MINOT, N.D. — Last year a developer, pushing for a loan from the city of Minot, flew three city officials from Minot to Fargo on a private plane.
I was alerted to this situation by a concerned citizen who felt the trip was unethical. That seemed reasonable to me. Public officials absolutely should not accept that sort of a gift, particularly from someone who has pending business before those officials.
What I found was a glaring loophole in North Dakota's new ethics laws.
Thanks to the amendment approved by voters in the 2018 election cycle, Article XIV, Section 2 of the state constitution now states, "A public official may not knowingly accept a gift from a lobbyist."
That seems clear enough.
The problem lies in Section 4, which defines "public officials" as only those in the state's executive and legislative branches.
Local officials aren't mentioned.
The developer in this situation is Todd Berning. His business, Epic Companies, got a $4.75 million "forgivable, no-interest" loan from the city of Minot for a somewhat controversial project called Blu on Broadway. The source of the funds was a National Disaster Resilience bloc grant issued by the federal government's Department of Housing and Urban Development.
When I spoke to Berning, he told me he flew City Manager Tom Barry, Resilience Program Manager John Zakian and Economic Development Director Brian Billingsley to Fargo to look at some of his company's other projects.
Aside from the chartered flight, the trip doesn't seem to have been very ritzy. "We grilled the hamburgers and hot dogs," Berning told me.
"We rented a small plane to make more efficient use of their time," he said.
Yet Minot city officials were aware of the poor optics.
I sent the city an open records request about this trip on Jan. 23.
On Jan. 25, months after the visit to West Fargo happened but no doubt aware of my interest in the matter, Mayor Shaun Sipma published a letter to the Minot Daily News in which he made an effort to get ahead of criticism even as the city sandbagged my inquiries.
I didn't receive a response to my open records request until Feb. 4, shortly after I involved the Attorney General's office because of the city's dithering. What I found in those records was an email sent by Mr. Barry's executive assistant, indicating he was concerned about the appearances of the trip.
"Tom [Barry] and I visited yesterday regarding this and he stated he is unsure of the urgency for the trip?" Tami Stroklund wrote in an email to Billingsley. "He thought if anything has to do with the case then a trip before a meeting might not look appropriate."
The meeting referenced was held by the Minot's Planning Commission, which approved the project in late August. The trip did end up happening after that meeting, but does that change anything?
If a public official knows a gift is coming, does it matter if they receive it before or after they take official action concerning the gift-giver?
The city didn't sign the agreement in this matter until early January, well after three city officials received a free plane ride to West Fargo and back.
I don't think the city of Minot approved the Blu on Broadway project because of this trip — let's hope, if these officials are corruptible, their price is higher than a weenie roast in West Fargo — but it looks terrible.
What's more, when city leadership knew criticism was coming, they tried to preempt it with their narrative even as they stiff-armed the critic.
I wonder if the city's legal advisers gave any warnings? A request I made for any legal advice the city received with regard to this trip was denied based on a state law exempting attorney work product from open records requests.
Notably, it was not denied because the record doesn't exist.
For Minot, this trip illustrates a need for city leadership with better judgment.
For North Dakota, this trip exposes a loophole in new ethics regulations that ought to be closed.
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Rob Port, founder of SayAnythingBlog.com, a North Dakota political blog, is a Forum Communications commentator. Listen to his Plain Talk Podcast and follow him on Twitter at @RobPort.