Have the wings been clipped?

The authority of the North Dakota Ethics Commission may have been clipped in December by a well reasoned Opinion from the state’s Attorney General, Drew Wrigley.

As we’ve previously detailed, the Commission had a difficult year last year, with issues ranging from its makeup and deadlocks over potential new appointments to the scope of its authority and potential overreach. The latter was addressed, in part, by Wrigley’s recent Opinion.

Previously, Gov. Kelly Armstrong had raised concerns about what he saw as the Commission’s overreach into the Executive Branch, which he currently heads. A former legislator, on both the state and federal level, one would expect, or at least hope, that he’d be as concerned about overreach into the Legislative Branch, as well. 

The Opinion, issued on December 12, focused upon another the Commission’s practice of issuing advisory opinions and how far they could go. The AG opined that it had no blanket authority, but only the authority specifically granted it.

A legislator — Sen. Josh Boschee, D-Fargo (the former House minority leader) — had asked whether it was permissible to use campaign funds for things such as childcare and security. The resulting Advisory Opinion from the Commission (written much like a legal opinion such as those traditionally coming from the Attorney General’s office) concluded that, indeed it was.

Secretary of State Michael Howe requested that Wrigley issue an official Opinion on the matter, since his office (not the Ethics Commission) is charged with election oversight, which includes campaign finance.

Wrigley’s Opinion sought to clarify the boundaries and limits of the Commission’s authority in issuing advisory opinions, pointing out that it had strayed beyond its authority and “made unauthorized and expansive legal conclusions…without legal authority to do so,” adding that “the Constitution and laws of North Dakota do not vest the Commission with the authority to issue legal opinions on general questions of law, as it attempted to do in (the advisory opinion), nor to provide legal advice.”

Citing the sections of the state’s laws and constitution from which the Commission draws its authority, he emphasized the limits of that authority. 

Noting that the constitutional amendment, which was adopted in 2018, granted the Commission “some investigative and rulemaking authority as well as a mandate to maintain a hotline,” Wrigley added that it “did not supplant the people’s tripartite system of representative government that has been firmly rooted in North Dakota since statehood and which exists in every other state and our federal government.”

Perhaps the most salient point in the Opinion is that “the people amended our state constitution in 2018; they did not repeal and replace it.” The authority of the Commission, therefore, must be understood within the context of the checks and balances that exist to protect the rights and liberties of North Dakotans. By recognizing that statues supersede conflicting rules, Article XIV can be seamlessly harmonized with the entirety of the Constitution to which it was amended.”

The Commission would do well to heed these words and restrain any impulse to overreach beyond its appropriate role and authority. Its dangerous recent inclination, however, has been the opposite.

Wrigley’s opinion fires a salient shot across the bow, warning the Commission against such overreach. There are other issues which must be addressed in order to strengthen the ground upon which it stands and to ensure current and future commissioners heed the warning. We’ll expound upon that in future writings.