Legislative Assembly SENATE BILL NO. 2148
of North Dakota
Introduced by
Senator Mathern
1 A BILL for an Act to create and enact chapter 54-66 of the North Dakota Century Code, relating
2 to restrictions on public officials and lobbyists, investigations of ethics violations, and
3 implementing requirements of article XIV of the Constitution of North Dakota; to amend and
4 reenact sections 28-32-01, 28-32-02, 28-32-03, 28-32-06, 28-32-07, and 28-32-08,
5 subsection 5 of section 28-32-08.1, sections 28-32-08.2, 28-32-09, 28-32-10, 28-32-11,
6 28-32-12, 28-32-14, 28-32-15, 28-32-16, 28-32-17, 28-32-18, and 28-32-18.1, and
7 subsections 2 and 4 of section 28-32-19 of the North Dakota Century Code, relating to
8 rulemaking procedures and requirements for the North Dakota ethics commission; to provide for
9 a legislative management study; to provide a penalty; and to provide an appropriation.
11 SECTION 1. AMENDMENT. Section 28-32-01 of the North Dakota Century Code is
12 amended and reenacted as follows:
13 28-32-01. Definitions.
14 In this chapter, unless the context or subject matter otherwise provides:
15 1. "Adjudicative proceeding" means an administrative matter resulting in an agency
16 issuing an order after an opportunity for hearing is provided or required. An
17 adjudicative proceeding includes administrative matters involving a hearing on a
18 complaint against a specific-named respondent; a hearing on an application seeking a
19 right, privilege, or an authorization from an agency, such as a ratemaking or licensing
20 hearing; or a hearing on an appeal to an agency. An adjudicative proceeding includes
21 reconsideration, rehearing, or reopening. Once an adjudicative proceeding has begun,
22 the adjudicative proceeding includes any informal disposition of the administrative
23 matter under section 28-32-22 or another specific statute or rule, unless the matter
24 has been specifically converted to another type of proceeding under section 28-32-22.
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1 An adjudicative proceeding does not include a decision or order to file or not to file a
2 complaint, or to initiate an investigation, an adjudicative proceeding, or any other
3 proceeding before the agency, or another agency, or a court. An adjudicative
4 proceeding does not include a decision or order to issue, reconsider, or reopen an
5 order that precedes an opportunity for hearing or that under another section of this
6 code is not subject to review in an adjudicative proceeding. An adjudicative proceeding
7 does not include rulemaking under this chapter.
8 2. "Administrative agency" or "agency" means each board, bureau, commission,
9 department, or other administrative unit of the executive branch of state government,
10 including one or more officers, employees, or other persons directly or indirectly
11 purporting to act on behalf or under authority of the agency. An administrative unit
12 located within or subordinate to an administrative agency must be treated as part of
13 that agency to the extent it purports to exercise authority subject to this chapter. The
14 term administrative agency does not include:
15 a. The office of management and budget except with respect to rules made under
16 section 32-12.2-14, rules relating to conduct on the capitol grounds and in
17 buildings located on the capitol grounds under section 54-21-18, rules relating to
18 the classified service as authorized under section 54-44.3-07, and rules relating
19 to state purchasing practices as required under section 54-44.4-04.
20 b. The adjutant general with respect to the department of emergency services.
21 c. The council on the arts.
22 d. The state auditor.
23 e. The department of commerce with respect to the division of economic
24 development and finance.
25 f. The dairy promotion commission.
26 g. The education factfinding commission.
27 h. The educational technology council.
28 i. The board of equalization.
29 j. The board of higher education.
30 k. The Indian affairs commission.
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1 l. The industrial commission with respect to the activities of the Bank of North
2 Dakota, North Dakota housing finance agency, public finance authority, North
3 Dakota mill and elevator association, North Dakota farm finance agency, the
4 North Dakota transmission authority, and the North Dakota pipeline authority.
5 m. The department of corrections and rehabilitation except with respect to the
6 activities of the division of adult services under chapter 54-23.4.
7 n. The pardon advisory board.
8 o. The parks and recreation department.
9 p. The parole board.
10 q. The state fair association.
11 r. The attorney general with respect to activities of the state toxicologist and the
12 state crime laboratory.
13 s. The administrative committee on veterans' affairs except with respect to rules
14 relating to the supervision and government of the veterans' home and the
15 implementation of programs or services provided by the veterans' home.
16 t. The industrial commission with respect to the lignite research fund except as
17 required under section 57-61-01.5.
18 u. The attorney general with respect to guidelines adopted under section 12.1-32-15
19 for the risk assessment of sexual offenders, the risk level review process, and
20 public disclosure of information under section 12.1-32-15.
21 v. The commission on legal counsel for indigents.
22 w. The attorney general with respect to twenty-four seven sobriety program
23 guidelines and program fees.
24 x. The industrial commission with respect to approving or setting water rates under
25 chapter 61-40.
26 3. "Agency head" means an individual or body of individuals in whom the ultimate legal
27 authority of the agency is vested by law.
28 4. "Complainant" means any person who files a complaint before an administrative
29 agency pursuant to section 28-32-21 and any administrative agency that, when
30 authorized by law, files such a complaint before such agency or any other agency.
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1 5. "Ethics commission" means the North Dakota ethics commission established by article
2 XIV of the Constitution of North Dakota.
3 5.6. "Hearing officer" means any agency head or one or more members of the agency
4 head when presiding in an administrative proceeding, or, unless prohibited by law, one
5 or more other persons designated by the agency head to preside in an administrative
6 proceeding, an administrative law judge from the office of administrative hearings, or
7 any other person duly assigned, appointed, or designated to preside in an
8 administrative proceeding pursuant to statute or rule.
9 6.7. "License" means a franchise, permit, certification, approval, registration, charter, or
10 similar form of authorization required by law.
11 7.8. "Order" means any agency action of particular applicability which determines the legal
12 rights, duties, privileges, immunities, or other legal interests of one or more specific
13 persons. The term does not include an executive order issued by the governor.
14 8.9. "Party" means each person named or admitted as a party or properly seeking and
15 entitled as of right to be admitted as a party. An administrative agency may be a party.
16 In a hearing for the suspension, revocation, or disqualification of an operator's license
17 under title 39, the term may include each city and each county in which the alleged
18 conduct occurred, but the city or county may not appeal the decision of the hearing
19 officer.
20 9.10. "Person" includes an individual, association, partnership, corporation, limited liability
21 company, the ethics commission, a state governmental agency or governmental
22 subdivision, or an agency of such governmental subdivision.
23 10.11. "Relevant evidence" means evidence having any tendency to make the existence of
24 any fact that is of consequence to the determination of the administrative action more
25 probable or less probable than it would be without the evidence.
26 11.12. "Rule" means the whole or a part of an agency or ethics commission statement of
27 general applicability which implements or prescribes law or policy or the organization,
28 procedure, or practice requirements of the agency or ethics commission. The term
29 includes the adoption of new rules and the amendment, repeal, or suspension of an
30 existing rule. The term does not include:
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1 a. A rule concerning only the internal management of an agency or the ethics
2 commission which does not directly or substantially affect the substantive or
3 procedural rights or duties of any segment of the public.
4 b. A rule that sets forth criteria or guidelines to be used by the staff of an agency or
5 the ethics commission in the performance of audits, investigations, inspections,
6 and settling commercial disputes or negotiating commercial arrangements, or in
7 the defense, prosecution, or settlement of cases, if the disclosure of the
8 statementrule would:
9 (1) Enable law violators to avoid detection;
10 (2) Facilitate disregard of requirements imposed by law; or
11 (3) Give a clearly improper advantage to persons who are in an adverse
12 position to the state.
13 c. A rule establishing specific prices to be charged for particular goods or services
14 sold by an agency.
15 d. A rule concerning only the physical servicing, maintenance, or care of
16 agency-owned or, agency-operated, ethics commission-owned, or ethics
17 commission-operated facilities or property.
18 e. A rule relating only to the use of a particular facility or property owned, operated,
19 or maintained by the state or any of its subdivisions, if the substance of the rule is
20 adequately indicated by means of signs or signals to persons who use the facility
21 or property.
22 f. A rule concerning only inmates of a correctional or detention facility, students
23 enrolled in an educational institution, or patients admitted to a hospital, if adopted
24 by that facility, institution, or hospital.
25 g. A form whose contents or substantive requirements are prescribed by rule or
26 statute or are instructions for the execution or use of the form.
27 h. An agency or ethics commission budget.
28 i. An opinion of the attorney general.
29 j. A rule adopted by an agency selection committee under section 54-44.7-03.
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1 k. Any material, including a guideline, interpretive statement, statement of general
2 policy, manual, brochure, or pamphlet, which is explanatory and not intended to
3 have the force and effect of law.
4 SECTION 2. AMENDMENT. Section 28-32-02 of the North Dakota Century Code is
5 amended and reenacted as follows:
6 28-32-02. Rulemaking power of agencyauthority - Organizational rule.
7 1. The authority of an administrative agency to adopt administrative rules is authority
8 delegated by the legislative assembly. As part of that delegation, the legislative
9 assembly reserves to itself the authority to determine when and if rules of
10 administrative agencies are effective. Every administrative agency may adopt, amend,
11 or repeal reasonable rules in conformity with this chapter and any statute administered
12 or enforced by the agency.
13 2. In addition to other rulemaking requirements imposed by law, each agency may
14 include in its rules a description of that portion of its organization and functions subject
15 to this chapter and may include a statement of the general course and method of its
16 operations and how the public may obtain information or make submissions or
17 requests.
18 3. The authority of the ethics commission to adopt rules arises from article XIV of the
19 Constitution of North Dakota. The ethics commission shall follow the process, and
20 meet the requirements, in this chapter to adopt, amend, or repeal its rules.
21 SECTION 3. AMENDMENT. Section 28-32-03 of the North Dakota Century Code is
22 amended and reenacted as follows:
23 28-32-03. Emergency rules.
24 1. If the ethics commission or an agency, with the approval of the governor, finds that
25 emergency rulemaking is necessary, the ethics commission or agency may declare
26 the proposed rule to be an interim final rule effective on a date no earlier than the date
27 of filing with the legislative council of the notice required by section 28-32-10.
28 2. A proposed rule may be given effect on an emergency basis under this section if any
29 of the following grounds exists regarding that rule:
30 a. Imminent peril threatens public health, safety, or welfare, which would be abated
31 by emergency effectiveness;
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1 b. A delay in the effective date of the rule is likely to cause a loss of funds
2 appropriated to support a duty imposed by law upon the ethics commission or
3 agency;
4 c. Emergency effectiveness is reasonably necessary to avoid a delay in
5 implementing an appropriations measure; or
6 d. Emergency effectiveness is necessary to meet a mandate of federal law.
7 3. A final rule adopted after consideration of all written and oral submissions respecting
8 the interim final rule, which is substantially similar to the interim final rule, is effective
9 as of the declared effective date of the interim final rule.
10 4. The ethics commission's or agency's finding, and a brief statement of the ethics
11 commission's or agency's reasons for the finding, must be filed with the legislative
12 council with the final adopted emergency rule.
13 5. The ethics commission or agency shall attempt to make interim final rules known to
14 persons who the ethics commission or agency can reasonably be expected to believe
15 may have a substantial interest in them. As used in this subsection, "substantial
16 interest" means an interest in the effect of the rules which surpasses the common
17 interest of all citizens. AnThe ethics commission or an agency adopting emergency
18 rules shall comply with the notice requirements of section 28-32-10 which relate to
19 emergency rules and shall provide notice to the chairman of the administrative rules
20 committee of the emergency status, declared effective date, and grounds for
21 emergency status of the rules under subsection 2. When notice of emergency rule
22 adoption is received, the legislative council shall publish the notice and emergency
23 rules on its website.
24 6. An interim final rule is ineffective one hundred eighty days after its declared effective
25 date unless first adopted as a final rule.
26 SECTION 4. AMENDMENT. Section 28-32-06 of the North Dakota Century Code is
27 amended and reenacted as follows:
28 28-32-06. Force and effect of rules.
29 Upon becoming effective, rules have the force and effect of law until amended or repealed
30 by the agency or ethics commission, declared invalid by a final court decision, suspended or
31 found to be void by the administrative rules committee, or determined repealed by the
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1 legislative council because the authority for adoption of the rules is repealed or transferred to
2 another agency, or the Constitution of North Dakota is amended to eliminate the authority.
3 SECTION 5. AMENDMENT. Section 28-32-07 of the North Dakota Century Code is
4 amended and reenacted as follows: