Ethics panel on Ellsworth's contract investigating potential criminal violation

A legislative ethics committee is investigating the idea that a Hamilton senator's state-funded business contract may have violated criminal statute, according to a letter adopted at the second of two committee meetings Monday.

The Montana Senate voted last week to convene an ethics committee after news of Republican Sen. Jason Ellsworth's improper use of legislative committee funds came to light. Following the news, a legislative audit report found Ellsworth's actions constituted a waste of government resources and an abuse of power.

On Monday, the Senate Ethics Committee approved multiple documents outlining its investigation, including a letter detailing the allegations and potential laws that were violated, a preliminary witness list and a list of documents to be subpoenaed.

The Hamilton senator's business associate, Bryce Eggleston, entered into a $170,100 contract with Ellsworth late last year that would have employed Eggleston — through his company Agile Analytics — to do post-session work tracking the impact of enacted bills making changes to the judicial branch.

The contract, which was first reported by the Montana State News Bureau, has since been canceled. The business deal was set to be funded by leftover money from an interim committee that Ellsworth led. The business deal skipped the public bidding process that is triggered by state rules when a contract exceeds $100,000.

The language of the letter — which lays out which laws Ellsworth may have violated based on the allegations against him — was hammered out Monday evening and approved by the committee.

One law the letter says Ellsworth potentially violated governs ethical requirements for legislators and the second is a criminal statute that concerns misconduct by a public servant. The Senate Ethics Committee, however, does not have charging or enforcement powers.

“Senator Ellsworth knew or should have known of facts and circumstances related to Agile and Mr. Eggleston that could create a conflict of interest or the appearance of impropriety in the award of a contract to a personal friend and former business associate," the letter reads. "At a minimum, these facts require disclosure prior to the award of the contract.”

The letter requests that Ellsworth respond in writing to the committee's allegations.

After a brief spat over Senate President Matt Regier's decision to retain special counsel for this committee, Monday's ethics hearings began with an introduction from the newly employed special counsel, Adam Duerk. According to his LinkedIn profile, Duerk is a trial lawyer and former federal prosecutor who has also worked as a special prosecutor for a number of the state's agencies.

Duerk emphasized repeatedly that he intends to "engage in a fact-finding process and follow that fact-finding process wherever it may lead."

In a memo released last month, the Legislative Audit Division wrote that Ellsworth’s actions were an abuse of his government position as Senate president and that he wasted state resources. The audit report called part of the deal "illegal." Joan Mell, Ellsworth's attorney, has since taken issue with some of the auditor's findings and alleged that the memo "defamed" her client.

Mell appeared over Zoom for the ethics committee's Monday meeting and sought to have the entire investigation dismissed.

"It would be my recommendation that this body decide against proceeding down an investigative path and entertain alternative considerations for how any concerns about the conduct of Former President Ellsworth may be addressed," she said.

She particularly harped on the fact that Senate leadership's sour relationship with Ellsworth "cannot be extricated from this process," which she said infuses bias into the proceedings. Mell also argued the typical legal procedure has not been followed.

Duerk said the procedural rules that govern the court system are not applicable because the matter is before a legislative ethics committee, not a courtroom.

But Duerk attempted to appease her concerns, saying that he is going into the investigation with the "presumption of no misconduct."

The committee unanimously voted on a preliminary list of 13 witnesses to call, which includes Eggleston, three Department of Administration employees (including Director Misty Ann Giles), four senators, four members of legislative staff and Scott Boulanger, a lobbyist and associate of Ellsworth's.

The Department of Administration ultimately approved the sole-source contract and justified it with certain exceptions in state rules, but DOA employees later admitted to auditors that those special rules were improperly applied to Ellsworth's contract.

Ellsworth himself was not named as an initial witness. Mell has argued that her client "holds the right to assert absolute legislative immunity from questioning during the session" because of "his duty to focus on the people's business."

Duerk said that Ellsworth is a "possible witness," but wanted to speak with Mell first.

The committee also listed the documents they may subpoena, which includes all physical or electronic documents and messages of any kind. Those include Ellsworth's written communications with Eggleston, Eggleston's business filings with the secretary of state, documents showing how the price of the contract was reached and more.

According to the proposed schedule, the committee will next meet Friday, Feb. 7.

Near the end of Monday's evening meeting, Mell said the committee was not following public meeting laws, and said she may attempt to "vacate" all of the committee's work on those grounds.

"You guys can go to a lot of work to get to an outcome that you believe is deemed fair, but if it is deemed in violation of open government meeting laws, the remedy for me to seek is to vacate the work you've performed," Mell said.