Ethics Commission sees uptick in campaign complaints, but lacks rules to enforce

The Ethics Commission meets in the Sakakawea Room of the North Dakota Capitol in Bismarck on June 26, 2024. (Mary Steurer/North Dakota Monitor)

The North Dakota Ethics Commission has seen a rise in campaign-related complaints but lacks  tools to address the allegations, Executive Director Rebecca Binstock said.

Commissioners are considering adopting a new set of rules so the board has more authority to investigate the complaints.

As of Tuesday, 23 complaints had been filed with the commission since the beginning of the year. Of those, 10 related to campaigns, Binstock said. The commission received 17 complaints in all of 2023 and 14 in 2022. In both 2023 and 2022, two complaints each year related to campaigns. Generally, ethics complaints are confidential unless the commission determines them to be substantiated and the accused has the ability to appeal.

“We’ve also received, I want to call it anecdotal information, from the public, from state agencies, state employees as well as elected officials that this particular election cycle is different,” Binstock told commissioners during a Wednesday meeting. “That anecdotal evidence aligns with what we see in real time with the complaints that have come in.”

Secretary of State Michael Howe said his office has received reports of alleged improper campaign finance disclosures on materials like signs and fliers, though he’s not sure if there’s been more this election cycle compared to previous years. The Secretary of State’s Office does not enforce compliance with campaign laws.

“We say, ‘Well, there is a requirement of that North Dakota Century Code,’” Howe said. “‘If you feel the law has been broken, you need to reach out to the state’s attorney in the county where you think this crime has been committed.’”

Recently, there have been allegations of campaign fraud in North Dakota submitted to federal authorities.

Julie Fedorchak’s campaign earlier this month filed complaints with the Federal Election Commission and Federal Communications Commission after text messages were sent en masse to North Dakotans the day of the primary falsely claiming she had dropped out of the U.S. House race.

A North Dakota resident in May filed an FEC complaint against Rep. Brandon Prichard, R-Bismarck, claiming he may have engaged in campaign finance activity that violates federal election law. Prichard has denied wrongdoing. The status of the complaint is not public.

The 2018 constitutional amendment that created the Ethics Commission allows the board to adopt rules related to elections, lobbying, corruption and transparency to enforce ethical behavior by state officials. 

Under the constitution, the Ethics Commission can investigate alleged violations of its own rules, the constitutional amendment or “related state laws.”

Its ability to investigate campaign complaints is still very limited, however. For one, the commission has yet to adopt any rules on campaign ethics.

North Dakota does have statutes relating to campaign ethics — most of which impose misdemeanor penalties — which could fit the definition of “related state laws” under the constitutional amendment. However, because the commission does not have prosecution authority, it cannot investigate alleged violations of criminal law, Binstock said.

There are other ways to address complaints, though. The Ethics Commission may work with the complainant and the accused to resolve the complaint informally, for example.

Additionally, if a complaint accuses someone of a criminal violation, the Ethics Commission is required by law to forward the allegation to a state’s attorney. 

State’s attorneys have discretion over whether or not to charge someone with a crime. Binstock noted during the meeting that when an ethics-related allegation crosses the desk of a state prosecutor, chances are they’re already dealing with a heavy caseload.

A letter dated May 10 provided to the North Dakota Monitor indicates that Binstock referred a complaint about a legislative race to Burleigh County State’s Attorney Julie Lawyer. The prosecutor has not responded to requests for comment and Binstock is unable to comment on specific complaints.

If a prosecutor declines to bring charges related to an ethics complaint, the case is handed back to the commission. But again, since the commission has neither prosecution authority nor any rules pertaining to elections, its staff may be unable to investigate the complaint.

“If the Ethics Commission doesn’t have a corresponding ethics rule, we’re left with a criminal statute that the Ethics Commission can’t investigate under,” Binstock said. 

The commission during the meeting gave staff the greenlight to draft election rules. The draft rules will likely go before the commission for consideration sometime in the next few months, Binstock said.

In 2018, Burleigh County prosecutors charged Bismarck legislative candidate Duane Sand with a misdemeanor that alleged he misstated opponent George Keiser’s voting record in a campaign ad. The charge, publication of false information in political advertisements, was prompted by a police report Keiser filed and a finding from a prosecutor that the act fit the elements of the crime, The Bismarck Tribune reported.

Sand later filed police reports accusing Keiser and others of breaking the same law. The charge against Sand was dismissed after all involved reached a private settlement and agreed to stop pursuing the complaints.

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