ND Ethics Commission has no authority to punish officials violating ethics laws, state leaders argue

Yahoo

3 days ago

Photo illustration by Mark Harris for ProPublica. Source images: Getty, Kyle Martin for the North Dakota Monitor.
This article was produced for ProPublica's Local Reporting Network in partnership with the North Dakota Monitor. Sign up for Dispatches to get our stories in your inbox every week.
Ever since North Dakota voters created an ethics watchdog agency seven years ago, dubious lawmakers have pushed back against giving it power to actually keep an eye on state officials.
That was true in the session that just ended, as legislators shut down many requests from the Ethics Commission, keeping the agency on a modest budget and rebuffing measures that would have given it more latitude in its investigations.
The offices of the governor and attorney general also argued during the session that the state constitution does not permit the commission to create or impose penalties for ethics-related violations.
'I was hopeful that the tide was turning,' said Rep. Karla Rose Hanson, a Democrat from Fargo and member of the Appropriations Committee, which worked on the commission's budget. 'But my general perspective is that the legislative body as a whole, specifically the majority party, is very hostile to the Ethics Commission and their work.'
Voters created an ethics commission in North Dakota. Then the Legislature limited its power.
North Dakotans, fed up with what they saw as ethical lapses by public officials, voted in 2018 to amend the state constitution and create the Ethics Commission. The amendment set rules for public officials and empowered the commission to both create more rules and investigate alleged violations related to corruption, elections, lobbying and transparency.
North Dakota was one of the last states to establish an ethics agency and since then, the commission has struggled to fulfill its mission, the North Dakota Monitor and ProPublica reported this year. The amendment left some ambiguity about the commission's role and whether it can enforce ethics laws, leading to ongoing disagreements about how it operates.
State leaders' actions this year further hamstrung the agency at a time when public officials across the country have been working, in various ways, to reverse or rein in policies created through citizen-led ballot initiatives, including those related to abortion and employee benefits.
Danielle Caputo of the national nonprofit Campaign Legal Center said several state governments have worked to undermine ethics initiatives in particular. North Dakota leaders' assertions this year that the ethics agency cannot punish officials for wrongdoing is another example of that, she said.
'We have seen what appears to be a concerted effort in those states to overturn ballot initiatives or to twist their language in a way that's most beneficial to those who want less enforcement,' said Caputo, whose organization has studied the issue. She said North Dakota is 'one of the more egregious examples of that that I've seen.'
In an email to the North Dakota Monitor and ProPublica, the governor's office called Caputo's take a 'gross mischaracterization' and said the governor does not oppose the Ethics Commission. In a separate email, Chief Deputy Attorney General Claire Ness called the notion that the attorney general's office is undermining the intent of voters 'unimaginable.'
As government officials debate the commission's authority, North Dakotans have reported more concerns about ethics violations to the agency this year than in any other. The commission as of late May had received 72 complaints this year. There were 41 complaints filed in all of 2024.
By the end of last month, the commission had 63 pending complaints, some of which date back to 2022. The agency — which has three full-time staff members and five commissioners who receive a small stipend to oversee the work — has yet to disclose whether it has substantiated a complaint. (State law requires that the commission keep complaints confidential until the end of the process, so little is known about the nature of the filings.)
The Ethics Commission supported House Bill 1360 this session that it said would have overhauled its process to speed up investigations and allow it to close cases sooner.
Under the measure, sponsored by eight Republicans and two Democrats, the commission would have been able to settle and dismiss complaints at any time instead of at only certain stages in the complaint process. It also would have been allowed to investigate alleged ethics violations without someone filing an official complaint. The agency currently cannot investigate some North Dakotans' tips because they must be submitted as formal complaints, which some complainants are uncomfortable doing, agency staff have said.
Staff from the offices of Gov. Kelly Armstrong and Attorney General Drew Wrigley, both Republicans, testified against the bill because they said it would have given the commission too much power.
Faced with strong opposition from state leaders and their own reluctance to give the agency more authority, the House voted overwhelmingly to reject the legislation. Most of the House sponsors voted against it.
Rep. Austen Schauer, a West Fargo Republican who chaired the committee that worked on the legislation, acknowledged tension between the Ethics Commission and the Legislature and oppositional testimony from the executive branch.
'The bill was basically DOA, and we just had to move on,' Schauer said.
Lawmakers instead settled on tweaks to the existing process; one requires the commission to develop time management standards and another allows it to informally settle ethics complaints with the accused. Those settlements would only be made public if all parties to the agreement consent.
'There's people that for years have been sitting with this complaint over their head, which is absolutely unfair,' said Rep. Mike Nathe, a Bismarck Republican who has criticized the commission and proposed some of the changes. He also said he thinks the commission's caseload includes fake complaints submitted by North Dakotans who want to 'weaponize' the system against their political opponents. (Because state law requires that the commission keep complaints confidential, this claim cannot be verified.)
Rebecca Binstock, the Ethics Commission's executive director, said the agency will look for ways to work around the hurdles that continue to slow down the investigation process. 'The Commission must now consider how to fix the process absent legislation,' Binstock wrote in an email.
The Legislature also approved a measure that protects its members from prosecution for voting on something that would provide them with a financial benefit as long as they disclose their conflicts.
Lawmakers, some of whom said they want to keep the commission small out of consideration to taxpayers, also turned down the agency's request for $250,000 over the next two years for a fourth staff member who would conduct training and education for the public. That would have allowed current employees to spend more time investigating complaints, agency staff said.
'I don't recall a discussion with the public being, 'We're gonna have a multimillion-dollar branch of government,'' Rep. Scott Louser, a Minot Republican, said during a legislative hearing in April.
State leaders also argued the Legislature is the only entity that can create penalties for ethics violations and delegate enforcement of those penalties to state agencies. The commission can only punish officials for wrongdoing if the Legislature gives it that authority, they said.
Chris Joseph, the governor's general counsel, testified this year that if the commission were given the power to both create and enforce penalties, it would be 'defining, executing and interpreting its own rules' without oversight from other parts of state government.
The commission, however, says its enforcement authority is implicit in the constitutional amendment. That interpretation could soon be tested. Binstock indicated in an email that commission staff members have wrapped up investigating several cases and are waiting on commissioners to take action, which could include imposing penalties.
Ellen Chaffee, part of a group called the Badass Grandmas that organized the ballot initiative and drafted the amendment, said voters intended for the Ethics Commission to impose punishments for wrongdoing.
'The people who worked on the amendment had understood that the only way to have unbiased follow-up on any violations of ethics rules was for the Ethics Commission to have that responsibility,' she said.
Mike Nowatzki, the governor's spokesperson, said if the amendment does not reflect what the advocates wanted, 'they can always seek to clarify it with another constitutional amendment.'