The Law of Hard Times

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Here are some close-to-final draft comments I will be sending to the North Dakota Ethics Commission on proposed rules. I think these rules are very poorly written and ill advised.  I’m sharing these draft comments on my “blog” because I hope others who read this post will also weigh in with the Ethics Commission and send their own comments and write letters to the editor. This is serious stuff!  THE DEADLINE FOR PUBLIC COMMENTS IS FRIDAY, DECEMBER 10: ethicscommission@nd.gov

The letter below will be the first of two comments from me.  The next comment  will include a deeper dive into the legal errors in the Attorney General’s advice to the Ethics Commission.  Believe it or not, the Attorney General has given the Ethics Commission advice  that  campaign donations should be flat-out exempted from the definition of a “significant financial interest” that would give rise to a finding of a conflict of interest.  Stay tuned… and write your own comments, please. 

The future of North Dakota’s clean air, clean water, economic democracy, and civic life may depend on our voices. 

 

Dear Members of the Ethics Commission,

I join in the draft rule comments being submitted by the North Dakotans for Public Integrity, of which I am a board member.

I am submitting my separate comments to share my perspectives as a former Assistant Attorney General, as a former Agriculture Commissioner, and as a former member of the Industrial Commission. I also write these comments from the perspective of an attorney in private practice who has sued various state and federal agencies for violations of regulations, laws and constitutional provisions.

First, the intent and clarity of these rules leave much to be desired. Many portions of the regulations are so badly written as to invite confusion, failure to comply, and litigation.

One prominent example of this bad drafting is Section 115-04-01-01(1) which has four subsections, a, b, c, and d.

Turning first to subsection a, it says “A ‘Conflict of Interest’ exists when … A public official … must make a decision, take action or perform a quasi-judicial act in a matter affecting circumstances or persons with whom the public official has received a gift; …”  What is a “matter affecting circumstances?” the reader will ask. Circumstances is a very broad word, and its use here creates more questions than it answers. Further, the subsection applies to a “matter affecting … persons with whom the public official has received a gift.” Do at least two people — one of whom is a public official — need to receive a gift?  Probably the drafters intended to say “from whom” but given the opaqueness of the entire subsection that would be a guess.

Subsection b of Section 115-04-01-01(1) is written in an equally tortured way.  Presumably, it means a “conflict of interest” exists when …  Persons or entities or issues with which the public official has a significant financial interest arise as a part of the public official’s duties; “Issues” might arise, but persons or entities don’t “arise” as part of a public official’s duties.  It would require speculation to determine the intended meaning of this subsection.

Subsection c adds further chaos and confusion: “Persons to whom the public official has a relationship in a private capacity to that person’s interests are affected or involved in matters on which a public official must act upon as part of the public official’s duties” is filled with ambiguity. I heartily agree with attorney Tory Jackson that this definition is a “grammatical, syntactical and typographical nightmare [that] would earn a failing grade in a middle school English class.” See Bismarck Tribune, editorial page, November 30, 2021.

And that isn’t all.  Subsection c is linked by the word “and” to subsections a and b. This use of the word “and” appears to say that all three types of conflicts (a, b, c) must be present to find that a “conflict of interest exists.”  Does the Commission intend to require a gift (subsection a), a financial interest (subsection b) and a relationship in a private capacity (subsection c) to co-exist before a conflict of interest is found?  If so, categories of conduct that are unethical by fitting into only one category (e.g., receiving large gifts) would be under this definition not unethical.

This issue of “a, b, and c” or “a, b, or c” is not abstract:  I was offered a trip to an out of state golf tournament by a contractor of the Industrial Commission when I was Commissioner of Agriculture. Of course, I declined. It would have been unethical for me to take that trip because the offer clearly entailed an expectation of favorable treatment if I had accepted, even though  only one of the subsections would apply.

On first reading I thought that the drafters intended a, b, or c to constitute a “conflict of interest” but the use of the word “and” implies all three would be required to find a “conflict of interest”.  The muddy grammar and unclear definitions of these three subsections necessitate a return to the drafting table.

As a lawyer sometimes asked to provide advice to persons trying to follow the law, I think these rules will be a very big challenge for lawyers and for lay people. These rules should be clear and plainly written. As they now are written, it will be hard for public officials acting in good faith to determine a clear path forward. And it goes without saying that bad actors will attempt to escape the consequences of unethical behavior by relying on the confusion and obscurity of these poorly written rules. Rules this bad simply invite disrespect and disregard of the law.

Subsection d of Section 115-04-01-01(1) adds even more problems of interpretation and implementation. Why should the rules of the Ethics Commission provide a presumption that a “member” in a “general business” who does not gain more than the benefits accruing to other co-owners does not have a conflict of interest?  The vague term “general business” can apply to small firms with a few owners or a publicly traded conglomerate. For example, there have been news stories about public officials entering into partnerships that own buildings that are rented without a competitive bidding process to agencies of the State of North Dakota on terms very favorable to the public officials who own the buildings.  No determinations have been made as to whether such contracts are unethical, but some might be. They should not be presumed to be ethical.

Subsection d also exempts conduct where a public official participates in a “general business, profession, occupation, or group.”  (None of these terms are further defined.) As written, a conflict of interest does not occur if the public official does not derive “any benefit which is not greater than that accruing to any other member of any … group” affected by the matter.  If a Commissioner of Agriculture, Attorney General and Governor belong to a “group” of five investors in a limited liability corporation formed for the purpose of plugging oil wells with funds approved for expenditure by the Industrial Commission, why should they be presumed to have no conflict of interest?  Subsection d as currently written should be deleted.

Moving on to the next subsection, the definition of “gift” in Section 115-04-01-01(2) requires a lay reader to reference the Constitution, a chapter of the North Dakota Century Code and previously published regulations to ascertain what it might mean.  This definition is so circular as to be useless.  The goal of the Ethics Commission should be to have clear and precise definitions, not a definition that requires considerable legal skill and many hours to determine the meaning of “gift”.

Moving on from the problems of badly worded, unclear policies, the draft rule’s worst flaw is the patently erroneous Section 115-04-01-01(5)(a). It states that “campaign donations made in accordance with North Dakota or federal law” are flat-out exempted from the definition of a “significant financial interest” that would give rise to a finding of a conflict of interest.

This is a remarkably broad and ill-advised exemption.  Such contributions have drawn scathing criticism from United States District Court Judge Hovland who said the Public Service Commissioners’ acceptance of donations from coal companies that they regulated (a practice that was legal at that time) was “ill-advised, devoid of common sense, and raises legitimate questions as to the appearance of impropriety.” [1]  The voters adopted Measure One to end such practices and to create greater confidence in the government of the state.

The voters have spoken in Measure One and Measure One is now an integral part of the Constitution as Article 14.  The Ethics Commission has extraordinary status as a constitutionally created agency, but it does not have the authority to override the Constitution.

No agency may promulgate a rule or regulation which exceeds its statutory authority.  See, e.g., Hecker v. Stark County Social Service Board, 527 N.W.2d 226, 232 (N.D.1994). Such a rule is void and without force. Id.

I reference here and incorporate by reference the excellent discussion in the Campaign Legal Center’s memorandum to the Ethics Commission which patiently explains why this exemption is in error.  I endorse and agree with the criticism of this exemption by Tory Jackson in his editorial in the Bismarck Tribune on November 30, 2021.

As my father, Robert Vogel who then served on the North Dakota Supreme Court, put it in his often-quoted opinion from Southern Valley Grain Dealers Ass’n v. Bd. of County Com’rs, 257 N.W.2d 425, 434 (N.D. 1977), one who raises a constitutional claim “should bring up his heavy artillery or forego the attack entirely.”

The expressed rationale for the Ethics Commission’s exclusion of campaign contributions from the scope of the Ethics Commission’s work is hardly “heavy artillery”.   The Ethics Commission has no authority to override the Constitution, nor does the Attorney General.  The Attorney General’s job is to uphold and defend the Constitution.

This is a difficult situation because the Attorney General is compromised by virtue of the massive contributions he has received from prior campaign cycles and the potential for contributions he may receive in the future.  Further, many actual and potential contributors are or will be involved with issues and matters that are determined by or regulated by the Industrial Commission.  I believe it is no accident that the Industrial Commission members have in recent years received significant contributions from oil and gas related contributors and the Industrial Commission adopted a policy of suspending 90% of fines imposed on oil and gas companies. See, minutes of the Industrial Commission, September 20, 2011, pp. 5-6.

However, this is an instance where the Ethics Commission need not rely on legal advice from a compromised source; its members  can ask the North Dakota Supreme Court for the exercise of its original jurisdiction to determine whether campaign contributions fall under the jurisdiction of the Ethics Commission.

In the case of State ex rel Kusler et al. v. Sinner, 491 N.W. 2d 382   (1992) (a case involving the timing of an election), Justice Herbert Meshke,  on behalf of a unanimous court,  described the original jurisdiction process as follows:

N.D. Const., Art. VI, § 2 authorizes this Court to exercise original jurisdiction and to issue original and remedial writs necessary to properly exercise its jurisdiction. Under that constitutional provision, the power vested in this Court to issue original writs is a discretionary power which may not be invoked as a matter of right. State ex rel. Spaeth v. Olson ex rel. Sinner, 359 N.W.2d 876 (N.D. 1985). Compare Municipal Services Corp. v. Kusler, 490 N.W.2d 700 (N.D. 1992). It is well settled that our power to exercise our original jurisdiction extends only to those cases where the questions presented are publici Dec and affect the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D. 1979); NDCC 27-02-04. The interest of the state must be priry, not incidental, and the public must have an interest or right that is affected. State ex rel. Peterson v. Olson, 307 N.W.2d 528 (N.D. 1981). These criteria exist here.

Some of the problems with the current draft conflict-of-interest rules can be corrected by attentive and thoughtful drafting, but the belief that the Ethics Commission lacks authority to regulate (in any fashion) campaign contributions is a very serious problem.  This is a good time for the involvement of the Supreme Court.  The issues here are publici juris, affect the sovereignty of the state and its franchises and privileges and the liberties of its people.  

In closing, I again repeat that I also incorporate by reference the comments of the NDPI.  Further, I intend to submit a supplemental comment on or before December 10, criticizing the assertion that campaign contributions must be exempted from the scope of these rules.

 

Sincerely,

Sarah Vogel

 

Sarah and Willie Nelson smiling outside tour bus

In 1982, I met Mark Ritchie and he introduced me to Jim Massey, a legal services lawyer from Minnesota. At the time, I was representing family farmers in their appeals against the Farmers Home Administration, and I was getting frustrated by the biased administrators and the flawed appeal process. I told Jim about the legal theories I was developing to get an injunction against FmHA and I showed him a rough draft of my draft class action complaint. Jim was very supportive! This encouragement meant a lot to me because back then every other lawyer I’d talked to thought I was crazy.

Jim began to do educational outreach first in Minnesota and then to legal services offices nationwide. As set out in the Our History section on FLAG’s website, this is what happened later:

In the summer of 1985, Jim Massey received a phone call from Willie Nelson inviting him to attend the first Farm Aid concert. By the next spring, the first funding check arrived in Jim’s office, signed by Willie Nelson himself, to start a nonprofit law firm with a single mission: Help family farmers stay on their land. It was an investment that helped create Farmers’ Legal Action Group, Inc. – FLAG.

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Robert Redford as Jay Gatsby

Read Sarah’s new Lit Hub essay:

“On Jay Gatsby, the Most Famous North Dakotan”

Sarah Vogel Traces the Humble Midwest Origins of an Iconic Character

 

photo of farmer Dwight Coleman smiling next to cattle

In the spring and summer of 1982, the national media began to hear of the farm crisis. Reporters and producers on the coasts went on a hunt for stories that illustrated the farmers’ plight. I was getting calls almost daily from the Washington Post, the New York Times, Newsweek, the Los Angeles Times, and many others.

When they said, “I want to do a story about a foreclosure sale! Do you have any coming up?,” I was furious.

“I’m a lawyer fighting foreclosures!” I’d snap back. “I haven’t lost one yet, and I don’t intend to lose any. I’m doing everything that I can to stop foreclosures and forced sales against my clients. But if you want to watch a foreclosure, just come to North Dakota, pick up a copy of the Fargo Forum’s Friday agriculture supplement, and you’ll find pages and pages of auction sales and some foreclosure sales. Don’t call me again!”

A different kind of call came in the summer of 1982 from a reporter from Life magazine.

“Hi, I’m Richard Woodley, and I’d like to see what it is like for a farmer who is suffering from financial stress.”

I agreed to introduce Woodley to any of my clients who were open to talking to him. Soon, Richard and a photographer, Grey Villet (famous today for his photographs of the Loving couple in Virginia), showed up and set up camp in a Bismarck motel with a rental car, and an apparently unlimited budget.

Day after day, they came to my windowless basement office and I gave them directions on how to get to the farms and ranches of clients whose farms and ranches were within a half day’s drive of Bismarck—after getting an “OK” from the farmers. Richard and Grey went out, came back, visited with me, and even accompanied me on a trip to see a client (which was a bonus for me—they had an expense account to pay for the gas!).

Richard told me that they had visited with his editor and had presented an alternate story idea: instead of having the story be about the farmers, it would be a story about my work, as the farmer’s lawyer. “Would that be OK with you?”

“Yes,” I said. “If you and Grey will drive.”

That summer, they followed me to a picnic in Wolford, 170 miles north of Bismarck. I brought a stack of questionnaires with me. My class action was only in handwritten form, but I could “see” its eventual outlines in the same way that Grey could “see” the photographs he would eventually take and Richard could “see” the story he would eventually write for Life magazine. I had a stack of questionnaires for the farmers to fill out when we got to the farm. I was on the search for lead plaintiffs.

There were about fifteen farmers at the picnic that day and one of them was Dwight Coleman, who farmed in the Turtle Mountains, near the Canadian border. Dwight was a beginning farmer—he’d borrowed from the Farmers Home Administration in 1979, but by 1981 he’d fallen behind on his loan payments due to a series of catastrophic events, and instead of standing by him (as the agency had done with farmers during the Great Depression), they were threatening foreclosure if Dwight didn’t pay his full loan balance by Christmas Eve.

It was one of the cruelest stories I’d heard about FmHA’s tactics.

“I was under the impression that this beginning farmer program was supposed to be for more than two years,” Dwight said. He tried to fight back. “I said this is not right: you’ve got your appeals board and they’re the same people who were on the foreclosure board. What kind of a goddamn kangaroo court is that?”

Dwight first heard of me at another farmer’s auction sale.

“I didn’t know it was happening to everybody,” Dwight said. “I thought it was just myself.”

photo of farmer Dwight Coleman smiling next to cattle

photo by Greg Booth

That day at the picnic, I told Dwight that a class action was a way to have a few “lead plaintiffs” represent and protect many other people who were in a similar situation (the class). I told him I needed to find class representatives to represent the 8400 farmers who were borrowers from FmHA.

Dwight was in. Here’s how he put it in his own words, when I interviewed him in 2019.

And because I listed the lead plaintiffs alphabetically in the complaint, Dwight Coleman’s name will forever be associated with Coleman v. Block.

(Secretary Block, by the way, was called “Auction Block” back in those days.)

Lou Anne Kling

To understand the Farm Crisis of the ’80s, it helps to learn about those who helped.

From How Farm Advocates Made a Difference in the 1980s post:

“I first met Lou Anne in a crowded Mandan, North Dakota motel conference room, in the spring of 1984. I was there because I was invited to speak at a training program offered by the North Dakota Department of Agriculture for the newly minted job of “farm credit advocate.” I was asked to present an hour-long lecture on how farmers could use the Farmers Home Administration’s (FmHA’s) deeply flawed and unfair appeal system. But it was very clear to me that the farmers in the audience hadn’t come to hear me. They were waiting to hear from Lou Anne Kling, the Johnny Appleseed of farm advocates — she was sowing new farm advocates across the country, just as she had already done in Minnesota.”

Watch the short video below featuring Lou Anne Kling and read more about her in this post.

A.C. Townley addressing crowd

During 2016 and 2017, I would occasionally attend out-of-state meetings. At some of the smaller meetings, participants were expected to introduce themselves. I’d sometimes choke back tears and try to keep from weeping, “I’m Sarah Vogel from North Dakota, and I’m so sorry!” Why? I was ashamed of the way Morton County and the state of North Dakota had behaved during the historic gathering of indigenous people that became known worldwide as the Standing Rock DAPL movement.

Why was this so emotional for me? I’m all for spirited public debates (I’ve run for office myself and have worked for many political candidates and causes). But DAPL was different: in DAPL, the machinery of criminal law and military power were used to suppress debate.

I believe that whenever a government uses the machinery of criminal law or, even worse, military force, it is reprehensible. And it has happened before.

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law enforcement officer wearing a mask, holding a video camera

I’ve seen my share of dissent. I was at the University of North Dakota from 1964 to 1967 when students stood silent vigil on campus to protest the placement of nuclear missiles in hundreds of underground silos under the prairies of North Dakota. I lived in Greenwich Village from 1967 to 1970, and I watched massive anti-war protests from my law school dormitory overlooking Washington Square. To get groceries, I had to detour around violent mass arrests by New York City police. The Stonewall “riots” during the summer of 1969 occurred only a few blocks from my law school. And, in 2016 and early 2017, I witnessed some of the massive, historic Standing Rock protests against the Dakota Access Pipeline (DAPL) because I was based in Bismarck, North Dakota, 40 miles from where the pipeline met the protesters.

I have deep respect for those who peacefully protest in the pursuit of justice. I deplore arrests of peaceful protesters or use of force or threats of arrest by law enforcement to quell peaceful protests.

On September 3, 2016, journalist Amy Goodman, of Democracy Now, was in North Dakota learning about the Dakota Access Pipeline controversy. The Standing Rock Sioux Tribe had sued the US Army Corps of Engineers, arguing that the pipeline company should not be allowed to go under the Missouri River next to the northern border of the Standing Rock Sioux Reservation because it had not properly consulted with the Tribe about the Tribe’s concerns. (The Tribe later also sued because the Corps had not required the pipeline to undergo a full environmental impact analysis.)

Amy Goodman was interviewing LaDonna Brave Bull Allard, when LaDonna got a call. The caller said that bulldozers had started to tear up an area with cultural sites (graves, cairns, etc.) that had been identified by the Standing Rock Sioux Tribe as places that the pipeline should NOT disturb.

LaDonna was alarmed, and said she had to cut the interview off.  She had to go where the bulldozers were.

Amy said, “I’m coming with you!”

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Bess Myerson on the cover of Life Magazine, 1971

I’m now known as “the farmer’s lawyer,” but that hasn’t always been the case. Once upon a time, I worked as a corporate lawyer for a big bank and a Fortune 500 company.

Bess Myerson on the cover of Life Magazine, 1971

My first job after graduating from New York University School of Law in 1970, however, was with the New York City Department of Consumer Affairs. This was the first consumer protection agency in the United States and I joined it soon after it started. I worked under former Miss America, Bess Myerson, who was a pioneering consumer advocateIn 1971, Commissioner Myerson (we all called her Bess) was on the cover of Life Magazine as “A Consumer’s Best Friend.”

I was one of the young lawyers and investigators she hired and it was a wonderful, fun job. 

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In the summer of 1999, Steve Jorgenson, a young farmer from northeast North Dakota called me about problems with his confection sunflower crop. In North Dakota, we call confection sunflowers “spits” because you spit the shell out, while eating the tasty inner seed.

Sunflower plants grown from good seeds have tall, sturdy, straight stems, with huge single flowers. But that year, Steve’s fields had multi-headed sunflower plants, with stunted, twisted stalks. Steve had spent a lot of money on the land, seed, fuel and machinery to grow his sunflowers, but this crop of deformed sunflowers would be worthless. He said he’d complained to Agway, Inc. (the breeder and seller of the seeds). Steve was still fuming over what the Agway representative told him: “It wasn’t the Agway seed that was bad; many farmers had used that seed and no one else had complained.” According to the rep, the poor crop was his own fault.

When Steve came my office a few days later, he brought another unhappy Norwegian farmer, Lorin Haagenson. They had been at a repair shop, chatting while waiting for parts, and discovered that Lorin had planted the same variety and his sunflowers were also deformed. What’s more, Lorin was also told he was the only farmer who had complained.

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oil field flare at night

It’s always a big deal when a small state like North Dakota (population 762,000) is featured in a book that’s reviewed in the New York Times. Michael Patrick F. Smith’s The Good Hand: A Memoir of Work, Brotherhood, and Transformation in an American Boomtown opens on an oil well site near Williston, North Dakota in the spring of 2012. It’s his fifth day on the job and Smith is asked at a “safety meeting” to sign a paper. He asks an innocuous question and his boss says, “And when I hand you something, don’t ask any questions. Just fucking sign it. And smile.” Smith smiled and signed it. I was hooked.

I read The Good Hand in one huge gulp, all 478 pages, on a red-eye flight and I loved it.

When I stumbled off the plane, I was furious—not at Smith, whose book about his time as an oil field worker living in and working in the “boomtown” of Williston is beautifully written and researched. I’m mad at the politicians who allowed oil companies to use human beings as though they were disposable appliances in a wild rush for money.

The Good Hand’s central themes revolve around the mayhem, money, and men that Smith encountered during his 15 months or so of living and working in North Dakota during the peak of the Bakken oil boom. This boom arose when oil companies realized that they could tap a huge oil field (the Bakken formation), miles underneath the pristine North Dakota prairies by use of hydraulic fracking and horizontal drilling. In the spring of 2012, 217 oil rigs were punching oil wells in a frantic attempt to secure oil rights before the terms of the oil companies’ leases expired. Each rig employed (in various capacities) over 100 workers. Smith was one of those workers and he aspired to be known as “a good hand”—someone who knew his job, was reliable, and respected.

Much of the book is consumed with the wretched living conditions that Smith and his fellow workers endured. Yes, the pay was good, but the costs were spectacularly high. Ironically, Smith —who came to Williston from Brooklyn where he held a series of “indoor” jobs like bartender, musician, actor, and office worker—found that Williston rents were higher than Manhattan rents. He ended up paying $450 a month to sleep in a flophouse on a mattress in a living room shared with four other men, and thought it a bargain.

What most shocked me was the danger of the work, and the disregard shown for worker safety.  It is a modern day expose of the miserable working conditions that were tolerated by the oil companies, their many subcontractors and, I’m sorry to say, the state of North Dakota.

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