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Speaking out: Proposed conflict of interest rules seriously flawed

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The North Dakota Ethics Commission will hear public comments today on proposed conflict of interest rules for state officials. Here’s hoping they receive an earful. The draft rules are seriously flawed and in need of revisions.

The proposed rules contain a number of problematic exemptions and presumptions, but the worst is a definition of “significant financial interest” that excludes campaign donations.

Ethics Commission Executive Director Dave Thiele said the commission determined that including campaign donations would violate the First Amendment to the U.S. Constitution. But that’s just a lame excuse masquerading as a constitutional argument. There are no First Amendment issues in requiring public officials to disclose campaign donations or even recuse themselves because of the conflict of interest they create.

Nevertheless, the commission is seeking an opinion from the attorney general, one of the public officials to whom the conflict of interest rules would apply. The Ethics Commission members don't believe campaign donations create a conflict of interest, but they’re willing to rely on an opinion from the attorney general who himself has a conflict of interest when it comes to how these rules are crafted.

Meanwhile, there is an actual constitutional problem the Ethics Commission decided to ignore. The state constitution provides that public officials must disqualify themselves in proceedings if their campaign donations create an appearance of bias. Exempting campaign donations from conflict of interest rules runs counter to that constitutional provision.

Most North Dakotans have enough common sense to realize that campaign contributions create a conflict of interest. Donors who shower politicians with large contributions expect something in return, and state officials have shown repeatedly that they’re happy to live up to their end of the bargain.

Even though campaign donations are already disclosed in campaign finance reports, that information is generally not known by the average citizen and not widely reported by local media. The point of conflict of interest rules is actual transparency, not technical compliance with campaign finance reporting requirements.

If you’ve searched through campaign finance reports, you know that among the biggest donors to the three members of the North Dakota Industrial Commission (the governor, attorney general and agriculture commissioner) are the same oil companies that frequently appear on the Industrial Commission's docket. Industrial Commission members should be required to publicly disclose the donations they’ve received from the very companies they’re supposed to be regulating. And they should do so each time the Industrial Commission is considering an action related to those companies. One-time campaign finance disclosure reports gathering dust in the secretary of state’s office do little to inform the public about the Industrial Commission's numerous conflicts of interest.

Aside from their substantive shortcomings, the proposed rules are poorly drafted. The most glaring example is the section that attempts to describe personal and business relationships that create a conflict of interest. It actually uses the following phrase: “Persons to whom the public official has a relationship in a private capacity to that person’s interests are affected or involved in matters which a public official must act upon as part of the public officials duties.” That grammatical, syntactical and typographical nightmare would earn a failing grade in a middle school English class.

Our state government has become too cozy with the industries it’s supposed to be regulating. Clear and comprehensive conflict of interest rules are long overdue, but the Ethics Commission seems more concerned with preserving the status quo than actually promoting transparency in government.

These poorly drafted rules do not achieve the Ethics Commission’s constitutionally mandated purpose to “strengthen the confidence of the people of North Dakota in their government, and to support open, ethical, and accountable government.”

Tory Jackson is an attorney and writer. His legal practice involves real estate and business matters, with a particular focus on historic rehabilitation projects. He holds degrees from Bismarck State College, the University of Virginia and Harvard Law School. He lives in Bismarck, where he was born and raised.

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