North Dakota Auditor Now Seems to Be Routinely Referring Audits for Criminal Investigation

North Dakota Auditor Josh Gallion recently referred two of his recent audits to law enforcement for investigation for possible criminal charges.

One was related to the withholding of email records at the North Dakota State College of Science in Wahpeton. The Cass County State’s Attorney reviewed the matter and reported not finding any infractions which rose to the level of a crime.

The other was related to the process behind the development of a new state logo and brand.

As I was the first to report yesterday, that matter (involving the Commerce Department) has been referred to law enforcement in South Dakota for investigation. Commerce Commissioner Michelle Kommer told lawmakers at a committee meeting today that she has secured private legal counsel and that she doesn’t believe anything criminal happened.

I can now report that a third matter has been referred to law enforcement by Gallion. You can read his letter to Attorney General Wayne Stenehjem requesting an investigation below.

The finding to be investigated come from an audit of the State Library released earlier this week. You can read the full audit here, but this (from the report) is a summary of the findings:

If it seems unusual that these matters are being referred for criminal investigation, I can say it’s not typical. Auditors before Gallion merely submitted their audit reports to a legislative audit committee, and that committee would (if deemed prudent) make a referral to law enforcement. Which is not something that happened often.

Gallion is now making those referrals himself, and he’s also making them much more routine.

In his letter to the AG’s office, Gallion refers to section 44-08-05.1 of the North Dakota Century Code. What’s interesting is that this section of the law does not describe some specific duty granted to the Auditor’s office. Rather, it describes general provisions for dealing with misuse of public funds:

As you readers know, I’ve been a proponent of Gallion’s aggressive style in executing the duties of Auditor, but in this, I wonder if he hasn’t gone a bridge too far. He’s using a rather obscure corner of state law to refer even relatively routine audit findings to law enforcement for investigation.

Is that really the best way to handle things? I’m afraid if audits are going to routinely end in criminal investigations, the willingness of state departments to cooperate in those audits is going to be diminished. We may also see litigation to protect the rights of those facing criminal investigations. Because while getting dinged, administratively, for not following policy is one thing, getting investigated by law enforcement and possibly even prosecuted is something else entirely.

We want audits to inspire better government. We want the process to identify real problems as an impetus to solutions. Our goal should be improvement, not convictions.

Gallion’s audits are finding real problems. Even some of his most ardent critics admit this to me. But routinely pushing these audits from performance reviews into criminal investigations may be a bridge too far, and something which undermines the mission of the Auditor’s office.

What we don’t want is for routine audits to become a pitched legal battle between the Auditor’s office and various state departments wary of a criminal investigation.

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