Ethics Commission remains in limbo, at odds with Governor

Little has changed, recently, on the status of the North Dakota Ethics Commission, but divisions are deepening.

Agreement upon the appointment of two Commissioners to fill unexpired terms has not been reached. That leaves the Commission two positions short, although one former commissioner stubbornly continues his presence there, long after his term expired, but that issue appears to be coming to a head.

Reports here and elsewhere in the news media apparently prompted former Commissioner Murray Sagsveen to request a legal opinion on his continued service on the Commission, despite the expiration of his term in August. That had raised questions about the legality and ethical propriety of his continued presence on the Ethics Commission.

Some public officials enjoy statutory or Constitutional hold over provisions, which allow their continued service until a successor is appointed or elected. Members of the Ethics Commission, who are appointed by agreement of the Governor and the Senate Majority and Minority Leaders, enjoy no such provision. 

It would seem logical to conclude that if the law or Constitution intend that elected or appointed officials be held over in that office, at the conclusion of their terms, until a successor is appointed or elected, it would say so, since it does in several other instances. The Ethics Commission’s Legal Counsel, Logan Carpenter, in his memo issued on Nov. 17th, however, reached the opposite conclusion. In a rather tortured legal analysis, he based his opinion on common law, his view of the effect of some case law, and court musings dating back to 1917 — long before the Ethics Commission’s existence and at a time when North Dakota government was much smaller and more limited.

Chief Deputy Attorney General Claire Ness reportedly questioned Carpenter’s conclusions in an email.

Another interesting wrinkle

The Constitution clearly states that “The ethics commission shall consist of five members, appointed for four-year terms by consensus agreement of the governor, the majority leader of the senate, and the minority leader of the senate.” 

Not only does that set (and arguably limit) the length of the terms of Commissioners, it also makes clear that the appointments require the “consensus agreement” of the three officials named. The Governor has asserted that, since such consensus no longer exists, Sagsveen should not continue to serve.

The Standoff Deepens

As we’ve previously written, the appointing authorities have been deadlocked over Sagsveen’s reappointment for some time, with both Senators favoring it but the Governor opposing it. That difference of opinion is only becoming more entrenched.

Two days after Carpenter’s memo was issued in response to Sagsveen’s request, Gov. Kelly Armstrong wrote a letter to Sagsveen which amounted to a veiled dismissal. 

It surmised that his holdover service had been “necessary to prevent the suspension of the Commission’s essential constitutional functions” because the panel previously had only two members and three were required for a quorum. Since the appointment of Pam Sharp on October 31, replacing Ward Koeser, he implied, the quorum was intact with commissioners duly appointed whose terms had not expired, so Sagsveen’s “service is no longer necessary”.

Interestingly, Gov. Armstrong’s letter ignored the fact that both Sagsveen and Koeser had continued to “serve” beyond their terms, which expired August 31, so Sagsveen’s “holdover” service was not actually necessary to reach a quorum, as his letter asserted. A quorum would have been attained with only one of them remaining. Because Koeser had not sought reappointment and, despite Sagsveen apparently wanting it badly, the quorum question the Governor’s letter advanced could have easily been resolved by only Koeser continuing until Sharp’s appointment. 

Nevertheless, the Governor has made his position clear.

It is unclear how the Ethics Commission will respond to the Governor’s letter, in light of Carpenter’s memo. The latter, of course, is merely that and it holds no legal status. Likewise, the Governor has no clear legal authority to dismiss a commissioner — even one whose term has expired but who continues to serve.

Noting that the Commission could request an Attorney General’s Opinion on the question, the Governor reportedly characterized any such potential attempt to prolong Sagsveen’s presence there as “a colossal misapplication of resources for a temporary position”.

The Deadlock Continues

The recent drama still leaves the Ethics Commission two members short with no apparent consensus growing. 

The saga at least brings some interest to the Capitol, which typically experiences very few such controversies when the Legislature is not in session.