COMPARISON OF CONSTITUTIONAL AMENDMENT ON ETHICS AND RELEVANT SECTIONS OF THE
CONSTITUTION OF NORTH DAKOTA AND NORTH DAKOTA CENTURY CODE On November 6, 2018, voters approved a ballot measure amending the state constitution by adding provisions regarding lobbying, conflicts of interest, campaign finance reporting and restrictions, and a state ethics commission. Many provisions in the amendment already exist in state statutes or the state constitution. The following chart provides the text of each section of the amendment along with the constitutional provisions and North Dakota Century Code sections relevant to the amendment section. It also includes the deadlines for implementation specified in the amendment. The effective date for the amendment is January 5, 2019, although some provisions have delayed effective dates as noted in the chart.
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code Section 1.1 No The people of North Dakota need information to choose candidates for office, vote on ballot measures, and ensure that their representatives are accountable. This transparency must be sufficient to enable the people to make informed decisions and give proper weight to different speakers and messages. The people therefore have the right to know in a timely manner the source, quantity, timing, and nature of resources used to influence any statewide election, election for the legislative assembly, statewide ballot-issue election, and state government action. This right is essential to the rights of free speech, assembly, and petition guaranteed by the First Amendment to the United States Constitution and shall be construed broadly. Section 1.2 January 5, 2022 Yes The legislative assembly shall implement and enforce this section by Chapter 16.1-08.1 governs campaign finance enacting, no more than three years after the effective date of this reporting and requires candidates, public article, laws that require prompt, electronically accessible, plainly officials, candidate committees, political comprehensible, public disclosure of the ultimate and true source of committee (including committees supporting or funds spent in any medium, in an amount greater than two hundred opposing ballot measures), and political parties dollars, adjusted for inflation, to influence any statewide election, to file reports of contributions and expenditures. election for the legislative assembly, statewide ballot-issue election, or The chapter often uses the term "candidate," and to lobby or otherwise influence state government action. The legislative the definition of candidate in Section assembly shall have an ongoing duty to revise these laws as 16.1-08.1-01 includes public officials. necessary to promote the purposes of this section in light of changes in technology and political practices. The legislative assembly shall Individuals and entities subject to the reporting vest by law one or more entities with authority to implement, interpret, requirements in Chapter 16.1-08.1 must report and enforce this section and legislation enacted thereunder. If the laws the dates and amounts of contributions and or rules enacted or an implementation, interpretation, or enforcement expenditures, as well as identifying information, action taken under this section fail to fully vindicate the rights provided including names and addresses, for individuals in this section, a resident taxpayer may bring suit in the courts of this and entities that contribute to the reporters or state to enforce such rights. receive expenditures from the reporters, provided the contributions or expenditures meets the relevant reporting thresholds.
Each reporter also must provide identifying
information for subcontributors, which include individuals and entities that gave money to a contributor which was then aggregated and given to the reporter, if the aggregated amount meets the relevant reporting threshold. North Dakota Legislative Council November 2018 19.9442.01000
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code The reporting threshold for most contributions and expenditures is $200, but the reporting threshold for ballot measure committee contributions and expenditures is $100. The thresholds do not increase for inflation.
Campaign finance reports required under
Chapter 16.1-08.1 must be filed electronically with the Secretary of State and "must be open to public inspection on the internet."
The Secretary of State is authorized to
implement and enforce the campaign finance reporting requirements, audit submitted reports, and impose fees and financial penalties for noncompliance with Chapter 16.1-08.1. Noncompliance with the reporting requirements also is a Class A misdemeanor.
Section 54-05.1-03 requires each lobbyist to
report each individual expenditure of $60 or more on any legislator, the Governor, or the spouse or family member of a legislator or the Governor, if the expenditure was made in carrying out the lobbyist's work. The Secretary of State is authorized to implement this provision and enforce it by charging late fees and financial penalties, revoking lobbyist registrations, and referring suspecting noncompliance to the Attorney General. The lobbyists' reports, as well as aggregate reports for each lobbyist compiled by the Secretary of State, are open records. Noncompliance with the reporting requirements is an infraction.
Section 12.1-32-01 provides penalties for
infractions. Generally, an infraction is punishable by up to $1,000. An individual guilty of multiple infractions in 1 year may be punished with up to 30 days' imprisonment and a fine up to $1,500. An organization guilty of multiple infractions within 1 year may be punished with a fine up to $20,000.
North Dakota Legislative Council 2 November 2018
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code Section 2.1 January 5, 2021 Yes A lobbyist may not knowingly give, offer, solicit, initiate, or facilitate a Lobbyists may provide gifts to public officials gift to a public official. A public official may not knowingly accept a subject to several restrictions. Effective as of gift from a lobbyist. These prohibitions do not apply if the lobbyist is January 5, an immediate family member of the public official. "Gift," as used in Section 9 of Article IV of the Constitution of 2021 this subsection, means any item, service, or thing of value not given North Dakota defines and prohibits bribery by in exchange for fair market consideration, including gifts of travel or and of legislators and states any legislator guilty recreation. However, "gift" does not mean any purely informational of bribery shall be expelled from the Legislative material, campaign contribution, or, in order to advance opportunities Assembly, deemed ineligible to serve in the for North Dakota residents to meet with public officials in educational Legislative Assembly, and subjected to other and social settings inside the state, any item, service, or thing of penalties as prescribed by law. Under Section value given under conditions that do not raise ethical concerns, as 12.1-12-02, violation of this constitutional determined by rules adopted by the ethics commission. Such rules provision is a Class C felony. must be adopted within two years after the effective date of this Section 10 of Article V of the Constitution of article. So as to allow for the adoption of these rules, these North Dakota defines and prohibits bribery by prohibitions shall take effect two years after the effective date of this and of the Governor and says the Governor or article. Appropriate civil and criminal sanctions for violations of this anyone else convicted of violating the section subsection shall be set by the legislative assembly. forfeits the right to hold office in the state and is subject to other penalties provided by law. Under Section 12.1-12-02, violation of this constitutional provision is a Class C felony.
Section 12.1-12-01 defines bribery in relation to
any public servant and makes it a Class C felony.
Section 12.1-12-03 makes the solicitation,
acceptance, or agreement to accept anything of pecuniary value by a public servant from a nongovernmental source in exchange for enumerated activities is a Class A misdemeanor. The section also provides the knowing offer, giving, or agreement to give anything of pecuniary value to a public servant in exchange for the enumerated activities is a Class A misdemeanor.
Section 12.1-12-05 defines trading in special
influence and makes it a Class A misdemeanor.
Section 54-05.1-06 prohibits lobbyists from
giving anything of value in exchange for a person's service to procure the passage or defeat of legislation on the condition the measure will pass or fail. A violation of the section is a Class B misdemeanor and also is punishable by a civil fine.
North Dakota Legislative Council 3 November 2018
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code Chapter 12.1-32 sets the penalties for felonies and misdemeanors. Generally, a Class C felony is punishable by up to 5 years' imprisonment and $20,000 or, for organizations, a fine of $50,000. A Class A misdemeanor is punishable by up to 360 days' imprisonment and $3,000 or, for organizations, a fine of $30,000. A Class B misdemeanor is punishable by up to 30 days' imprisonment and $1,500 or, for organizations, a fine of $20,000. Section 2.2 Yes An elected public official may not be a lobbyist while holding office or A person who undertakes an activity set forth in for two years after holding office. Appropriate civil and criminal Section 54-05.1-02 is deemed a lobbyist. The sanctions for violations of this subsection shall be set by the section specifically excludes legislators, state legislative assembly. employees, and others from the definition of lobbyist when acting in their official capacities. Some activities included in the section (e.g., attempting to secure the passage, amendment, or defeat of any legislation) are required of public officials and state employees to carry out their duties.
Section 44-08-19 prohibits a public employee
from engaging in political activities, as defined in Section 39-01-04, while on duty or in uniform. Section 2.3 Yes A lobbyist may not knowingly deliver a campaign contribution made Individuals and entities that meet the definition by another individual or entity. "Deliver," as used in this subsection, of a lobbyist under Section 54-05.1-02 may means to transport, transfer, or otherwise transmit, either physically contribute money aggregated from multiple or electronically. This prohibition does not apply to a person who people. Individuals and entities required to delivers a campaign contribution to the person's own campaign, or to report contributions under Chapter 16.1-08.1 the campaign of the person's immediate family member. This must identify the subcontributors. prohibition shall not be interpreted to prohibit any person from making a campaign contribution or from encouraging others to make a campaign contribution or to otherwise support or oppose a candidate. Appropriate civil and criminal sanctions for violations of this subsection shall be set by the legislative assembly. Section 2.4 Yes A statewide candidate, candidate for the legislative assembly, or Section 16.1-08.1-04.1 prohibits a candidate or public official may not knowingly use a campaign contribution for public official from using any contribution for his personal use or enrichment. Appropriate civil and criminal sanctions or her personal benefit or for the personal for violations of this subsection shall be set by the legislative benefit of anyone else. The section uses the assembly. term "candidate," but the definition of candidate in Section 16.1-08.1-01 includes public officials.
North Dakota Legislative Council 4 November 2018
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code Section 2.5 January 5, 2022 Yes Directors, officers, commissioners, heads, or other executives of Century Code includes several provisions agencies shall avoid the appearance of bias, and shall disqualify regarding conflicts of interest for various Effective as of themselves in any quasi-judicial proceeding in which monetary or situations and multiple officeholders, boards, January 5, in-kind support related to that person's election to any office, or a and agencies. The following are examples. 2022 financial interest not shared by the general public as defined by the ethics commission, creates an appearance of bias to a reasonable Chapter 28-32, the Administrative Agencies person. The legislative assembly and the ethics commission shall Practice Act is binding on agency heads and enforce this provision by appropriate legislation and rules, others serving as hearing officers in respectively. So as to allow for the adoption of such legislation or administrative hearings. Section 28-32-27 rules, this subsection shall take effect three years after the effective authorizes the disqualification of hearing date of this article. officers for good cause and provides means for substituting a new hearing officer. Any party to an administrative hearing may petition to have the hearing officer disqualified. Section 28-32-31 imposes a statutory duty on hearing officers to "[a]ssure that all hearings and related proceedings are conducted in a fair and impartial manner." Section 28-32-38 contains other provisions to prevent bias in administrative hearings.
Section 12.1-13-02 makes it a Class A
misdemeanor for a public servant to take official action likely to benefit the public servant as a result of acquiring a pecuniary interest made in contemplation of the official action. The section also contains other prohibitions on conflicts of interest.
Section 16.1-09-02 requires every candidate for
public office to file a statement of interests, and the contents of the statement must conform to the requirements in Section 16.1-09-03.
Section 48-01.2-08 prohibits a governing body
or any member, employee, or appointee of a governing body from having a pecuniary interest or concern in a contract for public improvement entered by the governing body. Section 2.6 No Governments of foreign countries, foreign nationals not lawfully Section 16.1-08.1-03.15 prohibits the following admitted for permanent residence in the United States, and from making any contribution or expenditure, corporations organized under the laws of or having their principal directly or indirectly, in connection with any place of business in a foreign country, are prohibited from making election: contributions or expenditures in connection with any statewide election, election for the legislative assembly, or statewide ballot- • Foreign citizens, governments, political issue election. parties, corporations, partnerships, associations, and organizations;
North Dakota Legislative Council 5 November 2018
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code • Other combinations of persons organized under the laws of a foreign country or having their principal place of business in a foreign country; and • Individuals who are not citizens or nationals of the United States and who are not admitted lawfully to the United States for permanent residence.
The section also prohibits any candidate, public
official, or other person from soliciting, accepting, receiving, directly or indirectly, a contribution from any of the foreign individuals and entities listed above. Contribution is defined in Section 16.1-08.1-01. Section 3.1 No In order to strengthen the confidence of the people of North Dakota Section 54-35-02.8 requires the Legislative in their government, and to support open, ethical, and accountable Management to appoint an ethics committee government, the North Dakota Ethics Commission is hereby each biennium. established. Section 3.2 Yes The ethics commission may adopt ethics rules related to transparency, corruption, elections, and lobbying to which any lobbyist, public official, or candidate for public office shall be subject, and may investigate alleged violations of such rules, this article, and related state laws. The ethics commission shall maintain a confidential whistleblower hotline through which any person acting in good faith may submit relevant information. The legislative assembly shall provide adequate funds for the proper carrying out of the functions and duties of the commission. Section 3.3 No The ethics commission shall consist of five members, appointed for Section 6 of Article IV of the Constitution of four-year terms by consensus agreement of the governor, the North Dakota prohibits legislators from holding majority leader of the senate, and the minority leader of the senate. any full-time appointive state office established No member of the ethics commission may hold other public office or by the constitution, designated by state law, be a lobbyist, candidate for public office, or political party official. created by the Legislative Assembly, or for which the Legislative Assembly has increased the compensation in an amount greater than the general rate of increase provided to full-time state employees. Section 4.1 No This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate, safeguard, or expand, but not to hamper, restrict, or impair, this article. This article shall take effect sixty days after approval.
North Dakota Legislative Council 6 November 2018
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the Implementation of Action Section Constitution of North Dakota and Amendment Section, if Any Required? Text North Dakota Century Code Section 4.2 No For the purposes of this article, "public office" or "public official" means any elected or appointed office or 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, and "agency" means each board, bureau, commission, department, or other administrative unit of the executive branch of state government, including one or more officers, employees, or other persons directly or indirectly purporting to act on behalf or under authority of the agency. Section 4.3 No If any provision of this article is held to be invalid, either on its face or as applied to any person, entity, or circumstance, the remaining provisions, and the application thereof to any person, entity, or circumstance other than those to which it is held invalid, shall not be affected thereby. In any case of a conflict between any provision of this article and any other provision contained in this constitution, the provisions of this article shall control.