Despite the criticism he’s inspired, I’m a supporter of North Dakota State Auditor Josh Gallion. His aggressive approach to his job has been a breath of fresh air. During his first term on the job (he announced his re-election campaign some weeks ago), his work has uncovered some real problems in state government.
In one area, however, he has let his zeal get the better of him. He has begun routinely referring the subjects of his audits to law enforcement for criminal investigation.
This has opened a can of worms.
That those who are targeted for such referrals are now demanding legal fees is among the most wiggly of those worms.
“Attorneys for the Wahpeton-based school President John Richman and vice presidents Tony Grindberg and Dennis Gladen argue their clients are due the fees under North Dakota law,” the Associated Press reports.
They’re requesting over $36,000 from the taxpayers after Cass County State’s Attorney Birch Burdick declined to pursue charges related to a failure to turn over public records requested by auditors.
The tough thing about this situation is that the North Dakota State College of Science officials are not the good guys. To believe they are means we have to believe that Grindberg just happened to forget to officially disclose that his wife works for a public relations firm NDSCS was negotiating a contract with. And that, when asked by auditors, he just happened to forget that he was involved in those negotiations.
We also have to believe that the school failing to turn over emails demonstrating that Gindberg was, in fact, involved in the discussion over the contract was just an oversight.
Gindberg, who is also a sitting member of the Fargo City Commission, is, very specifically, not a good public servant. At one time, when he was working at North Dakota State University and serving as a Senator in the state Legislature, he was expensing thousands of dollars in dues for his country club membership (not to mention lavish meals and top-shelf booze).
Here’s the problem, though: While Gallion’s office exposed what happened at NDSCS, the additional step of pursuing criminal charges against these people creates problems.
Gallion’s office has also referred for criminal investigation findings from reviews of the State Library and Commerce Department.
In doing so, he has begun to turn what has historically been an administrative process into something approaching a criminal proceeding.
If the cops begin an investigation into your activities, you’d be wise to hire a lawyer, wouldn’t you? Gallion’s auditors are not law enforcement, but if their work is going to routinely result in law enforcement inquiries, could state workers be blamed for wanting legal counsel when a review into their work is announced?
If that becomes the norm, how effective are future audits going to be? Keep in mind, if state employees do hire a lawyer, they have to pay out of their own pockets. The state’s lawyers can’t defend them, not least because the Attorney General’s office is where these matters are being referred to for investigation in the first place.
Is that fair to those workers? Is any of this conducive to the efficient review of state operations?
Gallion, for his part, says it is his duty to report any appearance of criminal activity to law enforcement for review, but he’s basing that on a tortured interpretation of section 44-08-05.1 of the North Dakota Century Code which is related to state purchasing card authority and not the specific auditing process or the powers of the auditor’s office.
Is he technically correct? Maybe. If so, the Legislature should consider amending this section of the law.
The referral of routine audit findings for criminal investigation is overkill. Worse, if it continues, it will make the auditing process far less transparent and far more contentious than it is now.