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Lawyers: Special counsel necessary

Legal questions surrounding North Dakota's embattled workers' compensation agency have prompted some lawyers to call for a special prosecutor with broad authority to review possible criminal wrongdoing.

Legal questions surrounding North Dakota's embattled workers' compensation agency have prompted some lawyers to call for a special prosecutor with broad authority to review possible criminal wrongdoing.

Because Workforce Safety and Insurance is a state agency, it sometimes turns to the Office of the Attorney General for legal advice - a situation some lawyers say is fraught with potential conflicts of interest.

In fact, Attorney General Wayne Stenehjem last week asked Grand Forks County State's Attorney Peter Welte to decide whether two WSI "whistle-blower" employees were met with retaliation after reporting suspected illegal activity.

Richard Riha, the Burleigh County state's attorney, had asked Stenehjem to take over the possible retaliation case because of a possible conflict involving his own office - a WSI executive also serves as a Burleigh County commissioner.

North Dakota should consider some avenue to appoint independent counsel or special prosecutors when cases of public corruption arise because of the problems posed by conflicts, Riha said.


"There really is no mechanism for having an independent prosecutor to come in," he said. "We don't really have that."

If the attorney general decides he has a conflict, it's still problematic for him to handpick another prosecutor to step in because the appearance of a conflict still could remain, Riha said.

The question of a conflict concerning Stenehjem's office arose last week when the lawyer for one of the whistle-blowers who believes he has suffered retaliation complained about records showing contacts between assistant attorneys general and WSI lawyers.

In fact, WSI's four staff lawyers carry the title special assistant attorney general, but report to the agency, not the attorney general.

Tom Tuntland is a lawyer who represents whistle-blower Jim Long, WSI's chief of support services who was suspended with pay after talking to criminal investigators about suspected wrongdoing. Tuntland provided copies of documents he said were notes from WSI lawyers.

The notes include mention of discussions with two assistant attorneys general, including a Dec. 6 reference to "discussed idea" and "request of A.G. to provide stmt. (statement) to Todd (Flanagan, a WSI investigator and whistle-blower who was fired) outlining reasons for termination."

Stenehjem, who said he hadn't reviewed the documents, said his lawyers routinely tell officials from WSI and other agencies what the law is - but never tell them what action to take. Sometimes, however, WSI lawyers have asked for recommendations, he said.

"That, of course, is not our job," Stenehjem said. "Our job is to tell them what the law is."


Heidi Heitkamp, who was Stenehjem's predecessor as attorney general, said the potential for conflicts of interest involving the problems at WSI call for a special prosecutor with broad authority.

If Stenehjem has only asked Welte to review investigative files concerning possible retaliation against whistle-blowers, that leaves unresolved the underlying possible illegality reported by whistle-blowers, she said.

"You've got to look at what's going to give people a sense that things are being taken care of and getting reviewed," Heitkamp said. "I think how it's been structured so far is too narrow."

When faced with allegations of public corruption, Heitkamp, a Democrat, said she asked former prosecutors who were Republicans to step in, to avoid the appearance of political favoritism. She added:

"You sit them down and say, 'Here's what I want done. Here's your charge, here's the scope of the investigation.' Send them off and make them come back with their findings. They can spend a few bucks and bring in a crack team of investigators."

Investigations remain ongoing, Stenehjem said. Ultimately, the underlying allegations brought forward by the whistle-blowers will be addressed.

Riha said perhaps the North Dakota State's Attorneys Association can discuss whether new laws are needed to resolve conflicts of the kind presented by the ongoing WSI turmoil.

Stenehjem countered that North Dakota doesn't need a law providing for an independent counsel or special prosecutor.


"There are problems at WSI to be sure," he said. "And they need to be fixed." He said the original criminal investigations at WSI, which triggered most of the whistle-blower requests for protection, arose from a state audit finding misapplication of public funds.

"Ultimately it will come to public light," Stenehjem said, noting outside consultants are examining workers' denied claims, among other reviews.

But Heitkamp said top officials have been too slow to act. Meanwhile, the audit is almost 2 years old, meaning statutes of limitations could become a problem.

"Will what the attorney general just did solve the problem?" she asked. "Were all the potential criminal complaints out there - are they being taken care of?"

Fortunately, Heitkamp said, North Dakota seldom faces public corruption cases. "As a result, we aren't handling this one very well."

Readers can reach Forum reporter Patrick Springer at (701) 241-5522 Lawyers: Special counsel necessary Patrick Springer 20080114

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