Ethics Commission asks committee to let it initiate advisory opinions; Judiciary amends measure and votes do-not-pass

The House Judiciary Committee heard testimony on House Bill 1046, which would amend Section 5466 04.2 of the North Dakota Century Code to clarify and expand the Ethics Commission’s advisory-opinion process. Rebecca Binstock, executive director of the North Dakota Ethics Commission, testified the commission wants statutory authority to initiate written advisory opinions when recurring questions arise and to codify the commission’s current practice for accepting third-party requests made on behalf of regulated persons.

Binstock told the committee advisory opinions provide a “safe harbor” for public officials, candidates and lobbyists who seek prospective guidance on ethics questions and that the commission had issued four opinions to date. The proposed bill would allow the commission to initiate an opinion “upon the majority vote of the entire commission” and would require requests to concern hypothetical or prospective facts related to the requester’s conduct. Binstock said the commission intended the vote threshold to be a majority of the entire five-member commission, not merely a quorum.

Committee members questioned why the commission introduced the bill rather than a legislator, how the commission’s staff and commissioners operate, and whether allowing the commission to initiate opinions would broaden its authority too far. Representative Vetter asked whether the commission director votes; Binstock replied she is staff and does not vote; the five commissioners are the voting members.

Representative Satrim proposed an amendment to replace the majority threshold with a unanimous vote of the full commission. That motion failed on a roll call. Later the committee voted to amend the bill to require the vote of 4 of the 5 commissioners to initiate an advisory opinion; that amendment passed 11–3. The committee then considered a motion for a do-pass recommendation. The committee voted the motion down; a subsequent motion for “do not pass as amended” carried 13–1, so the bill will not advance from committee on that recommendation.

Supporters said the change would let the commission address recurring questions when requesters did not follow through; opponents, and several committee members, said it risked the commission producing wide-ranging advisory opinions without an individual petitioner and could amount to quasi-rulemaking. Binstock said the commission would still draft proposed opinions and require a final vote before the opinion became public and noted historically most votes have been unanimous or near-unanimous.

The hearing record shows public testimony only from the Ethics Commission; no witnesses testified in opposition during the hearing. After the votes the committee assigned Representative Satrim to be the bill carrier in the event the House takes further action.