Earlier this year, efforts by the North Dakota Legislature to strip our State Auditor of his authority to initiate performance audits was the hot topic in North Dakota politics. If you need a refresher, you can check out the things we published about it here.
Ultimately, Attorney General Wayne Stenehjem weighed in with his opinion on what the legislature had done in the waning moments of the 2019 Legislative Session. In it, Stenehjem repeatedly expressed his view that if the issue were to be settled in court that they would likely side with the Auditor on the basis of the Separation of Powers doctrine. In short, it’s his opinion that the law would be found unconstitutional.
The result of the Attorney General’s opinion was that our current State Auditor, Josh Gallion, made the decision to ignore the law passed by the legislature and to continue on with “business as usual”. The basis for this decision is actually found at the conclusion of Stenehjem’s opinion:
“This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until such time as the question presented is decided by the courts.” (Emphasis Added)
As you might imagine, Gallion’s decision didn’t set well with some of the very legislators who wanted to “reel in” the State Auditor. Yet, the reality is that he’s playing the only card he has to play. He’s ignoring the law under the opinion of his legal counsel— the Attorney General. The only other choice would be to fold to the overreach of the legislature.
One of the major rubs with what the legislature did was the fact that it was done via an amendment in a conference committee, during the final moments of the session. It was, without question, an egregious move worthy of every criticism resulting from it.
It was State Representative Keith Kempenich (R – District 39) who was the first to admit in a comment to the Associated Press that:
“A lot of legislators started having some issues with the way things were going and wanted to reel [Josh Gallion] in.”
For many of us, there was little doubt that one of those “issues” stemmed from an audit Gallion and his team released regarding the North Dakota State College of Science. In part, the attached press release read:
“A performance audit issued today by the North Dakota Office of the State Auditor shows that North Dakota State College of Science (NDSCS) has engaged in inappropriate activities surrounding the proposed Career Workforce Academy…”
The audit findings were not impressive. On page 4 of that report, we find this:
“Mr. [Tony] Grindberg, NDSCS Vice President of Workforce Affairs, was directly involved in the procurement of consulting services from Flint Group without disclosing a conflict of interest in accordance with applicable policies. Mr. Grindberg is married to the Chief Financial Officer (CFO) of Flint Group. In fiscal year 2018, NDSCS paid $39,500 in contracted consulting fees to Flint Group, an advertising consulting group.” (Emphasis Added)
Not only was Grindberg’s failure to disclose his relationship a violation of school policy, but it violated the State Board of Higher Education’s as well. And to compound the problem, it was noted that NDSCS also “failed to provide the State Auditor’s Office with numerous emails relating to the procurement of this contract.”
Unfortunately, this wasn’t the first time that Mr. Grindberg had his behavior called into question. Say Anything Blog’s Rob Port hit Grindberg in 2011 for double-dipping taxpayer dollars and again in 2012 for charging high-end meals and booze to a state credit card.
Grindberg is currently a Fargo City Commissioner. You may not be aware, but in addition to his employment for North Dakota’s higher education system, he was also a Republican State Senator from 1992 to 2014.
Well, imagine my surprise when I came across this bill while doing some research on another topic yesterday. As you can see, it is Senate Bill 2149 from the 2013 Legislative Session. Interestingly enough, it proposed stripping the State Auditor of the authority to initiate performance audits— the very thing they attempted to do to Josh Gallion earlier this year. But get this— who’s the first co-sponsor listed on the bill? That’s right— Tony Grindberg.
Ultimately, SB 2149 failed on a vote of 12 – 32 in the Senate.
Does Grindberg’s co-sponsoring this 2013 legislation actually lend more credibility to the idea that the NDSCS audit was a key factor in the move to neuter State Auditor Josh Gallion in the winding up moments of the 2019 Legislative Session?
Think about it…
January 2013 – State Senator Tony Grindberg co-sponsors a bill to strip the State Auditor of authority to initiate performance audits. (Note: Senator Judy Lee [R – District 13] was the prime sponsor, and Josh Gallion’s predecessor, Bob Peterson, was in office at the time of this bill.)
April 15, 2019 – the State Auditor’s office releases an audit blasting NDSCS and Tony Grindberg.
April 25, 2019 (Just ten days after the audit was released.) – the North Dakota Legislature passes an amendment, slipped in during conference committee, to strip State Auditor Josh Gallion of his authority to initiate performance audits, accomplishing what Senators Judy Lee and Tony Grindberg couldn’t in 2013.
Coincidence? Perhaps. But I don’t think it’s unreasonable to question if there’s a behind-the-scenes connection between Grindberg and the renewed effort to neuter the State Auditor. Which brings me to another point.
There’s actually another element to this situation that is deeply troubling going forward. One of the only ways we could ever have hope of finding a paper trail of sorts on things like this would be through open records requests. But that is no longer possible. Why? Because not only are legislators exempt from these requests, but so are the public officers or employees they communicate with.
This came about as a result of Senate Bill 2221 last legislative session. While legislative emails were already exempt, that apparently wasn’t good enough. So, “public officers or employees” was added to the exemption. In reality, it closed a backdoor way to access some of the emails of legislators.
And who was the primary sponsor of this legislation? Senator Judy Lee. Yes, that same Judy Lee who attempted to strip the authority of the State Auditor on performance audits in 2013— with Senator Tony Grindberg as a co-sponsor.
While State Auditor Josh Gallion is doing his very best to bring the highest level of transparency to North Dakota’s state government, there are literally forces at work to oppose such things. The people of North Dakota need to be aware of it. And more importantly, we need to do something about it.
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