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Members of the newly formed North Dakota Ethics Commission meet for the second day at the North Dakota Heritage Center in Bismarck on Friday, Sept. 13. Commissioners, from left, are Paul Richard, Ward Koeser, Vice-Chairman Cynthia Lindquist, Chairman Ron Goodman and retired Brig. Gen. David Anderson. On the far right providing counsel is Assistant Attorney General Allyson Hicks.

ND Ethics Commission to look into potential constitutional and statutory conflicts

North Dakota's new Ethics Commission might request an attorney general's opinion as to apparent conflicts in constitutional and statutory language related to its duties and definitions.

The board's attorney and Commissioner Paul Richard will gather information before the next meeting on what legal conflicts might exist.

The main question is the confidential whistleblower hotline described in the constitutional amendment approved by voters and statutory language that the commission "may not investigate, refer or take other action" on complaints provided without a complainant's name, address or phone number.

"To me that's just diametrically contrary to this constitutional provision that mandates a confidential whistleblower hotline," Richard, an attorney and retired Sanford Health executive from Fargo, said Friday, Sept. 13, as the group met for a second day.

Chairman Ron Goodman said he has visited with the attorney general's office about constitutional issues and requesting opinions. Goodman said confidentiality of complaints "is one that is very glaring."

Another he sees is the statutory definition of lobbyist, which requires state registration, and how the constitutional amendment might apply to nonregistered individuals.

"The constitution doesn't indicate that a lobbyist has to be a registered lobbyist," said Goodman, who also wondered how a gift prohibition would apply to people who aren't lobbyists but still "buttonhole" lawmakers.

"I just don't like that," Goodman said. "I'm very uncomfortable with the fact that the definition of a lobbyist is so restricted to those that register because I think there's a lot of ways to get around that."

Richard will work with Assistant Attorney General Allyson Hicks, the commission's counsel, before the board's Oct. 23 meeting to identify issues the Ethics Commission might consider including in a potential request for an attorney general's opinion on constitutional vs. statutory conflicts.

The 2019 Legislature passed Republican majority leaders' framework for implementing the Ethics Commission after voters in November 2018 approved its constitutional birth.

Rep. Jim Kasper, R-Fargo, who chaired the House Ethics Committee, previously said anonymous complaints would present roadblocks for investigating potential violations.

"It was the feeling of the House that we have to allow any person who is accused to be able to face his or her accuser in a confidential setting in front of the Ethics Commission," Kasper said in April as the ethics bill moved through its final stages.

The commission's members are invited to attend the Legislature's interim Judiciary Committee as nonvoting members for a study of the new constitutional amendment. Richard and Commissioner David Anderson, a retired brigadier general from Bismarck, plan to attend the Sept. 25 meeting.

Hicks cautioned the Ethics Commission to avoid any perception of affiliation with the other branches of government but emphasized the importance for the new board "to work cooperatively with the Legislature to work out the kinks in the laws as this whole body of law develops."

"But it is important for you guys to remain outside of any perception that you guys are a part of any other branch of government," Hicks said.