A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.
An obscure opinion written by Montana’s legislative counsel during Brian Schweitzer’s administration apparently prevents Gov. Steve Bullock from appointing a currently serving legislator or elected member of the executive (the Secretary of State, etc.) to replace Angela McLean as lieutenant governor.
This information, quoted below, comes from a source with long experience in state government.
No direct prohibition on appointing serving elected officials to the office of lieutenant governor appears in Montana’s constitution, which provides in Part VI, the Executive:
Section 3. Qualifications. (1) No person shall be eligible to the office of governor, lieutenant governor, secretary of state, attorney general, superintendent of public instruction, or auditor unless he is 25 years of age or older at the time of his election. In addition, each shall be a citizen of the United States who has resided within the state two years next preceding his election.
(2) Any person with the foregoing qualifications is eligible to the office of attorney general if an attorney in good standing admitted to practice law in Montana who has engaged in the active practice thereof for at least five years before election.
(3) The superintendent of public instruction shall have such educational qualifications as are provided by law.
Section 5. Compensation. (1) Officers of the executive branch shall receive salaries provided by law.
(2) During his term, no elected officer of the executive branch may hold another public office or receive compensation for services from any other governmental agency. He may be a candidate for any public office during his term.
Section 6. Vacancy in office. (1) If the office of lieutenant governor becomes vacant by his succession to the office of governor, or by his death, resignation, or disability as determined by law, the governor shall appoint a qualified person to serve in that office for the remainder of the term. If both the elected governor and the elected lieutenant governor become unable to serve in the office of governor, succession to the respective offices shall be as provided by law for the period until the next general election. Then, a governor and lieutenant governor shall be elected to fill the remainder of the original term.
(2) If the office of secretary of state, attorney general, auditor, or superintendent of public instruction becomes vacant by death, resignation, or disability as determined by law, the governor shall appoint a qualified person to serve in that office until the next general election and until a successor is elected and qualified. The person elected to fill a vacancy shall hold the office until the expiration of the term for which his predecessor was elected.
To me, a fair reading of the constitution allows the governor to appoint a serving elected official as lieutenant governor provided that official resigns his office prior to the appointment.
But apparently a legislative attorney concluded otherwise:
While the language in the constitution is not precise, the debate on the floor of the [1972 MT constitutional] convention was on point.
Article VI, Section 5 provides: “During his term, no elected officer of the executive branch may hold another public office…”
This language seems to leave open the option of an officer to resigning [that officer’s] office and then accepting an appointment.
Although the language is open to interpretation, the [1972] constitutional convention delegates expressed concerns that legislators in particular might be disposed to exercise favors on behalf of the executive in exchange for an appointment afterward. The takeaway is the delegates’ intention was to deny an officeholder from accepting an appointment to another office even if [that officeholder] resigned.
The chief legal counsel for the legislative services division issued an opinion about 8 years ago specifically addressing the question of legislators. He conclusion is the same. Can’t do it. Unless (or until) the issue is addressed by the courts, the opinion serves as the ruling opinion.
I dimly remember a dust-up over one of Schweitzer's appointments that may have triggered this opinion. If you can supply details, I would be most appreciative.
But as long as that opinion, which I’m hoping to obtain, stands, it appears that Bullock is forbidden by law from dipping into the most logical pool of replacement lieutenant governors.
Requiring legislative confirmation of an appointment to lieutenant governor would cure the potential problem of appointment to that office’s being used as a bribe.
Montana needs to amend its constitution to correct this situation. I’m going to draft an amendment to do just that.