A tangled web

Interactions among agencies and branches of government in North Dakota have apparently disintegrated into a tangled web of confusion, accusation and contradiction. The mess stems not just from the longstanding, healthy tension between the branches of government, but also from a new agency, or branch of government as some might call it, trying to find its way, flex its muscle and assert its authority. 

One of the questions is what authority it actually should have. Another is whether it’s exercising its role appropriately or overstepping its bounds. Yet another is whether it is interacting with the branches of government that have existed since statehood, as it should, presumably exercising needed oversight, or taking needless shots of criticism or attack — palace intrigue, indeed.

A wise device or a dangerous premise?

Much of the confusion stems from the creation of an Ethics Commission in North Dakota, the result of an initiated measure championed largely by left-wing forces, as we’ve previously written. The Commission’s role was promoted simply to be a guiding force to ensure ethical behavior among state officials. 

The question of how that would occur was nebulous but lawmakers tried to help define and enable it by passing related laws—a common practice and, actually, the very role of the Legislative branch of government. The measure had been cobbled together in such a fashion that it also allowed the Commission, itself, to make rules so, in a sense, it could chart its own course and define its own function.

As we’d previously written and as is commonly understood by any high school civics or social studies student, both the federal and state constitutions established three branches of government with specific powers, functions and limitations. The limitations on each branch are often enforced by checks and balances by the other two.

So what happens when a new monstrosity, having neither clear powers, nor clear limits, is created, with no oversight? That’s the question playing out in Bismarck before our very eyes, these days.

Overseer or punisher?

At its outset, the Ethics Commission had stated that it would field and investigate ethics complaints. Typically, its leadership said, it would determine whether the complaint rose to the level of uncovering unethical behavior and, if so, it would say so. If not, it would simply dispose of the complaint. If such a complaint uncovered potentially criminal behavior, it would refer such a matter to the appropriate prosecutors for review and potential action and, in doing so, wash its hands of the matter.

That sounds reasonable but, as with most government entities, the scope, approach and actions have since expanded and morphed into something much more menacing. The greatest example is the case of Bismarck Rep. Jason Dockter whose transgression was ostensibly voting on a bill funding the Attorney General’s office while being a part owner of a building where that office was renting office space. It was amplified by cost overruns and other questions brought to light by current Attorney General Drew Wrigley, who has harbored disdain for his predecessor, the late Wayne Stenehjem, under whose time in office the lease was initiated.

Both an ethics complaint and a legal prosecution resulted. In the legal case, Dockter was convicted of a misdemeanor, but it didn’t end there. Rather than allowing a jury’s decision to be the final word on the matter, the Ethics Commission, contrary to its earlier stance on such issues under earlier leadership, continued the probe and appears to be seeking a way to mete out its own punishment.

Enter the Attorney General’s office, cautioning (perhaps correctly) that the Ethics Commission has no authority to do so. The Legislature now finds itself in the middle of the mess, with an interim committee fielding documents, testimony and accusations between the Commission and the AG’s office on authority, work product and professionalism or the lack thereof.

In a separate matter, the Ethics Commission also caught Governor Kelly Armstrong’s attention by issuing pronouncements and creating “ethical” parameters of behavior on uses of campaign funds which, the Governor appropriately noted, it has no Constitutional or statutory authority to do. The Commission’s response, while obviously believing it acted within its authority or that it was crafting a new but appropriate role for itself, was, essentially, “let’s talk”.

Tensions have since risen and battle lines have apparently been drawn.  North Dakotans must now buckle up, stay tuned, and see where the tangled web will lead and whether it untangles in any discernible, productive way.

Be careful what you ask for

Prior to the creation of the Ethics Commission, most citizens rested in the assurance that those they elected were acting ethically and, when and if they didn’t, that there were structures and procedures in place to deal with it, policing themselves and one another and/or trusting the courts to resolve such matters. But, now, there’s a new kid on the block, seemingly groping to find its way, pushing to assert power and unwilling to restrain itself. 

With the creation of the Ethics Commission, a new entity (call it an agency or a branch of government) came into being and it’s taken years for it to get its footing. Now, it appears to be on a quest to seek power and assert authority. Other governing authorities are not remaining quiet about it. 

Where it all leads will be interesting to watch. The more important question is what it will mean for the people of North Dakota and those in government they elect to represent them.