MINOT, N.D. — Rep. Mike Motschenbacher is a freshman lawmaker currently serving his Bismarck-area constituents in the first legislative session of his first term in office.
But Rep. Motschenbacher is also the executive director of the North Dakota Gaming Alliance, a powerful organization representing a burgeoning charitable gaming industry that has, thanks to the proliferation of electronic pull tab machines, exploded to become a nearly $2 billion industry in our state .
North Dakota has a part-time Legislature, meaning most lawmakers have a day job. It's not unusual for their duties as elected officials to intersect with their professional and pecuniary interests. Teachers weigh in on pay raises for educators. Farmers help make agriculture policy.
It is deeply unusual, however, for an elected lawmaker to also be the head of a powerful lobbying organization. Motschenbacher himself hasn't registered as a lobbyist. His organization employs the services of Scott Meske, who is one of at least a half dozen lobbyists serving charitable gaming interests in the current legislative session, according to lobbying registrations filed with the Secretary of State's Office.
"My understanding of this is that if you are here testifying in front of a committee and representing an organization, you are required by law to register as a lobbyist with the Secretary of State's Office," Secretary of State Michael Howe, who was just elected to that job months ago, said when I spoke to him.
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Howe said his office hasn't scrutinized Motschenbacher's activities. "As far as we know, he hasn't testified on anything on behalf of the Gaming Alliance. Legislators don't have to register [as lobbyists] because they're representing their districts. Mike has testified as a lawmaker. I don't know if it's been on gaming issues."
Howe said nobody in his office is aware of a previous situation like Motschenbacher's, at least in the last couple of decades.
Motschenbacher is investing a lot of his time in the legislature on bills important to his employers at the Gaming Alliance, and is almost omnipresent on gaming issues.
Before writing this column on Jan. 25, I was watching an 8 a.m. hearing of the House Industry, Business and Labor Committee on a bill aiming to change the rent structure between bars and charitable gaming organizations. Motschenbacher could be seen in the audience observing his lobbyist, Meske, testifying on the bill. Afterward he could be seen hustling out of the room to make a 9 a.m. meeting of the Finance and Tax Committee, of which he's a member.
Motschenbacher also authors email blasts sent to gaming interests and state officials tracking gaming-related bills, urging support for some and suggesting that others should "die," and generally organizing his industry's presence and influence at the Legislature.
He has also been organizing meetings with state gaming regulators who, per emails I've obtained through an open records request, find themselves flummoxed by how to deal with him.
Should they treat him as a state lawmaker who will be voting on their budgets? Or as a lobbyist?
"Does it matter if I meet with Mike Motschenbacher?" Deb McDaniel, the director of the gaming division in the North Dakota Attorney General's Office, asked Attorney General Drew Wrigley and Deputy Attorney General Claire Ness in a Dec. 14, 2022, email. "He is contacting me as ND Gaming Alliance not as a Representative. I don't mind meeting with him but what am I supposed to do or say about any bills he thinks are going to be introduced?"
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"As a legislator, he is unable to work as a lobbyist, so it's unclear what 'hat' he's wearing here," Ness replied. "Also you have a lot of other priorities right now, so don't feel obligated to meet with him as a representative of NDGA. We can be helpful to legislators, but that's not the nature of his request."
In a Dec. 15 email, Motschenbacher asks McDaniel if he can bring a lobbyist to a meeting with her. "How should I respond to this if at all?" McDaniel asked Ness in a forward of Motschenbacher's email.
"I haven't talked with Rep. Motschenbacher about all the details of his work with the NDGA. If he's working in a capacity that meets the definition of a 'lobbyist'" in the North Dakota Century Code, "that raises questions," Ness replied. "If he's working in the capacity of a legislator, we can't meet with him. I think this email indicates he's wearing his NDGA hat."
I reached out to McDaniel for comment, but she declined.
There are ethics policies state lawmakers are obliged to follow when it comes to intersections between their official duties and their private lives, according to John Bjornson, the director of Legislative Council.
When I asked him about Rep. Motschenbacher's situation, he pointed me to House and Senate Rule 321 , which states, in part, that "any member who has a personal or private interest in any measure or bill shall disclose the fact" to the rest of the legislative chamber and "may not vote thereon without the consent" of their fellow lawmakers.
Joint Rule 1001 states, in part, that "it is not enough that members avoid acts of misconduct. They also must avoid acts that may create an appearance of misconduct."
Joint Rule 1002 prohibits lawmakers "using or attempting to use the member's influence in any matter involving a substantial conflict between the member's personal interest and duties in the public interest" and "using the member's official position to obtain financial gain for the member, the member's family, or a business associate or to secure privileges or exemptions in direct contravention of the public interest."
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Is it possible for Rep. Motschenbacher to comply with those rules as both the executive director of a gambling special interest group and an elected representative from District 47?
He says yes, even though, when I spoke to him, he acknowledged getting a paycheck from the taxpayers to serve as a lawmaker while he simultaneously collects one from the Gaming Alliance.
"I'm still working a full-time job," Motschenbacher told me. "I leave the Legislature, and I go down to my office, and I'm working. However, I'm not doing any lobbying. That's why I hired a lobbyist."
He told me his pay from the Gaming Alliance isn't tied to his work in the Legislature. "I am absolutely not affected about any of that. There's no bonuses, no incentives, no raise, nothing if a bill passes or fails," he said.
Motschenbacher also told me that scrutiny on his day job felt unfair. "Most business owners that are here are still getting paid," he said. "Farmers that are here are getting paid. I'm a little confused about why we're picking on one guy because of one industry that's a hot-button issue. I'm following all the rules."
I read Motschenbacher the ethics rules Bjornson pointed me toward, and asked him if he felt he was complying with them. "I absolutely do. I have not done any lobbying. That's what my lobbyist is. The only thing I've done, and I cleared this with council, is I asked if I can answer a question if asked, and I can."
"I haven't spoken on one bill on the floor," he continued. "There have been some bills up that there were statements made on the floor that wasn't correct, and I could have stood up and corrected them, but I didn't."
Asked if he could understand why state regulators would be apprehensive about talking to someone who is both an elected official and a paid representative for an industry they regulate, Motschenbacher said he does.
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"I do see that. At no point was I going to try and influence the AG's office. I can understand if the attorney general's office is concerned about my position. That's fine and I respect it," he said, adding that he never did end up meeting with McDaniel or anyone from the AG's office.
Correction: A reference to Deputy Attorney General Claire Ness was wrong in an earlier version of this column. It has been updated with the correct information.
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