DOJ: News Release

McGrath: Legislators May Not Serve on Board of Review

HELENA – In an opinion released Monday, Montana Attorney General Mike McGrath held that a seat on the Department of Revenue’s Board of Review is a “civil office” and so legislators are constitutionally prohibited from appointment to the board.

The 1981 Legislature created the Board of Review to provide direction to the Department of Revenue, in relation to the so-called “One-Stop Licensing Program.” The one-stop program sought to streamline the registration and licensing actions of some state agencies. In 2001, the Legislature attached the board administratively to the Department of Revenue. The board includes directors of a number of state departments, the secretary of state and one member appointed by the president of the senate and one appointed by the speaker of the house.

At issue was whether the appointment of legislators to the Board of Review conflicted with an article of the state’s constitution that prohibits the appointment of a legislator to a “civil office.” Department of Revenue director Kurt Alme requested the opinion and also asked whether a “non-voting” member might be appointed to the board if such a conflict did exist.

McGrath held that a conflict did exist, since a seat on the board of review did, indeed, meet the criteria of a “public office of a civil nature” set forth in a 1927 Montana Supreme Court case:

  • The board was created by the Legislature;
  • it has executive powers delegated to benefit the public;
  • its duties are clearly defined by statute;
  • it performs its duties without supervision and
  • it has permanence and continuation.

In response to the “non-voting” question, McGrath held that such a status does not exist under statute. Even if it did, McGrath noted, a non-voting board member could still participate in board activities and exert influence over a board with executive powers.

Although they may not appoint fellow legislators to the board of review, McGrath held that legislative leaders may direct their colleagues to attend and participate in board of review meetings, “as any member of the public might.”

Finally, the opinion clarifies that legislative leaders may appoint a non-legislator to the board of review. The statute’s reference to “member” means member of the board, not member of the legislature.

An attorney general’s opinion carries the weight of law unless the Supreme Court overturns it or the Legislature modifies the laws involved.

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