Tentative poll says DOR didn’t follow intent of law

HELENA – Tentative results of a poll of 150 members of the state Legislature show a solid majority believe the Department of Revenue acted contrary to the legislative intent of a state senate bill when it proposed exempting religious schools from a from a tax credit program.

A draft letter to Secretary of State Linda McCulloch finds that 87 lawmakers say the proposed rules are contrary to legislative intent and 49 believe they are consistent.

“I am not surprised,” said Sen. Fred Thomas, R-Stevensville who requested the poll and serves as chairman of the Revenue and Transportation Interim Committee, which will discuss the poll about 1 p.m. Monday in Room 317 of the state Capitol.

“When the Legislature passed this legislation, we fully knew we want this tax credit to apply to all kids in Montana,” he said. “So now, the (Gov. Steve) Bullock administration says it can’t apply to religious kids and is discriminating against religious kids in their education, and I am surprised at that.”

A spokesman from Bullock’s office was not immediately available for comment.

However, Eric Feaver, president of the MEA-MFT teachers’ union, commended the DOR for following the bill as written, not its intent.

“I think the Department of Revenue reads the language the way it is supposed to be read,” he said Friday.

“Intent doesn’t mean anything in the last analysis,” he said. “I am surprised the Legislature apparently believes they can turn clear language in a bill they passed into something they intended to pass.”

He said the bill does not discriminate. There are public schools and it is a personal choice to attend religious schools. It should not be the public responsibility to help fund or practice.

“The Department of Revenue from my point of view, reads the bill for the exact words contained in the bill,” he said.

Feaver also said the poll results show there were a “whole lot of legislators” who didn’t read the bill.

The bill’s author, Sen. Llew Jones, R-Conrad, said Friday he was glad to see the overwhelming support from lawmakers in the poll.

“It was incumbent upon the department to write the bill as it was written, not to serve as judge, jury and executioner,” he said. “Legislative intent is legislative intent and that is how the rules should be written.”

He said transcripts will show he was clear in the 2015 legislative session when he said this bill was to be for all private schools.

DOR Director Mike Kadas explained his reasoning in a Nov. 10 letter to the lawmakers. He said executive branch officers had to take an oath of office to follow the U.S. and Montana constitutions.

“From this I have an obligation to take into account our Constitution when writing and implementing statute or writing and implementing administrative rules,” he wrote.

He said the Montana Constitution was explicit in not allowing any such appropriation for any sectarian purpose.

“The tax credit is at the very least an indirect payment,” he wrote. “Thus, the draft rules for implementation of SB 410 limit the use of the tax credit for donations to non-religious organizations.

He also said it was difficult for the department to come to any other interpretation of the statute.

The poll’s results will be published with the department’s final rule, which are expected to be prepared by mid-December and go into effect Jan. 1. The poll results can be used as evidence in a lawsuit challenging the final rule.

The proposed rule is part of Senate Bill 410, passed by the 2015 Legislature, which allows tax credits for donations of up to $150 to private school scholarships or to innovative educational programs in public schools, up to $3 million in the first year.

The DOR has proposed excluding religious schools from the rule on the grounds that the Montana Constitution bars appropriations to sectarian schools, organizations or affiliated groups.

There are more than 145,000 students in public schools and an estimated 7,200 in private schools in Montana.

On Nov. 6, Thomas requested the poll. The last time a poll of the Legislature was conducted was in 2005. State law requires a poll if 20 or more lawmakers object to a proposed rule while the Legislature is out of session.

Since then, another poll has been requested. Lawmakers are being asked their opinion on SB 289, and whether the commissioner of political practices has OK’d campaign reform legislation some have said is vague and overly broad. Commissioner Jonathan Motl filed the rules with the secretary of state on Tuesday and. They are expected to go into effect in January.

On Monday the Revenue and Transportation Committee is expected to discuss what to do with the ballots received after the Nov. 24 deadline.

Jones said he expected the issue to go to court and he hoped students would be better off when it was settled.

He said the “overreach” of the DOR is what frightened him more than anything else.

“We have that enough of that issue on the federal level,” he said.