Powers, Duties, and General Information
None! The Ethics Commission is an independent constitutional entity and is not part of any of the three branches of our state government.
The Ethics Commission consists of five commissioners. The governor, the majority leader of the senate, and the minority leader of the senate must all agree on who to appoint as commissioners. Once appointed, commissioners serve four-year terms. The terms of the commissioners originally appointed have been staggered to ensure all the commissioners’ terms do not expire at the same time. The commissioners are not full-time employees, but they are paid for their participation at monthly regular and special meetings.
The Commission also has three full-time staff members consisting of an executive director, general counsel, and operations administrator.
Article XIV of the North Dakota Constitution directs the Ethics Commission to adopt rules related to: (1) transparency; (2) corruption; (3) elections; and (4) lobbying. The constitution further directs the Commission to investigate alleged violations of state law related to these four subject areas.
The Commission has adopted rules regarding the complaint process, gifts between lobbyists and public officials, conflicts of interest, and bias in quasi-judicial proceedings (i.e. proceedings similar to court proceedings that do not take place in a court of law).
Generally, the Commission has authority over lobbyists, public officials, and candidates for public office. “Public officials” are defined by Article XIV of the North Dakota Constitution as “any elected or appointed . . . official of the state’s executive or legislative branch, including members of the ethics commission, or members of the governor’s cabinet, or employees of the legislative branch.” This term does not include an executive branch employee unless the employee is appointed.
For quasi-judicial proceedings, the Commission has expanded authority. The Commission’s authority for a quasi-judicial proceeding covers “directors, officers, commissioners, heads, or other executives of agencies” taking part in the quasi-judicial proceeding.
The Commission has no authority over judicial branch officials and employees or officials at the local level like city, county, or other political subdivisions. It also has no authority over executive branch employees unless the executive branch employee is appointed or involved in a quasi-judicial proceeding.
Yes. The Ethics Commission’s rulemaking authority flows from Article XIV of the North Dakota Constitution. A violation of the Commission’s rules is a violation of North Dakota state law.
While training is not currently required for public officials, the Ethics Commission does offer training opportunities on a recurring basis. When these events are scheduled, information is available on our website.
Additionally, the Commission has recorded trainings available under the education tab on our website. Educational Opportunities | Ethics Commission, North Dakota (nd.gov)
Yes! If you are interested in having Ethics Commission staff speak to your team or group, please contact us at ethicscommission@nd.gov or (701) 328-5325.
Please contact us by email at ethicscommission@nd.gov, by phone at (701) 328-5325, or by mail at 600 E Boulevard Ave, Dept 195 Bismarck, ND 58505.
The Ethics Commission’s office is located on the 3rd floor of the judicial wing of the State Capitol. Take the elevator from the ground floor of the judicial wing (far east side of the building) to the 3rd floor. The Ethics Commission is located in Rm. 321 to the right off the elevator and through the large black double doors.
The Ethics Commission meets monthly. Our upcoming meetings and agendas are listed here: Upcoming Events | Ethics Commission, North Dakota (nd.gov). Most Commission meetings are held virtually via Microsoft Teams. The Commission meets in person about twice per year. When the Commission meets in person, the meeting room is posted on the agenda, and a Teams livestream is also available.
Filing a Complaint
Yes, North Dakota law requires the Ethics Commission to have a filed complaint to investigate a matter.
North Dakota Century Code § 54-66-01(2) limits who can file a complaint with the Ethics Commission. Currently, the Commission can only accept complaints from: (1) North Dakota residents; (2) individuals licensed by a state agency or other public official subject to the authority of the Commission; and (3) a party to a state quasi-judicial proceeding.
The Commission uses the terms “complainant” and “respondent” in its rules. The person who files the complaint is referred to as the complainant. The individual the complaint is filed against is the respondent.
You may submit a complaint here COMPLAINTS | Ethics Commission, North Dakota (nd.gov). However, a written complaint is not required, and you may call the Ethics Commission’s confidential hotline at (701) 328-6000 to similarly file a complaint.
It is helpful if you include information on what state law related to transparency, corruption, elections, or lobbying you believe has been violated. If you need accommodations or the complaint form in a different format, please contact us at ethicscommission@nd.gov or (701) 328-5325.
No.
Yes. If the complainant requests his or her identity remain confidential, the Ethics Commission must maintain that confidentiality.
However, the complainant must provide his or her identifying information to Commission staff to verify the person is: (1) a North Dakota resident; (2) an individual licensed by a state agency or other public official subject to the authority of the Commission; or (3) a party to a state quasi-judicial proceeding.
If the complainant waives confidentiality, authorizes the disclosure of his or her identity, or divulges information that reasonably would identify him or her, the confidentiality provisions no longer apply to the complainant’s identity.
Complaints must be filed within three (3) years of the alleged violation date. The Commission cannot consider complaints alleging violations outside this three-year limitation period.
The Complaint Process
Once a complaint is filed with the Ethics Commission, three steps may take place.
Step 1 – The Commission’s executive director conducts an initial review of the allegations in the complaint. The executive director may summarily dismiss the complaint if: (1) the alleged violation does not fall within the Commission’s jurisdiction; (2) the complaint is insufficient to identify a possible violation; or (3) the complaint fails to comply with rules adopted by the Commission.
After the initial review is complete, the executive director provides a copy or written summary of the complaint to the respondent.
Step 2 – If the complaint is not summarily dismissed at step 1, the Commission provides an opportunity for the complainant and the respondent to informally resolve the complaint. The informal resolution process involves mediating the complaint to reach a mutually agreeable resolution between the complainant and the respondent. At this stage, the Commission acts as an intermediary to attempt resolution.
Step 3 – If the complaint is not summarily dismissed or informally resolved, the executive director then conducts a thorough investigation of the allegations in the complaint. After completion of an investigation, the executive director then prepares an investigation report for the Commission.
Depending on the complexity of the allegations, the complaint process can take many months for the Ethics Commission to work through. The Commission is required to notify a respondent a complaint has been filed against him or her within thirty (30) days. Throughout the process, Commission staff will update the complainant and the respondent on the status of the complaint.
No, state law makes all information related to the substance of a complaint confidential, unless the Ethics Commission needs to disclose information as part of its investigation. The Commission cannot even confirm or deny whether a complaint exists against a particular respondent.
The executive director will provide the investigation report and a recommendation to the Ethics Commission for action on the complaint. After the respondent has notice and time to respond to the report, the Commission will decide whether an ethical violation has occurred.
A respondent may appeal the Ethics Commission’s finding of an ethical violation to district court. If the respondent does not appeal or the court affirms the Commission’s findings, the findings then become public.
No. Under North Dakota law, the Ethics Commission must refer a complaint to the appropriate law enforcement agency if the Commission believes its review, based on the contents of the complaint, has revealed allegations of potential criminal conduct. See N.D.C.C. § 54-66-08(2). If the law enforcement agency agrees to investigate the matter, the Commission cannot proceed with its own investigation until the criminal matter is complete.
The Commission does not determine whether criminal charges will be brought. This determination must be made by the reviewing prosecutor.
Gifts Between Lobbyists and Public Officials
The Ethics Commission defines the term “lobbyist” broader than those individuals required to register with the secretary of state to lobby during legislative sessions.
Under the Commission’s rules, a “lobbyist” is a person who:
attempts to secure the passage, amendment, or defeat of any legislation by the legislative assembly or the approval or veto of any legislation by the governor;
attempts to influence decisions made by the legislative management or by an interim committee of the legislative management;
attempts to secure passage, amendment, or defeat of any administrative rule or regulation by any department, agency, or body of the state’s executive branch; or
attempts to otherwise influence public official action or decision.
A lobbyist does not include the following individuals:
a legislator;
a private citizen appearing on the citizen’s own behalf;
an employee, officer, board member, volunteer, or agent of the state or its political subdivisions whether elected or appointed and, whether or not compensated, who is acting in that person's official capacity;
a person invited by the chairman of the legislative management, an interim committee of the legislative management, standing committee of the legislative assembly, or an official of any department, agency, or body of the state's executive branch to appear before the legislative management, interim committee, or standing committee for the purpose of providing information; or
a person who appears before a legislative committee for the sole purpose of presenting testimony on behalf of a trade or professional organization or a business or industry if the person is introduced to the committee by the lobbyist for the trade or professional organization or the business or industry.
Article XIV of the North Dakota Constitution defines a “gift” as “any item, service, or thing of value not given in exchange for fair market consideration, including gifts of travel or recreation.”
However, the term “gift” excludes “any purely information material, campaign contribution, or, in order to advance opportunities for North Dakota residents to meet with public officials in educational and social settings inside the state, any item, service, or thing of value given under conditions that do not raise ethical concerns, as determined by rules adopted by the ethics commission.”
No. Article XIV, § 2 of the North Dakota Constitution prohibits gifts from a lobbyist to a public official. However, Article XIV gave the Ethics Commission authority to make some exceptions to this general prohibition.
Yes. Under the Ethics Commission’s rules, the following are considered exceptions to the lobbyist gift prohibition in Article XIV, § 2:
a gift by a lobbyist who is a member of the public official's immediate family;
any item given where the public official is paying fair market value for the item;
purely informational material;
a campaign contribution that is given in accordance with all applicable state laws, rules, and regulations governing campaign contributions;
Reimbursement or payment for transportation, lodging costs, and meal costs not to exceed rates as authorized under North Dakota century code section 44-08-04 and office of management and budget Fiscal Policy #505 to facilitate attendance to a public or private educational and social event within the state, if the public official meaningfully participates in the event as a speaker or panel participant, presenter, or ceremonial event appropriate to the position, or if attendance is appropriate to the performance of official duties;
gifts or other things of value shared as a cultural or social norm as part of a public or private social and educational event;
food and beverage served for immediate consumption at any private or public social and educational event; or
food or beverage with a value of ten dollars or less, excluding gratuity, purchased for a public official in conjunction with an informal social and educational event. The purchased food and beverage must be consumed during the event. A state resident must be present but is not required to be the purchaser of the food or beverage.
Any social and educational event that is held within the state and attendance is by invitation to state residents and others who are members, employees, or affiliated with a sponsoring public or private organization, entity, or association. The event must include an educational component and not be limited to a social event. The lobbyist required to register under North Dakota century code chapter 54-05.1, and public officials may not be the only state residents in attendance. For additional information about the requisite educational component, see Advisory Opinion No. 22-02 ADVISORY OPINIONS | Ethics Commission, North Dakota (nd.gov)
Any social and educational event that is held within the state and attendance is open to any state resident and others. The event must include an educational component and not be limited to a social event. The lobbyist required to register under North Dakota century code chapter 54-05.1, and public officials may not be the only state residents in attendance. For additional information about the requisite educational component, see Advisory Opinion No. 22-02 ADVISORY OPINIONS | Ethics Commission, North Dakota (nd.gov)
Yes. Sponsors of public or private social and educational events must file the meeting notice form with the Ethics Commission before the event takes place. You can access the form here: GIFT RULES | Ethics Commission, North Dakota (nd.gov)
If you need accommodations or the meeting notice form in a different format, please contact us at ethicscommission@nd.gov or (701) 328-5325.
No, the Ethics Commission does not approve events when meeting notice forms are filed. Commission staff may reach out to clarify information contained on the meeting notice form, but this does not constitute approval of the event by the Commission. If a lobbyist or public official has a question about a specific future event or a hypothetical event, the lobbyist or public official may consider requesting an advisory opinion. ADVISORY OPINIONS | Ethics Commission, North Dakota (nd.gov)
It depends. If the out-of-state event has lobbying taking place, a public official may not accept reimbursement or payment for attending the event. The public official must make the determination if lobbying efforts are occurring at the event. This prohibition does not apply to travel paid for with state funds by the public official’s agency or government body.
In Ethics Commission Advisory Opinion No. 23-02, the Commission provided five factors for public officials to consider when reviewing an event for lobbying efforts:
(1) Overarching objectives of the event sponsor(s);
(2) Topics of presentations, panel discussions, or social occasions;
(3) Scope and type of invitees to the event;
(4) Materials provided to a public official before, during, and after the out-of-state event; and
(5) Communications received by a public official before, during, and after the out-of-state event from the event sponsor or other invitees.
Section 54-66-03, N.D.C.C., sets the penalty for violating the lobbyist gift prohibition in Article XIV. Under this statute, if a lobbyist gives a gift to a public official, the Ethics Commission may impose a fine up to two times the value of the gift on the lobbyist for giving the gift and also on the public official if he or she accepts the gift.
Advisory Opinions
Written advisory opinions interpret ethics laws, rules, and Article XIV of the North Dakota Constitution as applied to specified hypothetical facts or prospective conduct.
An individual who relies on an advisory opinion issued by the Ethics Commission may not be subject to ethical, civil, or criminal penalties provided the individual acts in good faith and the material facts surrounding the public official’s action are substantially the same as the conduct presented in the advisory opinion.
Any public official, candidate for elected office, or lobbyist may request an advisory opinion related to only hypothetical facts or prospective conduct of the individual who makes the request. Another individual, board, entity, or organization may make a request on behalf of a public official, candidate for elected office, or lobbyist with corroborating evidence demonstrating the request is authorized and done on behalf of the public official, candidate for elected office, or lobbyist.
A request for an advisory opinion must be made in writing. You can access the advisory opinion request form here: ADVISORY OPINIONS | Ethics Commission, North Dakota (nd.gov) If you need accommodations or the form in a different format, please contact us at ethicscommission@nd.gov or (701) 328-5325.
The request for an advisory opinion must state each question upon which an opinion is desired, present all relevant facts, be as specific as possible, identify the names of all parties that are pertinent to the question, and include references to pertinent law or rules known to the requestor. The requestor must supply any additional information requested by the Ethics Commission.
Upon receipt of a request for an advisory opinion, the Ethics Commission will decide: (1) whether to close the record of the names of the persons in the request and opinion; and (2) whether to issue an advisory opinion. The Commission has delegated its authority to address these two issues to the executive director, in consultation with the chairperson. Within fourteen days of a written request for an advisory opinion, the requestor will be notified whether an opinion will be provided. A requestor may appeal a decision by the executive director to not issue an opinion to the full Commission.
Within ninety days of notifying a requestor the Commission will issue an advisory opinion, the Commission will issue a written advisory opinion. The Commission's written opinion will be provided to the requestor and made available to the public. Opinions and requests for opinions issued under N.D.C.C. § 54-66-04.2 are open records, except names of persons in the opinions and requests are exempt records. The phrase “exempt record” means the record is neither required by law to be open to the public, nor is confidential, but may be open in the discretion of the Commission. If the Commission exercises its discretion to not disclose all or part of an exempt record, the record is considered a closed record. Whether the Commission closes the record of the names of persons in the opinions and requests will be determined by the Commission on a case-by-case basis, with consideration given to the nature of the request and opinion.
Written advisory opinions are the final opinion of the Ethics Commission unless new and material facts are submitted which, in the opinion of staff and upon a majority vote of the Commission, warrant reconsideration.
The Ethics Commission posts all issued advisory opinions on its website here: ADVISORY OPINIONS | Ethics Commission, North Dakota (nd.gov)
Conflicts of Interest
Yes, the Ethics Commission’s rules require all state public officials to disclose potential conflicts of interest when they come up during the day-to-day work of state government.
Potential conflict of interest means a public official, as part of the public official’s duties, must make a decision or take action in a matter in which the public official has:
received a gift from one of the parties;
a significant financial interest in one of the parties or in the outcome of the proceeding; or
a relationship in a private capacity with one of the parties.
For definitions of these terms, please review the Ethics Commission’s conflict of interest rules in N.D. Admin. Code ch. 115-04-01. CONFLICTS OF INTEREST | Ethics Commission, North Dakota (nd.gov)
The Ethics Commission’s rules create a six-step process for disclosing and managing a potential conflict of interest. The steps are as follows:
Identify potential conflicts
Declare potential conflicts
Two options to manage conflicts
Neutral reviewer evaluation
Neutral reviewer determination
File the form
Step 1 – When should a public official identify potential conflicts?
A public official must identify potential conflicts prior to taking action or making a decision in a matter. This requirement creates a duty for each individual public official to do a quick ethics assessment before doing his or her work.
Step 2 – How does a public official declare a potential conflict?
If the potential conflict comes up during a meeting, the public official should declare it on the record to ensure it is included in the meeting minutes. The public official must provide enough facts for others to understand the potential conflict.
Step 3 – What two options does a public official have to manage a potential conflict?
After declaring a potential conflict, a public official can recuse or ask the neutral reviewer to determine whether a potential conflict of interest is a disqualifying conflict of interest.
Step 4 – How does the neutral reviewer evaluate if a potential conflict is a disqualifying conflict?
The neutral reviewer must evaluate five (5) factors from N.D. Admin. Code § 115-04-01-03(7). The factors to evaluate are below.
Appropriate weight and proper deference must be given to the requirement that a public official perform the duties of elected or appointed office, including the duty to vote or otherwise act upon a matter, provided the public official has properly disclosed the potential conflict of interest.
A decision that requires a public official to recuse or abstain from further action or decision in a matter should only occur in cases where the independence of judgment of a reasonable person in the public official's situation would be materially affected by the disclosed potential conflict of interest.
The review of a potential conflict of interest and any decision that would require a public official to recuse themself or abstain from further involvement in a matter shall consider any applicable North Dakota law which precludes the public official from recusal or abstention in the matter.
It is presumed that a public official does not have a disqualifying conflict of interest if the public official would not derive any personal benefit which is greater than that accruing to any other member of the general public or any general business, profession, occupation, or group affected by the matter.
Any guidance issued by the Ethics Commission, including informal guidance, advisory opinions, rules, standards, and precedent.
Step 5 – What determinations can the neutral reviewer make?
The neutral reviewer can make two possible determinations: (1) no disqualifying conflict of interest exists, and the public official may participate in the matter; or (2) a disqualifying conflict of interest exists, and the public official must recuse from the matter.
Step 6 – Where do I find the conflict of interest form?
A public official must fill out and file the Ethics Commission’s conflict of interest form as the final step to disclose a potential conflict of interest. The form walks you through the required information and how to submit it. The form is available here: CONFLICTS OF INTEREST | Ethics Commission, North Dakota (nd.gov)
If you need accommodations or the form in a different format, please contact us at ethicscommission@nd.gov or (701) 328-5325.
Yes, the Ethics Commission created a flow chart walking through the disclosure process. It is available here.
A neutral reviewer should be designated by a government body’s policies or rules. In the absence of a policy or rule, the Ethics Commission’s default rule applies. Under the default rule the following are the neutral reviewer, depending on the situation:
for the legislative assembly – the remaining members of a legislator’s chamber or committee;
for a legislative employee – the legislative employee’s supervisor;
for a member of the governor’s cabinet – the governor’s designated ethics officer, which is the governor’s general counsel;
for an appointed public official – the person who appointed the public official; and
if no policy, rule, or default rule applies, the public official must make the neutral reviewer determination on hir or her own and report it within seven (7) days on the conflict of interest form.
Appearance of Bias in Quasi-Judicial Proceedings
A quasi-judicial proceeding resembles a court proceeding but does not take place in a court. It usually takes place within an executive administrative agency. Public officials will listen to arguments, look at evidence, and make a decision based on the facts before them. Examples of quasi-judicial proceedings include discipline in licensing before boards and commissions, public service commission permit hearings, and hearings before the office of administrative hearings.
They are very similar. Article XIV of the North Dakota Constitution specifically requires the legislative assembly and the Ethics Commission to create rules related to the appearance of bias in quasi-judicial proceedings. The quasi-judicial appearance of bias rules require disclosure of potential conflicts of interest in quasi-judicial proceedings. However, the quasi-judicial appearance of bias rules go an extra step. They also require disclosure of any campaign support received from a party to a quasi-judicial proceeding.
Article XIV, § 2 of the North Dakota Constitution gives the Ethics Commission authority over more individuals when they take part in a quasi-judicial proceeding. Under Article XIV, § 2 and the Commission’s rules “directors, officers, commissioners, heads, or other executives of agencies” taking part in the quasi-judicial proceeding must disclose potential conflicts of interest.
The six-step process still applies. However, two key differences apply:
the neutral reviewer has four factors to consider when an individual discloses a potential conflict of interest in a quasi-judicial proceeding; and
the neutral reviewer evaluates whether the potential conflict of interest creates an appearance of bias to a reasonable person, instead of a disqualifying conflict of interest.
Yes, the Ethics Commission created a flow chart walking through the disclosure process. It is available here.
“Appearance of bias to a reasonable person” means that the interest in question would create in reasonable minds a perception that the director, officer, commissioner, head, or other executive's ability to carry out quasi-judicial responsibilities impartially and without bias is impaired. N.D. Admin. Code § 115-05-01-02(1).
To determine whether a potential conflict of interest creates an appearance of bias to a reasonable person, the neutral reviewer evaluates four (4) factors from N.D. Admin. Code § 115-05-01-04(2). They are as follows:
whether the potential conflict of interest or campaign monetary or in-kind support involves a party to the proceeding;
the issues involved in the quasi-judicial proceeding;
other factors known to the director, officer, commissioner, head, or other executive that create an appearance of bias to a reasonable person; and
for campaign monetary or in-kind support,
the size of the potential conflict of interest or campaign monetary or in-kind support;
the degree of involvement in the campaign; and
whether the campaign monetary or in-kind support is within the current or immediately preceding election cycle.
Individuals involved in quasi-judicial proceedings must fill out and file the Ethics Commission’s form as the final step to disclose a potential conflict of interest. The form walks you through the required information and how to submit it. The form is available here: QUASI-JUDICIAL PROCEEDINGS | Ethics Commission, North Dakota (nd.gov)
If you need accommodations or the form in a different format, please contact us at ethicscommission@nd.gov or (701) 328-5325.