaid
o FedEx
o Hand delivery

o

Fax:

o

Email to - - - - - -

Pngc 8

Exhibit D-5

 Jonathan R. Motl
Jaime MacNaughton
Attorneys for the
Commissioner of Political Practices
1205 8th Avenue
P.O. Box 202401
Helena, MT 59620-2401
406-444-2942 (Tel)
jmacnaughton@mt.gov

IN THE DISTRICT COURT OF THE STATE OF MONTANA
FIRST JUDICIAL DISTRICT, LEWIS AND CLARK COUNTY
The COMMISSIONER OF POLITICAL
PRACTICES FOR THE STATE OF
MONTANA, through JONATHAN R.
MOTL, acting in his official capacity as the
Commissioner of Political Practices,

Cause No. BDV-2014-251
COMMISSIONER'S FIRST
SUPPLEMENTAL RESPONSES
TO wrITICH'S FIRST
DISCOVERY REQUESTS

Plaintiff,

v.
ARTHUR "ART" WI'lTICH,
Defendant.

Comes now Plaintiff, through counsel, and on this day (July 25, 2014) provides
these first supplements to its answers and objections to Defendant's First Set of
Discovery Requests to Plaintiff, served on May 8, 2014.

The first supplemental

responses are made by underlined additions to the original answers as follows:
DISCOVERY RESPONSES
INTERROGATORY NO.

1:

Please state the date that you received the

complaint filed by Bonogofsky against Dan Kennedy.
Page 1 of19

Exhibit E-1

 ANSWER: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1st judicial court pleading. But interrogatory
no. 1 is aimed at the predecessor COPP (or administrative agency) complaint that lead to
the sufficiency of facts decision that provided a platform for the district court complaint.
Answering as to the 1st Judicial District Court complaint, the Commissioner did
not receive but filed the complaint.
Answering as to administrative agency complaint, please see the administrative
agency Complaint attached to these answers. The administrative agency complaint is
dated September 2, 2010. The sufficiency Decision in Bonogofsky v. Kennedy identifies
the date of filing of the administrative agency complaint as September 3, 2010.
First Supplemental Answer:
The Bonogofsky complaint against "Dan Kennedy and also the other
(WTP) supported candidates ... " is postmarked September 2, 2010 and is
stamped as "received" by the COPP on September 3, 2010.
INTERROGATORY NO.

2:

Please state the date that you received the

complaint filed by Bonogofsky against Wittich.
ANSWER: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1'1 judicial court pleading. But interrogatory
no.

2

is aimed at the predecessor COPP (or administrative agency) complaint that lead

to the sufficiency of facts decision that provided a platform for the district court
complaint.

Page 2 of19

Exhibit E-2

 Answering as to the 1st Judicial District Court complaint, the Commissioner did
not receive but filed the complaint.
Answering as to administrative agency complaint, the Notice of Complaint filed
in the administrative agency review of sufficient facts in this Matter was dated January
24, 2014 and its describes and lists the date of September 3, 2010 as the administrative
complaint receipt date as follows:
Debra Bonogofsky of Billings, Montana filed a complaint with this
office on September 3, 2010. The complaint was filed against
Dan Kennedy, a 2010 candidate for the Republican Party
nomination to the Montana House of Representatives from HD
57. The complaint included an allegation of coordination against
"Dan Kennedy and also the other (WTP) supported candidates... "
Ms. Bonogofsky has been consulted and, directs that her
complaint also be filed against Art Wittch, a 201 O candidate for
Republican Party nomination to the Montana Senate from SD 35.
The Commissioner notes that this Office has completed
investigations in 5 matters involving WTP supported candidates
and issued 5 Decisions concerning coordination in 2010 primary
election campaigns: Bonogofsky v.Kennedy, COPP 2010-CFP-015;
Washburn v. Murray, COPP 2010-CFP-019; Ward v. Miller, COPP
2010-CFP-021; Bonogofsky v. Boniek, COPP-2010-CFP-027; and
Clark v. Bannan, COPP 2010-CFP-023. These Decisions
determined actions and evidence related to coordination and
corporate contribution issues that are comparable to those raised
in Ms. Bonogofsky's complaint. Further, in the course of
investigating the above Matters the Commissioner found and
reviewed a number of documents concerning additional 2010
campaigns, including documents concerning Candidate Wittich's
2010 primary campaign.
By this Notice Senator Wittich and the public are informed
that, pursuant to the Bongofsky complaint, as well as pursuant
to the Commissioner's continuing investigative authority under
§13-37-1l1(2)(a) MCA and 44.10.307(3) ARM, the Commissioner
will now consider in this Matter the coordination/corporate
contribution allegations and issues addressed by or inherent in
the 5 Decisions listed above.

Page 3 of19

Exhibit E-3

 First Sµpplemental Answer :
The Bonogofsky complaint against "Dan Kennedy and also the other
(WTP) supported candidates .. ." is postmarked September 2, 2010 and is
stamped as "received" by the COPP on September 3, 2010. The
On September 11, 2013 Commissioner Motl talked to Ms. Bonogofsky
who specified that her complaint against "other (WTP) supported candidates... "
include Art Wittch as a 2010 candidate for Republican Party nomination to the
Montana Senate from SD 35. On January 24, 2014 the September 3, 2010
Bonogofsky complaint against "other (WTP) supported candidates ... " was
specifically noticed to include a complaint against Art Wittich.

INTERROGATORY NO. 3: Please identify every document that was
included with Bonogfsky's complaint against Dan Kennedy.
ANSWER: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1st judicial court pleading. But interrogatory
no. 3 is aimed at the predecessor COPP (or administrative agency) complaint that lead
to the sufficiency of facts decisions that provided a platform for the district court
complaint.
Answering as to the 1st Judicial District Court complaint, the Commissioner, not
Bonogofsky, filed the complaint.
Answering as to administrative agency complaint, please see the documents
attached to the September 3, 2010 administrative agency complaint.

Exhibit E-4

 First Supplemental Answer :
The documents are identified by production. The complaint, with attached
documents are available for viewing and copying, at the office of the COPP. The
documents consist of copies of 3 photos, two campaign fliers, one campaign letter, two
surveys and one internet item.

INIBRROGATORY NO.

4:

Please identify every document that was

included with Bonogfsky's complaint against Wittich.
ANSWER: You are not using "complaint" in a manner consistent with the

definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the i•t judicial court pleading. But interrogatory
no. 4 is aimed at the predecessor COPP (or administrative agency) complaint that lead
to the sufficiency of facts decisions that provided a platfonn for the district court
complaint.
Answering as to theist Judicial District Court complaint, the Commissioner, not
Bonogofsky, filed the complaint.
Answering as to administrative agency complaint, please see answer to
Interrogatory No. 3 and also see the following included in the January 24, 2014 Notice
With the above described focus in mind, a copy of the
Western Tradition Partnership/Direct Mail ledger for 2010
Candidate Wittich campaign is attached to this Notice. That
document, at a minimum, introduces the 8 candidate letters
that constitute a substantial part of the sufficiency findings in
the 5 Decisions listed above. Senator Wittich is invited to review
the ledger and respond. After investigation and consideration of
the issues involved in this Matter the Commissioner will issue a
Decision.

Page5of19

Exhibit E-5

 First Supplemental Answer:
There is no supplementation needed as the documents referenced within the
Notice to Mr. Wittich are described in detail, above.
INTERROGATORY NO. 5: Please state the manner in which Bonogofskyfiled
her complaint against Dan Kennedy (e.g., in person, by mail, by email, etc.).

ANSWER: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1•1 judicial court pleading. But interrogatory
no. 5 is aimed at the predecessor COPP (or administrative agency) complaint that lead
to the sufficiency of facts decisions that provided a platform for the district court
complaint.
Answering as to the 1'1 Judicial District Court complaint, the Commissioner, not
Bonogofsky, filed the complaint.
Answering as to administrative agency complaint, the complaint was filed by
mail, as shown by the receipt blocks on the front of the complaint.
INI'ERROGATORY NO. 6: Please state the manner in which Bonogofsky filed
her complaint against Wittich (e.g., in person, by mail, by email, etc.).
ANSWER: You are not using "complaint" in a manner consistent with the

definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1st judicial court pleading. But interrogatory
no. 6 is aimed at the predecessor COPP (or administrative agency) complaint that lead
to the sufficiency of facts decisions that provided a platform for the district court
complaint.

Page 6 oflg

Exhibit E-6

 Answering as to the 1st Judicial District Court complaint, the Commissioner, not
Bonogofsky, filed the complaint.
Answering as to administrative agency complaint, the complaint was filed by
mail, as shown by the receipt blocks on the front of the complaint. The January 24,
2014 Notice describes the manner in which the administrative agency complaint was
noticed to Senator Wittich.

INTERROGATORY NO.

z:

In paragraph 24(a) ofyoW" Complaint, you

state that Bonogfsky's complaint against Dan Kennedy "was applied" to additional
candidates, including Wittich. Please explain how Bonogofsky's complaint "was
applied" to Wittch.

AN$WER: Please see answers to interrogatories Nos. 2, 4 and 6.
First Supplemental Answer :
The supplemental answer to interrogatory No. 2 is incorporated by reference.

INTERROGATORY NO. 8: Please describe by date, manner and brief
description, each communication that you have had with Bonogfsky as it relates to
her claims against Wittich.

ANSWER: There have been several contacts, but less than 10. There have been
no in-person contacts. I will need to assemble my records to list these contacts and I
will update this answer once I am able to do so.
First Supplemental Answer ·
I have been able to identify two contacts with Ms. Bonogofsky "as it relates to her
claims against Wittich." Commissioner Motl talked to Ms. Bonogofsky on November 11,
2013

by telephone. It was a brief conversation of 10 minutes or less.

During that

conversation Ms. Bonogofsky specified that her complaint against "other (WTP)
Page 7of19

Exhibit E-7

 supported candidates ... • included Art Wittch as a 2010 candidate for
Republican Party nomination to the Montana Senate from SD 35.
Ms. Bonogofsky and Mr. Wittich, as parties, were contacted by email by
Vanessa Sanddal on March 31, 2014, the day that administrative sufficiency
Decision was released.

INTERROGATORY NO. 9: Please identify every document, tangible thing,
or electronically stored piece of information that you have in your possession,
custody, or control which supports your claims against Wittich.
ANSWER: The administrative agency sufficiency decision identifies the

documents and other information. There is other information in the ''WTP records" and
"Esp Family Archive", as identified in the sufficiency decision. We are in the process of
putting this information into an archive that responds to this question.
first Supplemental Answer :
We hereby identify the following sets of documents as responsive to
interrogatory No. 9, The documents are identified in three levels of production.
First, a document disk is included with approximately 2,500 pages of
documents and images. Second, hard copy production is immediately
available of approximately 20,000 pages of documents. Thit:d, a privilege log
(not yet completed) will be produced for those pages of documents that are
being withheld from production. The groups of documents are described as
follows:
1. Esp Family Archive

There are three binders of documents that were collected by Esp family
members who received copies in the mail during the 2010 primary election.
This set of documents was reviewed by the Commissioner in the preparation of
sufficiency Decisions for 2010 candidates whose campaigns involved WTP and
its allies.
These documents are numbered Kenn BS # 113 through 537 and the
same are produced in the accompanying document disk. The original
Page8 ofig

Exhibit E-8

 hard copy documents are also available for inspection. All documents
are produced and there is no redaction or privilege log for these
documents.
2. Box 1. WTP
There is a banker's box set of documents identified as Box 1, WTP. This box
is one of three boxes sent to the COPP from Colorado. The box was originally
in the possession of the COPP, then subpoenaed by a Federal Grand Jury and
placed under the possession of the FBI and now returned to the Commissioner
by the FBI. This set of documents was reviewed by the Commissioner as part
of the preparation of sufficiency Decisions for 2010 candidates whose
campaigns involved WTP and its allies.
These Box 1 documents are partially copied and scanned. The scanned
and copied documents from this Box are labeled, numbered and
produced in a document CD. The complete set of original hard copy
documents are available for review. All documents are produced and
there is no redaction or privilege log for these documents.
3. Box2. WTP
There is a banker's box set of documents identified as Box 2, WTP. This box
is one of three boxes sent to the COPP from Colorado. The box was originally
in the possession of the COPP, then subpoenaed by a Federal Grand Jury and
placed under the possession of the FBI and now returned to the Commissioner
by the FBI. This set of documents was reviewed by the Commissioner as part
of the preparation of sufficiency Decisions for 2010 candidates whose
campaigns involved WTP and its allies.
These Box 2 documents are partially copied and scanned. The scanned
and copied documents are numbered and produced in a document disk
CD. The complete set of original hard copy Box 2 documents are
available for review. All documents are produced and there is no
redaction or privilege log for these documents.
4. Box 3, WTP
There is a banker's box set of documents identified as Box 3, WTP. This
box is one of three boxes sent to the COPP from Colorado. The box was
originally in the possession of the COPP, then subpoenaed by a Federal Grand
Jury and placed under the possession of the FBI and now returned to the
Commissioner by the FBI. This set of Box 3 documents was reviewed by the

Exhibit E-9

 Commissioner as part of the preparation of sufficiency Decisions for 2010
candidates whose campaigns involved WTP and its allies.
These Box 3 documents are partially copied and scanned. The scanned
and copied documents are labeled, numbered and produced in a
document CD. The complete set of original hard copy Box 3 documents
are available for review. All documents are produced and there is no
redaction or privilege log for these documents.

5. Box4,
There is a banker's box set of documents identified as Box 4. This box
consists of documents gathered by the COPP during its investigation of WTP's
2008 campaign practices and delivered to the FBI as responsive to the Grand
Jury subpoena. The documents in the box were originally in the possession of
the COPP, then subpoenaed by a Federal Grand Jury and placed under the
possession of the FBI and now returned to the Commissioner by the FBI. This
set of documents was reviewed by the Commissioner as part of preparation of
sufficiency Decisions for 2010 candidates whose campaigns involved WTP and
its allies.
There are no scanned and copied documents taken from this box. Please
note, however, that the box contains copies of documents that also
appear in other sets of documents. The original hard copy Box 4
documents are available for review. There is a redaction or privilege log
for these documents.
6. Box 5
There is a banker's box set of documents identified as Box 5. This box
consists of documents gathered by the COPP during its investigation of WTP's
2008 campaign practices and delivered to the FBI as responsive to the Grand
Jury subpoena. The documents in the box were originally in the possession of
the COPP, then subpoenaed by a Federal Grand Jury and placed under the
possession of the FBI and now partially returned to the Commissioner by the
FBI. The FBI retained the contents of this box consisting of the bank records
of WTP produced to the COPP during litigation with WTP. The COPP has
produced the set of bank records documents as item No. 10, below. This set of
documents was reviewed by the Commissioner as part of the preparation of
sufficiency Decisions for 2010 candidates whose campaigns involved WTP and
its allies.

Page 10 of19

Exhibit E-10

 These Box 5 documents are partially copied and scanned. The scanned
and copied documents are numbered and produced in a document CD.
The original hard copy Box 5 documents are available for review as set
out above. There will be a redaction or privilege log for these documents.
7. WTP v. Gravbill Distrct Court Documents
There is a banker's box of documents that were produced in the district
court litigation matter of WTP v Unsworth No. BDV-2010-1120. These
documents consist of a copy of the investigative file in Graybill and are bates
stamped (00001-03278). These documents are not scanned or available on
CD. This set of documents was reviewed by the Commissioner as part of the
preparation of sufficiency Decisions for 2010 candidates whose campaigns
involved WTP and its allies.
These Graybill documents are not copied and scanned. Production is by
hard copy documents available for review as set out above. There is a
redaction or privilege log for the Graybill documents.
8. Loendorf Document Set

This set of documents is about 400 pages and consists of WTP
information produced to the COPP by Carolyn Loendorf. This document
set was reviewed by the Commissioner in the preparation of sufficiency
Decisions for 2010 candidates whose campaigns involved WTP and its allies.
These Loendorf documents are partially copied and scanned. The
scanned and copied documents will be identified and produced in a
document CD. The hard copy documents are available for review as set
out above. There is a redaction or privilege log for these Loendorf
documents.
9. Investigative Files for 2010 candidates
This set of documents consists of the investigative files for Bonogofsky v.
Kennedy, COPP 2010-CFP-015; Washburn v. Murray, COPP 2010-CFP-019;
Ward v. Miller, COPP 2010-CFP-021; Clark v. Bannan, COPP 2010-CFP-023;
Bonogofsky v. Boniek, COPP-2010-CFP-027; Bonogofsky v. Wittich, COPP-2010CFP-031; Madin v. Sales, COPP-2010-CFP-029; Bonogofsky v. Prouse, COPP2010-CFP-033; Bonogofsky v. Wagman, COPP-2010-CFP-035; Madin v. Kitts
COPP-2013- CFP- 001; Madin v. Burnett, COPP-2012-CFP-052; and Ponte v.
Buttrey, COPP-2014-CFP-007. This set of documents was reviewed by the
Pageu of19

Exhibit E-11

 Commissioner as part of the preparation of sufficiency Decisions for 2010
candidates whose campaigns involved WTP and its allies.
These 2010 candidate documents are in the process of being organized
for production. The document disk and these answers will be
supplemented when the documents are organized. There will be a
redaction or privilege log for these 2010 candidate documents.

10.WTP Bank Statements
This set of documents is one bankers box in size and consists of WTP
banking information produced in discovery in the matter of WTP v Unsworth
No. BDV-2010-1120 . This document set was reviewed by the
Commissioner in the preparation of sufficiency Decisions for 2010
candidates whose campaigns involved WTP and its allies.
There are no copied and scanned documents for this document set. The
hard copy WTP bank documents are available for review. There is a
redaction or privilege log for COPP work based on these WTP bank
documents.
WTP I Le fer General

11.

This set of documents is one bankers box in size and consists of general
information on WTP and LeFer gathered by the COPP. This document set
was reviewed by the Commissioner in the preparation of sufficiency
Decisions for 2010 candidates whose campaigns involved WTP and its allies.
There are no copied and scanned documents for this document set. The
hard copy WTP /LeFer documents are available for review as set out
above. There is a redaction or privilege log for these documents.
12.

2010 WTP Candidates in General

This set of documents is one bankers box in size and consists of general
information on WTP actions supporting or opposing 2010 candidates for
Montana public office. This document set was reviewed by the
Commissioner as part of the preparation of sufficiency Decisions for 2010
candidates whose campaigns involved WTP and its allies.

Page12 of19

Exhibit E-12

 There are no copied and scanned documents for this document set. The
hard copy documents are available for review as set out above. There is
no redaction or privilege log for these documents.
13.

Email Production for Motl. Baker. Steab. MacNaughton, Scheier
and Sanddal
This set of documents is several thousand pages in size and consists of
copies of the emails of the above listed 6 current or former COPP
employees and agents.
These e-mail documents are partially copied and scanned. The scanned
and copied documents will be identified and produced in a document CD.
The hard copy email documents are available for review as set out above.
There is a redaction or privilege log for these email documents.

RE0UESTS FOR PRODUCTION
REQUEST FOR PRQDUCTION NO. 1: Please produce every document

that you have in your possession, custody, or control which supports your claims
against Wittich.
Supplemental RESPONSE:

Please see response to Interrogatory No. 9 as to the documents that are produced.
Items 1-8 and 10-13 are available for inspection and copying. Item 9 is in the process of
being assembled and will be made available as soon as possible.
The following protocol will be followed in regard to document review and
copying:
1. Please schedule each review through Vanessa Sanddal, including

notice as to how many hours you intend to spend in that review.
2. All document review will take place at the conference table in the
•stone house" at 1209 8th avenue, Helena, MT.

Page 13of19

Exhibit E-13

 3. All document inspection will be supervised by a member of the
Commissioner's staff, including, as necessary, pre- review of
documents by the Commissioner's staff for privilege and/ or privacy.
Any document withheld or redacted will be bates-stamped and sealed
with the parties' rights to determine production thereby protected.
4. The reviewer may not bring a briefcase, box or containers to the
conference table.
5. As documents are identified by the reviewer, the same will be copied
by the reviewer.
6. The reviewer will be charged 10 cents for each page of documents
copied.
7. The reviewer may take his or her copies with them when they leave.

RE0UEST FOR PRQDUCIJON NO.

2:

Please produce every document

that you have in your possession, custody, or control which may be used as
evidence in a trial on this matter.

RESPONSE; Please see response to Interrogatory No. 9 and RFP No. 1.
REQUEST FOR PRQDUCT10N NO. 3: Please produce every document
upon which you relied in filing the Complaint against Wittich.

RESPONSE: Please see response to Interrogatory No. 9 and RFP No. 1.
REQUEST FOR PRODUCTION NO. 4: Please produce a copy of all written
correspondence between you and Bonogfsky, which includes any and all
correspondence with previous Commissioners.

RESPONSE: This information will be supplied as part of the supplemental
response to item No. 9, as listed in the response to Interrogatory No. 9.

REOUESI FOR PRODUCIJON NO. 5: Please produce a copy of the
complaint filed by Bonogfsky against Wittich, including any evidentiary material filed
with the complaint.

Page 14 of19

Exhibit E-14

 RESPONSE: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1" judicial court pleading. But request for
production no. 5 is aimed at the predecessor COPP (or administrative agency) complaint
that lead to the sufficiency of facts decisions that provided a platform for the district
court complaint.
Answering as to the 1st Judicial District Court complaint, the Commissioner, not
Bonogofsky, filed the complaint.
Answering as to administrative agency complaint, the administrative agency
complaint and the Notice are attached.
First Sypplemental Response: These documents will be automatically produced
as part of the Commissioner's forthcoming response to item No. 9 (see above).
REQUEST FOR PRODUCTION NO. 6: Please produce a copy of the
complaint filed by Bonogfsky against Dan Kennedy, including any evidentiary material
filed with the complaint.
RESPONSE: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1•1 judicial court pleading. But request for
production no. 6 is aimed at the predecessor COPP (or administrative agency) complaint
that lead to the sufficiency of facts decisions that provided a platform for the district
court complaint.
Answering as to the 1st Judicial District Court complaint, the Commissioner, not
Bonogofsky, filed the complaint.

Page 15of19

Exhibit E-15

 Answering as to administrative agency complaint, the complaint and
accompanying documents are attached.
First Supplemental Response: These documents will be automatically produced
as part of the Commissioner's forthcoming response to item No. 9 (see above).

REOUE$TS FOR ADMISSION
REQUEST FOR ADMISSION NO.

Please admit that you read the

i:

Instructions and Definitions included with these discovery requests.

RESPONSE: Admit.
REOVEST FOR ADMISSION NO.

2:

Please admit that you did not provide

Wittich with a copy of the complaint filed by Bonogfsky against Wittich within five days
after receiving her complaint.

RESPONSE: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1°' judicial court pleading. But request for
admission no. 2 is aimed at the predecessor COPP (or administrative agency) complaint
that lead to the sufficiency of facts decisions that provided a platform for the district
court complaint.
Responding as to the l'' Judicial District Court complaint, the Commissioner
denies that Bonogofsky filed and complaint and admits that Mr. Wittich was served on
the date shown by the return of service.
Responding as to the administrative agency complaint, admit that Mr. Wittich
was not provided a copy of the September 3, 2010 Bonogofsky complaint within five
days after the September 3, 2010 filing date.

Please see Notice accompanying these

responses for a description of the method of notice to Mr. Wittich.
Page 16of19

Exhibit E-16

 REQUEST FOR ADMISSION NO. 3: Please admit that to date you have not
provided Wittich a copy of the complaint filed by Bonogfsky against Wittich.

RESPONSE: You are not using "complaint" in a manner consistent ·with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the 1•• judicial court pleading. But request for
admission no. 3 is aimed at the predecessor COPP (or administrative agency) complaint
that lead to the sufficiency of facts decisions that provided a platform for the district
court complaint.
Responding as to the 1st Judicial District Court complaint, the Commissioner
denies that Bonogofsky filed the complaint, denies that Mr. Wittich was not provided a
copy and states that Mr. Wittich was served on the date shown by the return of service.
Responding to the administrative agency complaint the Commissioner denies as
that Mr. Wittich was not provided a copy of the complaint. This denial is based on the
listing of the complaint (and other documents) in the Notice to which documents Mr.
Wittich was provided electronic access, 24 hours a day 7 days a week, by access portals
on the COPP home page.

REQUEST FOR ADMISSION NO. 4: Please admit that the complaint filed
by Bonogfsky against Wittich does not specifically name Wittich as an alleged violator.

RESPONSE: You are not using "complaint" in a manner consistent with the
definitions in your interrogatories. The word "complaint" is defined by the
interrogatory "general definitions" as the

ist judicial

court pleading. But request for

admission no. 4 is aimed at the predecessor COPP (or administrative agency) complaint
that lead to the sufficiency of facts decisions that provided a platform for the district
court complaint.

Exhibit E-17

 0
Responding as to the 1st Judicial District Court complaint, the Commissioner
denies that Bonogofsky filed the complaint and denies Mr. Wittich was not named.
Responding as to the administrative agency complaint, the complaint included an
allegation of coordination against "Dan Kennedy and also the other (WTP) supported
candidates ...". The Commissioner admits and denies according to that statement. The
Commissioner further incorporates the language of the January 24, 2014 Notice filed in
the administrative agency matter.
INI'ERROGATORYNO.

10:

If your response to any of the immediately

preceding Requests for Admission is anything other than an unqualified admission,
please state with detail and particularity which portion is true and which portion you
claim is false. For each portion which you claim is false or which you deny, please
state with particularity those witnesses, communications, documents and/ or facts,
other than subjective belief, which would support your denial of the request.

Jaime MacNaughton, Attorne
for the Commissioner of Political Practices
CERTIFICATE OF SERVICE
I certify that I mru1ed a true copy of the foregoing, via regular mail, to the
following:
Carrie R Wasserbyrger
Wittich Ogburn, P.C.
602 Ferguson Ave., Ste 5
Bozeman, MT 59718

Jaime MacNaughton,
Attorney for the Commissioner of Political Practices
Page 18 of19

Exhibit E-18

 VERIFICATION OF RESPONSES TO
WITTICH'S FIRST DISCOVERY REQUESTS TO COMMISSIONER

State of Montana

)
: SS

County of Lewis and Clark )
Jonathan R. Motl, being duly sworn according to law, deposes and states that he
is the Montana Commissioner of Political Practices, that he has read the foregoing
discovery requests and responses thereto, that the responses were prepared with the
assistance and advice of legal counsel, that they were prepared based on present
recollection and information available, including records and documents currently
known to exist, and the responses are true and correct to the best of his knowledge,
information and belief.
Dated this

.:;2 y+~ day of July,

2:-:: '\.,

<

.~~-m-

Jonath~

Commissioner of Political Practices

,zs ct+fl_

Signed and sworn to (or affirmed) before me this

6"'""'~~'\
,f/j

KAR"N J MUSGRAVE
NOTARYPUBLICfar~e
Slllte al Montana

~~'A./

~s

e

day of June, 2014.

dfh (L./jA-

0

Notary Public f~o
e State of Montana
\:::_o.Mof.JI My Commission Expires Residing at t~cr , Mon ta%
L_:::~~~~~F~eb~ru~a~~a~,2~01~5~J
'
My Commission Expires &(!Q,J?Dr5
"le\.

L

Res~ing at Helena, Montana

Page 19 of19

Exhibit E-19

 Motl, Jonathan
From:

Sent:
To:
Subject:

Baker, Mary
Monday, July 21, 2014 1:16 PM
Motl, Jonathan; MacNaughton, Jaime
Steab's InBox

Memo
Commissioner Motl asked that I take a look at Julie Steab, our former investigators, email's for correspondence
involving parties engaged in current litigation. When Ms. Steab resigned, I was granted access to her inbox in case
important correspondence was sent to her that needed to be taken care of or forwarded on to someone else in the
office.
I completed a search on Ms. Steab's in-box and associated folders and was unable to obtain any emails that pertained to
pending litigation. In fact, the archive folder is no longer available. I did however complete a search in my own archive

folders and printed anything that I was cc'd on from Ms. Steab related to the pending cases noted in the Madin v. Kitts
decision, footnote no. 2.

Mary Baker
Program Supervisor
Commissioner of Political Practices
(406)444-7416
~er@mt.gov

\ . , Our lives begin to end the day we become silent about things that matter.
Martin Luther King, Jr.

EMAIL0001

Exhibit F-1

~~~~~~~~

 BEFORE THE COMMISSIONER OF
POLITICAL PRACTICES
STATE OF MONTANA

In the Matter of the Complaint Against Mont-PIRG,
Montana Common Cause, the League of Women
Voters of Montana and Other Entities and Political
Committees Supporting 1-125 and 1-121

SUMMARY OF FACTS
AND
STATEMENT OF FINDINGS

Complainant Brad Griffin, Executive Director of the Montana Restaurant Association
and the Montana Retail Association, filed a complaint against Mont-PIRG, Montana
Common Cause ("MCC"), the League of Women Voters of Montana ("LWVM") and other
entities and political committees supporting 1-125 and 1-121 on October 31, 2000. Mr.
Griffin's complaint alleges that Mont-PIRG, MCC, LWVM, and other entities and political
committees supporting 1-125 and 1-121 during the 1996 election failed to properly report
certain contributions and expenditures under Montana's Campaign Finance and Practices
Act. Mr. Griffin's complaint contains the following basic allegations:

I. 1-125 CLAIMS
Claim 1:
The initial principal political committee created to support 1-125,
Citizens to Qualify 1-125, violated the naming and labeling statute (Section 13-37-210,
Montana Code Annotated (MCA)) by failing to properly identify the economic or other
special interest of a majority of its contributors.
The initial C-6 report filed by Citizens to Qualify 1-125 failed to
Claim 2:
accurately report in-kind contributions made by Mont-PIRG, LWVM, Green Corps, the law
firm of Reynolds, Motl and Sherwood, and other entities as required by Section 13-37228(1 ), MCA.
Citizens to Qualify 1-125 failed to timely file its first C-6 report. Citizens
Claim 3:
to Qualify 1-125 filed its initial C-6 report on June 10, 1996. Mr. Griffin alleges the
committee's initial report should have been filed on March 10, 1996 as required by Sections
13-37-226(2), 13-37-229, and 13-37-230, MCA.
Citizens to Qualify 1-125, Mont-PIRG and LWVM failed to report two
Claim 4:
grants totaling $5,000 made by Mont-PIRG to LWVM for 1-125 activities in September of
1996.
Mont-PIRF, Citizens to Qualify 1-125 and its successor principal
Claim 5:
committee, League of Women Voters of Montana, Montana Common Cause, Mont-PIRG,
2030 Fund, Inc. and Citizens for 1-125 ("LWVM and Others for 1-125") failed to report
expenditures made for the Mont-PIRF study entitled "Big Money and Montana's Ballot
Campaigns." In addition, the 1-125 principal committees failed to report expenditures for
-1-

Exhibit G-1

 polling during the 1996 campaign.
Claim 6:
Citizens to Qualify 1-125 and LVVVM and Others for 1-125 failed to report
1-125 signature gathering efforts by students in a University of Montana Environmental
Organizing Semester ("EOS") class taught by C.B. Pearson. Mr. Pearson also served as
the campaign manager for 1-125 and as treasurer for both Citizens to Qualify 1-125 and
LWVM and Others for 1-125.
11. 1-121 CLAIMS

Claim 1:
The following entities and political committees failed to accurately and
timely report contributions and expenditures supporting 1-121 during the 1996 election:

A
B.
C.
D.
E.
F.

Committee for a Livable Wage by 2000 Campaign ("Livable Wage
Committee");
Montana People's Action ("MPA");
Montana Alliance for Progressive Policy ("MAPP");
Montanans for an Effective Legislature ("Mont-GEL"};
A Territory Resource ("ATR"); and
Western States Center ("WSC").

Claim 2:
The Livable Wage Committee violated the naming and labeling statute
(Section 13-37-210, MCA) by failing to properly identify the economic or other special
interest of a majority of its contributors.
Ill. INTRODUCTION AND BACKGROUND

1-125 and 1-121 appeared on the November 5, 1996 general election ballot.
1-125 prohibited direct corporate spending on ballot issues, except by non-profit
corporations not controlled by for-profit companies. 1-125 was approved by Montana's
voters but was subsequently declared unconstitutional. See Montana Chamber of
Commerce, et al. v. Ed Argenbright, 28 F. Supp. 593 (D. Mont. 1998), 226 F. 3d 1049 (9 TA
Cir. 2000), cert. denied,_ U.S._, 122 S. Ct. 46 (2001).
1-121 would have gradually raised Montana's minimum hourly wage to $6.25 by the
year 2000 unless a higher minimum wage was required by federal law. Montana's voters
rejected 1-121.
Mr. Griffin's complaint in this matter was filed, in part, as a response to an earlier
complaint filed by MCC against the Montana Chamber of Commerce and others. In a June
20, 2000 decision, In the Malter of the Complaint Against the Montana Chamber of
Commerce Regarding its Activities in Opposition to 1-121and1-125 (hereinafter "June 20,
2000 Chamber Decision"), it was determined that the Montana Chamber of Commerce, the
-2-

Exhibit G-2

 Montana Retail Association, the Montana Restaurant Association, and others had failed to
accurately and timely report certain expenditures and contributions opposing 1-121 and 1125. The matter ultimately was settled on August 9, 2000 when the 1-121 and 1-125
opponents agreed to pay a $28,000 civil penalty contingent on an agreement that payment
of the civil penalty was not an admission of liability or wrongdoing. Less than three months
later, Mr. Griffin filed this complaint relying on findings made in the June 20, 2000 Chamber
Decision.
IV. THE STATUTE OF LIMITATIONS ISSUE

The 1-125 and 1-121 opponents, including Mr. Griffin, raised the Section 13-37-130,
MCA, statute of limitations issue during the investigation and settlement of the violations
identified in the June 20, 2000 Chamber Decision. The supporters of 1-125 and 1-121
targeted in Mr. Griffin's complaint have repeatedly raised the same statute of limitations
issue during this investigation. It is necessary to address Section 13-37-130, MCA, because
participants in Montana's most controversial and bitter ballot issue campaigns have recently
been filing belated complaints several years afterthe voters have spoKen. The belated filing
of complaints, in turn, has encouraged respondents to delay providing necessary
information to the Commissioner's office, apparently for the purpose of enhancing Section
13-37-130, MCA, statute of limitations claims. It took 13 months to complete the June 20,
2000 Chamber Decision investigation and 21 months to complete this investigation. These
lengthy delays will not be tolerated in the future, and my office will implement procedures to
expedite future investigations.
MCC filed its 1-121 and 1-125 complaints against the Montana Chamber of
Commerce and Mr. Griffin's employers almost two years and four months after the
November 5, 1996 general election. Mr. Griffin waited almost four years after the November
5, 1996 vote on \-125 and 1-121 to reciprocate with a complaint against MCC and the other
parties discussed in this decision. Mr. Griffin and the Montana Chamber of Commerce were
researching the allegations raised in the Griffin complaint in May of 1998, culminating in a
report made available to the Chamber several months later. Even when MCC filed its 1-121
and 1-125 complaints against the Chamber on March 3, 1999, Mr. Griffin waited almost20
months before filing the complaint in this matter.
The belated filing of complaints several years after an election raises enforcement
issues for the Commissioner's office under Section 13-37-130, MCA, which reads, in
pertinent part, as follows:
13-37-130. Limitation of action. An action may not be brought under 13-37128 and 13-37-129 more than 4 years after the occurrence of the facts that
give rise to the action. No more than one judgment against a particular
defendant may be had on a single state of facts. The civil action created in
13-37-128 and 13-37-129 is the exclusive remedy for violation of the
contribution, expenditure, and reporting provisions of this chapter. ...
-3-

Exhibit G-3

 Mr. Griffin's October 31, 2000 complaint involves a host of complex allegations
about two controversial 1996 ballot issue campaigns. The belated filing of the complaint
immediately created statute of limitations issues for the Commissioner, because it was filed
just a few days before the four-year anniversary date of the 1996 November general
election. For example, civil penalty actions based on allegations that pre-general election
reports were not timely filed by the 1-125 and 1-121 committees were already barred by
Section 13-37-130, MCA. These and other related statute of limitations issues are
discussed in the following paragraphs.
The belated filing of Mr. Griffin's complaint also created practical problems that only
lengthened this investigation. Mont-PIRG, for example, changed executive directors and
moved its offices before Mr. Griffin's complaint was filed on October 31, 2000. Mr. Pearson
also moved his offices during this same period. Because the constitutional challenge to 1125 occurred during this same four-year period, the respondents' records were dispersed
among several individuals. EOS class students, most of whom were from out-of-state,
have long since left the Missoula area. While these events do not excuse the conduct
described in Part V of this decision, it is clear that the late filing of the Griffin complaint
made it more difficult for the respondents and the Commissioner to gather documents and
information pertaining to this investigation.
The respondents in this investigation have asserted that all allegations in Mr. Griffin's
complaint are time barred under Section 13-37-130, MCA. The 1-125 and 1-121 proponents
assert that any enforcement action would be based on "facts" or events that occurred more
than four (4) years ago. In particular, the proponents of 1-125 urge an interpretation of
Montana's Campaign Finance and Practices Act that would eviscerate the full disclosure
mandate of the Act. The 1-125 proponents assert that:
1. Citizens to Qualify 1-125 closed its books on September 24, 1996 and its
treasurer, campaign manager, and campaign officials cannot be the subjects of
enforcement action because the committee's books were closed more than four (4) years
before Mr. Griffin's complaint was filed.
2. The decision by LWVM and Others for 1-125 to continue its existence and delay
filing a closing report until March 29, 1999 cannot subject the committee. its treasurer,
officers, or campaign manager to enforcement action under the Act because campaign
activities described in Mr. Griffin's complaint occurred more than four (4) years ago. LWVM
and Others for 1-125 also specifically assert that they have no responsibility or liability for the
predecessor principal committee, Citizens to Qualify 1-125.
I will first put to rest the suggestion that individuals and groups that organize, control,
and spearhead a ballot issue campaign from beginning to end can insulate themselves from
enforcement action under the Act by filing a closing report and creating a new principal
committee that differs in name only. Citizens to Qualify 1-125 and LWVM and Others for 1125 were organized, controlled, and operated by the same individuals from the inception of
1-125 until the initiative was finally declared unconstitutional, as illustrated by the following:

Exhibit G-4

 When Citizens to Qualify 1-125 closed its books, it transferred its remaining cash to
LVVVM and Others for 1-125. Both 1-125 committees used the same mailing address and
bank for its campaign activities. The mailing addresses for both 1-125 committees were the
same as the mailing address for C.B. Pearson.
C.B. Pearson was the treasurer and campaign manager for both principal 1-125
committees. Mr. Pearson coordinated the 1-125 signature gathering effort, wrote the study
relied on by the proponents of 1-125 to support the initiative, and managed virtually every
aspect of the successful 1-125 campaign for both principal committees. Mr. Pearson
testified as MCC's expert witness and as a witness for LVVVM and Others for 1-125 during
the post-election 1-125 litigation.
Jon Motl was the architect, draftsman, and chief defender of 1-125 before, during,
and after the 1-125 campaign. Mr. Motl wrote 1-125, secured its approval by the Secretary of
State and Attorney General, volunteered many hours to Citizens to Qualify 1-125, was paid
by LVVVM and Others for 1-125 for his campaign work and served as the deputy treasurer
for LVVVM and Others for 1-125. Mr. Moll's law firm also made an in-kind contribution to
Citizens to Qualify 1-125. Mr. Motl defended 1-125 as legal counsel for LWVM and Others
for 1-125 in the post-election litigation
Mont-PIRG made substantial in-kind and monetary contributions to both principal 1125 committees. Chris Newbold, Mont-PIRG's executive director, publicly touted the
organization's efforts to qualify and pass 1-125 (see, e.g., September 25 and October 17,
1996 Montana Kaimin). Mr. Newbold served as a "Committee Member" for LVVVM and
Others for 1-125. Mr. Newbold testified about his 1-125 campaign activities during the 1-125
litigation.
Mont-PIRF's Board of Directors was comprised of Mr. Motl, Mr. Pearson, Mr.
Newbold, and Linda Lee. Mont-Pl RF commissioned and paid C.B. Pearson to research and
write the report on corporate contributions to Montana ballot issue campaigns that became
the centerpiece of the 1-125 campaign.
LVVVM signed on early to support the 1-125 campaign. In May of 1996, LWVM
President Barbara Seekins agreed to serve with Mr. Motl and Mr. Pearson on the Voter
Information Pamphlet committee writing arguments in favor of I· 125. Ms. Seekins collected
signatures to place 1-125 on the ballot. Mr. Pearson wrote fund-raising letters in early June
of 1996 representing that LVVVM had agreed to support 1-125. Ms. Seekins served as a
"Committee Member" for LWVM and Others for 1-125 and appeared in 1-125 radio
advertisements paid for by the committee.
MCC was involved in the 1-125 campaign from its inception. Mr. Pearson and Mr.
Motl were both MCC Board members in 1996 and have historically been MCC's public
spokesmen on campaign reform issues. John Heffernan, President of MCC in 1996,
volunteered time to collect 1-125 petition signatures in 1996 and also was an active
participant in public news conferences supporting 1-125. MCC made significant in-kind and

Exhibit G-5

 monetary contributions to LWVM and Others for 1-125.
The preceding facts, and the Summary of Facts in Part VI of this decision establish
beyond any doubt that the two principal 1-125 campaign committees were controlled and run
by the same individuals. The 1-125 proponents have urged this Commissioner to adopt an
interpretation of the law that would encourage the sham filing of closing reports in an effort
to limit the accountability and liability of political committees and their campaign officials.
Full disclosure requires that when the same people run a ballot issue campaign from
beginning to end, those campaign officials have a continuing obligation to report accurately
all contributions and expenditures even if the predecessor committees have filed closing
reports and the names of the successor committees have been changed once or twenty
times.
Montana's Campaign Finance and Practices Act requires the "full disclosure and
reporting of the sources and disposition of funds used ... to support or oppose candidates,
political committees or issues ... " (Section 1, Chapter 480, Laws of 1975). My predecessor
and I have consistently ruled that full disclosure of campaign finances and practices
requires that contributions and expenditures be timely and accurately reported. See the
June 20, 2000 Chamber Decision; the April 30, 1998 Montanans for Common Sense Water
Laws/Against 1-122 Summary of Facts and Statement of Findings (hereinafter "April 30,
1998 MCSWL Decision'); the April 29, 1997 Montanans for Clean Water Summary of Facts
and Statement of Findings (hereinafter "April 29, 1997 MCW Decision'); and the February
27. 1997 Montanans for Clean Water and the Orvis Company Summary of Facts and
Statement of Findings (hereinafter "February 27, 1997 MCW/Orvis Decision'}. Montana's
unequivocal commitment to full disclosure and reporting of campaign contributions and
expenditures requires that all contributions previously received or expenditures previously
made be reported accurately in each report. If, for whatever reason, a contribution or
expenditure was omitted from or inaccurately reported in previous reports, a political
committee has a duty to file an amended report or include the omitted contribution or
expenditure in the next report (see schedule D of the C-6 report form). The duty to report
accurately all contributions previously received or expenditures previously made does not
end on the date of the election. The duty to report accurately all contributions and
expenditures continues until the political committee ceases to function and closes its books
by filing a closing report with the Commissioner's office.
In this matter, LWVM and Others for 1-125 did not finally conclude its business and
file a closing report immediately after the 1996 general election. LWVM and Others for 1125 delayed filing a closing report because Mr. Motl and Mr. Pearson believed that the
committee's intervention in the Federal court proceedings challenging the constitutionality of
1-125 would be denied ifthe committee ceased to exist (see Summary of Fact 154). LWVM
and Others for 1-125 did not file a closing report with the Commissioner's office until March
29, 1999, more than two years and four months after the 1996 general election. The
Commissioner has four (4) years from March 29, 1999 to pursue enforcement action under
Section 13-37-130, MCA, if it is determined that LWVM and Others for 1-125 or its treasurer,
campaign staff, or officers did not report accurately all contributions and/or expenditures for
-6-

Exhibit G-6

 the 1-125 campaign. 1 The filing of each report is a separate act that carries with it the legal
obligation to report accurately all contributions previously received or expenditures
previously made, including contributions and expenditures made by the predecessor
committee, Citizens to Qualify 1-125 (schedule D of each C-6 report form contains specific
language requiring that corrections to receipts and expenditures previously reported be
made). Any other interpretation would circumvent the "full disclosure and reporting" of
campaign contributions and expenditures (Section 1, Chapter 480, Laws of 1975).
Section 13-37-130, MCA, does bar enforcement action based on the failure to timely
report contributions and expenditures made more than four (4) years before the date of the
enforcement action. For example, Mr. Griffin alleges that the initial C-6 report filed by
Citizens to Qualify 1-125 was not timely filed (the report should have been filed on March 10,
1996 rather than June 10, 1996; see 1-125 Claim 3). This Commissioner agrees, but my
predecessor apparently had a different interpretation in March of 1996 (see Summary of
Fact 40). Nevertheless, Mr. Griffin filed his complaint more than four (4) years after March
10, 1996 and enforcement action based on the timeliness of the initial report filed by
Citizens to Quality 1-125 is barred by Section 13-37-130, MCA. Accordingly, this portion of 1125 Claim 3 is dismissed and will not be discussed further in this decision. The issue of
whether all contributions and expenditures were reported accurately in the September 11,
1998 and March 29, 1999 closing reports filed by LWVM and Others for 1-125 is addressed
on pages 41-55 of this decision.
Based on the preceding interpretation of Section 13-37-130, MCA, the following
additional claims in Mr. Griffin's complaint are dismissed for the following reasons:
Citizens to Qualify 1-125 filed a closing report on September 24, 1996. For the
reasons stated on pages 4-7 of this decision, the successor principal 1-125 committee,
LWVM and Others for 1-125, became responsible for the obligations and liabilities of the
initial principal 1-125 committee; however, the alleged violations of the naming and labeling
statute (13-37-210, MCA) occurred only during the period that Citizens to Qualify 1-125 was
the principal 1-125 committee (Mr. Griffin does not allege the LWVM and Others for 1-125
violated the naming and labeling statute nor does it appear that a violation occurred).
Compliance with the naming and labeling statute is driven by whether a majority of
contributors on any particular reporting date in a campaign require the principal committee
to change its name to reflect a common economic interest or employer of a majority of its
contributors. A committee can be in or out of compliance on any given reporting date,
1 LVWM and Others for 1-125 also filed post-election reports in 1997 and 1998 (see Summary of
Fact 154). LWVM and Others for 1-125 had a continuing duty to report accurately all contributions
received and expenditures made in those reports. The committee's September 11, 1998 report also
falls within the four-year period for initiating enforcement action under Section 13-37-130, MCA.

-7-

Exhibit G-7

 depending on the employment or economic interests of a majority of a committee's
contributors. There is no evidence that a violation of the naming and labeling statute
occurred after September 24, 1996, the date Citizens to Qualify 1-125 filed its closing report.
Enforcement action must be initiated not more than four (4) years after the date that
Citizens to Qualify 1-125 was violating the naming and labeling statute (not more than four
(4) years after September 24, 1996). Mr. Griffin's complaint alleging a violation of the
naming and labeling statute was filed more than four (4) years after September 24, 1996
and the successor principal committee operated the committee in compliance with the
naming and labeling statute.
1-125 Claim 4 is dismissed to the extent that it alleges that Citizens to Qualify 1-125,
LVVVM and Others for 1-125, Mont-PIRG, or LVVVM failed to timely report grants of $5,000
for 1-125 campaign activities. These alleged contributions/expenditures occurred in
September and November of 1996, and the timely reporting of such expenditures/
contributions would have been necessary more than four (4) years ago. The issue of
whether these contributions/expenditures were made and accurately reported in the
September 11, 1998 and March 29, 1999 closing reports filed by LVVVM and Others for 1125 is addressed on pages 51 and 52 of this decision.
1-125 Claim 5 is dismissed to the extent that it alleges that expenditures made for the
Mont-Pl RF funded study of corporate contributions to Montana's ballot issue campaigns and
polling were not timely reported. Expenditures for the document described in Claim 5 were
made in April through September of 1996, and the timely reporting of such expenditures
would have been necessary more than four (4) years ago. The 1-125 principal committees
spent no money on polling (see page 52 of this decision). The issue of whether
expenditures for the Mont-PIRF study were reportable and accurately reported in the
September 11, 1998 and March 29, 1999 closing reports filed by LVVVM and Others for 1125 is addressed on pages 52-54 of this decision.
1-125 Claim 6 is dismissed to the extent that it alleges that Citizens to Qualify 1-125
and LVVVM and Others for 1-125 failed to timely report 1-125 signature gathering efforts by
C.B. Pearson's University of Montana EOS class. This alleged in-kind contribution/
expenditure occurred in the spring of 1996 and the timely reporting of this
contribution/expenditure would have been necessary more than four (4) years ago. The
issue of whether this activity was a contribution/expenditure and reportable in the
September 11, 1998 and March 29, 1999 closing reports filed by LVVVM and Others for 1125 is addressed on pages 54 and 55 of this decision.
1-121 Claim 1 is dismissed in its entirety for the following reasons:
A. The Livable Wage Committee was the principal committee supporting 1-121. It
was primarily responsible for timely and accurately reporting all monetary and in-kind
contributions by individuals and incidental political committees that were coordinating
campaign activities with the Livable Wage Committee.

-B-

Exhibit G-8

 The Livable Wage Committee filed its closing report on November 25, 1996. The
four-year deadline for commencing enforcement action against the Livable Wage
Committee under 13-37-130, MCA, expired just twenty-six days after Mr. Griffin filed his
complaint on October 31, 2000. Mr. Griffin alleges that the initial report filed by the Livable
Wage Committee in February of 1996 was \ate-filed and inaccurate. The filing of the
Livable Wage Committee's initial report occurred more than four and one-half years before
Mr. Griffin's complaint was filed. The alleged violations described in 1-121Claim1, including
the filing of the closing report on November 25, 1996, occurred more than four (4) years
ago. Mr. Griffin waited too long to challenge both the accuracy and the timeliness of C-6
reports filed by the Livable Wage Committee.
B. The alleged contributions or expenditures by the AFL-CIO, MPA, ATR, WSC,
MAPP and Mont-GEL would constitute coordinated expenditures by incidental committees
supporting the Livable Wage Committee's efforts to increase the minimum wage. As
stated in the preceding paragraph, the Livable Wage Committee had the primary obligation
to report timely and accurately coordinated in-kind and monetary contributions by incidental
committees. Incidental committees did have an independent obligation to report
contributions and expenditures in 1996, but the confusion surrounding incidental committee
reporting obligations in 1996 has been well documented in the June 20, 2000 Chamber
Decision, at pp. 40 and 41; the April 30, 1998 MCSWL Decision, at pp. 4-8 and 69-71; the
April 29, 1997 MCWDecision, at pp. 4-7; and the February 27, 1997 MCW!Orvis Decision,
at pp. 4-7. These decisions correctly determined that the only enforceable reporting
requirement applicable to incidental political committees in the 1996 election was the
obligation to file a C-4 report twelve days before the 1996 November general election. The
Griffin complaint was filed more than four (4) years after the 1996 incidental political
committee reporting deadline, and al\ of the alleged in-kind or monetary contributions
referenced in 1-121 Claim 1 were made during the 1996 1-121 campaign (more than five (5)
years ago).
1-121 Claim 2 is dismissed because the alleged violation of the naming and labeling
statute by the Livable Wage Committee occurred more than four (4) years ago and the
committee ceased operating and filed its closing report more than five (5) years ago
(November 25, 1996).

V. THE LENGTH OF THIS INVESTIGATION
It has taken 21 months to complete this investigation and issue this decision. While
my office accepts some responsibility for not addressing the serious allegations in Mr.
2
Griffin's complaint sooner , the respondents in this investigation are primarily responsible
2

My office has experienced a significant increase in the number of campaign finance and
practices complaints against local candidates and local ballot issue committees in the past
year. In addition, my office has spent the last 18 months investigating the first lobbyist reporting
complaint ever filed and revising lobbying reporting rules.
-9-

Exhibit G-9

 for the delays in issuing this decision. In particular, the two key players in the 1-125
campaign, Jon Motl and C.B. Pearson, have, until recent months, resisted and delayed
providing crucial information related to this investigation. The following conduct and
actions by Mr. Motl, Mr. Pearson, and other respondents illustrate why this investigation
has taken so long to complete:
My office submitted initial written requests for information to C.B. Pearson, Mr. Motl,
3
Mont-PIRG and the LWVM on January 23, 2001. Mr. Motl promised responses to the
January 23, 2001 letters from himself, Mr. Pearson and Mont-Pl RG on May 15, 2001 and
June 18, 2001. The June 18, 2001 communication was a letter from Mr. Motl promising
responses from himself, Mr. Pearson, and Mont-PIRG the first week of July 2001. When no
responses were received as promised, Mr. Motl was sent a letter on September 10, 2001
reminding him that he, Mr. Pearson, and Mont-Pl RG had not responded to my office's
January 23, 2001 letters. On October 15, 2001 Mr. Motl apologized for not responding to
my office's requests for information, but no formal written responses were received from Mr.
Motl until October 17, 2001 and November 15, 2001 (this latter response was presumably
submitted on behalf of Mont-PIRG). After Mr. Motl was repeatedly advised that the October
and November, 2001 responses were inadequate and incomplete, Mr. Motl, Mr. Pearson,
and Mont-PIRG finally produced several boxes of crucial documents involving the 1-125
campaign on January 4, 2002, almost a year after specific written requests for information
were submitted. Mr. Motl and Mont-PIRG were still submitting critical documents in June of
2002.
The documentary information ultimately submitted by Mr. Motl, Mr. Pearson, MontPIRG, Mont-PIRF and MCC, while voluminous, is still incomplete. For example, critical
documents concerning Green Corps' funding for Mr. Pearson's EDS class and board
meeting minutes for Mont-Pl RF, the non-profit corporation that funded the key 1-125 study
of corporate contributions in Montana ballot issue campaigns, either do not exist, can't be
located, or have been misplaced. Mont-PIRG's Executive Director, Chris Newbold, testified
in an 1-125 trial deposition that the Mont-PIRG Board met monthly in 1996. Mont-PIRG's
January 27, 1996 Board retreat minutes confirm Mr. Newbold's deposition testimony, yet
1996 board meeting minutes produced on March 7, 2002 do not contain meeting minutes
for the key months of March, April, and May of 1996. Montana's non-profit corporations,
including Mont-PIRG and Mont-PIRF, are required to keep as permanent records "minutes
of all meetings of its members and board of directors" and a record of all actions taken by its
members or board (Section 35-2-906, MCA). Despite this affirmative legal duty, minutes of
crucial 1995 and 1996 Mont-PIRG and Mont-Pl RF board meetings that most certainly would
have involved discussions of 1-125 activities and issues were either never prepared or have
3 The LWVM coordinated its responses to my office's written requests for information with Mr. Motl
but submitted its own timely and complete responses. The LWVM responded to the January 23,
2001 letter from my office on May 5, 2001 and answered a supplemental request for information on
October 4, 2001.

-10-

Exhibit G-10

 been lost.
Misleading and evasive information provided by Mr. Motl, Mr. Pearson and others
during this investigation also delayed issuance of a final decision. All written responses by
Mr. Pearson, MCC, Mont-PIRG, Mont-PIRF, and LWVM were being coordinated by Mr.
Motl. Yet, in several instances, material information provided was contrary to other express
evidence provided in other legal proceedings. For example, Mont-PIRG stated that it "never
paid employees to collect signatures" for 1-125 in an October 31, 2001 letter. Three years
earlier, Mont-PIRG's Executive Director, Chris Newbold, had testified in an 1-125 trial
deposition that Mont-PIRG had paid its 1996 interns to collect 1-125 signatures. Only after
Mont-PIRG produced its 1996 financial records in April, May and June of 2002 was it
determined that the Fund for Public Interest Research ("FFPIR"}, not Mont-PIRG, paid
canvassers to collect 1-125 signatures in May and June 1996 (see Summary of Facts 13
and 14).
A June 7, 1996 letter and attachment from Mr. Pearson to the Stern Family Fund
requested a contribution to the 1-125 campaign. The attachment represented that LWVM
had already made a financial contribution to the 1-125 campaign. Neither principal 1-125
committee reported an in-kind or monetary contribution from LWVM. When asked about
this discrepancy, Mr. Pearson responded by stating that the representation in the Stern
Family Fund attachment "was not meant to be taken literally" and that as a fund-raising
letter "it had 'puff in it" but "was within acceptable bounds of honesty." Subsequent
investigation confirmed that the LWVM never did make an in-kind or monetary contribution
to either principal 1-125 committee.
Respondents' answers to requests for copies of the 1995 and 1996 Mont-Pl RF Board
meeting minutes further illustrate how evasive and inconsistent responses prolonged this
investigation. Mr. Motl initially advised that Mont-Pl RF meeting minutes could not be found.
When pressed further, Mr. Motl subsequently advised that Mont-Pl RF minutes were never
prepared and did not exist. Ultimately, Mr. Motl advised that C. B. Pearson remembered
preparing or least seeing Mont-Pl RF minutes, but Mr. Pearson could not find them. Mr. Motl
does not recall ever seeing Mont-PIRF Board minutes but advised that he would ask Chris
Newbold if he had retained minutes for Mont-PIRF's 1995 and 1996 Board meetings. Linda
Lee does not remember if formal minutes of Mont-Pl RF Board meetings were prepared but
does recall seeing notes for some meetings. Neither Ms. Lee, Mr. Motl, Mr. Pearson, nor
Mr. Newbold could locate copies of any notes or Mont-Pl RF Board meeting minutes for
1995 or 1996.
Mr. Pearson, Mr. Motl, and Ms. Lee do not rememberwhen Mont-Pl RF agreed to pay
C.B. Pearson to write "Big Money and Montana's Ballot Campaigns" or whether 1-125
campaign issues were discussed during 1995 or 1996 board meetings. The absence of
crucial Mont-Pl RF decision-making records and the corresponding memory lapses of the
three key people in the 1-125 campaign exemplifies a lack of candor not expected from the
public advocates of full disclosure of campaign finances and practices.

-11-

Exhibit G-11

 0

VI. SUMMARY OF FACTS
A. The Key Participants in the 1-125 Campaign
1. The individuals primarily responsible for the development, implementation and
management of the 1-125 campaign in 1995 and 1996 were Jon Motl, C.B. Pearson and
Chris Newbold. Barbara Seekins, President of LVVVM in 1996, was a "Committee Member"
of LVVVM and Others for 1-125 but her involvement in the 1-125 campaign was limited.
Likewise, Linda Lee was a member of the Mont-Pl RF Board, but her involvement in the 1125 campaign was also limited.
2. C.B. Pearson is a Missoula consultant long active in public interest issues
involving campaign finance reform, environmental issues, lobbying reporting reform, public
interest organizing and consulting services for nonprofit organizations. Mr. Pearson's
involvement in the 1-125 campaign and interaction with other individuals and organizations
supporting 1-125 included:

A. Mr. Pearson was the campaign manager and treasurer for both Citizens to
Qualify 1-125 and LVVVM and Others for 1-125. Mr. Pearson, along with Jon Motl, was
responsible for naming both principal 1-125 committees. Mr. Pearson was involved in
virtually every aspect of the 1-125 campaign from its inception. Mr. Pearson's major 1-125
campaign duties included coordination of signature gathering, fund-raising, radio
advertising, research, preparation of fact sheets, completion of campaign finance reports,
and participation in public debates as a supporter of 1-125.
B. Mr. Pearson managed and promoted 1-118, a 1994 campaign reform ballot issue
that was approved by the electorate. The same coalition of groups (Mont-PIRG, LVVVM and
MCC) were involved in the 1-118 campaign.
C. Mr. Pearson and Mr. Motl were organizers for PIRGS (Public Interest Research
Groups) and Ralph Nader in the late 1970's and 1980's. They jointly developed "organizers
schools" which were condensed into training sessions for use throughout the nation.
D. Mr. Pearson's consulting business clients in 1995 included Green Corps, MontPIRG, Mont-PIRF, and MCC.

E. Mr. Pearson was MCC's Executive Director from 1988 through 1992 and served
as treasurer and a member of the MCC Board in 1995 and 1996.
F. Mr. Pearson was secretary and a member of the Mont-Pl RF Board in 1995 and
1996.
G. Mr. Pearson was a citizen member of Mont-PIRG in 1995 and 1996. MontPIRG's Board listed Mr. Pearson as an advisor to Mont-PIRG in 1995 and 1996. He served
-12-

Exhibit G-12

 0
as Mont-PIRG's Executive Director from 1982 through 1985.
H. Mr. Pearson was a member of LWVM in 1995 and 1996 and also served as
assistant editor of LV\NM's newsletter beginning in 1997.

I. Mr. Pearson was paid by Mont-PIRF to write "Big Money and Montana's Ballot
Issue Campaigns" during the spring and summer of 1996. When Mr. Pearson's study was
printed and published in September of 1996, it became a key document in the 1-125 debate.

J. Mr. Pearson created and developed the EOS course that was taught at the
University of Montana for the first time in the spring of 1996. Mr. Pearson was paid by
Green Corps (see Summary of Fact 67 for a description of Green Corps) to present and
prepare the course for consideration and ultimate approval by the University of Montana.
Mr. Pearson taught the spring 1996 EOS course.
3. Jon Motl is a Helena attorney who specializes in public interest law. Mr. Motl has
been involved in ballot issue campaigns on a variety of subjects since the 1980's. Mr. Moll's
involvement in the 1-125 campaign and interaction with other individuals and organizations
supporting 1-125 includes:

A. Mr. Motl wrote 1-125. He, along with Mr. Pearson, was responsible for naming
both principal 1-125 committees. Mr. Motl was involved in virtually every aspect of the 1-125
campaign from its inception_ He collected signatures, served as pro-bono legal counsel for
Citizens to Qualify 1-125, provided paid legal services to LVWM and Others for 1-125, raised
funds for the 1-125 campaign, monitored the 1-125 opponents, developed TV ads,
participated in 1-125 debates, and performed a host of other tasks.
B. Mr. Motl was deputy treasurer and a "Committee Member" of LV\NM and Others
for 1-125.
C. Mr. Motl was a key player in the 1994 1-118 campaign. The same coalition of
groups (Mont-PIRG, LVWM and MCC) were involved in the 1-118 campaign.
D. Mr. Motl has worked with Mr. Pearson on public interest organizing and Ralph
Nader activities since the late 1970's (see Summary of Fact 2(C)).
E. Mr. Motl was pro-bono legal counsel for Mont-PIRG in 1995 and 1996.
F. Mr. Motl was a member for the Mont-PIRF Board in 1995 and 1996.
G. Mr. Motl served on the MCC Board in 1995 and 1996 and has been a frequent
public spokesperson for MCC. Mr. Motl served as MCC's legal counsel on numerous
occasions since 1995. Mr. Motl was also a member of National Common Cause's
governing board in 1996.

-13-

Exhibit G-13

 4. Chris Newbold was Mont-PIRG's Executive Director in 1995 and 1996. In that
capacity, Mr. Newbold did the following to promote the passage of 1-125:
A. Mr. Newbold solicited contributions from Mont-PIRG members and nonmembers
for the 1-125 campaign.
B. Mr. Newbold used Mont-PIRG volunteers and FFPIR funded canvassers to collect
signatures for 1-125.
C. Mr. Newbold was a member of the Mont-Pl RF Board.
D. Mr. Newbold was a "Committee Member" of LWVM and Others for 1-125.
E. Mr. Newbold's principal 1-125 campaign responsibility from September through
November of 1996 was to coordinate grassroots citizen support for 1-125.
F. Mr. Newbold consulted with Mr. Pearson and Mr. Motl regarding 1-125 campaign
strategy.
G. Mr. Newbold personally volunteered a portion of his time to collect 1-125
signatures.
5. Mont-PIRG is a Montana nonprofit corporation engaged in public advocacy for
environmental, social and governmental issues of interest to University of Montana students
and Mont-PIRG's non-student members. Mont-PIRG is governed by a Board of Directors
comprised of University of Montana students elected annually. Board members are elected
in May each year and serve until the following April. The Mont-PIRG Board met at least
once a month in 1995 and 1996.
6. Mont-Pl RG's funding in 1996 came primarily from the $3 per semester fee
charged to participating University of Montana students, $35 family membership fees,
individual contributions, and FFPIR canvass payments Mont-PIRG spent approximately
$58,000 in 1996. Of this amount, approximately $13,000 came from UM student fees and
$27,000 from FFPIR canvass payments.
7. Mont-PIRG's only full-time employee is its Executive Director. Linda Lee was
Mont-PIRG's Executive Director for three years before August of 1995. Mr. Newbold was
hired as her replacement in the summer of 1995, and Mr. Newbold served as Mont-PIRG's
Executive Director until the summer of 2000. Mr. Newbold's 1996 salary was approximately
$16,500. He received payments from Mont-PIRG of $8,633.87, another $3,594.00 from
Mont-Pl RF, and the remainder from FFPIR for his canvass fund-raising work.
8. Mr. Pearson and Mr. Motl served as advisors to the Mont-PIRG Board in 1995
and 1996. Mr. Motl also served as Mont-PIRG's pro bona legal counsel in 1995and1996.
-14-

Exhibit G-14

 9. Mont-PIRG's offices are located in Corbin Hall on the University of Montana
campus. Mont-PIRG pays rent to UM for the office space. Mont-PIRG purchased its own
office equipment.
1O. FFPI R was founded in 1982 to provide professional support and technical
assistance to "progressive organizations" such as the Sierra Club, state PIRGs, the Human
Rights Campaign, and Greenpeace. These organizations hire FFPIR to build membership,
generate political support for issues, or raise funds. FFPIR, in turn, hires a staff of canvass
directors, telephone outreach directors, donor staff, canvassers, callers, and others to carry
out assigned tasks. FFPIR is a nonprofit corporation with offices located in California and
Boston, Massachusetts.
11. In 1995 and 1996, Mont-PIRG hired FFPIR to conduct a fund-raising and public
education campaign. FFPI R and Mont-Pl RG agreed to jointly establish and maintain a
"door-to-door canvass" in Montana to educate the public about Mont-PIRG issues, build
support for Mont-PIRG's position on these issues, build Mont-PIRG's membership and
public visibility, raise money for Mont-PIRG, and provide canvassing jobs through which
Mont-Pl RG supporters could "be involved in the organization and learn civic skills." The
canvass was called the "Mont-PIRG Citizen Outreach Canvass" (hereinafter the "canvass").
The canvass was conducted in May through August in each year.
12. FFPIR paid Chris Newbold to direct the 1gg5 canvass and also paid the
canvassers who went door-to-door to conduct the canvass. All funds collected by the
FFPI R canvassers were deposited in an FFPIR account in a Missoula bank. FFPIR agreed
to transfer funds to Mont-PIRG on request after deducting all canvass expenses, including
FFPIR administrative expenses such as overhead, salary, transportation, and other
expenses attributable to FFPIR's performance under the agreement. FFPIR retained
authority to make all decisions relating to the canvass. All materials and information
developed as part of the canvass became the property of FFPIR.
13. The 1995 FFPIR canvass raised $23, 135.40 on behalf of Mont-PIRG. From this
amount, FFPIR deducted canvass worker expenses of $15, 130.57 and FFPIR
administrative expenses of $4,340.10. Mont-PIRG had $3,664. 73 remaining to spend on its
activities, but it chose not to use these funds in 19g5.
14. The 1g96 FFPIR canvass raised $30,657 .02 on behalf of Mont-PIRG. From this
amount, FFPIR deducted canvass worker expenses of $15, 157.49 and FFPIR
administrative expenses of $5,096.81. Mont-PIRG had $10,402.72 of 1996 funds to use in
its activities.
15. The combined amount available to Mont-PIRG from 1995 and 1996 canvass
fund-raising, after deducting all FFPIR expenses, was $14,067,45; however, FFPIR
ultimately contributed back to Mont-PIRG the $9,436.90 in FFPIR administrative expenses
deducted by FFPIR for 1995-96 canvass expenses, and more. FFPIR paid a total of
$27,500 to Mont-PIRG in 1996, and all of this amount was ultimately contributed by MontPIRG to the 1-125 campaign. Only $14,067.45 of the cash contributed by Mont-PIRG to the
-15-

Exhibit G-15

 two principal 1-125 committees was Mont-PIRG's canvass money.
16. FFPI R's 1996 canvassers collected 1-125 signatures as part of their door-to-door
canvassing duties. See Summary of Fact 48.
17. Mont-PIRF is the educational arm of Mont-PIRG. Mont-PIRF is a Montana
nonprofit corporation created to seek grant money for educating the public about
environmental, social, and governmental issues. Mont-PIRF shares office space and
equipment with Mont-PIRG. Mont-Pl RF pays for its telephone service but otherwise does
not pay rent to Mont-PIRG or UM.
18. Mont-Pl RF maintains separate and distinct programmatic, fiscal, and decisionmaking operations. Mont-PIRF's Board in 1995 and 1996 was comprised of C.B. Pearson
(secretary), Jon Motl, Chris Newbold (Vice President!Treasurer), and Linda Lee (President).
The Board met three or four times a year (often by telephone conference call) in 1995 and
1996 but no meeting minutes could be found. None of Mont-PIRF's Board members can
recall whether 1-125or1-125 campaign strategy was discussed during the 1995 and 1996
Board meetings.
19. Mont-Pl RF did not have regular staff in 1996 although it did contract with MontPIRG for performance of certain educational work. Financial records indicate that Chris
Newbold, Anais Wayciechowica, and Brian Page received payments from Mont-PIRF for
work performed in 1996. Payments to Mr. Newbold from Mont-Pl RF in 1996 totaled $3,594.
20. Mont-PIRF raised and spent approximately $20,000 in 1996. Included in this
amount was a $2,500 grant from the Stern Family Fund for preparation of C.B. Pearson's
study on corporate contributions to Montana's ballot issue campaigns.
21. Mont-Pl RF paid the following amounts to the following individuals for the study
entitled "Big Money and Montana's Ballot Campaigns:"

A. C.B. Pearson
B. Hilary Doyscher
C. Linda Lee
Total

$ 1,816.70
750.00
90.00
$ 2,656.70

22.
MCC was an unincorporated committee of National Common Cause in 1995
and 1996 (National Common Cause is a nonprofit corporation organized under the laws of
the District of Columbia). National Common Cause drastically cut funding for state affiliates
like MCC in late 1995. After several resignations from the MCC Board in January of 1996,
Kim Wilson (Mr. Motl's law partner) was elected chair and C.B. Pearson was added to the
Board. Mr. Motl was a member of MCC's Board in 1995 and 1996. Another member of the
MCC Board in 1996, John Heffernan, was also involved in the 1-125 campaign.
23. MCC had a budget of $22,600 for 1995. In 1996, the budget was reduced to
-16-

Exhibit G-16

 $17,000 based on an anticipated reduction in payments from National Common Cause.
24. MCC had no paid staff in 1995 and 1996.
25. LVVVM is a Montana nonprofit, public benefit corporation with members. LWVM
is devoted to studying public policy issues and informing the public and public officials about
policy issues. LVVVM does not have a paid staff and its officers and Board members
volunteer their services. Barb Seekins was the League's President in 1996 and served as a
committee member of LVVVM and Others for 1-125. Ms. Seekins was featured in 1-125 radio
ads paid for by LVVVM and Others for 1-125. Mr. Pearson was a LVVVM member in 1995
and 1996. Although the League endorsed 1-125 and allowed its name to be used by the
principal committee created in September of 1996 to support 1-125, LWVM made no
monetary or in-kind contributions to either principal 1-125 committee. Ms. Seekins and other
LVVVM members participated in 1-125 activities as volunteers.
B. In the Beginning -- the Creation of 1-125
26. Mont-Pl RG's Board discussed possible issues for the 1995-96 school year at its
September 9, 1995 summer retreat. A document entitled "Mont-PIRG Program for 199596" listed at least 18 possible issues under such general topics as consumer issues,
environmental program, good government program, and other possible projects. Under the
category of "Good Government Program," Mont-PIRG listed "Campaign Finance Reform" as
the top priority and suggested the following possible course of action:
MontPIRG, through its success on 1-118, has leaped to be a leader on government
reform here in Montana. Questions are now arising as to what voters actually voted for in
1-118. MontPIRG advisors C.B. Pearson and Jon Motl will be monitoring the situation.
Kjersten will be taking on a 4-6 credit internship to work on CFR-not only dealing with
defending 1-118 but also exploring new reforms in CFR. A possible reform would be taking
big money out of the ballot initiative process. Kjersten will be doing the research and
preparing position papers with C.B. and Jon in making the decision as to whether we run
an initiative next year on this issue.
27. Mont-PIRG's September 20, 1995 and October 16, 1995 meeting minutes do
not indicate that campaign finance reform issues were discussed.
28. Mont-PIRG's Board meeting minutes for December 4, 1995 indicate that Board
Chair Kjersten Forseth was giving a workshop on "money in politics" at the University
Center, and Mont-PIRG members were encouraged to attend.
29. When Chris Newbold assumed his duties as Mont-PIRG's Executive Director in
August of 1995, he was required to take a six-month training program (one hour per day,
five days per week) from C.B. Pearson.
30. Either C.B. Pearson or Chris Newbold mailed letters dated December 20, 1995
-17-

Exhibit G-17

 to approximately 36 Montana environmental, public health, labor, and public interest groups
stating that the "same coalition of people and groups (League of Women Voters, Common
Cause and Mont-PIRG) appears likely to come together again to offer another
campaign/political reform related initiative as we did with 1-118 in 1994." The letters listed
general topics such as campaign finance reform, ethics, initiative and referendum and
lobbying reform as possible initiatives. The following three topics were listed under
"Initiative and Referenda:"
Ban Direct Corporate Contributions
Voluntary Spending Limits
Labeling/Advertisement Disclosure
31. Mr. Pearson does not recall if he signed and sent the letters described in the
preceding paragraph; however, notes made by Mr. Pearson on the letter sent to the
Northern Plains Resource Council ("NPRC") indicate that Teresa Erickson, NPRC's
Executive Director, was on sabbatical and that he spoke with Dennis Olson of NPRC. Mr.
Pearson's notes indicate that NPRC wanted to "know all the implications" and that Mr.
Olson was concerned about "competition for the water initiative [1-122]." Mr. Olson also
advised Mr. Pearson that "the demos [the Montana Democratic Party] had produced a fact
sheet on CFR [campaign finance reform]."
32. At Mont-PIRG's January 27, 1996 Board retreat, it was noted that the Board was
required to meet once a month under Mont-PIRG's bylaws. A motion was adopted requiring
that the Mont-PIRG Board meet every week until Mont-PIRG's "general interest meeting."
33. Mont-PIRG's Board meeting minutes for January and February 1996 do not
indicate that campaign finance reform issues were discussed. The focus during these
meetings was attracting new Board members.
34. Meeting minutes for Mont-PIRG Board meetings in March, April, and May of
1996, the key period for planning and collecting 1-125 signatures, could not be found and
were not produced. Mont-PIRG's Board does not meet during the summer months.
35. Jon Motl wrote 1-125 in early 1996. The language of 1-125 was based on the
text of a similar initiative he prepared in 1994 (l-120, the 1994 initiative, was approved for
petition signatures but failed to qualify because insufficient signatures were collected).
36. C. B. Pearson reviewed and suggested revisions to the proposed language for 1125 before the language was submitted for review by state officials. Neither Mr. Motl nor
Mr. Pearson were paid by any individual or group to write 1-125.
37. Mr. Motl did not circulate 1-125 for review by other individuals or groups because
the initiative language had previously been approved for signature gathering in 1994.
Donna Edwards of the Center for New Democracy played a major role in developing 1-120 in
1994, but Mr. Motl denies that she was involved in developing the language of 1-125.
-18-

Exhibit G-18

 38. Mr. Motl submitted the proposed text of 1-125 to the Legislative Council for
review on March 20, 1996. The initiative was submitted by Mr. Motl to the Montana
Secretary of State on April 4, 1996.
C. Qualifying 1-125 for the Ballot
39. Mr. Motl submitted a Statement of Organization (form C-2) to the Commissioner
of Political Practices on March 26, 1996. The C-2 submittal was for a "Campaign Finance
Reform Exploratory Committee" and listed Jon Motl as Treasurer. The C-2 form stated that
the filing was for an "as yet unnumbered" ballot issue and that Mr. Moll's office had "worked
on and redrafted Initiative 120 from the '94 election cycle." The C-2 statement also
indicated that Mr. Moll's law office had "incurred staff costs" and the C-2 needed to be filed.
The C-2 stated that the exploratory committee would be "replaced by the group which takes
the issue to the ballot"
40. By letter dated March 26, 1996, Commissioner Ed Argenbright returned Mr.
Moll's C-2 filing and stated that the filing was premature because the ballot issue had not
been approved by the Secretary of State. Mr. Argenbright also advised Mr. Motl that it
would be "appropriate" to report Mr. Moll's office staff expenses already incurred when the
ballot issue committee was properly formed.
41. Mont-Pl RF made an initial payment of $250 to C.B. Pearson on April 17, 1996,
for work related to the study entitled "Big Money and Montana's Ballot Campaigns."
42. Mont-PIRG held a campaign finance reform meeting on April 22, 1996 at 7 p.m.
Mont-PIRG members, EOS students in Mr. Pearson's UM class and "all others" were
invited. The meeting discussed timelines for gathering 1-125 signatures and established a
goal of 135 volunteer hours.
43. 1-125 was approved by the Attorney General on April 23, 1996.
44. The Secretary of State advised Mr. Motl of necessary corrections to 1-125 on
April 24, 1996. The final language of 1-125 was approved by the Secretary of State on April
30, 1996.
45. Mr. Motl wrote National Common Cause on April 30, 1996 and May 1, 1996
requesting permission for MCC to support 1-125. The May 1, 1996 letter indicates that MCC
Board members C.B. Pearson, Kim Wilson, John Heffernan, and Mr. Motl had already
worked on 1-125. National Common Cause was initially opposed to 1-125 and would not
allow MCC to support 1-125. National Common Cause ultimately relented and allowed MCC
to support 1-125 in the fall of 1996.
46. Citizens to Qualify 1-125 filed its C-2 statement with the Commissioner's office on
May 8, 1996.
-19-

Exhibit G-19

 47. Signature gathering for 1-125 began in early May 1996. The first 1-125 petitions
were submitted to the Montana Secretary of State on May 23, 1996. Signature gathering
efforts by individuals paid by Citizens to Qualify 1-125 began on or about May 21, 1996. The
vast majority of 1-125 signatures were obtained on primary election day, June 4, 1996. Most
of the petitions were submitted after primary election day and on or before the June 21,
1996 filing deadline.
48. Approximately 25,000 signatures were collected to place 1-125 on the 1996
ballot. The signatures were gathered by the following individuals and groups:

A. C.B. Pearson personally collected about 100 signatures as a volunteer. Mr.
Pearson collected these signatures while he was training signature gatherers at petitioning
sites.
B. FFPI R paid its canvassers (15 to 25 people) to collect signatures for 1-125 as part
of its Mont-PIRG canvass program. FFPIR's canvass involved sending the canvassers
door-to-door for the primary purpose of soliciting memberships in Mont-Pl RG and raising
money for Mont-Pl RG. The canvassers also carried petitions for 1-125 and 1-122 in late May
through mid-June of 1996. The interns were paid a base salary of $180 per week based on
a nightly minimum fund-raising standard. C.B. Pearson believes FFPIR's paid canvassers
collected approximately 3,000 signatures for 1-125. Mr. Newbold believes the FFPIR
canvassers only collected about 1,500 1-125 signatures.
C. Chris Newbold spent a minimal amount of time personally collecting 1-125
signatures, but he did coordinate FFPIR's Missoula and Ravalli County signature gathering
efforts. Most of Mr. Newbold's time in May and June of 1996 was devoted to FFPI R's
canvass. C.B. Pearson does not recall that Mr. Newbold collected any 1-125 signatures.
D. Jon Motl volunteered time to collect 1-125 signatures, but the signatures he
personally collected in Lewis and Clark County were submitted by Pat Judge, who was paid
for his signature-gathering efforts by Citizens to Qualify 1-125.
E. Students in C.B. Pearson's EOS class collected approximately 500 signatures for
1-125.
F. The signature gatherers paid by Citizens to Qualify 1-125 collected more than
20,000 signatures; however, paid signature gatherers did not personally collect the 20,000
plus signatures. Each paid signature gatherer was required to recruit three or four
volunteers to assist in petitioning efforts.
G. C.B. Pearson believes Barbara Seekins and her daughter collected fewer than
500 1-125 signatures as volunteers.
49. C. B. Pearson was primarily responsible for supervising and coordinating the I-20-

Exhibit G-20

 125 signature gathering effort. Mr. Pearson performed the following duties:
A. He trained the signature gatherers and those who were delegated responsibility
for training the signature gatherers. For example, Kjersten Forseth, a Mont-PIRG Board
member, was trained by Mr. Pearson and became responsible for the signature gathering
effort in Yellowstone County. Ms. Forseth then trained those who worked for her in the
Yellowstone County effort.
B. Mr. Pearson wrote detailed instructions for gathering 1-125 petition signatures.
The instructions included advice on the legal rights of petitioners, tips on how to collect the
most signatures, signature gathering etiquette, and arguments for 1-125. The instructions
specifically indicated that petition gatherers should contact Mr. Pearson if questions arose
about signature gathering efforts or 1-125. The instructions provided Mr. Pearson's home
telephone number, his EOS office phone number, and the Mont-PIRG office telephone
number.
C. Mr. Pearson was ultimately responsible for tabulating and tracking 1-125 signature
gathering efforts throughout Montana. In some instances, the original petitions were
submitted to Mr. Pearson and he signed the affidavits attesting that the signatures were
valid and collected in compliance with Montana Law. If the original petitions were submitted
directly to the local election administrators by the field petitioners, copies were forwarded to
Mr. Pearson so that he could tabulate the progress of signature gathering efforts in each
legislative district.
D. Mr. Pearson established the target number of signatures to be collected in
legislative districts and determined which districts would be the focus of 1-125 signature
gathering efforts.
50. On May 28, 1996, Mr. Pearson and Ms. Seekins agreed to join Jon Motl to write
arguments in favor of 1-125 for the Secretary of State's Voter Information Pamphlet.
51. FFPIR made a $7,500 wire transfer to Mont-PIRG on May 30, 1996. Mont-PIRG
made a $7,500 cash contribution to Citizens to Qualify 1-125 on May 31, 1996.
52. C.B. Pearson sent the Stern Family Fund a fund-raising letter for 1-125 on June
7, 1996. The letter advised the Stern Fund that Mr. Pearson was "the campaign manager
for the petition drive to qualify 1-125" and that he would also manage the fall campaign. Mr.
Pearson's letter stated that he was "active" with Mont-Pl RF, Mont-PIRG, LWVM, and MCC
to pass 1-125. The four-page enclosure with Mr. Pearson's solicitation letter was entitled "A
Proposal To Get Corporate Money Out Of Montana's Initiative Proc:ess" and contained the
following:
A. The enclosure described the 1-125 campaign effort and the coalition that is
supporting the initiative. As of June 7, 1996, the date of the Stern Family solicitation, Mr.
Pearson indicated that "only Mont-PIRG, Common Cause and the League have made a
-21-

Exhibit G-21

 financial commitment to the initiative."

Other funding, according to Mr. Pearson, is

"uncertain."
B. Mr. Pearson described coalition-building efforts in the enclosure. Before 1-125
was submitted for approval, "the initiative draft was circulated to a number of key groups in
Montana and to a national group of experts for review and critique." Among the groups
listed as possible future 1-125 coalition members were the Montana Trial Lawyers
Association ("MTLA"), the Montana Lung Association, AARP, United We Stand, labor
groups, environmental groups, and senior citizen groups. Mr. Pearson indicated that most
of the coalition building "will begin in July."
C. Mr. Pearson told the Stern Family Fund about the campaign strategy that would
be used to pass 1-125.
Part of the campaign strategy included "completing a
comprehensive study on the role of corporate money in the Montana initiative process" and
indicated that the campaign "could benefit from more research over the course of the 1996
campaign."
D. The proposed "(c)(3) Budget" in the enclosure included $3,000 for "study of
Corporate Money in the Montana Initiative Process, Research, publishing and publicity."
E. Mr. Pearson expressed optimism about 1-125 in the enclosure because the
"timing for proposing 1-125 could not be better." He explained that 1-121and1-122 would
draw "large direct corporate contributions" and that the 1-122 opponents have "made it clear
that they will raise as much money as necessary to defeat" 1-122.
53. Citizens to Qualify 1-125 filed its first C-4 report on June 10, 1996 for the period
ending June 5, 1996. The report listed cash contributions of $8,500 from Mont-PIRG (the
$7,500 contribution described in Summary of Fact 51 and two $500 cash contributions
made on May 7 and May 28, 1996). In-kind contributions from Mont-PIRG and the
Reynolds, Motl & Sherwood Law Firm of $1,218.20 and $97.50, respectively, were also
reported. The in-kind contribution from Mont-PIRG included:

A. Thirty (30) hours of Chris Newbold's time at $7.70/hour ($231.00 total). This inkind contribution was for Mr. Newbold's supervision of the FFPIR canvass. Mr. Newbold
was being paid for his canvass work by FFPIR, not Mont-PIRG.
B. An allocation of a portion of the time (10%) spent by FFPIR's paid canvassers for
collecting signatures for 1-125. This in-kind contribution was incorrectly reported as a
contribution by Mont-PIRG, not FFPIR ($515.20 total).
C. The amount paid by FFPIR to 12 people to collect 1-125 signatures on June 4,
1996, primary election day. The amount paid to these 12 individuals varied from $36 to $46
for the day. The total amount paid and reported was $472. This in-kind contribution should
have been reported as a contribution by FFPIR, not Mont-PIRG.
-22-

Exhibit G-22

 54. The June 10, 1996 C-6 report filed by Citizens to Qualify 1-125 listed
expenditures of $6, 185.17. Most of the expenditures were for payments to C.B. Pearson
and other individuals involved in the 1-125 signature gathering effort, including four students
from Mr. Pearson's EOS class. The payments to the EOS students were all made after the
class had ended. Payments made to Mr. Pearson during this reporting period totaled
$973.53 (all payments were for reimbursed expenses).
55. Mont-Pl RF paid Hilary Doyscher $375 on June 12, 1996 for"consulting" services
related to preparation of the study entitled "Big Money and Montana's Ballot Issue
Campaigns."
56. FFPIR made a $10,000 wire transfer to Mont-PIRG on June 13, 1996. The next
day, Mont-PIRG made a $10,000 cash contribution to Citizens to Qualify 1-125.
57. Mont-PIRF paid C.B. Pearson $274.81 on July 5, 1996 for "CFR [Campaign
Finance Reform] expenses" related to preparation of the study entitled "Big Money and
Montana's Ballot Campaigns."
58. On July 9, 1996, Montana's Secretary of State advised Citizens to Qualify 1-125
and the Governor that sufficient signatures had been gathered to place 1-125 on the
November general election ballot.
59. FFPIR made a $5,000 wire transfer to Mont-PIRG on July 9, 1996. Mont-PIRG
made a $1,700 cash contribution to Citizens to Qualify 1-125 on July 25, 1996.
60. The Stern Family Fund contributed $2,500 to Mont-PIRF on July 10, 1996 for
"education around CFR [Campaign Finance Reform] ... The Stern Family Fund money was
used to pay for preparation of the study entitled "Big Money and Montana's Ballot
Campaigns."
61. Citizens to Qualify 1-125 filed its second C-6 report on July 10, 1996 for the
period ending July 5, 1996. The report listed cash and in-kind contributions from MontPIRG of $12,500 and $772.10, respectively (no other contributions were reported). Through
the July 5, 1996 reporting period, Citizens to Qualify 1-125 reported total contributions of
$23,087.80 and all but $97.50 of that amount was contributed by Mont-PIRG. Mont-PIRG's
in-kind contributions in the July 10, 1996 report included the following:
A. Twenty-five (25) hours of Chris Newbold's time at $7. 701 hour ($192.50 total).
This in-kind contribution was for Mr. Newbold's supervision of the FFPIR canvass. Mr.
Newbold was being paid for his canvass work by FFPIR, not Mont-PIRG.
B. An allocation of a portion of the time (10%) spent by FFPIR's paid canvassers for
collecting signatures for 1-125 ($579.60 total).
62. The July 10, 1996 C-6 report filed by Citizens to Qualify 1-125 listed
-23-

Exhibit G-23

 expenditures of $13,400.98. Most of the expenditures were for payments to C.B. Pearson
and other individuals involved in the 1-125 signature gathering effort, including six (6) EOS
students. Payments made to Mr. Pearson during this reporting period totaled $3, 166.47
($2,000 for campaign management and $1, 166.47 for reimbursement of expenses,
including $100 for "rent").
63. Citizens to Qualify 1-125 paid six EOS students a total of $5,436.98 for signature
gathering "stipends" and expenses from May 25, 1996 through June 18, 1996 (see the June
10 and July 10, 1996 C-6 reports filed by Citizens to Qualify 1-125).
D. C.B. Pearson's EOS Class at
the University of Montana
64. The EOS course was conceived by C.B. Pearson. Mr. Pearson consulted Jon
Motl about course concepts and issues, but Mr. Pearson was ultimately responsible for EOS
course design, development, organization, and content.
65. Mr. Pearson was being paid by Green Corps (see Summary of Fact 67) to
develop the EOS course when he began presenting the EOS course concept to the UM
Environmental Studies Department in February of 1995.
Mr. Pearson's early
correspondence with Tom Roy, Chair of the UM Environmental Studies Program, was
written on Green Corps stationery. Mr. Pearson's fall 1996 Master's Thesis at UM was
based on his design and development of the EOS course. Mr. Pearson's Thesis was
approved by Mr. Roy and the Dean of the Graduate School on December 11, 1996.
66. The University of Montana approved the EOS course in August of 1995. The
first EOS class was offered spring semester (January - May) of 1996. Mr. Pearson
continued to teach the EOS course in a format similar to the spring 1996 class for several
semesters. UM ultimately terminated Mr. Pearson's involvement in the EOS class and
4
substantially revised the course content and scope.
67. Green Corps is a 501 (c)(3) nonprofit, tax deductible, educational organization
with offices located in Boston, Massachusetts. Green Corps was jointly founded in 1992 by
current Director Leslie Samuelrich and Lois Gibbs, who led the Love Canal environmental
fight in the 1970's and now heads the Center for Health, Environment and Justice. Green
Corps operates on an annual budget of approximately $400,000, raising half its money from
environmental groups that work with Green Corps. Green Corps' mission is to "teach the
next generation of environmental leaders the strategies and skills they'll need to win
tomorrow's environmental battles while providing critical field support for today's pressing
environmental problems." Green Corps lists U.S.-PIRG and FFPIR as two of the 50
"partners" it has worked with since 1992. The services provided by Green Corps include
4

Mr. Pearson, Green Corps and UM apparently parted company on less than friendly terms. Mr.
Pearson is ''very upset" that he is not still teaching the EOS class. Green Corps also apparently
failed to pay UM several thousands of dollars in administrative expenses.
-24-

Exhibit G-24

 custom designing local campaigns, generating media coverage, building new constituencies
and coalitions, and building volunteer and membership bases.

68. Mr. Pearson's UM Master's Thesis states that the mission of Green Corps "is to
increase the number of young people involved in saving the environment as a vocation and
to form a pool of uniquely skilled environment organizers who will provide leadership in
solving the world's environmental problems into the next century."
69. UM and Green Corps jointly sponsored the EOS course under the following
terms and agreements:

A. The 12 credit EOS course was offered as part of the Extended Studies Program
(continuing education and summer program classes), not as part of the regular curriculum.
B. Students who enrolled in the course paid tuition to Green Corps. The in-state
student tuition for the first EOS course offered in January of 1996 was approximately $1,230
per student. Tuition for out-of-state students was $3,325 per student. Total tuition paid for
the spring 1996 EOS class was approximately $70,000.
C. UM provided office space, desk, file cabinet, phone, phone number, voice mail, email, and mailing address. Mr. Pearson's first EOS class office was in the space allotted to
graduate students. UM also provided classroom space, but the EOS class sometimes met
off-campus.
D. Green Corps paid UM a fee for administrative expenses. The administrative fee
paid by Green Corps to UM for the spring 1996 EOS course was $1, 757.
E. Green Corps agreed to pay for EOS course expenses such as office supplies,
postage, telephone expenses, a computer and printer, stationery, copying, fees and
expenses paid to guest lecturers, and other costs incurred in running the program.
F. In addition to the administrative fee paid by Green Corps, each student who
enrolled in the EOS course paid UM a $70 registration fee.
G. Green Corps paid C.B. Pearson a salary to teach the EOS course. Mr. Pearson
was paid $18,0DO by Green Corps to teach the 1996 spring EOS class, which included
payment for the summer months.

70. The foundation of Mr. Pearson's EOS course was teaching students about the
organizing of citizens to address environmental problems based on readings on
environmental issues, lectures, and training by recognized environmental leaders. Mr.
Pearson concludes in his Master's Thesis that colleges and universities "have failed to
adequately prepare students to work within the civic structure of the United States to meet
the challenge of a healthy environment" and that there is a need for an EOS course.
-25--

Exhibit G-25

 71. Mr. Pearson recruited junior and senior college students from environmental
programs, Pl RGs, peace groups, and environmental study faculty at other universities and
colleges throughout the United States during the fall of 1995. He distributed approximately
8,000 brochures to individuals, colleges, and universities. The brochures and solicitation
letters stated that the EDS course "seeks to bring together some of today's most promising
environmental students for a 16-week intensive program .... " Student applicants had to
submit a 300 word essay describing their objectives in applying and what they "hope to give
to the environmental community."
72. Mr. Pearson also spent the fall of 1995 recruiting environmental leaders and
experts to speak to the spring 1996 EOS class. Approximately 30 guest lecturers spoke to
the spring 1996 EOS class, including Dr. Helen Caldicott, co-Founder of Physicians for
Social Responsibility; Donna Edwards, Center for New Democracy; Lois Gibbs, Founder
and Director, Citizens' Clearinghouse for Hazardous Wastes; Howie Wolke, co-Founder of
Earth First! and Big Wild Advocates; Bill Yellowtail, EPA Regional Administrator; and
Patricia Waak, population specialist, National Audobon Society. Among the Montanans
who spoke to the class were Missoula Mayor Dan Kemmis, NPRC's Teresa Erickson, Anne
Hedges of MEIC, Byrony Schwann, Executive Director of Women's Voices for the Earth,
and Chris Newbold.
73. Jon Motl was a guest lecturer for the 1996 spring semester EOS course. He
taught at least three days and was paid approximately $1,000 for his appearance and
expenses. Mr. Motl spent one day discussing petition-gathering issues but denies that he
discussed 1-125. The syllabus for the spring 1996 EOS course listed Mr. Motl as a "special
consultant" and indicated that he would assist with the investigative and "petition portions of
the course."
74. None of the guest speakers for the spring 1996 EOS class represented business
or economic development interests. Following public criticism of the EOS course in the fall
of 1996, Mr. Pearson did invite Bruce Vincent, an advocate of increased timber harvests on
public lands, and David Owen, the Montana Chamber of Commerce's Executive Director, to
address the EOS course in 1997.
75. Weeks 12 through 14 of the EOS course were devoted to petition gathering.
This portion of the class followed a week of lectures on initiatives and organizing petition
drives. On Friday, April 19, 1996, the presentation centered on "on-going campaigns" and
listed clean water and "campaign finance issues" as "possibilities."
76. The EDS syllabus for spring 1996 stated that weeks 12 through 14 "will focus on
the planning and execution of a petition drive" with emphasis on one-on-one "interaction
with the public on an issue, interpersonal communication abilities and understanding the
stamina necessary to complete a project of this nature."
77. Fourteen (14) students enrolled in the spring 1996 EOS course. They were
graded and evaluated based "on their participation in the projects and in the classroom
-26-

Exhibit G-26

 work." Participation comprised 50% of a student's grade. Keeping a journal, preparing
three (3) papers, and the final exam comprised the other 50% of a student's grade.
78. Participation in signature gathering, one of the EOS course projects, appeared
to be mandatory in the 1996 spring syllabus. Following public criticism of the EOS course in
the fall of 1996, syllabus language was amended to specify that:
No student is required to participate in the projects. A student is required to at
lel!St observe the project work and participate in the planning.
The 1996 spring syllabus did not contain similar participation exemption language.
79. Mr. Pearson's Master's Thesis does not indicate that the spring 1996 students
could opt out of participating in the projects, including signature gathering. Mr. Pearson's
Thesis stressed that the "focus of the course and the evaluation was of the group work and
therefore, the bulk of the evaluation was for that work."
80. EOS students split into groups of three or four individuals for all phases of the
course, including petition gathering. The students chose to circulate petitions for 1-122, 1125, and Ralph Nader's attempt to qualify for the presidential ballot in Montana. Each
subgroup then set goals and decided which petition drive would be a priority. All of the
subgroups circulated 1-122 petitions and that initiative sparked the most interest. Based on
some public confrontations over the 1-122 petition, some of the subgroups tired of petition
gathering and did not circulate 1-125 petitions. Mr. Pearson estimates that the EOS class
collected fewer than 500 1-125 signatures. Signature gathering for 1-122, 1-125, and Mr.
Nader's presidential petition as part of the EOS class occurred from April 19 through May
10, 1996.
81. The EOS web page included the following report on the efforts by the spring
1996 EOS class to "Plan and Execute a Petition Drive:"
The final project was a three week petitioning drive to gather signatures for
Montana Initiatives 122and125. We hitthe streets and positioned ourselves
in front of local favorite lunch spots and the post offices to ask Missoulians for
their signatures for the first week. The faithful and persevering petitioners
also traveled to Whitefish, Kalispell, and Columbia Falls, MT (in the rain and
hail) to help qualify these initiatives for the ballot in November. We learned
the "canvassing" technique of going door to door to get signatures, as well as
standing in busy locations. We also fine tuned our skills of carrying two
different initiatives at once. Initiative 122, the Clean Water Initiative, would
require new and expanded metal mines to treat their waste water before
discharging it into Montana's streams or groundwater. Initiative 125 dealt with
eliminating direct corporate contributions to initiative campaigns in Montana.
Both initiatives have gathered enough signatures (20,392) to make it on the
ballot.
-27-

Exhibit G-27

 82. The final exam in the spring 1996 EOS course was given on May 16, 1996, and
graduation occurred on May 17, 1996.
83. Six of the 1996 spring EOS students (Stefanie Sekich, Lisa Hahn, Marlo
Mithcem, Lindsey Close, Bryan Franz and Kay Schumpert) ultimately agreed to collect
signatures for Citizens to Qualify 1-125 after their graduation and were paid for their
signature gathering work. See Summary of Facts 62 and 63.
E. Preparing for the Fall Campaign
84. Mr. Pearson, Mr. Motl and Ms. Seekins submitted arguments in favor of 1-125 for
inclusion in the Secretary of State's Voter Information Pamphlet on July 23, 1996. The
Pearson/Motl/Seekins Voter Information Pamphlet arguments included the following
statements borrowed almost verbatim from the C. B. Pearson study "Big Money and
Montana's Ballot Campaigns," which was not released to the public until September 5,
1996:
A. The "Findings: The Case For Reform" section of C.B. Pearson's "Big Money"
study begins by stating:

There is too much money spent on politics in Montana. And nowhere is so
much spent by so few than in ballot campaigns.
The July 23, 1996 Pearson/Motl/Seekins Voter Information Pamphlet arguments in favor of
1-125 begin with:
There is too much money spent on politics in Montana. And, no where else is
it spent by so few in such large amounts as in ballot campaigns.
B. The introductory paragraph of the "Findings: The Case For Reform" section of
C.B. Pearson's study also contains the following:
Montanans think of initiative campaigns as the place where the people speak
out directly and pass laws. Sometimes it works that way. All too often the
voice of the people is drowned by the voice of corporations spending huge
sums of money to present one side of the story, slanted to preserve some
corporate benefit
The Pearson/Motl/Seekins Voter Information Pamphlet arguments for 1-125 state:
Montanans think of initiatives and ballot campaigns as being the way the
"people" can speak out directly and pass laws. Too often, though, the voice
of the people is drowned out by the voice of corporations spending huge
sums of corporate money to present a side of the story slanted to preserve
-28-

Exhibit G-28

 some corporate benefit.
C. The second paragraph of the "Findings: The Case For Reform" section of Mr.
Pearson's "Big Money" study begins with:
Corporations are not people. They "live" by artificial charter, not by flesh,
blood and conscience. Because. they are different, corporations generally are
treated differently in regard to the role they play in politics in Montana.
The Pearson/Motl/Seekins Voter Information Pamphlet arguments for 1-125 contain the
following:
Corporations are not people. They "live" by artificial charter, not by flesh,
blood and conscience. Because they are eternal and have more money,
corporations generally are treated differently than people in regard to the role
they play in Montana politics.
85. Mont-Pl RF paid Hilary Doyscher $375 on July 25, 1996 for "consulting" services
related to preparation of the Mont-Pl RF study.
86. Mr. Pearson recalls that there was some "dead time" during the summer of 1996
and there was little 1-125 campaign activity.
87. Mr. Pearson, Mr. Motl and Ms. Seekins submitted rebuttal arguments in favor of
1-125 for inclusion in the Secretary of State's Voter Information Pamphlet on August 1,
1996.
88. Mont-PIRF paid Linda Lee $90 on August 1, 1996 for "consulting" services
related to preparation of the Mont-Pl RF study.
89. Citizens to Qualify 1-125 filed its third C-6 report with the Commissioner on
August 13, 1996 for the reporting period ending August 5, 1996. The only contribution
reported for the period was the July 26, 1996 cash contribution of $1, 700 from Mont-PIRG.
Total cash and in-kind contributions reported by Citizens to Qualify 1-125 through the August
5, 1996 reporting period were $24,787.80, and all but $97.50 of that amount was
contributed by Mont-PIRG.
90. The August 13, 1996 C-6 report filed by Citizens to Qualify 1-25 reported
expenditures of $3,402.06. Most of the expenditures made during this reporting period were
for payments to C.B. Pearson. Mr. Pearson received total payments of $2,592.82 for the
reporting period ($2, 166.00 for campaign management and the rest for reimbursement of
expenses).
91. Mont-PIRF made two payments to C.B. Pearson on September 9, 1996. A
payment of $291.89 was described as a payment for "campaign expenses." A second
-29-

Exhibit G-29

 payment of $1,000 was described as a "consulting fee." Both payments were made to Mr.
Pearson for his work on the Mont-Pl RF study of corporate contributions to Montana ballot
issue campaigns. The total Mont-PIRF payments made to Mr. Pearson for writing "Big
Money and Montana's Ballot Campaign" were $1,816.70.
92. Neither Citizens to Qualify 1-125 nor LI/WM and Others for 1-125 reported the
$2,566. 70 cost of preparing the Mont-Pl RF study as an in-kind expenditure by Mont-Pl RF.
93. On August 26, 1996, the Executive Director of MTLA, Russell Hill, sent Jon Motl
a fax that included a copy of a legal analysis of 1-125 by the opposition committee. The fax
was sent on MTLA stationery and originated from MTLA's fax number.
94. Mr. Hill sent Mr. Motl a fax on MTLA letterhead on September 4, 1996. The fax
from Mr. Hill included the 1-125 opposition committee's one-page analysis of 1-125 and
included the following handwritten admonition to Mr. Motl:
If you use/distribute copies, please make sure they aren't traceable to me via
fax heading, etc. I want to keep getting this kind of mailing.
Mr. Hill concludes by telling Mr. Motl that the opposition committee's campaign manager, Bill
Leary, does not "have a 'full' legal opinion yet."
95. C.B. Pearson issued a press release distributing the Mont-PIRF corporate
contribution study to the media and the public on September 5, 1996. A copy of the MontPIRF study was also hand-delivered to the opposition 1-125 committee on that same date.
Montana's major daily newspapers ran news articles discussing the findings of the MontPIRF study and quoting the executive director of the opposition committee on September6,
1996.
96. The Mont-PIRF study written by Mr. Pearson said the following about 1-125:
It is time to reestablish the ban on direct corporate money for initiatives and
other ballot campaigns ....
Today's proposal, Initiative 125, links Montanans to their 1912 peers. It is the
best restoration of the law which stood in Montana for over 60 years prior to
the Buckley decision. While we can no longer ban corporate spending in
initiatives, we can still regulate the manner of corporate spending. 1-125 does
this, and, as was the case in 1912, it will be up to Montanans to act through
initiative to regulate the power of the corporate dollar in Montana politics.
97. The Mont-Pl RF study became the key document in the proponents' arguments
for 1-125. Mr. Pearson believes the study was "the most widely distributed and used piece
of work" he has ever written.
-30-

Exhibit G-30

 98. Jon Motl, Chris Newbold, and Linda Lee reviewed and approved the Mont-Pl RF
study before it was released on September 5, 1996. The study also acknowledges that
MCC "provided a portion of the cost of producing this report."
99. FFPIR made a $5,000 wire transfer to Mont-PIRG on September 6, 1996.
100. Citizens to Qualify 1-125 filed its fourth C-6 report with the Commissioner on
September 10, 1996 for the period ending September 5, 1996. The report listed no
contributions or expenditures and indicated the committee had a cash balance of $86.84.
101. Mr. Hill wrote Bill Leary, the 1-125 opposition committee's campaign manager,
on September 11, 1996. Mr. Hill's handwritten letter on MTLA "EXECUTIVE OFFICE"
stationery thanked Mr. Leary "for being so open w/ me about opponents and opposition to 1125." Mr. Hill promised to "reciprocate" and "respect any agreement we have (re: limited
circulation of survey report, etc.)." The bottom of Mr. Hill's letter indicates a copy was being
sent to MTLA's President; however, a blind copy of the letter was also sent to Mr. Motl.
102. Mr. Hill's September 11, 1996 letterto the opposition 1-125 committee states
that MTLA "has neither endorsed nor opposed 1-125 but has determined it's important to
challenge mischaracterizations of the constitutional/legal effect of 1-125." Mr. Hill
characterized statements by Dennis Burr opposing 1-125 as "preposterous" and offered to
share Mr. Hill's legal analysis of 1-125 with Mr. Leary. Mr. Hill indicated that MTLA would
focus on whether corporations have an inalienable right to free speech "even if it makes the
task of opponents [to 1-125] more difficult."
103. Russ Hill also wrote a letter on MTLA stationery to Don Judge, Montana AFLCIO, and Matt Levin, Montana Community-Labor Alliance, on September 11, 1996. Mr.
Hill's letter to these Montana labor leaders states, in pertinent part, that:

A Mr. Hill wanted to be sure that labor was aware of the "anti-labor themes" that the
opponents of 1-125 would use during their campaign;
B. Mr. Hill acknowledged that labor, like MTLA, did not "intend to devote scarce
resources to the 1-125 debate ... ;"
C. Mr. Hill did not expect 1-125 to pass after "$500,000 of advertising by opponents;"
and
D. Mr. Hill hoped labor would help define "1-125 as a debate over whether corporate
treasuries do have an inalienable right to dominate public speech on ballot initiatives."
104. Jon Motl sent Donna Edwards, Center for New Democracy, a letter on
September 13, 1996 describing 1-125 campaign strategy and proposing a budget to run a
successful 1-125 campaign. The letter confirmed a conversation the previous day with Craig
McDonald of Texans for Public Justice. Mr. McDonald asked Mr. Motl to summarize the
-31-

Exhibit G-31

 discussion and present a "two level budget" for review by Mr. McDonald, Ms. Edwards, and
Doug Phelps. The letter, in pertinent part, described the following 1-125 campaign strategy
and budget:
A. The letter described the 1-125 opposition. Mr. Motl predicted the opposition would
spend $300,000 opposing 1-125 but also indicated that the opponents were busy fighting 1122. Mr. Motl advised that the opposition will be "slow (they have already proved to be very
slow) clumsy and inefficient" unlike earlier efforts to defeat the bottle bill and the cigarette
tax.
B. Mr. Motl predicted that the 1-125 proponents could win even if the opposition
spent $300,000.
C. Mr. Motl proposed a $25,000 proactive advertising piece using radio ads running
on 34 stations in 16 cities for one week. C. B. Pearson was in charge of producing and
arranging the radio ads.
D. Mr. Motl suggested that $9,000 be spent on a "reactive person" who would
"initiate strikes designed to place a 'corporate money' identity" on the opposition leaders.
Mr. Motl proposed that he would be in charge of the reactive campaign and that he would
charge $50 per hour and provide "his own support base and office with the funding
purchasing 180 hours of his time."
E. Miscellaneous costs of $5,000 (travel, phone, copy, and production) would be
incurred in undertaking the early radio campaign and the reactive person funding.
F. The last week of the campaign would feature $50,000 spent on radio and limited
TV ads, plus another $5,000 for overhead.
G. Mr. Motl and Mr. Pearson recommended an immediate commitment of $39,000
and a further commitment of $55, 000 by October 1, 1996.
H. Mr. Motl indicated that "poll results (as shared by the pollster atthe September 6
meeting in Helena) are consistent with our own experiences." Mr. Motl stated that "we win 2
to 1 if there is no extensive work by any party."
105. Mr. Motl does not recall the September 6, 1996 meeting referenced in his letter
to Donna Edwards (see Summary of Fact 104(H)). Mr. Motl also does not recall the pollster
who provided the 1-125 polling information. Mr. Motl, Mr. Pearson and Mr. Newbold deny
that the 1-125 proponents spent any money for polling.
106. There is no evidence that the Center for New Democracy made a contribution
to either principal 1-125 committee. According to Mr. Motl, the Center for New Democracy
had no money to contribute to the 1-125 campaign, but Ms. Edwards was a valuable asset
because of her knowledge of 1-125 issues and her influence with other potential 1-125
-32-

Exhibit G-32

 contributors such as the 2030 Fund and U.S.-PIRG.
107. C.B. Pearson filed a Statement of Organization for LV\/VM and Others for 1-125
on September 17, 1996. This C-2 form named C.B. Pearson Treasurer, Jon Motl Deputy
Treasurer, and Chris Newbold and Barbara Seekins as "Committee Members."
108. The Mont-PIRF corporate contribution study written by C.B. Pearson and
funded by Mont-PIRF was mailed to "friends" of the 1-125 campaign on September 18,
1996. A cover letter from Mr. Pearson that accompanied the study was written on stationery
with the letterhead of LV\/VM and Others for 1-125. Mr. Pearson's letter asserted that the
study "'Big Money in Montana's Ballot Campaigns' shows the need for reform of the
campaign finance laws for ballot issues." Mr. Pearson's letter also asserted that "1-125 is a
reasonable, timely and legally permissible way to address the problem of big corporate
money in Montana's ballot issue campaigns."
109. Mont-PIRG made a $3,000 cash contribution to LV\/VM and Others for 1-125 on
September 19, 1996.
110. Citizens to Qualify 1-125 filed its closing report on September 24, 1996 for the
period ending September 23, 1996. The report listed no contributions and two expenditures
-- a bank service charge of $8 and a contribution to its successor committee (LV\/VM and
Others for 1-125) in the amount of $78.44.
111. Mr. Pearson denies that Citizens to Qualify 1-125 closed its books out of
concern that the committee was violating the naming and labeling statute. Instead, Mr.
Pearson asserts that Citizens to Qualify 1-125 disbanded because its purpose (qualifying 1125 for the November ballot) had been completed.
F. The 1996 Fall Campaign
112. Jon Motl wrote C.B. Pearson on September 25, 1996 expressing concern about
not being paid for his 1-125 work (the letter makes it clear that Motl had previously been
volunteering his services to the 1-125 campaign). Mr. Motl indicated that he believed his 1125 work would become "quite time consuming" and thanked Mr. Pearson for his efforts to
find money to pay Mr. Motl for his services. Mr. Motl agreed to accept $50 an hour (half his
normal fee) and $20 per hour for paralegal services if LWVM and Others for 1-125 found
money to pay for Mr. Moll's services.
113. Mr. Motl established a case file for 1-125 work on September 26, 1996. Mr.
Motl indicated that billing should be sent to C.B. Pearson and the work involved is described
as "INITIATIVE WORK."
114. Mr. Motl was responsible for monitoring the two principal committees
established to oppose 1-125. Mr. Motl personally inspected the records of the opposition
committees and wrote numerous letters to those committees.
-33-

Exhibit G-33

 115. C.B. Pearson was primarily responsible for developing the radio ads paid for by
LWVM and Others for 1-125. Jon Motl worked with the media advisor hired by LWVM and
Others for 1-125 to develop the proponents' TV ads. Mr. Motl was also involved in reviewing
and approving the radio ads developed by Mr. Pearson.
116. Mr. Pearson used his UM office equipment to send proposed radio ads for 1125 to Jon Motl. A September 27, 1996 fax from Mr. Pearson contains the logo for and
reference to "Environmental Organizing Semester" and the phone number for Mr. Pearson's
EOS office (406-243-6185).
117. Mr. Motl and Mr. Pearson shared 1-125 fund-raising responsibilities. Mr. Motl
and Mr. Pearson were jointly responsible for obtaining the Mont-PIRG and MCC
contributions; however, Mr. Motl had primary responsibility for convincing National Common
Cause to allow MCC to support 1-125. Mr. Motl was also responsible for obtaining the
contributions from the 2030 Fund and U.S.-PIRG. The contribution from the Hollywood
Women's Political Committee was unsolicited.
118. Mr. Motl sent Mr. Pearson a bill for legal services on October 3, 1996. Mr.
Moll's bill sought payment for paralegal services in the amount of $444 and Mr. Moll's
services in the amount of $1,060 (total bill, $1,504). The billing was at the rates specified in
Mr. Moll's September 25, 1996 letter (see Summary of Fact 112).
119. Mr. Moll's October 3, 1996 letter also advised Mr. Pearson that LWVM and
Others for 1-125 would have to report the cost of an MCC fund-raising letter as an in-kind
contribution along with copying and telephone costs. The October 22, 1996 C-6 report filed
by LWVM and Others for 1-125 reported an in-kind contribution of $1,708.20 for the MCC
fund-raising letter.
120. C. B. Pearson wrote Mr. Motl on October 3, 1996 and indicated that LWVM and
Others for 1-125 had received a $40,000 contribution from the 2030 Fund. Mr. Pearson
indicated that receipt of the 2030 Fund contribution would allow LWVM and Others for 1-125
to pay "roughly $9,000" to Mr. Motl for the fees charged by Mr. Moll's office. The rest of the
2030 Fund contribution would be spent on radio advertising ($25,000) and other costs
($6,000) according to Mr. Pearson.
121. Mr. Pearson filed an amended C-2 Statement of Organization for LWVM and
Others for 1-125 on October 3, 1996. The amended C-2 added the 2030 Fund to the
committee's name.
122. On or about October 3, 1996, MTLA's Executive Director, Russell Hill, sent Mr.
Motl a proposed 60-second radio advertisement supporting 1-125. The proposed radio ad
was written by Mr. Hill.
123. Jon Motl faxed the 1-125 radio ads prepared by C. B. Pearson to Russell Hill on
-34-

Exhibit G-34

 October 3, 1996. The fax from Mr. Moll was sent to Mr. Hill at MTLA's fax number.
124. Jon Motl sent Donna Edwards (Center for New Democracy), Craig McDonald
(Texans for Public Justice), and Gene Karpinski (U.S.-PIRG) a fax on October3, 1996. The
fax advised that the media poll being released in a few days did not include 1-125 results
because 1-125 "hadn't been high profile enough" to do polling. Mr. Motl indicated this would
be his last report for a few days but that C. B. Pearson would be sending them "a report on
media buy work" and "an update on Monday .... "
125. Chris Newbold, on behalf of Mont-PIRG, wrote former Colorado Governor
Richard Lamm on October 4, 1996 asking Governor Lamm to play "an active role" in the 1125 campaign. Mr. Lamm was a Reform Party candidate for President and a Professor of
Public Policy at the University of Denver in 1996. Mr. Newbold prepared proposed 865
word and 600 word op-ed pieces supporting 1-125 that Mr. Lamm ultimately adopted. Mr.
Newbold, in turn, distributed Governor Lamm's endorsement of 1-125 to "friends" and the
news media.
126. The proponents of 1-125 also received an endorsement of the initiative from
Rev. Jesse Jackson and the Rainbow Coalition. Rev. Jackson's endorsement was written
on National Rainbow Coalition stationery and was addressed "To the Voters of Montana."
Rev. Jackson declared that "l-125 is a concrete and necessary step in returning the power
of the initiative to its rightful owners--the people of Montana." He "strongly" encouraged the
Rainbow Coalition's supporters in Montana to vote yes on 1-125. Chris Newbold does not
believe that the Rainbow Coalition's endorsement of 1-125 was ultimately used in the
campaign.
127. Jon Motl sent a fax to Craig McDonald, Texans for Public Justice, Gene
Karpinski, Executive Director of U.S.-PIRG, and Donna Edwards, Center for New
Democracy, on October 5, 1996. The fax described the second opposition committee to
enter the 1-125 debate. Mr. Motl indicated "Steve Browning is the head of the 'black hat' law
firm" heading the second principal committee opposing 1-125. Mr. Motl stated that Steve
Browning "led the fight against the bottle bill and is on the wrong side of virtually every good
issue." Mr. Motl also advised that:

A. The opponents to 1-125 would likely spend $300,000 and spend more on radio
because of the "crowded TV field ... ;" and
B. C.B. Pearson and Mr. Motl would assess the situation and report back "with a
recommendation as [to] whether to spend more money or not."
128. Russell Hill sent Jon Motl a seven-page fax on MTLA letterhead on October 9,
1996. The fax included a proposed MTLA press release, legal citations and a letter to the
editor supporting 1-125. The fax cover sheet asked Mr. Motl if he had any comments and
asked Mr. Motl to call Mr. Hill before Mr. Moll left town. The proposed press release stated
"TRIAL LAWYERS ENDORSE CORPORATE-CONTRIBUTION INITIATIVE" and listed
-35-

Exhibit G-35

 Russ Hill as the contact if there were questions.
129. Jon Motl wrote Doug Phelps, FFPIR, on October 15, 1996. The memo
described the current status of the opponents' campaign (they would spend only $200,000$225,000 on media) and current poll results (1-125 was winning). Mr. Motl recommended
"that an additional $50,000 be committed and used for a radio and print media campaign" to
be run "the last week of the election." Mr. Motl stated that he understood "the responsibility
tied to seeking more money." Mr. Motl also advised that the 1-125 "opponents field group is
still the farm team" and that the '"A' team" is tied up on 1-122 and 1-121. Copies of the fax
memo were sent to Mr. Karpinski of U.S.-PIRG, Ms. Edwards of the Center for New
Democracy, and Craig McDonald of Texans for Public Justice.
130. Doug Phelps was the "idea man" for FFPIR and was also involved in approving
the contribution ultimately made by U.S.-PIRG to the 1-125 campaign. In 1995-96, he was
the Chair of U.S.-PIRG and a member of the Green Corps Board (he is currently the Chair
of the Green Corps Board). According to Jon Motl, Mr. Phelps was the "originator" of 1-120
in 1994, and its progeny, 1-125 in 1996.
131. Mr. Motl sent Mr. Pearson a bill for 1-125 services on October 16, 1996 (for
services rendered through October 16, 1996). Mr. Moll's bill sought reimbursement for the
following:
A. 93.7 hours of 1-125 time by Mr. Motl at $50/hour ($4,685.00 total);

B. Paralegal services, 60.5 hours at $20/hour, plus mileage of $1.50 ($1,210.00
total); and
C. Office copying and postage costs of $438.01.
132. LWVM and Others for 1-125 did not spend any money on polling. The 1-125
proponents relied on public polls done by the Lee Newspapers, the Great Falls Tribune. the
University of Montana Bureau of Business and Economic Research, and Montana State
University-Billings. The public polls conducted by these entities generally showed public
approval of 1-125 throughout the 1996 campaign. For example, the late October 1996 poll
conducted by MSU-Billings showed public approval of 1-125 by a margin of 50.7% to 33.1 %.
133. On October 19, 1996, Mr. Motl sent Doug Phelps, FFPI R, a follow-up memo to
Mr. Moll's October 15, 1996 memo (see Summary of Fact 129). Mr. Motl again asked that
Mr. Phelps consider spending up to $50,000 on 1-125. Mr. Motl described the looming
opposition campaign and indicated that $25,000 would be spent on radio ads and the other
half for "accompanying news ads," including support costs and further use of Mr. Moll's
office.
134. Mr. Motl asked that National Common Cause send a contribution of $1,500 to
C.B. Pearson on October 19, 1996. Mr. Motl indicated that this amount constituted "funds
-36-

Exhibit G-36

 contributed by Montana Common Cause members in support of 1-125."
135. On October 21, 1996, Mr. Motl sent a copy of his October 19, 1996 memo to
Doug Phelps to Mr. McDonald, Ms. Edwards, and Mr. Karpinski. Mr. Motl indicated that if
any of them wanted "to weigh in" on the requested $50,000 contribution from Mr. Phelps,
they needed to do so by tomorrow morning "as we need a decision in order to use the
money right." Mr. Motl indicates that he sent copies of his Phelps memo to Mr. McDonald,
Ms. Edwards, and Mr. Karpinski because he believed these individuals would help persuade
Mr. Phelps to make the requested contribution from U.S.-PIRG.
136. John Heffernan sent Jon Motl a fax on October 22, 1996 on Heffernan
Consulting, Inc. stationery. Mr. Heffernan reported that Dan Kemmis and Mike Kadas had
agreed to endorse 1-125 and do a news release. Mr. Heffernan asked Mr. Motl to review
and edit the news release. Also, Mr. Heffernan asked Mr. Motl if he would be interested in
writing a guest editorial for Mr. Kemmis' signature.
137. LWVM and Others for 1-125 filed its first C-6 report with the Commissioner on
October 22, 1996 for the reporting period from September 10 through October 16, 1996.
The report lists total contributions of $51,484.86 for the reporting period from the following:

Contributor

Amount/Type

A 2030 Fund, Inc.

$ 40,000.00 cash

B. Mont-PIRG

$

3,000.00 cash
1 708.20 in-kind
$

4,708.20

5,500.00 cash
1 197 .82 in-kind
$

6,697.82

Mont-PIRG Subtotal:
C. MCC

$
MCC Subtotal:

D. Citizens to Qualify 1-125

$

78.74

138. The October 22, 1996 C-6 report listed total expenditures of $37,381.95 forthe
reporting period, leaving a cash balance of $11,536.89. The major expenditures made by
LWVM and Others for 1-125 during the reporting period were:

A Radio ads, $23,940.00;
B. Payments to Jon Motl for services, $7,838.51; and
C. Payments to C.B. Pearson for campaign management, $4,723.24 (includes
$723.24 in expense reimbursement).
-37-

Exhibit G-37

 139. The 2030 Fund, Inc., was a fund run by the senior staff of FFPIR. Mr. Motl
believes the 2030 Fund included some or all of the money collected by FFPIR as
administrative expenses from the fund-raising canvasses by FFPI R. Doug Phelps had the
"final say" about the 2030 Fund contribution according to Jon Motl. The 2030 Fund is now
"defunct."
140. Jon Motl wrote Steve Browning, treasurer of the second principal committee
opposing 1-125, on October 22, 1996. Mr. Motl alleged that an ad run by Mr. Browning's
committee falsely represented that a non-profit group, Montana Women's Vote '96,
opposed 1-125. On that same date, Mr. Motl wrote TV stations running the ad and asked
that they stop running the advertisement. Mr. Motl advised the television stations that
Montana Women's Vote •g5 had not taken a position on 1-125 and thatthe spokesperson
featured in the ad had agreed to withdraw the ad.
141. Linda Stoll-Anderson, coordinator for Montana Women's Vote '96, wrote my
predecessor, Commissioner Ed Argenbright, about the television advertisement on October
22, 1996. Ms. Anderson advised Commissioner Argenbright that the Montana Women's
Vote '96 was not organized to support or oppose initiatives or candidates and the ads being
run by Steve Browning's committee misrepresented the position of the organization. Ms.
Anderson confirmed that the spokesperson in the TV ad had agreed to notify Mr. Browning's
committee and request that the ad be pulled.
142. Jon Motl sent C.B. Pearson a bill for 1-125 services on October 26, 1996 (for
the period ending October 26, 1996). The bill was for the following services:
A. 62.6 hours of 1-125 time for Mr. Motl at $50/hour ($3,130 total);
B. Paralegal services, 11 hours at $20/hour ($220 total); and
C. Office copying and postage costs of$41.00.
143. Mr. Motl advised Mr. Pearson via letter on October 26, 1996 to report $g9 in
telephone, fax and copying costs as an in-kind contribution by MCC to LWVM and Others
for 1-125.
144. Mr. Motl and Mr. Pearson were either reimbursed for or reported as in-kind 1125 contributions telephone calls or faxes to the following organizations during the period of
September 23, 1996 through October 31, 1996:
A. U.S.-PIRG, 26 telephone calls/faxes;
B. Texans for Public Justice, Austin, Texas, 19 telephone calls/faxes;
C. The Center for New Democracy, Washington, D.C., 12 telephone calls/faxes; and

-38-

Exhibit G-38

 0
D. American Lung Association of Montana, Helena, Montana, 17 phone calls/faxes.
145. Mr. Motl submitted his final bill for 1-125 services on November 1, 1996. Mr.
Motl asked for reimbursement from LWJM and Others for 1-125 as follows:

A 31.1 hours of 1-125 time for Mr. Motl and Kim Wilson at $50/hour ($1,555);
B. Paralegal services, 8 hours at $20/hour ($160); and
C Office copying costs of $21.60.
146. LWVM and Others for 1-125 filed its second C-6 report with the Commissioner
on November 1, 1996 for the reporting period ending October 26, 1996. The report lists
total contributions of $341.31 and pledges of $36,000 for the reporting period as follows:

A
MCC and Mont-PIRG made in-kind contributions of $99 and $242.31,
respectively;
B. U.S.-PIRG made a pledge to contribute $35,000 on October 26, 1996 and the
contribution was received on October 28, 1996; and
C The Hollywood Women's Political Committee made a pledge to contribute $1,000
on October 26, 1996 and the contribution was received on October 29, 1996.
147. The November 1, 1996 C-6 report listed total expenditures of $6,318.51 for the
reporting period, leaving a cash balance of$6,318.51. The major expenditures made during
the reporting period were:

A Payments to Mr. Motl, $3,391.00; and
B. Payments to Mr.
reimbursement).

Pearson, $2,915.92 (includes $415.92 of expense

148. Montana voters approved 1-125 in the November 5, 1996 general election.
149. The day after 1-125 was approved by Montanan's voters, the Center for New
Democracy issued a press release from its Washington, D. C. offices touting campaign
finance reform initiatives passed in five states, including Montana. The press release
described 1-125 and announced that the prohibition on corporate contributions from a
corporation's general treasury funds was "the first of its kind in the nation." Donna Edwards
was listed as the contact person for the Center for New Democracy. C.B. Pearson was
listed as the 1-125 contact and the Mont-PIRG office number was listed in the press release.
150. LWJM and Others for 1-125 filed its third C-6 report on November 27, 1996 for
the reporting period ending November 22, 1996. The report listed total contributions of
-39-

Exhibit G-39

 $38,000 for the reporting period as follows:
A U.S.-PIRG contributed $35,000 cash;
B. Hollywood Women's Political Committee contributed $1,000 cash;
C. Mont-PIRG contributed $2,000 cash ($6,950.51 total); and
D. Individual contributions of $105.
151. The November 27, 1996 C-6 report listed total expenditures of $42,823.45 for
the reporting period, leaving a cash balance of $499.93. The major expenditures made
during the reporting period were:
A Payment for television ads, $25,000;
B. Payment for radio ads, $14,050.00;
C. Payment to C.B. Pearson for reimbursement of expenses, $981.85;
D. Payment to Chris Newbold for travel, room and food, $306.91; and

E. Payment to Jon Motl for 1-125 services, $1,736.60.
152. Citizens to Qualify 1-125 and LWVM and Others for 1-125 reported total cash
contributions of $109,723.84 and total in-kind contributions of $5,335.13 for the 1-125
campaign. Total cash and in-kind contributions reported were $115,058.97. More than
99% of the reported 1-125 contributions came from the following five organizations and in
the following amounts:
Contributor
Mont-PIRG
U.S.-PIRG
2030 Fund, Inc.
MCC
Hollywood Women's
Political Committee
Subtotal

Cash

In-kind

Total

$ 27,700
35,000
40,000
5,500

$3,940.81
0.00
0.00
1,296.02

$ 31,640.81
35,000.00
40,000.00
6,796.02

1,000

0.00

1,000.00

$109,200

$5,236.83

$114,436.83

153. Citizens to Qualify 1-125 and LWVM and Others for 1-125 reported that it paid
over 83% of its cash received to the following individuals and businesses for 1-125
campaign activities:

-40-

Exhibit G-40

 A. C.B. Pearson, $15,418.43 for serving as treasurer and manager for the 1-125
campaign;
B. Jon Motl, $12,966.11 for services provided to LWVM and Others for 1-125;
C. Art Moore, Inc., Salt Lake City, Utah, $37,990.00 for radio ads; and
D. MacWilliams, Cosgrove and Snider, Tacoma Park, Maryland, $25,000.00 for
television ads.
154. LWVM and Others for 1-125 chose not to close its books and file a closing
report soon after the November 1996 general election because of the on-going litigation
challenging the constitutionality of 1-125. Mr. Motl and Mr. Pearson believed LWVM and
Others for 1-125 would not have standing to be an intervener in the 1-125 litigation if the
committee ceased to exist and filed a closing report. LWVM and Others for 1-125 continued
to file C-6 reports with the Commissioner on the following dates:
A. March 11, 1997;
B. September 30, 1997;
C March 17, 1998;
D. September 11, 1998; and
E. March 29, 1999 (closing report).
155. The C-6 reports referenced in the preceding paragraph did not include any
contributions. Except for a $64.53 payment to C.B. Pearson for reimbursement of expenses
in the March 11, 1997 report, the only other expenditures were bank service charges.
156. The closing report filed by LWVM and Others for 1-125 on March 29, 1999
showed a cash balance of $108.99, but there is no indication to whom this cash balance
was paid.
VII. STATEMENT OF FINDINGS

A 1-125 Claim 1
The allegation that Citizens to Qualify 1-125 violated the naming and labeling statute
(Section 13-37-210, MCA) is dismissed for the reasons set forth in Part IV, pages 7 and 8 of
this decision. This allegation appears to have merit based on the failure of Citizens to
Qualify 1-125 to accurately disclose that FFPIR, not Mont-PIRG, contributed a significant
amount of cash and in-kind services (in excess of $15,000) to the 1-125 campaign. Failure
to identify the common economic interest or employer of a majority of l-125's contributors
-41-

Exhibit G-41

 would have been deemed a serious infraction since the 1-125 proponents falsely
represented that Mont-PIRG's students and members were providing the cash and in-kind
contributions needed to place 1-125 on the 1996 ballot; however, Mr. Griffin's naming and
labeling complaint was not timely filed and enforcement action based on this claim is barred
by Section 13-37-130, MCA.
B. 1-125 Claim 2
The allegations in Claim 2 are that the initial report filed by Citizens to Qualify 1-125
failed to include certain in-kind contributions by incidental political committees such as
Mont-PIRG, LWVM, Green Corps, the law firm of Reynolds, Motl and Sherwood, and
others. The initial investigation of this claim raised sufficient concerns to examine how key
participants in the 1-125 campaign reported or did not report 1-125 campaign activities. As a
result, this investigation was expanded to include the various groups and individuals who
were coordinating their activities with the two principal 1-125 committees and whether in-kind
and cash contributions were accurately reported throughout the 1-125 campaign.
It is first necessary to restate the general requirements for reporting in-kind
contributions under Montana law and the previous decisions of the Commissioner's office.
The most comprehensive description of in-kind reporting requirements was made by
Commissioner Ed Argenbright in his April 30, 1998 MCSWL Decision, at pp.74-77, which
reads, in pertinent part, as follows:
__ .Section 13-1-101 (6)(a)(iii), MCA, includes in the definition of
"contribution" the "payment by a person other than a candidate or political
committee of compensation for the personal services of another person that
are rendered to a candidate or political committee." However, "services
provided without compensation by individuals volunteering a portion or all of
their time on behalf of a candidate or political committee ... " are not a
contribution (Section 13-1-101(6)(b)(i), MCA). An "individual" is defined as a
"human being" and does not encompass businesses, corporations,
membership associations, partnerships or clubs (Section 13-1-101 (15), MCA).
These unambiguous statutory definitions make it clear that an employer who
pays his or her employees or independent contractors to serve on campaign
steering committees, stuff campaign envelopes, write campaign brochures,
conduct scientific studies for the campaign or raise campaign funds is making
a reportable in-kind campaign contribution.
Not all in-kind contributions are as clear-cut as the examples cited in the
preceding paragraph. Rules have been adopted by my predecessors to
address more complex issues. ARM 44.10.321 was first adopted in 1976 and
last amended in 1979. ARM 44.10.321 (2) defines the term "in-kind
contribution" to mean "the furnishing of services, property, or rights without
charge or at a charge which is less than fair market value" to a candidate or
political committee (third party payments of compensation to campaign
-42-

Exhibit G-42

 participants and individuals who volunteer their time are specifically excluded
from the rule definition). Applying this definition and the statutory definitions
cited in the preceding paragraph, the following rules apply:
1. Only an individual (a human being) may escape reporting an in-kind
contribution by volunteering his or her time (Section 13-1-101(6)(b)(i), MCA).
If the campaign-related work by a human being also involves the use of
equipment (fax machines, telephones, etc.) or property (the use of office
space), the fair market value of the equipment and property must be reported.
2. Entities, other than a human being, may not volunteer time and escape
reporting in-kind contributions. If a business, corporation, membership
association, partnership, club, union, committee, firm, or group makes an
employee, officer, board member or independent contractor available for
campaign-related services, the fair market value of those services must be
reported by the entity as an in-kind contribution.
3. Entities, including a human being, who provided equipment or property
for campaign-related activities, must report the fair market value of the
equipment and property. For example, the fair market value of providing
phones, FAX machines, membership lists and similar items for use in a
campaign must be determined and reported.
4. ARM 44.10.513 and 44.10.533 define how in-kind contributions and
expenditures must be valued and reported. These rules and the pertinent
statutory definitions have been in place for 20 years!
This commissioner acknowledges that such factors as how an employee
or independent contractor is paid (hourly fee v. annual salary) and when and
where campaign-related work is performed may affect the amount of the inkind contribution to be reported. However, the basic rules are that if an
employee, officer, board member or independent contractor is paid by an
employer or third party to perform campaign-related services, such services
constitute an in-kind contribution to the candidate or political committee. Any
work done at the employer's offices and any use of the employer's equipment
or property must be reported as an in-kind contribution. If an employee or
independent contractor writes a campaign report after work hours or films a
campaign commercial on Sunday and receives no compensation from his or
her employer or third party, then the services fall under the "volunteer"
exception. There is no reportable in-kind contribution. Conversely, if an
employee or independent contractor writes a campaign report after work
hours but receives compensation (salary, overtime or comp time pay) for such
services, it is a reportable in-kind contribution. If an employer's office or
equipment is used for campaign activities, it is also reportable under
Montana's definition of contribution. Allowing a candidate or political
-43-

Exhibit G-43

 committee to use office telephones, fax machines, copiers, paper and stamps
for campaign purposes has substantial value to the candidate or political
committee.
Based on the preceding, several entities and individuals made in-kind contributions
to the 1-125 campaign that should have been reported in incidental political committee C-4
reports and in C-6 reports filed by Citizens to Qualify 1-125 and LWVM and Others for 1125; however, because Mr. Griffin's complaint was filed more than four (4) years after the
deadline for the filing of C-4 reports by incidental political committees in 1996, enforcement
action against these incidental political committees is barred under Section 13-37-130,
MCA.
Enforcement action based on the failure of Citizens to Qualify 1-125 and LWVM and
Others for 1-125 to accurately report the following cash and in-kind contributions in the
September 11, 1998 and March 29, 1999 C-6 reports is not barred by Section 13-37-130,
MCA:
1. Mont-PIRG and FFPIR. FFPIR should have been listed as making both cash and
in-kind contributions to the 1-125 principal committees.
FFPIR, not Mont-Pl RG, was paying canvassers to collect signatures for 1-125 in May
and June of 1996. The $1,990.30 in-kind contributions by Mont-PIRG listed in the June 1O
and July 10, 1996 C-6 reports for salaries paid to canvassers and Chris Newbold should
have been reported as in-kind contributions by FFPIR, not Mont-PIRG.
The amount of the canvass salaries reported for 1-125 signature gathering efforts
($1,990.30) appears reasonable. Collecting signatures for 1-125 in May and June of 1996
was only an incidental part of the canvass. The primary purpose of the FFPI R canvass on
behalf of Mont-PIRG was to raise money for Mont-PIRG and educate the public about MontPIRG's objectives and programs.
The 1-125 principal committees did not accurately report other in-kind contributions by
Mont-PIRG. It is clear that a major portion of the 1-125 campaign was being run out of the
Mont-PIRG offices. Mont-PIRG's office equipment, office space, and supplies were being
used by Chris Newbold, C.B. Pearson, and others to conduct 1-125 signature gathering
efforts, secure endorsements, prepare campaign documents, and raise money for the 1-125
campaign. Mont-PIRG pays rent to the University of Montana for its office space. The C-6
reports filed by Citizens to Qualify 1-125 contain no in-kind contributions by Mont-PIRG for
office space, equipment or supplies used in the 1-125 campaign. LWVM and Others for 1125 listed in-kind contributions by Mont-Pl RG for office equipment and supplies in its
October 22, and November 1, 1996 C-6 reports, but did not report any in-kind Mont-PIRG
contributions for office space used for 1-125 activities. LWVM and Others for 1-125 did not
list any in-kind contributions from Mont-PIRG for use of Mont-PIRG's office space,
equipment, and supplies during the final days of the 1996 campaign (see the November 27,
1996 C-6 report) or any subsequent C-6 report.
-44-

Exhibit G-44

 Some of the cash contributions made by Mont-PIRG to both principal 1-125
committees were actually contributions made by FFPIR of funds it was paid as legitimate
administrative expenses under the canvass agreement with Mont-PIRG. FFPIR paid a total
of $27,500 cash to Mont-PIRG for 1-125 campaign activities in 1996. Mont-PIRG, in turn,
contributed a total of $27,700 cash to the 1-125 principal committees ($22,700 of this
amount was contributed to Citizens to Qualify 1-125). At least $13,000 of the cash
contributed to the 1-125 campaign by Mont-PIRG was FFPIR cash and should have been
reported as FFPI R cash contributions, not Mont-PIRG contributions.
It must be noted that the amount of cash contributed by Mont-Pl RG and/or FFPI R
was accurately reported by both principal 1-125 committees. The inaccurate reporting of the
Mont-PIRG cash contributions was limited to the source of the cash, not the amount of the
cash contributed. Nevertheless, the failure of both principal 1-125 committees to accurately
report the source of a sizeable portion of its cash and in-kind contributions during the
signature-gathering phase of the 1-125 campaign is a serious violation in light of the public
representations made by Citizens to Qualify 1-125.
The failure to disclose both the cash and in-kind contributions made by FFPIR raises
the issue of whether Mont-PIRG, FFPIR, and the two principal 1-125 committees violated
Section 13-37-217, MCA, which reads as follows:
13-37-217. Contributions in name of undisclosed principal. No person
may make a contribution of his own money or of another person's money to
any other person in connection with any election in any other name than that
of the person who in truth supplies such money. No person may knowingly
receive such a contribution or enter or cause the same to be entered in his
accounts or records in another name than that of the person of whom it was
actually furnished.

Chris Newbold indicates that FFPIR did not provide monthly statements to MontPIRG concerning the amount of money being deducted for FFPIR expenses and the
remaining amount available to Mont-PIRG from canvass fund-raising (all funds collected
from the Mont-PIRG canvass were deposited in a FFPIR account controlled exclusively by
FFPIR). According to Mr. Newbold, Mont-PIRG knew what gross revenues were being
collected in the canvass and Mont-PIRG kept requesting money from FFPIR for use in the 1125 campaign. Mont-PIRG did not know how much FFPIR was deducting for canvasser
and administrative expenses. FFPIR kept wiring Mont-PIRG the cash requested. Mr. Motl
states that he was not aware of FFPI R's financial contributions and that he assumed the
Mont-PIRG money was Mont-PIRG's money.
I am unable to conclude that FFPIR, Mont-PIRG, and both principal 1-125
committees knowingly reported FFPIR contributions as Mont-PIRG contributions based on
the evidence available at this time. Mont-PIRG's gross cash canvass fund-raising in 1995
and 1996 exceeded $53,700. Mont-PIRG's total cash and in-kind contributions to the 1-125
-45-

Exhibit G-45

 campaign were $31,640.81. Mr. Newbold believed that if Mont-PIRG was making requests
for funds from FFPIR that exceeded the amount available to Mont-PIRG after deducting
FFPIR's canvass and administrative expenses, FFPIR would have refused to transfer the
funds to Mont-PIRG. FFPIR never refused to transfer the funds requested by Mont-PIRG
according to Mr. Newbold.
2. Jon Motl and the law firm of Reynolds, Motl and Sherwood. Jon Motl is a partner
in the law firm of Reynolds, Motl and Sherwood. In 1996, Reynolds, Motl and Sherwood
was a general partnership. Since 1997, the firm has been a professional limited liability
partnership. A separate partnership owns the building where the law firm's offices are
located.
Members of the law firm share office overhead and expenses the same today as they
did in 1996. Mr. Motl keeps all revenue received and pays 40% of his gross revenue to the
building partnership to pay employee, equipment and office expenses. If Mr. Motl
volunteers his time, he does not receive income or a subsidy from his partners. When Mr.
Motl is paid an hourly or contingent fee for his services, Mr. Motl pays his office expenses
out of these payments.
Mr. Motl volunteered his services to Citizens to Qualify 1-125. Section 13-1101 (6)(b)(i), MCA, clearly excludes such individual volunteer efforts from the reporting
requirements of the Act and rules. Before Mr. Motl began billing LWVM and Others for 1125 for his services on October 3, 1996 there is no evidence that Mr. Motl received
compensation for his 1-125 services from his partners, a client, Citizens to Qualify 1-125, or
any other person.
Mr. Motl was paid for services provided to LWVM and Others for 1-125. Mr. Motl
billed LWVM and Others for 1-125 at one-half his normal rate, $50 per hour rather than $100
per hour (Summary of Fact 112). ARM 44.10.321 (1) defines an "in-kind contribution" as the
"furnishing of services, property or rights without charge or at a charge which is less than
fair market value to a person, candidate, or political committee for the purpose of supporting
or opposing a ... ballot issue ... " (see ARM 44.10.323(2) for a similar definition of "in-kind
expenditure"). Because Mr. Motl provided both volunteer and compensated services to the
1-125 principal committee, it is necessary to reconcile the definition of in-kind contribution in
ARM 44.10.231(2) with the volunteer exemption in Section 13-1-101(6)(b)(i), MCA
A lawyer, an accountant, or an individual who stuffs envelopes may volunteer time to
a political committee, and such volunteer time is not reportable under Section 13-1101 (6)(b)(i), MCA This statutory exemption applies to "services provided without
compensation by individuals volunteering all or a portion of their time .... " In Mr. Moll's case,
he volunteered his services without compensation to Citizens to Qualify 1-125 and those
volunteer services were not a reportable in-kind contribution; however, once Mr. Motl began
receiving compensation for his services by LWVM and Others for 1-125, the principal
committee and Mr. Motl were obligated to report the total fair market value of Mr. Moll's
services as contributions to the 1-125 campaign. The fair market value of Mr. Moll's
services to LWVM and Others for 1-125 was, by Mr. Moll's own admission, $100 per hour,
--46-

Exhibit G-46

 not his discounted billing rate of $50 per hour. LVVVM and Others for 1-125 timely and
accurately reported $10,430 paid to Mr. Motl at his discounted billing rate of $50 per hour.
Neither Mr. Motl nor LVVVM and Others for 1-125 reported the discounted value of the
services provided by Mr. Motl as an in-kind contribution under ARM 44.10.321 (2). LVVVM
and Others for 1-125 should have reported an additional $10,430 as the full fair market value
of Mr. Moll's services to the 1-125 campaign.
Both principal 1-125 committees also failed to report the value of Mr. Moll's office
expenses, including office space, as an in-kind contribution. Only the volunteer time of a
human being is not reportable under Montana's campaign finance laws and rules (see April
30, 1998 MCSWL Decision cited on pages 42-44 of this decision). If a business partnership
makes office space, equipment, and supplies available to a political committee at less than
fair market value, the political committee must report the fair market value of that office
space, equipment, and supplies even if the space and equipment is being used by
campaign volunteers (see Section 13-1-101(6)(a)(i),MCA, ARM 44.10.321, 44.10.323,
44.10.513 and 44. 10.533). Similarly, Mr. Motl, as an individual, has the obligation to report
the fair market value of any business equipment, business office space, or office supplies
used in campaign activities.
Mr. Moll's services to the 1-125 campaign were an integral part of virtually all 1-125
campaign activities. Mr. Moll's correspondence on behalf of 1-125 was written on Reynolds,
Motl and Sherwood stationery and involved the use of office space, office equipment, and
office supplies. The only in-kind contribution reported by Citizens to Qualify 1-125 from the
Reynolds, Motl and Sherwood law firm was the $97.50 for "staff time, copying and phone"
reported in the June 10, 1996 report. Citizens to Qualify 1-125 should also have reported
the fair market value of office space, equipment, and supplies used by Mr. Motl in his 1-125
campaign activities. 5 LWVM and Others for 1-125 should have reported as in-kind
contributions from the Reynolds, Motl and Sherwood law firm the fair market value of the
office space, equipment and supplies used in the 1-125 campaign. LVVVM and Others for 1125 only reported in-kind contributions from the Reynolds, Motl and Sherwood law firm for
copying and postage costs.
Mr. Motl has urged a broad interpretation of the volunteer time exemption to include
the use of business office space, equipment, and supplies by volunteers in a political
campaign. I must agree with my predecessor and conclude that the volunteer time
exemption in 13-1-101 (6)(b)(i), MCA, does not allow a business, corporation, partnership,
association, or an individual to donate office space, equipment and supplies to political
campaigns unless the fair market value of such space, equipment and supplies is properly
reported. To interpret the Act and rules as suggested by Mr. Motl would not result in full
disclosure of campaign finances and would, in turn, encourage the corporate behavior Mr.
5

Enforcement action against the Reynolds, Motl, Sherwood law firm for failure to report these
expenditures in a C-4 incidental political committee report is barred for the reasons stated on
pages 6-8 of this decision.
-47-

Exhibit G-4 7

 Motl sought to restrict in 1-125. Offices with computers, telephones, fax machines, copiers,
computer disks, paper, desks, workstations, and furniture have great value to political
campaigns. Montana law requires that the fair market value of such office space,
equipment and supplies be accurately and timely reported.
The preceding conclusion is also a matter of equity. The public legislative debates
about the reporting of cash and in-kind contributions has centered on the notion that there
should be full disclosure of both the money and the services, property, and equipment used
in political campaigns. A political committee able to raise substantial cash contributions
must report expenditures made for personnel, office space, office equipment, and office
supplies. It is fundamentally unfair and contrary to every notion of full disclosure to allow
political committees that raise less cash to escape reporting the fair market value of office
space, office equipment, and office supplies made available to campaign personnel by the
employers or businesses for whom campaign officials work. The principal 1-125 committees
chose not to spend their cash contributions on office space, equipment, and supplies for a
campaign headquarters. That choice does not excuse the 1-125 proponents from reporting
as in-kind contributions the fair market value of office space, equipment, and supplies
provided by businesses or employers.
3. Green Corps.
The issue of whether any of the payments made by Green Corps
to C. B. Pearson for the EOS class were reportable as 1-125 in-kind contributions is
discussed on pages 58 and 59 of this decision (Claim 6).
4. Mont-Pl RF. The issue of whether the Mont-Pl RF study "Big Money in Montana's
Ballot Campaigns" was a reportable 1-125 campaign expenditure is discussed on pages 5658 of this decision (Claim 5).
5. LWVM. LWVM is a Montana nonprofit corporation, first incorporated in 1985.
LWVM's President and other members volunteered their time for a number of 1-125
activities. League members were not reimbursed for their participation in the 1-125
campaign.
The League spent a total of $5,802.70 on its activities in 1996-97. LWVM
reimbursed Ms. Seekins $460.95 in 1996-97 for expenses as President but there is no
evidence that any of the reimbursement was for 1-125 activities. Ms. Seekins' participation
in the preparation of arguments for 1-125 in the Secretary of State's Voter Information
Pamphlet is not a reportable activity (see the June 20, 2000 Chamber Decision, at pp. 52
and 53). Although LWVM endorsed 1-125 and its name was featured prominently in the
name of the second principal committee (LWVM and Others for 1-125), such a public
endorsement was not a reportable in-kind contribution.
6. MTLA. The Montana Trial Lawyers Association, through its Executive Director,
was actively coordinating its 1-125 activities with Jon Motl. Russ Hill, MTLA's Executive
Director, was funneling information obtained from the political committees opposing 1-125 to
Mr. Motl. Mr. Hill was also submitting MTLA press releases for review by Mr. Motl before
the press releases were issued. Mr. Hill was even writing proposed radio commercials for
-48-

Exhibit G-48

 I'\
~

consideration by LWVM and Others for 1-125. Mr. Motl also faxed Mr. Hill copies of the 1125 radio ads. Mr. Hill's 1-125 activities involved the use of MTLA offices, equipment and
supplies. Mr. Hill was also being paid to serve as MTLA's Executive Director.
MTLA did not report any in-kind contributions to LWVM and Others for 1-125 nor did
LWVM and Others for 1-125 report any in-kind contributions from MTLA. Although
enforcement action against MTLA is barred for the reasons stated on pages 7 and 8 of this
decision, LWVM and Others for 1-125 had a continuing duty to accurately report MTLA's inkind contributions in its September 11, 1998 and March 29, 1999 C-6 reports.
7. American Lung Association of Montana. Dennis Alexander of the American Lung
Association of Montana was consulting with C.B. Pearson about 1-125 strategy and activities
on a regular basis during the fall of 1996. Mr. Pearson was being reimbursed by the 1-125
campaign for a substantial number of telephone calls to Mr. Alexander at the Lung
Association's offices (Summary of Fact 144). Mr. Alexander was using Lung Association
offices, equipment, and supplies and was being paid to serve as the Association's Executive
Director. The Lung Association was interested in 1-125 because of the significant sums
contributed by tobacco companies to past Montana initiative campaigns.
The Lung Association did not report any in-kind contributions to LWVM and Others
for 1-125 nor did LWVM and Others for 1-125 report any contributions from the Lung
Association. Although enforcement action against the Lung Association is barred for the
reasons stated on pages 7 and 8 of this decision, LWVM and Others for 1-125 had a
continuing duty to accurately report the Lung Association's in-kind contributions in its
September 11, 1998 and March 29, 1999 C-6 reports.
8. Heffernan Consulting, Inc. John Heffernan, a MCC board member, volunteered
his personal time to the I-125 campaign and such activity is not reportable under Section
13-1-101 (6)(b)(i), MCA (see page 47 of this decision); however, on at least one occasion,
Mr. Heffernan sent a fax memorandum on his business stationery. The use of business
office space, equipment, and supplies must be reported for the reasons stated on pages 47
and 48 of this decision.
Neither John Heffernan, Inc. nor LWVM and Others for 1-125 reported in-kind
contributions by John Heffernan, Inc. Although enforcement action against John Heffernan,
Inc. is barred for the reasons stated on pages 7 and 8 of this decision, LWVM and Others
for 1-125 had a continuing obligation to accurately report the in-kind contributions by John
Heffernan, Inc. in the principal 1-125 committee's September 11, 1998 and March 29, 1999
reports.
9. The Rainbow Coalition. The endorsement of 1-125 by the Rainbow Coalition
should have been reported as an in-kind contribution by LWVM and Others for 1-125. The
Rainbow Coalition endorsement by Jesse Jackson was written on the Coalition's stationery.
Although enforcement action against the Rainbow Coalition is barred for the reasons
-49-

Exhibit G-49

 stated on pages 7 and 8 of this decision, LWVM and Others for 1-125 had a continuing
obligation to report the in-kind contribution by the Rainbow Coalition in the principal
committee's September 11, 1998 and March 29, 1999 reports.
10. Governor Richard Lamm. There is insufficient evidence to conclude that the
endorsement of 1-125 by former Colorado Governor Richard Lamm was a reportable in-kind
contribution. Chris Newbold wrote the endorsement statements that Governor Lamm
ultimately adopted. The endorsement statements were not written on any official stationery
bearing Governor Lamm's office address. There is insufficient evidence to conclude that
Governor Lamm was being paid during the time that he reviewed and approved the 1-125
endorsement statements.
11. Center for New Democracy. Donna Edwards, the Center for New Democracy's
Executive Director, was not involved in the early stages of the 1-125 campaign, but she was
consulted on a regular basis in the later stages of the campaign. The Center had no money
to contribute to the 1-125 campaign, according to Mr. Motl; however, Ms. Edwards was being
consulted about 1-125 strategy and assisted in 1-125 fund-raising efforts. Mr. Pearson sent
Ms. Edwards an update on the 1-125 proponents' radio buy on October 4, 1996. Ms.
Edwards was the recipient of several strategy and polling memos from Jon Motl and C.B.
Pearson. Mr. Motl stated that Ms. Edwards was a valuable asset to the 1-125 campaign
because of her knowledge of 1-125 issues and her influence with Doug Phelps and 1-125
contributors.
The Center for New Democracy did not report any in-kind contributions to LWVM and
Others for 1-125 nor did LWVM and Others for 1-125 report in-kind contributions from the
Center for New Democracy. Although enforcement action against the Center for New
Democracy is barred for the reasons stated on pages 7 and 8 of this decision, LWVM and
Others for 1-125 had a continuing duty to accurately report the Center for New Democracy's
in-kind contributions in its September 11, 1998 and March 29, 1999 C-6 reports.
12. U.S.-PIRG. Gene Karpinski, Executive Director of U.S.-PIRG, was consulted on
a regular basis about 1-125. Doug Phelps, who was, according to Mr. Motl, the key member
of the U.S.-PIRG Board responsible for approving the U.S.-PIRG cash contribution to the 1125 campaign, also received strategy memos as part of fund-raising solicitations from Mr.
Motl. The contacts with Mr. Phelps were apparently designed to get Mr. Phelps' approval of
the U.S.-PIRG $35,000 cash contribution to LWVM and Others for 1-125. Mr. Karpinski, on
the other hand, was involved in strategy discussions and received copies of proposed 1-125
TV ads and other sensitive campaign information. Mr. Karpinski was also apparently
involved in influencing Doug Phelps' decision to approve the $35,000 contribution to LWVM
and Others for 1-125.
U.S.-PIRG's cash contribution to LWVM and Others for 1-125 was timely and
accurately reported by LWVM and Others for 1-125; however, LWVM and Others for 1-125
had a continuing obligation to report an in-kind contribution from U.S.-PRIG in the principal
committee's September 11, 1998 and March 29, 1999 reports. Enforcement action against
-50-

Exhibit G-50

 U.S.-PIRG is barred for the reasons stated on pages 7 and 8 of this decision.
13. Texans for Public Justice. Craig McDonald was employed by Texans for Public
Justice beginning in 1996. He was formerly employed by the Center for New Democracy.
Mr. Motl recalls that his contacts with Mr. McDonald during the 1-125 campaign occurred
while Mr. McDonald was employed by the Center for New Democracy; however, Mr. Moll's
phone records show a significant number of calls and faxes to Mr. McDonald at Texans for
Public Justice in October of 1996 (Summary of Fact 144). Mr. McDonald was also being
sent the same strategy memos as Gene Karpinski, Doug Phelps and Donna Edwards. Mr.
McDonald was also asked by Mr. Motl to influence the decision by Doug Phelps and U.S.PIRG to contribute $35,000 to the 1-125 campaign.
Texans for Public Justice did not report any in-kind contributions to LVVl/M and
Others for 1-125 nor did LWVM and Others for 1-125 report in-kind contributions from
Texans for Public Justice. Although enforcement action against Texans for Public Justice is
barred for the reasons stated on pages 7 and 6 of this decision, LVVVM and Others for 1-125
had a continuing duty to accurately report the Texans for Public Justice's in-kind
contributions in its September 11, 1998 and March 29, 1999 reports.
14. Other Groups. There is insufficient evidence to conclude that other groups and
associations made reportable in-kind contributions to the 1-125 campaign. C. B. Pearson's
description of the 1-125 campaign strategy in the June 7, 1996 letter to the Stern Family
Fund came true (see Summary of Fact 52). Montana's major corporate entities and the
Montana Chamber of Commerce were pre-occupied with 1-121 and 1-122. The 1-125
opponents organized too late and marshaled too few resources to defeat 1-125 at the polls.
At the same time, potential 1-125 allies were busy supporting 1-121and1-122 and seemed
indifferent to 1-125. This lack of visible public support for 1-125 from other major Montana
public interest groups enabled the 1-125 proponents to run the stealth but well-organized
campaign envisioned in the Stern Family Fund letter. Accordingly, there is insufficient
evidence to conclude that any other entities made reportable in-kind contributions to the 1125 campaign.

c.

1-125 Claim 3

The allegation that Citizens to Qualify 1-125 failed to timely file its initial C-6 report is
dismissed for the reasons set forth in Part IV, pages 7 and 8 of this decision. This
allegation appears to have merit, but Mr. Griffin's complaint was filed too late and
enforcement action based on this claim is barred by Section 13-37-130, MCA.
D. 1-125 Claim 4
The allegation that Citizens to Qualify 1-125, Mont-PIRG and LWVM failed to
accurately report two grants totaling $5,000 made by Mont-PIRG to LWVM for 1-125
activities is without merit. This allegation is based on Mont-PIRG's 1996 tax return, which
lists grants of $3,000 and $2,000 to LWVM on September 19 and November 4, 1996,
respectively. Both grants were for "Campaign Finance Reformll-125" Unfortunately, Mont-51-

Exhibit G-51

 PIRG's accountant did not have sufficient space on the IRS form 990 to include the full
name of the 1-125 principal committee, LWVM and Others for 1-125. The September 19 and
November 4, 1996 checks were written to the 1-125 principal committee (LWVM and Others
for 1-125), not LWVM. Both monetary contributions were timely and accurately reported by
LWVM and Others for 1-125.
The issue of whether Mont-PIRG timely and accurately reported these contributions
in C-4 reports is dismissed for the reasons set forth in Part IV, pages 7 and 8 of this
decision.

E. 1-125 Claim 5
Claim 5 involves two allegations:
1. That the principal 1-125 committees and Mont-Pl RF should have reported the cost
of producing and publishing the study "Big Money and Montana's Ballot Campaigns" as an
1-125 campaign expense; and
2. That the principal 1-125 committees failed to report polling costs as a campaign
expense.
There is insufficient evidence to conclude that either principal 1-125 committee paid
for polling or that the 1-125 committees received in-kind contributions of polling results.
Although Jon Moll's September 13, 1996 letter references polling information obtained from
an unidentified pollster, the financial records of the two principal 1-125 committees do not
indicate that payments were made for polling. The 1-125 campaign apparently relied on
public polls conducted by newspapers and several units of the Montana University system.
Relying on polling information after it is published and available to the public is not a
reportable campaign expense; however, it must be noted that obtaining confidential polling
information before it is published and available to the public would be considered an in-kind
contribution.
The 1-125 proponents assert that the corporate contribution study funded by MontPl RF is not a reportable campaign expenditure because:
1. The study was released in a press release and hand-delivered to the opposition
the same day the press statement was issued. The 1-125 proponents assert that the
release of the study constitutes a "bona fide news story" and does not have to be reported
as a campaign expenditure under Sections 13-1-101(6)(b)(i) and (10)(b)(ii), MCA.
2. The Mont-Pl RF study did not contain express advocacy urging readers to vote for
1-125.
Let me first dispel any suggestion that the Mont-Pl RF corporate contribution study
was an educational document that had no value to the 1-125 proponents' campaign. The
-52-

Exhibit G-52

 study was, from its inception, an integral part of the 1-125 campaign strategy. The three key
people running the 1-125 campaign -- C.B. Pearson, Jon Motl and Chris Newbold -- were
involved in writing, approving, authorizing, and controlling the study's content and
conclusions. C.B. Pearson's June 7, 1996 letter to the Stern Family Fund seeking funding
for the study describes in detail the 1-125 campaign strategy and the significance of the
corporate contribution study to the overall 1-125 campaign effort. Mr. Pearson's Stern
Family Fund letter indicates the 1-125 proponents were already "in the process of
completing a comprehensive study on the role of corporate money in the Montana initiative
process." The .Mont-Pl RF study was a coordinated campaign document prepared and
distributed as part of an orchestrated 1-125 campaign activity. Although the study itself fell
just short of expressly urging its readers to vote for 1-125, Summary of Fact 96 documents
the study's unequivocal assertion that it is "time to reestablish the ban on direct corporate
money for initiatives .... "
Based on the preceding, I am compelled to conclude that the Mont-Pl RF study "Big
Money and Montana's Ballot Campaigns" was a vital 1-125 campaign document, not an
independent, impartial analysis of 1-125 issues. The document was written and produced by
the same people who ran the 1-125 campaign from beginning to end. The extensive
coordination between the 1-125 principal campaign committees and Mont-PIRF, coupled
with the study's discussion of issues central to the debate about the passage of 1-125, lead
to the inescapable conclusion that the Mont-Pl RF study should have been reported as an 1125 campaign expenditure. This conclusion is consistent with my predecessor's
determination that an arsenic brochure and a mixing zone issue paper that did not expressly
advocate a vote against 1-122 were reportable campaign expenditures in the April 30, 1998
MCSWL Decision, at pp. 94-97. Similarly, Commissioner Argenbright concluded that "white
papers" discussing 1-122 issues but not advocating a vote for 1-122 were reportable
campaign expenditure in the April 29, 1997 MCW Decision, at pp. 3-6 and 11-15.
Despite the preceding conclusion, the 1-125 proponents argue that the Mont-PIRF
study expenditure did not have to be reported because it is exempt from campaign finance
reporting as a bona fide news story (Sections 13-1-101 (6)(b){ii) and (10)(b)(ii), MCA). To
my knowledge, this is the first formal decision by a Commissioner defining the bona fide
news story exemption.
The definitions of the terms "contribution" and "expenditure" in 13-1-101, MCA,
exclude "the cost of any bona fide news story, commentary, or editorial distributed through
the facilities of any broadcasting station, newspaper, magazine, or other periodical
publication of general circulation." The 1-125 proponents assert that the bona fide news
story exemption applies to not only the cost of preparing the press release but the
$2,656.70 paid to research and prepare the Mont-PIRF study. The plain language of
Sections 13-1-101(6)(b)(ii) and (10)(b)(ii), MCA, does not permit such an expansive
interpretation of the bona fide news story exemption. Worse yet, such an expansive
interpretation would exempt from reporting significant expenditures for campaign documents
and advertisements.
-53-

Exhibit G-53

 0
The language of Sections 13-1-101 (6)(b)(ii) and (1 O)(b}(ii), MCA, is clearly limited to
the cost of preparing the bona fide press release, commentary, or editorial, not the
underlying studies, research, or campaign documents that are prepared as part of a
coordinated campaign strategy. If the interpretation suggested by the 1-125 proponents
were adopted, every campaign document and advertisement would be exempt from
reporting so long as the campaign document or advertisement was first released via a press
conference or press release. The bona fide news story exemption is intended to allow
candidates and political committees to respond to bona fide media inquiries and issue bona
fide press releases, editorials, and commentaries without reporting the cost of such
legitimate media events. The bona fide news story exemption cannot be used as a
subterfuge to hide expenditures on campaign-related studies and advertisements.
The 1-125 proponents' interpretation of the bona fide news story exemption would
also encourage the use of smear campaigns in candidate elections. Candidate political
committees could spend thousands of dollars investigating the opponent's private life and
not report the expenditure so long as the investigation results were released at a news
conference.
Mont-Pl RF and the two principal 1-125 committees should have reported the cost of
"Big Money and Montana's Ballot Campaigns" as an 1-125 campaign expenditure. Although
enforcement action against Mont-Pl RF is barred for the reasons stated on pages 7 and 8 of
this decision, LWVM and Others for 1-125 had a continuing duty to accurately report MontPIRF's in-kind contribution of $2,656. 70 for the corporate contribution study in its
September 11, 1998 and March 29, 1999 C-6 reports.
F. 1-125 Claim 6
C.B. Pearson was being paid by Green Corps, not the University of Montana, to
teach the EOS course in the spring of 1996. Mr. Pearson was also being paid by Citizens to
Qualify 1-125 to manage the 1-125 campaign during the same period. Mr. Pearson was
using his UM EOS office and equipment to conduct 1-125 campaign activities (e.g., Jon Motl
was reimbursed by LVVVM and Others for 1-125 for at least 25 telephone calls to Mr.
Pearson's EOS office in October of 1996). The University of Montana provided Mr. Pearson
with office space, furniture, and equipment (e.g., desk, chair, phone) for his EOS course
duties. Mr. Pearson instructed his EOS students on how to circulate 1-125 petitions and
obtain 1-125 signatures during a portion of the spring 1996 EOS course. Neither Mr.
Pearson, Green Corps, the UM, nor Citizens to Qualify 1-125 reported an in-kind contribution
for C.B. Pearson's 1-125 work involving EOS office space. equipment and supplies or his 1125 signature gathering instruction.
C.B. Pearson asserts that his EOS course activities related to 1-125 are exemptfrom
reporting because the EOS students voluntarily chose to circulate 1-125 petitions during the
initiative petitioning portion of the course. There is insufficient evidence to conclude that Mr.
Pearson required his spring 1996 EOS students to circulate 1-125 petitions. But even if the
EOS student participation in 1-125 signature gathering was voluntary, Mr. Pearson had a
-54-

Exhibit G-54

 0
duty to report the fair market value of his Green Corps salary and his use of UM office
space, equipment, and supplies as in-kind contributions. Mr. Pearson was the 1-125
campaign manager and treasurer. He was managing or directing every aspect of the 1-125
campaign. Teaching a college course does not exempt Mr. Pearson from reporting the
portion of the Green Corps salary he was being paid while teaching students how to collect
1-125 signatures. Similarly, Mr. Pearson had a duty to report the fair market value of office
space, equipment, and supplies he was using to conduct 1-125 activities. As the campaign
manager and treasurer for the two principal 1-125 committees, Mr. Pearson assumed a
heightened obligation to report the fair market value of in-kind contributions. Citizens to
Qualify 1-125 and LWVM and Others for 1-125 reported no in-kind contributions forthe office
space, equipment, and supplies being used by Mr. Pearson to conduct the 1-125 campaign.
It must be noted that there is no evidence that the University of Montana had
advance knowledge that Mr. Pearson was using the EOS course or his UM office space,
equipment, and supplies to conduct 1-125 activities. Accordingly, I do not conclude that the
University of Montana violated any campaign reporting requirements; however, recent news
accounts indicate that the University is concerned about law professor Rob Natelson
conducting political activities out of his Law School office. I would hope that the University
would have the same concern about an instructor who manages an initiative campaign while
using his UM office, equipment, supplies, and classroom to conduct initiative-related
activities.
There is also insufficient evidence to conclude that Green Corps had advance
knowledge that Mr. Pearson was going to use the EOS course to conduct 1-125 activities.
The documents reviewed during the investigation of this matter establish that Green Corps'
objective was to establish a course to train environmental activists. There is no indication
that Green Corps' desire to establish the EOS class was issue-specific and related to the
objectives of 1-125. Teaching petition gathering skills was a part of subsequent EOS
classes and students circulated petitions on topics unrelated to corporate contribution
issues. Accordingly, I do not conclude that Green Corps violated any campaign reporting
requirements.
G. 1-121Claim1
1-121 Claim 1 is dismissed for the reasons stated on pages 8 and 9 of this decision.
H. 1-121Claim2
1-121Claim2 is dismissed forthe reasons stated on page 9 of this decision.

II
II
II
II
II
II
-55-

Exhibit G-55

 VIII. CONCLUSION
Based on the preceding Summary of Facts and Statement of Findings, there is
substantial evidence to conclude that Citizens to Qualify 1-125, LWVM and Others for 1-125,
and the individual treasurer and committee members for these principal 1-125 committees
violated Montana's campaign finance reporting and disclosure laws and that a civil penalty
action under Section 13-37-128, MCA, is warranted.
DATED this _ _ day of August, 2002.

Linda L. Vaughey
Commissioner of Political Practices

-56-

Exhibit G-56

 Articles RE: CoPP Case
Great Falls Tribune
Date order Oldest to Newest: April 1, 2014 -January 4, 2016
http:/fwww.greatfallstribune.com/storv/news/local/2014/04/01/commissioner-senate-leader-brokecampaign-laws/7163777/
http :/f www .grea tfa Ilstri bu ne .com/ sto rv/ news/local/2014/05/17 /senator-governor-com missionertrvi ng-to-oust -h im/9230427 /
http://www.greatfallstribune.com/storv/news/politics/2014/06/23/senate-leader-wittich-asks-judgedismiss-complaint/11281055/
http:/fwww.greatfallstribune.com/story/news/politics/2014/08/27 /judge-rejects-senate-leaderwittich s-consoiracy-cl a ims/14690149 I
http:/fwww.greatfallstribune.com/story/news/local/2015/05/29/billings-attorneys-enlisted-lawsuitlegislator/28152969/
http://www.greatfallstribune.com/story/news/local/2015/10/25/delay-sought-rep-art-wittichtrial/74599390/
http://wwwgreatfallstribune.com/story/news/politics/2015/ll/13/wittichs-political-practices-trialdelayed-one-month/75730556/
http://www.greatfallstribune.com/story/news/local/2015/12/08/commissioner-group-offered-worksgop-candidates/76997434/
http://www.greatfallstribune.com/story/news/local/2015(12/22/wittich-motl-tusslecontinues/77776142/

Exhibit H-1

 Articles RE: CoPP Case
Helena Independent Record
Date order Oldest to Newest: April 1, 2014 - January 4, 2016

http://helenair.com/ news/lo ca l/motl-sen-wittich-broke-ca m pa ign-laws/a rticle 4af9 bd9a-b9fl -11 e3a608-001a4bcf887 a. htm I

http://helenair.com/news/state-and-regional/wittich-denles-political-practicescha rges/ article 49179b48-dd8a-11e3-8a80-0019bb2963 f 4. htm I

http://helenair.com/news/local/wittich-argues-for-dismissal-of-campaign-finance--charge--lawycr-

says/art1cle 29e49faa-fb67-lle3-bf8d-001a4bcf887a.html

http://helenair.com/missoulalnews/state-and-regional/billings-attorneys-enlisted-in-lawsuit-againstIegislatorI article 5d60d le 1-e8d9-5d8 7-b0d3-917 48217b3 b4. html

http://helenair.com/news/politicsfstate/update-motl-says-appropriate-for-wittich-to-be-removedfrom/article 932034b0-ce7b-51a5-89ad-fb75984b69af.html

Exhibit H-2

 Articles RE: CoPP Case
Date order Oldest to Newest: April 1, 2014 -January 4, 2016
http://www.bozemandailychronicle.com/news/politics/commissioner-bazeman-senate-leader-broke-

campa ign-laws/ article ff30dcec-b9cl -lle3-92 24-001a4bcf887 a. html
http://www.bozemandailychronicle.com/news/politics/group-resurfaces-amid-probe-into-campaigndea Iings/article c399f7f0-be 75-1le3-a287-0019 bb2963f4. htm I
http:({www.bozemandailychronicle.com/newsfpolitics/w1ttich-still-a-candidate-despite-commissionerfinding/article d8cc4680 da2e-lle3-a477-0019bb2963f4.html
http:/fwww.bozemandailychronicle.com/newsfpolitics/legislator-challenges-state-campaignlawfarticle a34e7936-dba7-lle3-9aa4-001a4bcf887a.html
http://www.bozemandailychronicle.com/news/politics/campaign-cop-wants-more-resourccs,carlier-

reporti ng/article 30c0d514-ecf3-11e3-8a 21-0019bb2963 f4. htm I
http:/{www.bozcmandailychronicle.com/news{politics/senate-leader-wittich-asks-judge-to-dismisscomplaint/article 51c2a124-fb22-11e3-8690-0019bb2963f4.html
http:ljwww.bozemandailychronicle.com/news/politics/whistleblower-lawsuit-filed-againstcommissioner-of-pol itica 1-pra ct ices/article 44bl dc84-030b-1 le4-9feG-0019bb2963 f4 .htm I
http:({www.bozemandailychronicle.com/news/politics/judge-rejects-attempt-to-toss-dark-moneycase/articlc 36108b74-06fa-lle4-a6fe-001a4bcf887a.html
http:/{www.bozemandailychronicle.com/news/politics/judge-rejects-senate-leader-s-conspiracyclairns/article 65639dea-2e13-lle4-abbd-0019bb2963f4.html
http://www.bozemandailychronicle.com/news/politics/witness~in-dark-money-case-says--wittich­

underoaid-cost-of/article c3f4367e-597b-1 le4-bd40-1 f8d5586161d. htm I
http://www.bozemandailychronicle.com/news/politics/gop-state-sen-scott-sales-regrets-involvement-

w1th-da rk-rno ney/article 57834b3c-8a 3c-11e4-9cbb-23d6552c9f13. htm I
http://www.bozemandailychronicle.com/news/politics/art-wittich-gets-jury-trial-in-political-practicescase/article la6b1250-alcc-lle4-bafa-afab7bafb3d5.html
http://www.bozemandailychronicle.com/news/politics/billings-attorneys-take-over-wittich-politicalPractices-case/article af2938a0-Sf27-5414-bbc0-23f2c8ae3c50.html
http://www.bozemandailvchronicle.com/news/oolitics/high-court-allows-dark-money-case-to-moveforward-i n/article f566d dbd-722c-Sa66-8e43-6239e 76a29f3. htm I

Exhibit H-3

 http://www.bozemandailychronicle.com/blogs/politics/updated-missoula-atlorney-takes-over-wittich-sd efense/article b73 7ea 2b-6a0c-5881-8e55-c2462e0707 c2. htm I
http://www.bozemandailychronicle.com/news/politics/wittich-s-political-practices-trial-to-bedelayed/article bbd23b67-8142-Sc4f-974b-db83bc6d3d6f.html
http://www.bozemandailychronicle.com/news/politics/wittich-s-trial-delayed-onemonth/articlc a3349b4b-3206-Sa65-9654-40f9443c49b6.html
http://www.bozemandailychronicle.com/news/politics/commissioner-expands-allegations-againstwittich/article 27ebe3c3-d67c-5a75-a9ee-a84a43f9c9cl.html
http://www.bozemandailychronicle.com/news/politics/after-new--allcgations-of-campaign-violations·

wittich-fires-back/article 9a90c15d-7ad2-Sadc-bd5e-33d736b3f64b.html
http://www.bozemandailychronicle.com/blogs/politics/witt1ch-reguesled-hilltop-records-from-bullock·
campaign/article 197e0765-285e-5084-94e1-ff9726a7a30c.html

h l tp :/(www.boze ma nda ilych ron icle .com/ news(pol itics/document-I 1Sts-wi l lich ·other· republican··
caD_<Jidates-who:-'l'i!D.ted-ti}~-works/articlg_j]02fb9c-3:2_g.:\.:c52f4-a89i!:U234.4.e44ccho_l}!rri[

Exhibit H-4

 State of Montana
E-Mail Guidelines
A Management Guide for the
Retention of E-Mail Records
for Montana State Government

Published by the:

Montana State Records Committee
Helena, Montana
September 2006

Based, in part, on
Electronic and Voice Alai/:
A Afanagemenl Guide for Maine State Governmerll
by the Maine State Archivt:s, 2003
Augu~ta. ME

Exhibit I-1

 E-mail is an easy and efficient communication tool available to employees of state government.
In many respects, e-mail has replaced the telephone as the medium most often used to
communicate with one another about daily business. Unlike the telephone, however, e-mail
creates a written record of communication that is included in the definition of a state public
record. Like all other electronic records, e-mail is subject to the same retention requirements as
any other public record as governed under MCA Title 2, Chapter 6. These guidelines, along with
approved retention schedules, provide assistance in determining whether e-mail should be
retained, for how long and how employees can manage e-mail filing and retention.
This document provides guidance, not policy or requirements, to agencies addressing the record
and information standards of and management approaches to e-mail in Montana state
government. It outlines legal, administrative and other record values, along with practical
management options. Effective records and information management (RIM) associates public
records with Record Retention Schedules, formally adopted by the State Records Committee. In
the electronic world, filing practices are different from traditional paper record keeping. More
responsibility lies on each user for document filing. This guide is intended to ease practical
application.

2

Exhibit I-2

 CONTENTS
What is E-mail? ...................................................................... .3
How Long Should I Keep E-mail? ........................................... .3
Why Should I Care About E-mail Retention? .......................... .3
What Do l Do? ..................................................................... .3
Retention Guidelines: Official Records, Transitory Records .. .4
Retention Guidelines: Permanent Records, Non-Records ... .4-5
An E-mail Management System .............................................. 5
Functional Requirements for Recordkeeping Systems ............. 6
State Policy on Personal Use ofE-Mail ............................... 6
Appendix I: Definitions .......................................................... 7
End Note ................................................................................... 8

3

Exhibit I-3

 What Is E-Mail?
E-mail is a public document, created or received on an electronic mail system, as an e-mail
message, consisting of informal notes; formal correspondence; procedural or policy substantive
narratives; and any electronic record attachmcnt(s), transmitted with the message. E-mail
received (incoming) or created (sent), in the course of state business, is a public record as defined
under section 2-6-202, MCA. E-mail that is a public record is subject to the rules of §2-6-205,
§2-6-212, 2-6-213 MCA governing records and information management. E-mail retention
should be based on an e-mail's content, not its format or size. Therefore, clear authorization and
a practical management system are essential to ensure the proper retention, disposal and
archiving of e-mail records. §2-6-212 MCA provides that "no public record may be disposed of
or destroyed without the unanimous approval of the State Records Committee." Note §2-6-212,
(2) MCA: some e-mails are not records and may be deleted at any time (e.g., spam, external
publications, vendor solicitations). See details regarding Non-Records, later in this publication.

How Long Should I Keep E-Mail?
You should keep e-mail as long as you keep other public documents, as outlined in state or
agency-specific retention schedules. When e-mail is part of the documentation supporting an
agency's function(s) or program(s), it is subject to the same retention requirements as other
reccrds, relating to those functions or programs. The State of Montana's General Retention
Schedules establish retention periods for many records (MOM Vol. 1-0800). These, along with
agency retention schedules, govern retention of documents regardless of the format or medium.
Following approved disposal methods is an obligation. Each agency determines when actual
destruction or archiving is appropriate, after the expiration of the retention period. These
guidelines are not different from what has been in place for years. What is new is our attempt to
help properly manage one segment of the electronic records environment. Remember, retention
of e-mail is based completely on its "record value" to the business functions or programs to
which it relates. Refer to the Retention Guidelines, following, to learn more about administrative, legal, financial, historic and non-record values. Generally, management positions have a
greater proportion of historical e-mail, given the greater degree of policy or procedural content.

Why Should I Care About E-mail Retention?
Because e-mail is a public document governed by Montana Public Record laws and each user
must contribute to its proper retention. Organizing and managing e-mail (and other files)
provides efficient access, maintains confidentiality where needed, reduces legal exposure in
discovery or litigation proceedings and will save repository (server) space when practicing
destruction or archiving processes. E-mail management should be recognized in each agency's
RIM policy and procedures, which serve to provide user guidelines for filing, for deleting files
that can be and limits liability for deleting records that shouldn't be. To promote business
continuity, e-files - including e-mail - should reside on a network server, accessible by the
position or organization, with proper permissions set and work unit procedures established to
ensure filing standards are practiced.

What Do I Do?
Follow the recommendations provided in the Retention Guidelines below; attend e-mail
management training; consult your agency Record Custodian and seek help from your technical
support staff. If you have further questions about retention, contact the Secretary of State Records Management Bureau at 406-444-9000 or the Historical Society State Archives at
406-444-7482.

4

Exhibit I-4

 RETENTION GUIDELINES
The content or record value of the e-mail information will determine its retention. The retention
categories include; OFFICIAL, TRANSITORY, PER,V!A"IENT and NON-RECORD. The
following paragraphs define and describe retention practices for public records and non-records:

Official Record Retention: Retain as Required
These records are generated or received during the course of state government business and in
that official capacity must fall into the records series descriptions defined in current retention
schedules. Official e-mail retention includes any attachments or transmission data (To, Sent,
From). Examples of e-mail that may be retained include, but are not limited to:
Policy, procedures, regulation;
contracts;
grievance procedures;
medical information;
hearings;
case and/or project.files
subject/correspondence files.
The determining factor for filing and retaining e-mail with attachments, is the attachment's
content. However, e-mail can serve as a stand alone document or become an enhancement to the
document attached. In some cases, to save time and more efficiently distribute information, an
entire document is encompassed in the e-mail format and therefore becomes the record.
Check the state general retention schedules or the agency-specific rete11tio11 periods.

Transitory Record Retention: Retain as Required
These records are part of state government business; however, their record value is normally
shorter. When disposed, there is no adverse impact on officiul record retentions. Examples
include, but are not limited to:
outgoing transmittal/cover messages that do not add information to that contained in the
transmitted material;
routine questions and a11swers that require no administrative action or policy decision, special
compilation or research for reply;
memoranda and corresponde11ce generated by another agency and kept by your agency for
reference purposes only;
drafts constituting preliminary information, which is not the final, public record and considered
works-in-progress, whereas the intent is to produce a finalized version;
unufficiul employee activilies (notices of holidays, charity appeals, etc.);
informal office 11otes ("John returned your phone call.", "Is the meeting still on?").
These types of records are not official records a11d shuuld be kept ulltil their usefulness is
exhausted (Refer lo Official Record Retentio11: Retain as Required).

Permanent Record Retention: Retain as Required
These records are part of state government business and their existence documents an entity's
organization; how and why it functions; its pattern of action and decision-making; its policies,
procedures, and achievements; and serves to substantiate the accountability of the office. These
records are historically significant and therefore must be retained permanently. Examples
include, but are not limited to:
substantive corre~pondence und men1oranda,·
substalllive subject files (strategic pla11ning, reorganization, pay plans, legislative sessions, etc);
5

Exhibit I-5

 minutes;
administrative rules;

records of births, deaths certificates;
corporate charters;
critical environff1erJtal dutu and reports,·

specific project, subject or case files;
hearing transcripts, court decisions, board rulings, etc.
Print these types of e-mails and offer to the State Archives, after retention is met.
Make sure the transmission data is with the message.
Don't forget to print attached documents.

Non-Records: No Retention Required
Non-records can be defined as record types that are generated by an external source and are not
your responsibility to maintain. The following are document exampks that may be deleted, at
any time:
Notices without official business value after receipt and review;
Junk mail (i.e., spam, vendor solicitations, promotional materials, reference files copied or
downloaded from internet sites, or other unsolicited non-record messages);
Secondary copies generated by another agency or user who, as the originator, has the
responsibility for keeping the official "record copy." If there exists no business value to retain a
secondary record, it is simply a duplicate copy and subject to deletion at will;
Publications generated by another entity or user who, as the originator, has the responsibility for
keeping the official "record copy", whether coming from a public or private-sector source.
Delete at will.

E-mail Management File System-Mailboxes/Folders/Subfolders
In addition to the Inbox and Sent Items boxes, automatically a part of the mail system, users are
encouraged to organize email by folders and subfolders. These folders can reside within your
Inbox, Sent Items or Personal Folders (.pst) that reside on the file server (network) or PC. After
brief periods in your mail boxes, messages should be transferred to titled folders or subfolders,
specific to the function or program they relate.
Folder filing examples:
i~:

\el General-Schedules

-\f.J GS_4-Putch-Procurement
\DI GS_S-Payroll-Personnel
~ ISS8_Licensing

-'\j1l Legislation-2005

0

Legislation-2001 (3)

JJ

~ pst-020Pay6and-Taskforce-2006

'±I

i;;'il pst-2006Education-Calendar

Please Note: It is strongly recommended that pst folders reside on fik servers (network) versus
on individual PCs. File servers follow backup/recovery procedures.

Distribution Lists
When establishing a distribution list, designate a record owner. This person becomes the official
record holder and should file e-mail into functionally titled folders. If you smd to a distribution
list (not a listserv, but a specified list of individuals), the record owner or requestor of the list
must also keep a copy, of the members of that list, for as long as required to keep the related
6

Exhibit I-6

 official messages. It is oflittle value to know that a ··security Alert" went to "Swat Team 7"
without knowing whether Arnold S. was on the list that received the message. Nicknames
present a similar problem. Make sure everyone on the distribution list can be identified.
Subject Lines
Fill in the subject line on all e-mail messages. Make the subject concise and meaningful, relating
to the e-mail content. Subject lines become the file name when an e-mail is saved. Use hyphens
and underscores instead of periods, quote marks, slashes, etc. Meaningful subjects help the
recipient and sender to identify, file or retrieve messages quickly.

Functional Requirements for Recordkeeping Systems
An electronic recordkeeping system is one in which records are collected, organized, and
classified (categorized) to facilitate their use, retrieval, preservation and disposition. The
following general guidelines should be considered by state agencies as they approach the
management of electronic records, including e-mail:
• Recordkeeping systems allow for related record "grouping", ensuring proper context.
• Recordkeeping systems must make records accessible to authorized staff, to ensure their
usefulness to the agency.
• Recordkeeping systems must preserve records for their authorized retention period, to
ensure their availability for agency use, to preserve the rights of the government and the
citizens, and to provide accountability to agencies for their actions.
Retention criteria can be applied to each folder via auto archive. Use caution when archiving!
The default storage location points to a "buried location" on the PC's hard drive. The storage
location should be changed to a network file server location. For e-mail management training
and further information regarding e-mail archiving, contact the Secretary of State Records
Management Bureau at 406-444-9000.

State Policy on Personal Use of E-Mail
Per the State of Montana's policy, ENT-NET-042, state provided e-mail services are not to be
used '1for-profit" or ;•non-profit" activities, extensive private, recreational, or personal activities,
circulating chain letters, etc. The state provided e-mail services are to be used for:
> the conduct of state and local government business and delivery of government services;
> transmiuing and sharing of information or attached documents among governmental and
other business-related organizations;
> supporting open research and education in and between national and international
research and instructional institutions;
> communicating and exchanging discussion of issues in a specific field of expertise;
> applying for or administering grants or contracts;
> announcing requests for proposals and bids;
> announcing new services for use in research or instruction;
> and conducting other appropriate state business.

7

Exhibit I-7

 Appendix I: Definitions
Archiving: The process of moving messages to an electronic location onto an electronic medium that
meets enduring retention. Archived messages must follow a migration plan that will keep the me::;::;age(::;)
accessible and readable for the long-tenn or pennanent retention duration.
Disposition: The orderly act or method of deleting or archiving messages per approved retention period
requirements.
Draft: A document constituting preliminary information, which, at the user's discretion is not the final,
public record. Draft documents are considered works-in-progress, where the intent is to produce a
finalized version.
Electronic Message System: A computer application used to create, receive, and transmit messages
and other documents electronically. Excluded from this definition are file server transfer utilities,
computer systems used to collect and process data organized into data files or databases, and other
documents not transmitted on an e-mail system.
Electronic Message (e-mail): A document created or received via an electronic message system,
including formal or substantive narrative documents, brief notes and any attachments, such as word
processed or other electronic objects (documents) that may be transmitted with the message and its
transmission metadata.
Non-record: Non-record e-mail does not fit the definition of a record. It nonnally includes record types
that are generated by an external source and are not your responsibility to maintain. Examples include;
unsolicited promotional material and other items not associated with official business.
Record: Information created, received and maintained, by an organization or person, serving as evidence
of activities or operations and has value requiring its retention for a specific period of time. It can be used
in pursuance of legal and regulatory obligations or in the transaction of business. The Montana definition
(§2-6-202, MCA) reads: "Any paper, correspondence, fonn, book, photograph, microfilm, magnetic tape,
computer storage media, map, drawing, or other document, including all copies thereof, regardless of
physical form or characteristics, that has been made or received by a state agency in connection with the
transaction of official business and preserved for infonnational value or as evidence of a transaction and
all other records or documents required by law to be filed with or kept by any agency of the State of
Montana."
Record (Official) Copy: The record or set of records that need to be retained due to their ongoing
administrative, legal, financial and historic values, not necessarily an original. By law, an official record
has the legally recognized and enforceable quality of establishing some fact (see MCA 2-6-202 for Public
Record definition).
Record Owner: The person, usually the creator or designee, responsible for maintaining the record for
the duration of its retention period. Appointment of designees should be documented within internal
procedures.
Record Value: The appraised importance of a record, based on its administrative (operational), fiscal
(financial obligation), legal (enforceable) and historic (authentic evidence) content. The record's "value"
drives retention require1nents, which vary, when one or 1nore value is assessed to a record.
Records Retention Schedule: A comprehensive list ofrecords series and/or classification titles;
indicating for each series the length of time that series is to be maintained. Schedules may include
retention in active offices areas, inactive storage areas and when such series 111ay be destroyed or fonnally
transferred to another format or entity, such as the State Archives, for historical preservation. Retention
periods must be formally adopted by the State Records Committee and are binding on all government
employees. For a copy of the General Records Retention Schedules or an agency-specific schedule,
contact or visit the State Records Management Bureau ar 406-444-9000.
Secondary Record: A duplicate record or set of records. generated by another agency or user who, as
the originator, has the responsibility for retaining the official "record copy," and if the secondary copy has
no business value to the receiving party, the record(s) is a duplicate copy and subject to deletion at will.

8

Exhibit I-8

 0
End Note
E-mail should be treated like any other public record. Delete non-records quickly, keep the
important documents as long as appropriate and print anything of enduring value. Electronic
records are as official as any other format of record and must follow retention requirements.
By setting up a rational mailbox folder system, users can simplify the decision-making process
and aid in filing and retrieval. And, since electronic storage also has associated costs, careful
e-mail management will help reduce the stress on that storage.
Realizing that this is a challenge for all of us, the State's Records Management Bureau and the
State Archives will respond to agency requests to clarify these guidelines, offer records and
information management training and help identify which records need to be kept for a specific
period. For a copy of your agency-specific retention schedules, contact your agency's records
custodian or the Secretary of State Records and Information Management Bureau at 406-4449000. For a copy of the state's General Retention Schedules, visit the Secretary of State Records
Management webpage, which lists the schedules by number and type (i.e., General Schedule 3 Legal and Administrative).
Resist the temptation to save it all "just to be safe." Not only will we all drown in an electronic
tidal wave, saving outdated material may cause more trouble than it avoids. For instance, if
records regarding a transaction may be destroyed in five years, but are not, they may be subject
to discovery in a legal discovery. That means more time spent trying to find the records and deal
with their possibly forgotten meaning. A court will look for proof that records were properly
managed and destroyed. This means according to approved retention schedule(s), with properly
authorized records disposal request (RMS). A systematic approach to e-mail management is the
best business practice to follow and protects the staff, the agency, and the state.

9

Exhibit I-9