Senate Bill No. 308
Introduced By beck, stang
A Bill for an Act entitled: "An Act requiring state and local government entities to prepare a written statement of
legal authority before taking certain action; providing definitions and exceptions; providing for civil actions ; creating an
offense AND A CIVIL PENALTY; amending section 7-1-106, MCA; AMENDING SECTION 7-1-106, MCA; and providing an immediate effective date and an applicability
STATEMENT OF INTENT
THE LEGISLATURE FINDS THAT THERE HAVE BEEN INSTANCES IN WHICH DECISIONS MADE BY GOVERNMENT ENTITIES EXCEED, OR APPEAR TO EXCEED, THE LEGAL AUTHORITY OF THE GOVERNMENT ENTITY. IN SOME INSTANCES, SUFFICIENT LEGAL AUTHORITY EXISTS FOR A PARTICULAR GOVERNMENT ACTION BUT A GOVERNMENT EMPLOYEE MAY NOT KNOW OF THE AUTHORITY OR FOR SOME REASON DOES NOT DISCLOSE THE AUTHORITY TO THE PERSON AFFECTED BY THE GOVERNMENT ACTION. BECAUSE THE POWER OF GOVERNMENT COMES ULTIMATELY FROM THE PEOPLE SERVED BY THE GOVERNMENT, IT IS APPROPRIATE THAT GOVERNMENT SHOULD NOT ACT WITHOUT KNOWING WHAT POWER IS BEING EXERCISED ON BEHALF OF THE PEOPLE. THEREFORE, THE LEGISLATURE FINDS THAT THERE IS A NEED FOR GOVERNMENT ENTITIES TO MAKE KNOWN THE LEGAL AUTHORITY UNDER WHICH THEY ACT AND TO MAKE KNOWN THE FACTUAL BASIS FOR THEIR ACTION AS WELL.
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Short title. [Sections 1 through 5] may be cited as the "Government Accountability Act".
NEW SECTION. Section 2. Findings and purpose.
(1) The legislature finds that there have been instances in which
decisions made by government entities exceed, or appear to exceed, the legal authority of the government entity. In some
instances, sufficient legal authority exists for a particular government action but a government employee may not know of
the authority or for some reason does not disclose the authority to the person affected by the government action. Because
the power of government comes ultimately from the people served by the government, it is appropriate that government
should not act without knowing what power is being exercised on behalf of the people. Therefore, the legislature finds that
there is a need for government entities to make known the legal authority under which they act and to make known the
factual basis for their action as well. (2) The purpose of [sections 1 through 5] is to require government entities to make known their legal authority and the
factual basis for their actions. The benefits of this requirement will be that government officials will reaffirm their legal
authority to act and that both the government and the people will have a fuller understanding of the limits of the law and the
facts to which the law applies. This understanding will benefit both government and the people by helping to resolve
disputes between government servants and the people at a lower level, without lengthy and costly litigation, by instilling
trust in government, and by helping to identify deficiencies in the law so that those deficiencies may be addressed by
legislative action. For these purposes, [sections 1 through 5] must be liberally construed.
NEW SECTION. Section 3. Definitions. As used in [sections 1 through 5], the following definitions apply:
(1) "Aggrieved" means that a person can demonstrate a specific personal and legal interest, as distinguished from a general interest, that has been adversely affected.
(2) (a) "Government act" means
: (i) the denial or issuance with conditions of a permit, certificate, license, or other written authority for action SIMILAR OR
EQUIVALENT RIGHT OR PRIVILEGE issued by a government entity ;. (ii) the refusal by a government entity to allow action proposed by a person other than through the issuance of a permit,
certificate, license, or other written authority; or (iii) a request or demand by a government entity that a person not take or cease taking a particular action.
(b) The term does not mean:
(i) litigation in which a government entity or other person litigates the authority of the government entity to take an act
provided in subsection (2)(a);
(ii) an act provided in subsection (2)(a) for which a citation or
other written document WARNING is issued, other than the
statement required by [section 4], on which a reference clearly appears to the legal authority for the government action .; OR
(III) A LEGISLATIVE ACT BY THE STATE OF MONTANA.
(3) "Government employee" means: (a) an individual elected or appointed to an office of a government entity; or (b) a permanent or temporary full-time or part-time employee of a government entity. (4)(3) "Government entity" means a state agency or a local government unit. (5)(4) "Local government unit" means a city, county, town, unincorporated municipality or village, or special taxing unit
or district and any commission, board, bureau, or other office of the unit. (6)(5) "Rule" has the meaning provided in 2-4-102. (7)(6) "State agency" has the meaning provided in 2-4-102(2)(a). (8)(7) "Statement of government needs and authority" or "statement" means the statement required by [section 4].
NEW SECTION. Section 4. Statement of government
needs and authority required. (1) A WHEN A government
entity may not take TAKES a government act without first issuing, AS DEFINED IN [SECTION 3 (2)(A)], IT SHALL
ISSUE to the person or persons directly and substantially affected by the government act ACTION APPLICANT a written
statement of government needs and authority prepared as provided in this section. THE STATEMENT MUST BE
ISSUED WITHIN 15 DAYS OF THE GOVERNMENT ACT.
(2) The statement must clearly:
in detail the factual basis or reason for the government act;
(b) cite the statute, rule, ordinance, RESOLUTION, or other legal authority for the government act and explain how the legal authority is interpreted by the government entity so as to authorize the government act; and
(c) provide information about any appeal or other process by which a person aggrieved by the government act may seek relief from the government act.
NEW SECTION. Section 5. Civil action for damages authorized --
misdemeanor -- penalty. (1) A person aggrieved
by a government act may bring a civil action for damages, in district court in the county in which a government entity has
an office, against a government entity that takes a government act without A FACTUAL BASIS OR legal authority, in
violation of A FACTUAL BASIS OR its legal authority, or that is otherwise arbitrary, capricious, or an abuse of discretion.
Damages are the greater of actual damages or $1,000. If damages are awarded, the court shall also award the person's costs
and reasonable attorney fees.
A IF A government entity that willfully or negligently fails to issue a statement of government needs and authority as
required by [section 4] may be fined, A CIVIL PENALTY OF not less than $500 $100 or more than $1,000 MUST BE
IMPOSED. (3) A government employee who willfully or negligently fails to issue a statement of government needs and authority as
required by [section 4] is guilty of a misdemeanor and may be fined not less than $500 or more than $1,000, imprisoned for
not more than 1 year, or both. Section 6. Section 7-1-106, MCA, is amended to read: "7-1-106. Construction of self-government powers. The powers and authority of a local government unit with
self-government powers shall must be liberally reasonably construed. Every reasonable doubt as to the existence of a local
government power or authority shall be resolved in favor of the existence of that power or authority."
SECTION 6. SECTION 7-1-106, MCA, IS AMENDED TO READ:
"7-1-106. Construction of self-government powers. The powers and authority of a local government unit with self-government powers
shall must be liberally construed. Every Except for a power or authority to deny or issue with
conditions a permit, certificate, license, or similar or equivalent right or privilege, every reasonable doubt as to the
existence of a local government power or authority shall must be resolved in favor of the existence of that power or
NEW SECTION. Section 7. Applicability. [This act] applies to a government act as defined by [section 3] taken after [the effective date of this act].
NEW SECTION. Section 8. Effective date. [This act] is effective on passage and approval.