Rod St. Aubyn: North Dakota Transparency Laws Have No Teeth

I read an article on October 24, 2014, in the Fargo Forum about a press conference held by Steve Adair, the chairman of the Measure 5 sponsoring committee, advocating that the Secretary of State should refer a major violation of campaign laws to the Burleigh County state’s attorney for further investigation and possible prosecution.  He alleges that the American Petroleum Institute did not print the “chairman or other responsible individual” in their disclaimer as required by law.

I found this news article not only amusing, but timely.  On the previous day, October 23, I received in my mail two separate political advertising cards – one advocating that I should vote “No on Measure 5” which was clearly identified that it was “Paid for by the American Petroleum Institute”, and another advocating that I should “Vote Yes On Measure 5 On Nov. 4” with NO REQUIRED DISCLAIMER saying who paid for it NOR ANY CHAIRMAN’S NAME that Mr. Adair thought was so egregious in his press conference.  I assume it was paid for by Pheasant’s Forever, a major supporter of Measure 5, since that was the return mailing address, but I could also assume it was paid for by Steve Adair’s committee since it included a cleanwaterwildlifeparks.org website listing.  Immaterial that postcard also appeared to violate the law.  This was included in Rob’s article on Sunday in the SayAnythingBlog, entitled “Whoops: Measure 5 Campaign Literature Missing Legally-Required Disclaimer”.

So in all fair play, I assume that Steve Adair advocates that this should also be sent to the Cass County State’s Attorney by the Secretary of State to further investigate and possibly prosecute.  By the way, Mr. Birch Burdick, Cass County State’s Attorney, I am willing to sign the complaint as I still have the documents.

I won’t go into the specifics, but as I review the ND Century Code, both of these could be considered violations of the North Dakota’s Corrupt Practices in Chapter 16.1-10 of the NDCC.

So what’s the penalty?  In 16.1-10-08 it states “Any person violating any provision of this chapter, for which another penalty is not specifically provided, is guilty of a class A misdemeanor.”  The Secretary of State can refer these violations to the appropriate state’s attorney.

We saw earlier violations of campaign contribution statements by opponents of Measure 7, which would repeal the Pharmacy Ownership Laws.  In that case as discovered by Rob and reported on this Blog, contributions were never filed by the deadline dates.  One has to wonder if these would have EVER been filed had Rob not caught it and reported it.

The law does permit the Secretary of State to have an audit done, though I don’t think that has ever been done.

So what is the penalty for violating Chapter 16.1-08.1 (Campaign Contribution Statements) of the ND Century Code?  In 16.1-08.1-06.1 it permits the Secretary to collect fees for late filing depending upon how late the filing is between $25 up to $100.  Late filing fees for amendments to those statements also range based on the date that the amendments were filed.  Those fees go from $50 to $200.

So what is the penalty? NDCC 16.1-08.1-07 provides for a penalty and states “Except as otherwise provided, any person who willfully violates any provision of this chapter is guilty of a class A misdemeanor.”  How do you prove that someone not filing the reports “willfully” did it?  If this was not caught by Rob, I seriously doubt that they would have ever reported it.  And if caught, they would have stated, “Oh, I wasn’t aware of that requirement.”

Now let’s look at Open Meetings/Open Records violations.  As has been widely reported on this blog, Open Meeting/Open Record violations have been determined by the Attorney General to have occurred numerous times with the ND University System and others.  Rob reported in a September 23, 2014 posting that the North Dakota University System has violated transparency laws 17 times since 2010.  People can file complaints with the Attorney General about any suspected Open Record/Open Meeting violation.  The AG’s office will investigate and issue an advisory opinion.  If a violation exists the entity has 7 days to comply with the AG’s advisory opinion.

Open Records/Open Meetings laws are complicated with many reasonable exceptions.  Those laws can be found in the ND Century Code from 44-04-17.1 through 44-04-32.

In the meantime, what is the penalty for an Open Meeting/Open Record violation? An individual can file a civil action as provided in NDCC 44-04-21.2.  But realistically, who is going to spend money on legal fees to pursue such a claim?  NDCC 44-04-21.3 provides that the Attorney General may refer a violation to the appropriate state’s attorney.

The Secretary of State and the Attorney General have no interest in pursuing legal actions against these types of violations of the Corrupt Practices Act, the Campaign Contributions laws, or the Open Meeting/Open Records laws.  They want the entities to comply with the law.  State’s Attorneys are swamped with what many would consider more important criminal issues to pursue and it would be doubtful that they would even pursue these issues.

So what exists is that we have laws with specific penalties, but these penalties have no teeth.

So what is the answer?  I think that the legislature should consider giving the Secretary of State and the Attorney General authority to issue non-compliance fees against people or entities that violate issues such as those addressed in this article.  The administrative fees could have a range so that the severity of the violation can be taken into consideration.  If it is an honest mistake the lower range of the fees could be assessed.  If there is a record of continued violations a higher fee could be assessed.  Granted the authority to assess these fees needs to provide for some type of an independent appeal.  That could be through the court system or through an administrative law judge.  More serious violations could be referred to the appropriate state’s attorney.  But the point that I am trying to stress is that without having some penalties with some teeth, why even have the laws if we can’t deal with the violators?  Legislators need to take a hard look into this during the next session to ensure that our laws really mean something.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and the host of the Rob (Re)Port on Fargo-based WDAY AM970 from noon-2pm weekdays.

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