North Dakota Law

Updates from the University of North Dakota School of Law.

Rebecca Binstock ’12 is quoted: Declaring conflicts of interest rare for North Dakota lawmakers

Ethics Commission says Legislature’s rules need improvement

North Dakota Monitor
BY:  – FEBRUARY 5, 2024 5:00 AM
The North Dakota House chamber in October 2023. Lawmakers declared conflicts of interest three times in 2023. (Kyle Martin/For the North Dakota Monitor)

This is the first in a two-part series about conflict of interest rules and the North Dakota Legislature. 

Lonnie Laffen stood up at his desk on the Senate floor.

It was the middle of the 2013 session and the assembly was about to vote on the North Dakota University System budget — a bill that included funding for building renovations at the University of North Dakota. At that point, Laffen’s architecture firm had already won the contract for one of the projects.

“I have a conflict with what’s left in this amendment that affects me ‘directly, individually, uniquely and substantially’ and would request to be excused from voting on the amendment,” the Grand Forks Republican, who died in 2020, told the chamber.

The Senate declined.

North Dakota lawmakers are required to speak out if they believe they have a personal or private interest in the outcome of a bill — a policy intended to prevent officials from using their positions for their own personal gain.

But conflict declarations are extremely rare. State lawmakers claimed conflicts on bills just three times in 2023, according to the legislative branch’s website.

Even when lawmakers do state conflicts, they pretty much always end up voting on the measure anyway.

 North Dakota Ethics Commission Executive Director Rebecca Binstock and general counsel Logan Carpenter meet Dec. 14, 2023, at the Capitol. (Amy Dalrymple/North Dakota Monitor) 

The North Dakota Ethics Commission says the House and Senate rules are partly to blame. They’re vague, confusing and in some ways counterintuitive, said Rebecca Binstock, the commission’s executive director.

“There seems to be this difficulty in actually applying them,” Binstock said. She said as a result, lawmakers aren’t declaring conflicts as often as they should.

One state representative — Rep. Jason Dockter, a Bismarck Republican — was charged with a conflict of interest-related crime in December. Court records indicate the Ethics Commission referred the case for prosecution.

The Ethics Commission, which enforces ethical behavior in several areas of state government, including the Legislature, adopted rules governing conflicts of interest in 2022. The Legislature is bound by those standards, but the commission allows groups to adopt alternative procedures so long as they’re at least as strict as the commission’s.

But the commission in a 2023 advisory opinion found that not every part of the Legislature’s conflict of interest policy held up to scrutiny.

“What we did in the advisory opinion is we said, ‘Yes, the actual language of the rule is pretty good, except that there are some ways that our rules at the Ethics Commission cover more things,’” Binstock said.

Under House and Senate rules, when a lawmaker declares a conflict of interest, they’re not automatically excused from voting. The other lawmakers present for the vote must decide whether to allow the member to participate.

The rules state that the rest of the assembly should only exclude a lawmaker from voting if the conflict affects the member “directly, individually, uniquely, and substantially.” This vote must be decided without debate, and the rules don’t offer much guidance on how lawmakers should determine whether a conflict meets this standard.

In practice, lawmakers interpret the standard to mean someone only needs to declare a conflict when the measure contains something tailor-made to benefit them.

 North Dakota Senate Majority Leader David Hogue, R-Minot, center, and other members of the Senate participate in a special session of the Legislature on Oct. 24, 2023. (Kyle Martin/For the North Dakota Monitor) 

As Senate Majority Leader David Hogue remembers it, senators voted against recusing Laffen because he was not the exclusive beneficiary of the funding; lots of other people worked with him at the firm.

“While his firm will directly benefit from getting that architectural contract, the senator’s interest was not that great when you did the math,” the Minot Republican said.

The Legislature’s standards for recusal are narrow for a reason, said Legislative Council Director John Bjornson. Having lawmakers recuse for every minor conflict would disrupt the Legislature’s work, he said.

“It would be pretty difficult for a citizen legislature to continue to have people disqualify themselves from voting on issues because it may tangentially affect them,” Bjornson said.

But Binstock said the way the Legislature typically applies the “directly, individually, uniquely, and substantially” standard does not meet the commission’s guidelines.

“How it is interpreted in practice is much more narrow than how the Ethics Commission interprets it,” said Binstock.

While Binstock wouldn’t comment on the Dockter case or actions of specific lawmakers, she did say that in general, voting on a bill that benefits your business in particular is an “absolute no.”

Dockter is accused of breaking state law by allegedly voting on legislation that he had a financial stake in. The case is tied to a Bismarck building partially owned by Dockter and leased to the attorney general’s office, Ladd Erickson, state’s attorney for McLean County, told the North Dakota Monitor previously. Dockter has pleaded not guilty to the misdemeanor charge, and his attorney, Lloyd Suhr, declined to comment for this story.

In its 2023 opinion, the commission expressed concern that the House and Senate rules don’t give lawmakers sufficient direction on what is and isn’t a recusal-worthy conflict of interest.

Under the administrative rules passed by the Ethics Commission — which are higher law than the Legislature’s in-house rules — officials must weigh five factors when deciding whether or not to recuse someone who declares a conflict. The House and Senate rules don’t include those factors or any equivalently thorough provisions.

The House and Senate rules also are quiet on the amount of information lawmakers who declare conflicts need to share with the assembly about their situation.

The commission feels these aspects of the rules hamper lawmakers from properly disclosing conflicts when they arise, Binstock said.

The Legislative Procedure and Arrangements Committee in December approved a bill draft amending portions of the Legislature’s conflict of interest rules, though the proposed changes are minor and don’t affect any of the above areas of concern.

According to Binstock, Bjornson in early January asked the Ethics Commission for its position on the amendments.

During its Jan. 17 meeting, Ethics Commission staff and board members indicated that though the commission didn’t have any problems with the changes at first blush, they may take the opportunity to remind the Legislature of areas where its rules don’t harmonize with those adopted by the commission — like the fact that conflict declarations must be decided without debate.

“I do think it would be better if members of the rest of the legislative body — the House or the Senate, whoever it is — could ask some clarifying questions,” Paul Richard, chair of the Ethics Commission, said during the board’s Jan. 17 meeting.

Logan Carpenter, the Ethics Commission’s attorney, also said that the letter may weigh in on the Legislature’s “directly, individually, uniquely, and substantially” standard.

Commissioners gave staff the go-ahead to prepare a draft letter to Bjornson for the board to consider at its next meeting on Feb. 28.

Here are the three conflicts declared by lawmakers in 2023:

  • Rep. Matt Ruby, R-Minot, declared a conflict ahead of a House floor vote on a bill relating to pay and benefits for members of the North Dakota National Guard because he is in the National Guard.
  • Sen. David Rust, R-Tioga, in an Senate Appropriations Committee Education and Environment Division meeting declared he had a conflict of interest related to the budget bill for the North Dakota Game and Fish Department because he rents land to the agency through the Private Land Initiative program.
  • Rep. Bill Tveit, R-Hazen, declared a conflict during a House floor session on a bill relating to payments to landowners whose property is damaged by mineral developers because is a landowner.

In all three instances, the lawmakers were allowed to vote because the other legislators present deemed that the “directly, individually, uniquely, and substantially” clause had not been met.

Read the original story from the North Dakota Monitor