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19.9442.

01000 Prepared by the Legislative Council staff

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.

Section of Deadline for Is Legislative Relevant Sections of the


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

Section of Deadline for Is Legislative Relevant Sections of the


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.

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Section of Deadline for Is Legislative Relevant Sections of the


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.

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Section of Deadline for Is Legislative Relevant Sections of the


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.

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19.9442.01000

Section of Deadline for Is Legislative Relevant Sections of the


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;

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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.

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Section of Deadline for Is Legislative Relevant Sections of the


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.

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