The Montana Senate president and Legislative Auditor both referred investigations into Senator Jason Ellsworth, R-Hamilton, to the Department of Justice late February 14.

“Despite serious concerns about whether the Senate can legally hand off our Ethics Committee investigation to the Department of Justice, on Friday I made a referral in compliance with the Senate’s vote to send the ethics matter to the Attorney General,” said Senate President Matt Regier, R-Kalispell, in a prepared statement.

The Senate Ethics Committee had alleged criminal and ethics violations following findings from the Legislative Auditor.

Findings from the Legislative Auditor earlier said Ellsworth abused his power and wasted state resources in pushing a $170,000 contract to approval.

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Ellsworth’s lawyer has demanded the findings be retracted and described them as defamatory.

Legislative Auditor Angus Maciver confirmed Saturday that the referral was related to the waste, fraud and abuse hotline investigation into Ellsworth’s contract, but would not provide any documents related to the matter “pending further guidance from DOJ.”

In an email Saturday, Senate President Minority Leader Pat Flowers, D-Belgrade, said he was glad to hear the matter was in the hands of the chief law enforcement officer of the state, Attorney General Austin Knudsen.

“Given the Legislative Auditor’s findings, we expect the Attorney General will carry out a thorough and timely investigation of this matter,” Flowers said in a statement.

The Senate had convened its Ethics Committee to investigate the matter, but Democrats and a group of Republicans on Feb. 6 voted to suspend the internal investigation and refer the allegations of both criminal and ethical wrongdoing to the Department of Justice.

Flowers said again Saturday the referral is proper because the Ethics Committee’s process “became overly political” and several of the charges were criminal in nature.

“That is the appropriate place for this investigation,” Flower said of the DOJ in a statement. “Meanwhile, the Senate can now focus clearly on the priorities of the people.”

However, the legal question of whether the Department of Justice could take on such a referral left the matter in limbo for the last week. Attorney General Knudsen told the Montana State News Bureau on Wednesday that he was unsure if his office had the authority to take a legislative referral.

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In his own letter to Knudsen, obtained by the Daily Montanan, Regier said he wanted to “clarify a jurisdictional issue,” adding that the referral of both ethical and criminal allegations “appears to invite error.”

“Please advise whether the Department of Justice will pursue the current ethics investigation into the senator from Senate District 43, or if this component of the matter remains within the jurisdiction of the Senate,” Regier wrote.

Violations of the Code of Ethics, Senate Rules, and Senate Standards of Conduct are not within the purview of the AG’s office, the letter states. Rather, ethical violations fall under the Commissioner on Political Practices — but not by a legislator when a legislative act is involved.

Regier also notes that the Senate retains jurisdiction over disciplinary matters of its members.

Flowers has resisted an internal probe, citing concerns about due process for Ellsworth.

The Legislative Auditor, on the other hand, can directly report potential offenses to the Attorney General, according to the Legislative Audit Act.

In a statement, Senate Democrats said they expect the allegations to be reviewed and prosecuted, if appropriate, based on the evidence.

The Department of Justice could not be reached Saturday by email about how it will proceed.

Lewis and Clark County Attorney Kevin Downs has not previously responded to questions about how his office will address the matter if it is referred there, and his office did not immediately respond to an email Saturday.

Daily Montanan is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: info@dailymontanan.com.