Judge Orders State to Halt Paychecks for Commerce Department Director, but Questions Remain

A Cascade County District Court judge ruled last week that Montana Department of Commerce Director Marta Bertoglio was unconstitutionally appointed to the position, and therefore should not continue working or receive paychecks and benefits. 

But the office of Republican Gov. Greg Gianforte, who tapped her for the position, said she will remain in the job as another part of the case plays out.  

Last year, Gianforte appointed Bertoglio, then a Republican legislator representing Jefferson County, to head the commerce department. That move spurred one of Bertoglio’s former constituents, Jordan Williams, to sue Gianforte, claiming that appointing Bertoglio during her legislative term violated the state Constitution. Bertoglio was elected to a term set to end in January 2027, but has since been replaced by Rep. Mark Reinschmidt, a Whitehall Republican. 

The state commerce department oversees much of Montana’s tourism industry, economic development and affordable housing initiatives, in part by distributing grants to businesses and communities.  

In her Thursday ruling, Cascade County District Court Judge Elizabeth Best cited a portion of the Montana Constitution called the “disqualification clause.”

“No member of the legislature shall, during the term for which he shall have been elected, be appointed to any civil office under the state,” the provision reads. 

Exactly what the court ruling means for Bertoglio and the Department of Commerce remains unclear, in part because litigation continues about whether Best has jurisdiction to hear the case. All judges in Lewis and Clark County — where the case was originally filed — have been taken off the case after both sides substituted judges and one recused himself.

Before Best’s ruling, the governor’s office argued in a filing with the state Supreme Court that Best can’t rule on the matter, citing a recently enacted law that some replacement judges must be selected at random. It remains unclear if Best was put on the case at random. 

“The governor’s office is reviewing the decision but believes the ruling isn’t effective until after the appeal of judge substitution is resolved and the case is remanded by the Montana Supreme Court,” Kaitlin Timken, a spokesperson for the governor, told Montana Free Press via email. 

Best’s ruling seeks to bar Department of Administration Director Misty Ann Giles, another defendant, from paying Bertoglio’s salary or providing benefits. The Department of Administration and the Department of Commerce declined to comment for this story. Timken said in an email that Bertoglio will continue to work and receive paychecks and benefits. 

Bertoglio is paid $69.90 per hour, or roughly $145,400 per year, according to state data. 

If Best’s ruling stands, the lawsuit would likely not impact Bertoglio’s previous work at the department, explained Andres Haladay, an attorney representing plaintiff Jordan Williams. 

“We did not ask the court to do anything or make any determinations about past actions in this case, and this honestly is a question that is just not answered by this case,” Haladay said in a phone interview. 

Bertoglio is not the first Republican legislator to be appointed by Gianforte to lead a state agency. The Department of Commerce was previously led by Paul Green, who was appointed during his first term in the Legislature. Lottery Director Bob Brown and Jimmy Patelis, a member of the Montana Board of Pardons and Parole, also received their jobs from Gianforte during their elected terms. 

Ryan Osmundson, the governor’s budget director, was appointed to the position by Gianforte in 2021 while serving in the state Senate. Osmundson’s appointment spurred similar questions about constitutionality at the time.

Those previous appointees were not named in the current case, and their legislative terms have lapsed. 

In response to the constitutional provision that holds a legislator can not be appointed to a state civil office during their term, attorneys for the governor’s office have argued that once a legislator resigns their role, their “term” is up, meaning the disqualification provision does not apply. 

Best’s order points out that delegates at the 1972 Montana Constitutional Convention took up that exact scenario when they discussed whether a legislator can “artificially” terminate their term of office by resigning. 

“The transcripts make clear that the delegates sought to retain the meaning of the 1889 disqualification provision, which barred a legislator from resigning from office to secure a different appointment during their term of office,” Best wrote. “Consistent with more than eight decades of precedent, they sought to maintain separation of powers, protect against corruption, and uphold the morals and principles of the people of Montana.”

Following news of the ruling, Haladay celebrated the decision. 

“Montana’s disqualification provision is key to preserving the integrity of our institutions,” he said in a press release. “Every Montanan deserves a just and legitimate government, where representatives are responsive above all else to the priorities of the people they represent. The court’s decision upholds the Montana Constitution and carries out the delegates’ stated meaning and intent.”

Zeke Lloyd contributed reporting.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.