BISMARCK, N.D. (North Dakota Monitor) – North Dakota Ethics Commission member Murray Sagsveen no longer has the support to continue serving beyond his expired term, Gov. Kelly Armstrong argued Wednesday.
The governor and two other members of the Ethics Commission Selection Committee remain at a stalemate over reappointing Sagsveen, a Bismarck attorney. Now the governor no longer supports Sagsveen serving on the board until a replacement is named.
Sagsveen’s term ended Aug. 31, but he has continued serving while the commission has had three vacancies. Armstrong argued that a lack of consensus from the committee means Sagsveen can no longer serve. Late Wednesday, Armstrong sent a letter to Sagsveen outlining his position.
Armstrong writes that Sagsveen’s service after Aug. 31 has been “crucial” to maintaining a quorum of three members on the Ethics Commission. But an Oct. 31 appointment to the commission means his participation is no longer necessary.
“Given this, you no longer have consensus to continue serving past your expired term,” Armstrong writes.
The letter does not ask Sagsveen to resign. A spokesperson for the governor said the expectation is for Sagsveen to end his service on the commission.
Vacancies to the Ethics Commission are filled by a consensus vote of the governor and the Senate majority and minority leaders, according to the constitutional amendment that created the agency. The selection committee has now met four times without coming to an agreement about reappointing Sagsveen. Armstrong has argued that a “reset” is needed on the commission, but the two lawmakers strongly support Sagsveen. Armstrong said Wednesday it is “untenable” for Sagsveen to continue serving.
“It is by our discretion and our discretion alone,” Armstrong said during the meeting. “He no longer has that consensus.”
Senate Minority Leader Kathy Hogan said she intends to look into additional legal opinions on the subject.
Senate Majority Leader David Hogue, R-Minot, who has called Sagsveen his “top pick” among other finalists, said he was sympathetic to the governor’s position and agreed an appointee should not be able to serve permanently after their term has expired.
While the selection committee met in the governor’s conference room, the Ethics Commission held its monthly meeting elsewhere at the Capitol. Ethics Commission Executive Director Rebecca Binstock said during the meeting that the commission has always operated under the policy of commissioners serving until they’re replaced.
“That has been a longstanding policy of the commission,” Binstock said.
A memo from the Ethics Commission’s general counsel, Logan Carpenter, cites North Dakota Supreme Court cases from the early 20th century and other legal resources, concluding that a member’s continued service “is lawful until you are either reappointed or a successor has been appointed.”
Claire Ness, chief deputy attorney general, said in an email to Carpenter she had not had time to review the memo in depth, but raised several concerns about his analysis and conclusions.
“Even upon first review, it is clear they do not reflect the legal analyses and opinions of the Office of the Attorney General,” Ness said.
The governor said anybody who disagrees with his opinion that the consensus of the selection committee is required for Sagsveen to continue to serve has a few options.
“They could go ask for an attorney general’s opinion or they can figure out if they want to litigate,” Armstrong said. “But it seems like a colossal misapplication of resources for a temporary position.”
Armstrong acknowledged the possibility the Ethics Commission may ignore the letter. He cautioned that ignoring it could call into question future decisions made by the commission.
Sagsveen has previously declined to comment about the selection committee discussions. On Wednesday, he called Armstrong’s position “interesting” but said he needed time before commenting further.
After receiving the letter, Sagsveen abstained from some votes at the end of the lengthy Ethics Commission meeting.
Also Wednesday, the selection committee appointed Fargo attorney Mark Western to fill the remainder of the term of former Ethics Commission Chair Dave Anderson, who died in May. That term expires next summer.
“I would hope that we could reappoint him next summer,” Hogue said.
Western, a professional mediator, emphasized during a candidate interview the importance of collaboration and deescalating conflicts. He also said he wants to help better define the role of the Ethics Commission.
“I think working both with the Legislature as well as the executive branch, they have to figure out what the lane is,” Western said of the Ethics Commission.
Previously the selection committee appointed Pam Sharp, former director of the Office of Management and Budget, to another opening on the commission. She attended her first meeting Wednesday.
The selection committee plans to meet again to discuss the remaining vacancy on the commission.
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