Federal judge says PSC’s Brad Molnar can attend NorthWestern merger hearing in person

A federal judge said Monday the Montana Public Service Commission can’t prohibit Commissioner Brad Molnar from participating in the controversial NorthWestern Energy merger hearing in person.

Last week on a 3-2 vote, the PSC voted to adopt a report that found Molnar had committed professional misconduct along with a recommendation he be sanctioned, including being prohibited from working in the building.

An internal “response team” found Molnar had committed “serious misconduct,” damaged the agency, and cost the PSC tens of thousands of dollars.

But Molnar has raised concerns about the impacts of a proposed merger between NorthWestern Energy and Black Hills Corp, the hearing starts Tuesday, and his lawyer said the PSC’s timing is suspect.

In a case filed Monday in U.S. District Court in Helena, Molnar alleged First Amendment retaliation and asked for a temporary restraining order, and in an order the same day, federal Judge Donald Molloy said Molnar may participate in the hearing in person.

The judge granted the motion to temporarily stop Commissioners Jeff Welborn, Jennifer Fielder and Annie Bukacek from excluding Molnar from the hearing room for the duration of the merger proceedings at least through May 22.

The judge said Molnar has “raised serious questions” about whether the decision to ban him from the hearing room constitutes First Amendment retaliation. The order pointed to his criticisms of the PSC and “how it permitted closed-door meetings with NorthWestern Energy officials.”

In the order, the judge said Molnar argued that he would not be able to effectively represent his constituents if he attended the hearing by video.

“Molnar has persuasively argued, at least at this stage, that remote attendance does not obviate this harm as he ‘cannot consult with staff in real time, cannot observe witness demeanor and hallway dynamics, and cannot confer quietly with counsel at the table as testimony unfolds,’” the judge said.

The judge granted the motion against Welborn, Fielder and Bukacek, the three commissioners who voted to adopt the report with recommendations for sanctions against Molnar. Welborn and Fielder are the PSC’s president and vice president, respectively.

“The Public Service Commission is complying with the federal court’s temporary restraining order and will ensure Commissioner Molnar can participate in the NorthWestern Energy–Black Hills merger hearings as directed,” PSC spokesperson Jamey Petersen said in an email.

The PSC regulates monopoly utilities, including NorthWestern Energy. It is made up of five elected commissioners, currently all Republican; Commissioner Randy Pinocci joined Molnar to vote against adopting the misconduct report.

The judge said Molnar “has also raised serious questions going to the merits.”

The order said Molnar publicly criticized the PSC “on a variety of issues,” including its handling of complaints against him; he was physically barred from the PSC building “days before a major hearing regarding a large utility company merger,” and his complaint raises questions about whether those actions are connected.

“On the one hand, Defendants seek to exclude Molnar’s physical presence in the building because of his alleged inappropriate behavior,” the order said. “On the other hand, an elected official has been physically barred from attending a major hearing regarding the future of one of Montana’s largest utility companies.

“Permitting Molnar to attend and participate in that hearing — and no more — strikes an appropriate balance given the short time frame and the matters at stake.”

The report the PSC adopted found Molnar had engaged in inappropriate conduct in the workplace, including by making unwelcome sex-based comments and retaliating against those who filed complaints against him.

It also found agency managers and PSC leadership had warned him and tried to help him correct his behavior, but he was impervious to advice and trainings and met them with “belligerence and defiance.”

Molnar said the PSC was biased against him, and he was never presented with specific allegations, such as times and places, that would allow him the chance to refute the claims.

The order said if the hearing runs past May 22, Molnar will need to “seek additional relief from the court,” or ask for an extension.

Editor’s note: This story has been updated with comment from the PSC.