A Fargo reader sent me the following question for this weekâ€™s Ask Your Government:
â€œIâ€™m very curious. Has anyone in the state or locally ever been prosecuted for violating the open meeting laws or the conflict of interest laws in the North Dakota Century Code? If not, why not?
We see violations in the newspaper locally and across the state every few months, and we donâ€™t have any district attorney willing to prosecute. Maybe the decision to prosecute should be left to some unbiased group, like a parole board.
No wonder North Dakota was noted as one of the highest crime states for political corruption in the country.â€
I asked for a response from Aaron Birst, executive director of the North Dakota Stateâ€™s Attorneys Association. Hereâ€™s what he said:
â€œBy law, the remedy for an open meeting violation is for the public entity to take corrective action, which typically means the entity needs to re-create the meeting or provide the requested records.
â€œIf the entity still fails to comply with the correction, then the members of the entity could be held personally liable, in civil court, for the violation. Criminal prosecution is not the prescribed course of action for open meeting violations.
â€œCriminal prosecution can be an appropriate option against public officials for violations of the criminal code, which has happened in North Dakota, but those charges are rare.
â€œThis is due in large part because most public officials take their duties extremely seriously.â€
Attorney General Wayne Stenehjem also weighed in on the question:
â€œNorth Dakota has long had an open records and meetings law, but in 1997, the law was considerably amended by the Legislature. The amendments were proposed by an open records and meetings task force comprised of representatives from public entities, political subdivisions, law enforcement and the media.
â€œOne of the most innovative proposals was the creation of an administrative process to address violations of the open records and meetings law. It is widely agreed that the administrative process is a vast improvement over the criminal penalty found in the law prior to 1997.
â€œThe criminal penalty had only been used one time and was not viewed as an effective deterrent. Stateâ€™s attorneys were reluctant to prosecute violations because most of them were perceived as minor and a result of ignorance of the law rather than criminal intent.
â€œThe administrative review process is faster than a criminal prosecution, provides education to the public entity because the opinion explains the reason for the violation and, because it is published, becomes a learning tool for other public entities as well as for citizens.
â€œThe publication of an opinion serves as great a deterrence as a criminal penalty. However, if a stronger deterrent is necessary, the law does provide for either a civil action or, for repeated violations, a criminal penalty.
â€œIt has been my experience that when more than one opinion is issued to the same public entity, the entity recognizes that its members and employees need further education on the law and asks this office to provide it, which we are happy to do.â€
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