Can North Dakota’s Attorney General Be Both the State’s Top Cop and Top Lawyer?


North Dakota Attorney General Wayne Stenehjem, center, announces on 6-29-2015 at the state Capitol in Bismarck, the state joining attorneys general from 11 other states in a lawsuit against the Environmental Protection Agency and the U.S. Army Corps of Engineers over the EPA's new rule defining "Waters of the United States" under the Clean Water Act. Second from the left is North Dakota Agriculture Commissioner Doug Goehring. 6-29-2015

Is it a conflict of interest for North Dakota’s Attorney General to be both our state’s top law enforcement officer and the state’s lawyer?

I think it is. But first, some back story.

Earlier this month criminal charges were dismissed against one of Governor Jack Dalrymple’s cabinet member.

Maggie Anderson, the executive director of the Department of Human Services, had been charged, along with a group of her staff, with criminally impeding an investigation into the drowning death of a five year old in Velva who was in the custody of a daycare which wasn’t properly licensed and was caring for too many children.

The daycare operator, one Heather Tudor, has been convicted of child neglect and operating a daycare without a license. But there was some hinky stuff going on with that license. She actually had two licenses for two separate daycare operations, but both operated in the same facility. One in an upstairs area, and the other in a basement. An affidavit from the state Bureau of Criminal Investigation made it sound like this was done in order to get around state law stipulating the ratio between the number of children at a daycare and the number of daycare workers.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Do we maybe need to look at separating the law enforcement functions of the AG’s office from the side that provides legal representation to the state? I think we do. In fact, it seems most other states have already done so.[/mks_pullquote]

McHenry County social worker Cheryl Johnson is still facing felony charges for allegedly trying to back date the license for Tudor’s facilities to six days before the drowning death. But as the BCI followed the matter from local officials to the state level they filed additional charges against Anderson as well as DHS attornies Jonathan Alm and Julie Leer. Laurie Gotvaslee, director of the agency’s regional center in Minot also faced charges.

All of the charges were related to the alleged obstruction of the BCI’s investigation.

They’ve all been dismissed now. You can read a copy of the order dismissing the charges against Leer, specifically, below.

What’s interesting about this case, though, is the situation Anderson and the others were put in. Because when the BCI began asking them to cooperate with their investigation they turned to their legal counsel, which is the Attorney General’s office. The same office that oversees the BCI.

In fact, Anderson and her fellow defendants argued that part of the reason for their delays in cooperating with the BCI was that they were waiting to get legal advice from the AG’s office. Apparently there are all sorts of state and federal laws governing how information about child care facilities is handled. Anderson and her co-defendants argued that they wanted to ensure they were following the law in cooperating with the BCI.

But their lawyers work for the same state agency that the BCI works for. It’s not hard to see in that a conflict of interest. How is it fair to these public employees to have them, when faced with a criminal investigation, relying on the same state agency for legal counsel that is conducting the investigation?

Do we maybe need to look at separating the law enforcement functions of the AG’s office from the side that provides legal representation to the state? I think we do. In fact, it seems most other states have already done so.

According to the National Association of Attorneys General, “Most attorneys general are not their state’s top cop, although this is a commonly held public perception of the office.”

The duties of executive branches offices vary a great deal from state to state, but it does seem as though there has been some effort in other states to create a degree of separation from law enforcement and legal representation.

We ought to consider the same here in North Dakota.

I’m not sure which specific direction we should go in. My thought is something like moving the BCI out of the AG’s office and putting it under the purview of the North Dakota Highway Patrol. Or perhaps making the BCI an independent agency and putting both it and the Highway Patrol under the purview of a cabinet-level public safety officer.

I’m open to suggestion. But I think one thing is clear; we do have a problem here which needs to be addressed.

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