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Fed-up North Dakotans, led by a group of women calling themselves the BadAss Grandmas, voted to amend the constitution and establish a state Ethics Commission six years ago. Their goal was to investigate and stop unethical conduct by public officials.
But the watchdog agency has achieved less than the advocates had hoped, undermined in large part by the legislature the commission is charged with overseeing, an investigation by the North Dakota Monitor and ProPublica has found.
The commission has not substantiated any of the 81 complaints it has received. It has dismissed 47, most because it lacked the authority to investigate them. Thirty complaints are pending, some for more than a year. Numerous tips don’t get investigated because the agency can’t proceed without a formal complaint, and complainants have said they fear retaliation if they file one, the commission’s executive director said.
“I certainly was hoping for something more rapid,” said Carol Sawicki, one of the North Dakota residents who sponsored the ballot initiative that created the commission. Creating an ethical culture in government is “going to take time,” said Sawicki, who is also treasurer of the state’s League of Women Voters branch. “Much more time than I wanted it to.”
North Dakota was one of the last states in the country to form an ethics oversight agency. The 2018 amendment set some ethical rules for public officials and empowered the commission to both create more rules and investigate alleged violations related to corruption, elections, lobbying and transparency.
But the amendment also gave the legislature a role to play, directing it “to provide adequate funds” for the commission. The amendment did not spell out how the commission would operate, and amid that ambiguity, lawmakers took it upon themselves to pass laws governing the commission’s operations and investigations.
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The legislature has consistently given the agency less money than initial estimates suggested it would need, leading to belt-tightening and at times a scramble for supplemental funding at the end of the budget cycle. The legislature also has restricted the type of complaints the body can investigate and limited the commission’s attempts to oversee lawmakers — familiar tactics to impede ethics commissions across the country, according to the Campaign Legal Center, a nonprofit that has studied the issue.
As a new legislative session begins this week in Bismarck, the Ethics Commission and its allies will ask lawmakers to approve the largest package of ethics-related legislation in recent history, including bills that could hasten investigations and allow the commission to investigate alleged wrongdoing without someone filing an official complaint. But already, lawmakers have pushed back.
Ethics reform advocates say a vigorous commission is crucial in a state where politics and the energy industry are intertwined. A North Dakota Monitor and ProPublica investigation last year detailed how Gov. Kelly Armstrong, who has extensive ties to the oil and gas industry, could face significant conflicts of interest as chair of two state bodies that regulate the industry. Armstrong said in an interview last year that he doesn’t believe his ties will present a conflict of interest, but rather that his experience will benefit the state.
The commission’s slow start is illustrated by its handling of two complaints filed in May against state Rep. Emily O’Brien. One alleges that she pushed for legislation on behalf of her employer; another accuses her of introducing and voting on bills in which she had a financial interest.
Rep. Emily O’Brien, R-Grand Forks, speaks during a meeting of the Legislative Management Committee in November. The Ethics Commission is investigating two complaints filed against her.
Credit:
Michael Achterling/North Dakota Monitor
O’Brien, who did not respond to multiple requests for comment, is the chief operating officer of the Bioscience Association of North Dakota, which has received more than $1 million in state grants funded by bills O’Brien supported. One of the bills, introduced by O’Brien, created a sales tax exemption for the bioscience industry her employer represents.
It took about seven months for the commission to complete its initial review and move the process forward — which it ultimately did on Dec. 23 after scrutiny about its lack of progress, including questions from the North Dakota Monitor and ProPublica sent to the commission three days earlier. As the process idled, O’Brien won a contested Republican primary by just 11 votes and was reelected in November to represent District 42 in Grand Forks.
The allegations against O’Brien were made public by a conservative activist, Dustin Gawrylow, who runs the North Dakota Watchdog Network. (State law requires that the commission keep complaints confidential, but citizens who file complaints can share their allegations publicly.)
The agency has made progress in some areas: It has put in place multiple ethics rules regulating gifting and conflicts of interest, expanded its public education efforts, and tried to improve transparency by requiring lobbyists to provide notice of any events they hold for lawmakers.
But Rebecca Binstock, the Ethics Commission’s executive director, has acknowledged that the investigations can get “drawn out.” “With limited staff and resources, as well as an unclear process to compel testimony and production of documents, careful review of complaints takes time,” Binstock wrote in response to questions.
That’s why the agency is asking the legislature to agree to changes and more staff.
“We’ve talked about it with legislative leadership about how we can improve this process,” said Binstock. “The hope is we can change that process to make it better, make it more efficient.”
Legislature “Tried to Subvert” the Amendment It took a group of retired women to force the state legislature to enact ethics reform in North Dakota.
The bipartisan group, which became known as the BadAss Grandmas, began meeting for coffee in Bismarck in 2016. The leaders included Ellen Chaffee, a retired university president and onetime Democratic candidate for lieutenant governor, and Dina Butcher, a Republican who served as deputy agriculture commissioner in the 1980s.
The duo didn’t like what they saw in their home state: landowners being railroaded by officials perceived to be in league with the oil industry; legislators taking meals, trips and gifts from lobbyists; and more. They put together a “Bad Acts List” and decided to take action.
“It seemed like there was just no conscience left,” Butcher said. “I just thought it was getting to be so pervasive and obvious in some of the quid pro quo.”
State legislators have resisted ethics oversight for decades. When an anti-corruption ballot measure passed in 1954, legislators fought it all the way up to the state Supreme Court, which struck it down 14 years later. Legislators also voted against bills that would have created an ethics commission or equivalent entity in 2011, 2013 and 2015.
“Some legislators would say we don’t need it because we don’t make any mistakes or we don’t do bad things. Well, my experience has been that that is not the case,” said Sen. Tim Mathern, D-Fargo, a lawmaker who first proposed an ethics commission decades ago. “There are things that happen that should not be happening.”
The BadAss Grandmas realized that the people could do what the legislature wouldn’t. North Dakota is one of 18 states that allow citizens to propose and vote on amendments to the state constitution. So the group mounted a campaign to add Article XIV, establishing an ethics commission to “support open, ethical, and accountable government.” One of their main goals was to limit the oil and gas industry’s power in the state. They sent text messages, posted on social media, and visited small towns to urge voters to “stand against corruption” and get special-interest money out of politics.
From left: Sarah Vogel, Kathy Tweeten, Ellen Chaffee and Dina Butcher founded the BadAss Grandmas for Democracy.
Credit:
Lea Black, courtesy of the BadAss Grandmas for Democracy
A coalition of business groups and some legislators opposed the measure on free speech and other grounds, but it nonetheless passed in November 2018 with 53% of the vote.
When the legislature met two months later, it allocated a little more than half the funding proposed in a bill by Mathern, the only legislator who sponsored the ballot measure. Mathern’s suggested budget was less than that of the agency that oversees the state judiciary, which he cited in a committee hearing as a starting point for the appropriation. The legislation approved by lawmakers also restricted the way the Ethics Commission could function; because commission members had not yet been appointed, they had no input on these decisions.
In that bill, lawmakers prohibited the commission from investigating anonymous complaints, despite the constitutional requirement for a confidential hotline for whistleblowers. They set rules that dictated the commission’s investigative process, prohibiting it from launching a full investigation until it attempts to mediate a complaint. So far only two cases have been resolved during this stage of the process; in the O’Brien case, the commission offered mediation last month, but Gawrylow rejected it, saying he wanted to get “to the bottom of the issue on behalf of the public and taxpayers” and establish clearer guidelines for all lawmakers.
“There were places where they did not follow the intent of the constitution, nor even try to,” said Kathleen Tweeten, a member of the BadAss Grandmas, about those 2019 legislative moves. “They actually tried to subvert it.”
Rich Wardner, the Senate majority leader at the time and co-sponsor of the bill that set parameters for the commission, said lawmakers were concerned the commission would be weaponized and their goal was to ensure a “fair” process.
To that end, the legislature also required the body to keep complaints confidential — and not subject to disclosure through public records requests — unless they are substantiated, which has not yet happened. Confidentiality is common, though not universal, for ethics commissions. Montana has a public docket of pending complaints against public officials on its website. Nevada maintains an online database of determination letters it issues at the end of every investigation.
Secrecy is also a departure from existing North Dakota law for internal investigations by public entities. In most cases, those records are publicly available once the investigation is completed or 75 days from the date of the complaint, whichever is sooner, regardless of whether the alleged misconduct is substantiated.
“I would like to see more transparency in the cases they’re working on,” said Cathy Bliss, a member of the League of Women Voters who regularly attends Ethics Commission meetings. “The citizens of the state need to know what their representatives are doing.”
Some legislators would say we don’t need it because we don’t make any mistakes or we don’t do bad things. Well, my experience has been that that is not the case.
—Sen. Tim Mathern, D-Fargo
In addition to rules around the functioning of the body, lawmakers set up a procedure to remove commission board members, who are appointed by a bipartisan consensus of the governor and the Senate majority and minority leaders. All three elected officials are subject to oversight by the commission, and the rules put in place allow a vote by two of them to remove a board member. Chaffee, one of the BadAss Grandmas, called that provision “horrifying.”
The legislature continued to limit the commission’s powers in subsequent years. In 2021, lawmakers declined to give the Ethics Commission authority to issue subpoenas, which it had requested. In 2023, lawmakers rejected a request from the commission that would have allowed it to investigate executive branch employees. Neither provision was included in the amendment creating the commission, and proposals to add both were defeated in legislative committees.
During those years, the commission operated with a small staff, and at one point the legislature approved just one employee; there are now three. For its part, the commission has asked for relatively small budgets in order to appear fiscally responsible, according to Binstock and legislative testimony by her predecessor, and the legislature has consistently given it less than requested.
The legislature’s actions curtailing the Ethics Commission have led Chaffee to rethink how her group wrote the initial ballot initiative. She said that at the time they believed they had to back away from provisions that might anger legislators.
“In retrospect,” she said, “I wish we had been bolder.”
“I Wish We Could Have Had the Opinion” In 2024, at least 38 complaints were filed with the commission — more than any prior year, records show. Because state law requires that the commission keep complaints confidential, there is very little insight into how the agency handles its investigations.
But new reporting by the North Dakota Monitor and ProPublica reveals how constraints have dulled the commission’s ability to take action on some complaints it has received.
One significant issue is that the commission lacks the authority to investigate certain government officials, such as employees of the executive branch. Because of that, the commission was forced to dismiss a 2023 complaint by a local ambulance board against an employee of the state auditor’s office.
In that case, voters in the Killdeer area, in western North Dakota, were preparing to vote on a proposed property tax increase that would have benefited the ambulance service. Just days before the vote, the complaint alleged, the employee in the auditor’s office violated ethics laws by sharing confidential information that portrayed the ambulance service negatively.
State Auditor Josh Gallion said in an interview that he doesn’t think the information was confidential. But the ambulance board disagreed. “It was, we felt, very inappropriate” to share the information, said Tracey Dolezal, president of the ambulance board.
The information became public just days before the vote on the referendum, which failed. The Ethics Commission said it could not comment because it is prohibited from acknowledging or discussing specific complaints.
Another factor holding back the commission’s work is that it is not allowed to investigate any allegations of criminal conduct; when a potential criminal violation comes up, it must stop its work on all parts of the complaint and instead refer it to law enforcement. Of the 11 complaints the agency referred to prosecutors, three stem from a single situation related to potential campaign misconduct in the June primary; in that case, a county prosecutor declined to press charges and returned the matter to the commission. But the commission was forced to dismiss the case: While it has authorized drafting rules around civil penalties for campaign misconduct, it has not enacted any.
It’s all in the lap of the Ethics Commission and the people that run it and that have had five years to figure out their way through things.
—Rep. Mike Nathe, R-Bismarck
Some and possibly all of the other eight complaints referred for criminal review are related to Rep. Jason Dockter, who was then convicted of a misdemeanor last year for voting on bills in which he had a financial interest. (The content of those complaints is confidential. However, Tyler Axness, a radio commentator on KFGO and former Democratic state lawmaker, filed one of the complaints and said he expected that more of them relate to Dockter because he had encouraged listeners to do the same.)
Dockter, a Bismarck Republican, is still in office. More than six months after Dockter’s conviction, and more than two years after the complaints were filed, the commission has not completed its own investigation, which could result in a financial penalty. Dockter testified at trial that he believed he had not broken any rules or laws.
Some have asserted that any shortcomings are the fault of the commission itself, which Rep. Mike Nathe, R-Bismarck, accused of “wandering kind of aimlessly through this process.”
“It’s all in the lap of the Ethics Commission and the people that run it and that have had five years to figure out their way through things,” Nathe said in an interview. “Believe me, that’s not the legislature’s fault.”
In one case that dragged on, for example, a public official asked the commission to weigh in on a potential conflict of interest.
In that case, the state’s pension board was suing the legislature over a radical overhaul of the state employee pension. But some of the board members of the Public Employees Retirement System are lawmakers appointed by legislative leaders. Mona Tedford Rindy, who was then the chair of the Public Employees Retirement System, had asked the commission whether those legislators on the pension board had a conflict of interest and should recuse themselves from voting on whether to continue the lawsuit.
Commission staff did draft an advisory opinion, concluding that the legislators had a disqualifying conflict of interest in that situation. But before they could issue the opinion, the commission chair at the time, Paul Richard, disagreed with the attorneys’ analysis and directed them to research the matter further. The commission ultimately concluded it should not issue guidance when the requestor was asking about someone else’s actions rather than their own.
“I wish we could have had the opinion of the Ethics Commission on our situation,” Tedford Rindy said in an interview. “I was amazed that people didn’t see this as a conflict.”
“Uphill Battle” Ahead As the new legislative session starts this week, the Ethics Commission will again ask lawmakers to pass reforms intended to reduce the backlog of cases and increase the agency’s authority.
Rebecca Binstock, left, executive director of the North Dakota Ethics Commission, speaks during a meeting of the legislature's Judiciary Committee in September.
Credit:
Michael Achterling/North Dakota Monitor
One bill, being developed in consultation with the secretary of state, would enact new financial disclosure requirements for elected and appointed government officials, including making those disclosures annually instead of only when candidates are running for office. North Dakota is one of five states that do not already require annual disclosures.
Other measures would guarantee whistleblower protections for people who file complaints with the Ethics Commission and change how the agency investigates alleged violations of ethics rules and laws. The commission is asking for authority to request subpoenas by the district court, to initiate an investigation without a formal complaint and to have more flexibility in how it conducts investigations.
Binstock, who has received bipartisan praise since she was hired shortly before the 2023 legislative session, hopes that the proposed changes will encourage more people to come forward with concerns.
The commission also plans to ask for a two-year budget of $1.8 million, an increase from $1.13 million. The funds would be used in part to hire an additional employee to focus on education and outreach, and to purchase a case management system. The commission’s current budget is one of the smallest for any ethics commission in comparably sized states.
“We understand this is a significant request,” Dave Anderson, chair of the Ethics Commission, said of the request for a fourth employee.
Legislators contacted for this article said they couldn’t commit to a position on the budget or most proposed reforms until they see draft bills. But the Senate’s vote last month against conflict-of-interest rules supported by the Ethics Commission signaled potential opposition to reform.
One legislator, Rep. Jim Kasper, R-Fargo, summed up his position bluntly: “They should stay in their lane and stay out of trying to tell the legislature how to do their business.”
This article was produced for ProPublica’s Local Reporting Network in partnership with the North Dakota Monitor . Sign up for Dispatches to get stories like this one as soon as they are published.
This article was produced for ProPublica’s Local Reporting Network in partnership with the North Dakota Monitor. Sign up for Dispatches to get stories like this one as soon as they are published.
