Legislature aims to fix audit law requiring criminal probe

State News

In this July 17, 2019 photo, North Dakota State Auditor Josh Gallion appears before the Legislative Audit and Fiscal Review Committee in the state capitol in Bismarck. Prosecutors have declined to pursue criminal charges against North Dakota State College of Science officials accused of withholding records from investigators. Gallion issued the report earlier this year that focused on management of the school’s career workforce program. It alleged that Tony Grindberg, the school’s vice president of workforce affairs and a former state lawmaker, failed to disclose his wife’s company that was paid $39,500 to formulate a marketing plan for the program. (Tomm Stromme/The Bismarck Tribune via AP)

BISMARCK, N.D. (AP) — North Dakota legislative leaders are promising a fix to inflexible laws that make mandatory criminal investigations into some audit findings that may be the result of an unintentional mistake.

Recent agency audits that were referred for criminal prosecution have sent a ripple of fear throughout state government, said North Dakota United President Nick Archuleta, whose union represents 11,500 public employees and educators.

“Everyone supports transparency but sometimes honest mistakes are made,” Archuleta said. “If I was a public employee finding myself in this position, I would be very worried. Now they have to get an attorney because they may have charges.”

North Dakota Auditor Joshua Gallion acknowledged Friday that some recent audits may have resulted in the “unintended consequences” of potential criminal charges. But he said he’s obliged to report alleged wrongdoing found in audits to the attorney general’s office, which also is required to investigate under state law.

“We execute the laws that are on the books. I can’t imagine the intent is to have everything investigated,” Gallion told The Associated Press. “We need to have some flexibility that allows for human mistakes, and discretion on the investigation side.”

“I’m not opposed to making some adjustments (in state law),” he said.

Republican Senate Majority Leader Rich Wardner called it an “issue that needs to be resolved.”

“He’s doing his job,” Wardner said of Gallion, also a Republican who was elected to the post in 2016. “I don’t think anybody is questioning his findings. He’s right to question how we handle them after we find them.”

Wardner said the solution could be as easy as amending language within existing laws to allow for more discretion in criminal investigations, such as replacing “shall” with “may.”

The Legislature will “absolutely have a solution” but it can’t happen until lawmakers reconvene for their biennial session in 2021, he said.

That’s of little salve to assistant State Librarian Cynthia Clairmont-Schmidt, who for 40 years has helped provide assistance to public libraries across the state.

Now she may have to hire an attorney after an audit released this week found the library misallocated some funds, including giving nearly $12,500 to two public libraries that were not eligible to get it.

North Dakota law does not allow individual employees to be represented by state attorneys.

Clairmont-Schmidt said he alone was responsible for the errors that have since been corrected.

“It was my decision but the wrong decision,” she said. “I certainly am not going to do it again.”

Chief Deputy Attorney General Troy Seibel said the office has not decided whether to pursue criminal charges.

“We’re reviewing it and figuring out the best way going forward,” Seibel said. “Whether it gets prosecuted criminally, we have that discretion.”

The attorney general’s office this week did tap authorities in South Dakota to help investigate the Department of Commerce after an audit found it allegedly violated state law on contract bidding.

Commerce Director Michelle Kommer told members of the Legislature’s Audit and Fiscal Review Committee on Wednesday that she has hired a private attorney to defend herself against any charges that may result from the investigation.

She told the 19-member panel she has “grave concerns” that a “dedicated person who comes to work for the right reasons cannot make an honest mistake without the threat of a criminal investigation.

“I would ask you who can work productively under these circumstances?” she asked the committee.

Republican Sen. Jerry Klein, who heads the panel, told the AP that the Legislature “no doubt will address this issue” by “tweaking” language in existing law.

“We want the auditor to be able to do his job but I also don’t believe we should put our employees at risk without a formal charge and due process to protect their integrity and their name,” he said.

Klein said the problems found with the state library were likely due to bookkeeping errors that have been corrected.

“Do we really want to have a little-old-lady librarian having to lawyer up over this?” he said.

Copyright 2019 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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