North Dakota bill would keep ethics complaint process largely secret
FARGO — A bill to establish a state ethics commission pushed by GOP leaders would shield subjects of ethics complaints in secrecy until final findings are issued and would impose criminal defamation penalties on those who file “knowingly false” complaints.
House Bill 1521, legislation to implement an ethics measure passed by North Dakota voters in the November 2018 election, was introduced by Rep. Chet Pollert, R-Carrington, the House majority leader, and Sen. Rich Wardner, R-Dickinson, the Senate majority leader.
Under the bill, which will be heard Tuesday, Feb. 12, by the House Ethics Committee, ethics complaints against state government officials, including lawmakers, would be kept confidential throughout the process until the allegations were investigated and formal findings were issued.
Any meetings to investigate or try to resolve a complaint, as well as the identity of the accused official, also would be kept confidential under the bill.
At the end of the investigation, the ethics commission would review the findings and meet with the subject of the investigation to discuss the findings and investigator’s recommendations in a closed meeting.
“Essentially the only time you’re going to find out about it is when they issue written findings,” said Jack McDonald, a lawyer and lobbyist who represents newspapers and broadcasters. “It’s pretty much a closed operation for something that is supposed to bring transparency to state government.”
The secrecy of the ethics complaint process under the leadership bill so far has generated little legislative discussion, he said.
North Dakota law is inconsistent when it comes to public access to misconduct complaints against professionals. Complaints against teachers and law enforcement officers are open, but complaints against lawyers and doctors are confidential until an official determination of a violation has been made by a licensing board.
It’s important to note, McDonald said, that lawyers and doctors generally are not public officials.
McDonald is hoping to offer an amendment that “at the very least” would make an ethics complaint process public if it has been made public. In Congress, once a determination has been made that a member should be investigated, that decision is made public, he said.
Greg Stites, a lawyer who represents the group who put the ethics measure on the ballot, said the possibility of a criminal defamation charge against someone who makes a false ethics complaint would have a “chilling” effect that will discourage people from stepping forward with ethics allegations.
“It would be absolutely chilling and unnecessarily chilling,” Stites said.
Also, a person filing an ethics complaint would have to attest to the allegations within days under the leaders’ bill, a requirement that could discourage people who fear retaliation from coming forward. And potential complaint filers might not bother given the light penalties under the bill, $100 for most ethics violations.
“The process set up is so onerous to someone,” Stites said. “Why would anyone go through it?”
The group that promoted the ethics measure, North Dakotans for Public Integrity, believe the “internal procedures” of the constitutionally empowered ethics commission should be left to the ethics commission to decide, he said.
“NDPI’s position is these restrictions being placed on the ethics commission by the Legislature aren’t permissible and should be left up to the ethics commission to decide,” he said.
Ellen Chaffee, one of the measure’s leading proponents, said legislators are unnecessarily rushing to adopt legislation to implement the ethics measure.
The timeline allowed by the measure is two and even three years to adopt the more complicated provisions — time intended to allow a deliberative process, including interim study, she said.
“I find it odd that legislators don’t want to take time to get this right,” she said. “Let’s take time to figure it all out.”
As for a guide as to how to conduct the ethics complaint process, Chaffee said Sen. David Hogue, R-Minot, had an interesting proposal when he suggested the judicial conduct commission could serve as a model.
Chaffee said legislators have not accepted that the law empowering the ethics commission is now part of the North Dakota Constitution. “I’d like to see more evidence of good-faith implementation rather than second-guessing,” she said.
Backers of the ethics commission strongly prefer Senate Bill 2148, sponsored by Sen. Tim Mathern, D-Fargo, which Chaffee said is much more faithful to the intent of the measure voters passed by almost a 54 percent majority.
The measure, she said, was informed by three public opinion surveys showing public support to adopt ethics requirements for state officials, a move legislators rejected in four consecutive sessions.
“Basically we did exactly what the people of North Dakota wanted done,” Chaffee said.