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.
Reporting Highlights
- Resisted Reform: North Dakota was one of the last states to create an ethics oversight body.
- Limitations Exist: Numerous tips don’t get investigated because the agency can’t proceed without a formal complaint.
- Upcoming Efforts: Lawmakers are being asked to approve the largest package of ethics-related legislation in recent history.
These highlights were written by the reporters and editors who worked on this story.
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.
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.
