By now you’re likely familiar with the North Dakota Legislature’s efforts during the winding up moments of the 2019 Legislative Session to strip our State Auditor of his authority to initiate performance audits. If you’re not caught up, you can check out some of the things we’ve published about it here. Instead of line item vetoing the move, Governor Doug Burgum signed off on it.
Those of us paying attention knew exactly why this was done. It was political retribution for our current State Auditor — Josh Gallion — doing his job. Perhaps an Associated Press article explained it best:
“Gallion is more aggressive about publicizing the findings of audits, issuing press releases and using social media to disclose findings, which hadn’t been done before.”
Two of those audits involved the governor’s office and a former lawmaker. The latter is currently a Fargo City Commissioner and also works for the North Dakota State College of Science. Let’s just say that the findings from those audits weren’t received with gratitude.
Given the entirety of it all, it was blatantly evident that the legislature was doing their best to teach Gallion a lesson— a fact many legislators denied. That deniability took a hit when Rep. Keith Kempenich (R – District 39) was honest enough to admit the truth to the AP:
“A lot of legislators started having some issues with the way things were going and wanted to reel him in.”
Through everything that’s gone on with this issue, Josh Gallion has stood firm. It’s obvious that his commitment is to doing the job that he was elected to do— to bring transparency and accountability to Bismarck. There’s little doubt that he has no interest in authoring a political version of “How to Win Friends & Influence People”. It’s just not on his radar— nor should it be.
One of the best moves Gallion made was to request an Attorney General’s opinion on what the legislature and Governor Burgum did. And when that opinion was released on June 28th of last month, it dealt a huge blow to those still trying to defend the efforts of the legislature. For the State Auditor — and all those who support the job that he’s doing — it was exactly what we were hoping for. In Attorney General Wayne Stenehjem’s opinion, he expressed more than once that he believes the courts would find the law unconstitutional as a violation of the Separation of Powers.
As if the opinion wasn’t damning enough, what Gallion decided to do with it has only angered some of those who wanted to “reel” him in more than they were already. Instead of following the law, in hopes of it being repealed through referendum at the ballot box in 2020 or legislation during the 2021 Legislative Session, Gallion announced he would just ignore it and continue “business as usual”.
This set the stage for an interesting set of circumstances as Gallion stood before the Legislative Audit and Fiscal Review Committee earlier this week— the same committee he’s supposed to now seek permission from for performance audits. Gallion personally reiterated to the committee that he has no intention of seeking their permission, but will abide by the Attorney General’s opinion instead. This didn’t set well with Rep. Mike Nathe (R – District 30), who attempted to chastise the State Auditor:
“I think it hurts your credibility. You’re out auditing somebody, you’re asking them to follow the law and yet you’re not.”
For Nathe, I’m sure he looked at this as a “Gotcha!” moment. But he’d be wrong. This stems from the very last statement found at the conclusion of Attorney General Wayne Stenehjem’s opinion:
“This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until such time as the question presented is decided by the courts.” (Emphasis Added)
In other words, with Stenehjem’s opinion in hand, Gallion is under no obligation to follow the law until the courts tell him otherwise. In fact, the law is such that there’s only very limited exceptions (i.e. Section 54-12-01.4) to an Attorney General’s opinion having this effect.
In a way — perceived or real — Gallion is daring the legislature to sue him. You might recall that I previously wrote there are only three options for Legislative Management at this point:
- Sue the State Auditor.
- Let Gallion proceed as he plans and address the issue during the 2021 Legislative Session.
- Reconvene and resolve the issue now.
We already know there’s no plans to reconvene the legislature. Senate Majority Leader Rich Wardner (R – District 37) has already said as much. But does a lawsuit make sense? Absolutely not. Not only is there a very good possibility the legislature would lose, but it’d be a horrible waste of money.
Anybody with a brain can clearly see that the legislature made a embarrassing mistake— an observation long-time Senator Ray Holmberg (R – District 17) expressed to KX News this week:
“There is no fig leaf big enough for the Legislature for this.”
In this battle — and make no mistake, it’s one of Right vs. Wrong — Gallion is playing the only card he has to play. He’s ignoring the law under the opinion of his legal counsel— the Attorney General. The only other choice would be to fold to the overreach of the legislature. And that’s just not acceptable.
Legislators like Mike Nathe can grumble all they want to. The reality is that they only have themselves to blame. Not only did they vote for the atrocity, but the legislature could have fixed this long ago and they’ve simply chosen not to. They made a really stupid decision. Some of them have had the good sense to admit as much. Others — like Nathe — seemingly don’t get it and don’t really seem interested in resolving it as much as they do to dig in their heels over it.
Yes, it seems some of these folks just can’t get over the bitterness. This was evident once again when the Legislative Audit and Fiscal Review Committee voted against a motion this week to forward the findings of the aforementioned audit regarding the North Dakota State College of Science to the Attorney General’s office for review— a move Rep. Marvin Nelson (D – District 9) cited as necessary when there’s reason to believe a law has been broken.
At every turn in this fiasco, we’ve seen how important it is that we have an independent State Auditor. In reality, it’s all evidence of why it’s right for Josh Gallion to ignore the legislature’s power grab.
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