Montana Senate spirals as Ellsworth ethics probe paused, investigation sent to DOJ

Senate Democrats and a faction of GOP lawmakers on Thursday paused an ethics investigation into Sen. Jason Ellsworth’s controversial contract arrangement and referred the probe to the Montana Department of Justice, bringing the tensions that have embroiled the state Legislature for weeks to a 90-minute meltdown.

The move throws into question the examination into Ellsworth’s dealings with a personal business associate from his perch late last year as Republican Senate President. It also reverses the Senate’s unanimous vote last week to send the case to the Senate Ethics Committee and to effectively carry out the investigation into one of the members of its own branch.

As has been the case throughout the saga, the matter is now in uncharted waters, with even Republican Montana Attorney General Austin Knudsen unclear as to whether the Senate had the ability to hand off its investigation to the state justice department.

Democrats said they pursued that hand-off because Republicans had become too politically vengeful against one of their own in Ellsworth.

The move incensed the Senate GOP who on the first day of the legislative session saw nine of their colleagues join Democrats to block Republican leadership’s rule package, and on Thursday watched as the Democrats’ coalition scuttled the Senate Ethics Committee investigation for the moment. The committee had been set to meet again Friday.

The latest scrum on the Senate floor led to anger, tears, and embarrassment. Accusations of “corruption” and political theater flew across the Senate floor at a consistent clip throughout the hearing.

“What we saw today is pure politics, sweeping ethics violations under the rug,” said Sen. Greg Hertz, R-Polson. “I'll sleep well tonight because I know what I did on this floor and what I said on this floor was the right thing to do.

“I hope you all can sleep well tonight for those of you who decided to sweep this under the rug.”

Democrats said their move was the correct one since part of the investigation involves a potential criminal charge for Ellsworth. The 22 Republicans who voted against sending it to the Department of Justice said that removing it for the time from the Legislature’s purview effectively kneecapped any efforts to punish or investigate Ellsworth with the Legislature’s own constitutional authority.

Ellsworth joined Democrats and eight Republicans in voting to send the matter to the DOJ.

“[DOJ] are the right people to investigate,” he said following the floor votes. “It’s the responsibility of law enforcement to enforce the law when there’s an allegation of any criminal conduct,” adding that he believes he did not break the law.

In what has already been a deeply divided first month of the session in the Legislature’s upper chamber, the floor session Thursday deepened those fissures.

Sen. Mark Noland, a Bigfork Republican, held a mic to his mouth in one hand and with the other pointed directly at each one of the nine GOP lawmakers who defected alongside Democrats.

“I hope you guys can feel good about yourselves. You played some shenanigans; you played some games. Way to go. You’re in power. You are. So, what else are you going to do? Please let us know. Because we don’t have a chance…,” Noland told them.

“Republicans aren’t in power.”

The fight started when Senate Majority Leader Tom McGillvray, R-Billings, made a motion to remove Ellsworth from his seat on the Senate Finance and Claims Committee in a vote that would happen Friday. That removal would have been temporary, pending the result of the ethics investigation.

Immediately afterward, Senate Minority Leader Pat Flowers, D-Belgrade, made another motion to refer the investigation into Ellsworth’s contract with Bryce Eggleston, which legislative auditors found was a waste of state resources and has since been canceled, to Knudsen and the state justice department. The motion also sought to pause the ethics committee’s investigation pending Knudsen’s findings.

The sequence sent the Senate floor into a frenzy of motions and procedural chaos. At one point, the Legislative Services Division chief legal counsel stepped into the chamber during a brief recess when someone raised the question of how many substitute motions could be in play.

Knudsen, meanwhile, was sending McGillvray guidance in real-time.

“I don’t know if a Senate motion is adequate to give DOJ primary jurisdiction to conduct a criminal investigation,” Knudsen told McGillvray, according to text messages reviewed by the Montana State News Bureau.

“DCI is an assist-only investigative agency,” he continued. “Meaning we have to be invited by the local law enforcement agency.”

Knudsen was later seen with his chief of staff in Senate President Matt Regier’s office at the Capitol, but could not be reached for comment. In an email, a Knudsen spokesperson said the justice department was still determining “if there are possible next steps” for the department to take.

Flowers said on the floor he had not consulted with Knudsen ahead of the motion.

He said the matter had become too politicized to be handled further by the Senate Republicans, whom he believed had predetermined guilt based on the earlier alignment Ellsworth made with Democrats. The motion was intended to refer the entire investigation to the justice department, which would then return its findings to the Senate, which would then act on those findings.

The ethics committee was investigating two potential violations, one ethical and another criminal. The attorney general’s office would theoretically take up the criminal investigation. However, criminal investigations are often extensive and time-consuming, and Republicans accused Flowers on Thursday of attempting to delay the matter past the 90-day Legislature, when the ethics committee would no longer have jurisdiction over Ellsworth’s conduct.

“Moving it over to the Department of Justice will just run this out past the session,” Hertz said. “That’s all this is about.”

The ethics committee’s investigation into the alleged ethics violation, separate from the potential criminal charge, is now stalled. At one point, the Senate voted on a motion to maintain the ethics committee’s work while the justice department probed the criminal charges, but Democrats and the nine Republicans blocked that proposal.

“Because the results of what comes out of the ethics committee should also be a product of what comes out of DOJ,” Flowers said when asked why he opposed the two parallel investigations.

The Legislative Audit Division had already determined weeks ago that Ellsworth’s attempt to split the $170,000 contract into multiple invoices couldn’t have been done for any logical reason other than to unlawfully avoid the public bidding process.

Still, Flowers maintained that sending the case to DOJ was appropriate.

“I talked to the auditor today, and they are still considering referring it to the Department of Justice,” he said. “I felt like we had a responsibility to do the same.”

Flowers and Senate Democrats have long tried to reel in Republicans’ frustrations with Ellsworth over the contract dispute. Ellsworth and Flowers both described the matter as a “distraction,” while members of Ellsworth’s own party were freely floating allegations of corruption.

Asked if he had pulled the case into a precarious place in order to protect the coalition of Democrats and Republicans, effectively securing a majority of the Senate from the Democrats’ minority position, Flowers did not directly respond to the question.

“At this point, what we were focused on today is taking what were allegations that we thought were potentially criminal and sending it to the appropriate entity to do the investigation and take the follow-up actions, whatever those might be,” he said.

As tears flowed and lawmakers raised their voices at each other for more than 90 minutes, it appeared the scuffle will set the tone for the coming weeks.

Sen. Daniel Emrich, a Great Falls Republican in his second session, seated directly next to Ellsworth, said he will bring a motion Friday to expel both Ellsworth and Flowers. Ellsworth said he was not worried about the prospect of expulsion. The success of such a motion seems impossible, given the repeated votes Thursday in both Flowers and Ellsworth’s favor.

Sen. Shelley Vance, R-Belgrade, is one of the nine who voted with Democrats repeatedly over the course of the hearing. She was openly crying on the Senate floor during the debate, but said Thursday evening it was only because of the speeches.

“It’s not emotional at all,” she said of her vote. “It’s the right thing to do.”

Republicans were teetering on the edge of threatening one another during the speeches that followed the final vote to send Ellsworth’s case to the justice department.

“I’m angry. I’m embarrassed and angry,” said Sen. John Fuller, R-Kalispell, who voted against the motion to pause the ethics committee. “And you do not want to make me angry because I have been known to hold a grudge for a long time.”