Port: North Dakota law gives us options for ending this 'hot potato' game

MINOT — In a previous column, I likened the difficulty in finding a prosecutor to take up scandals left behind after the death of former Attorney General Wayne Stenehjem

to a game of hot potato.

One scandal involves businesses associated with a state lawmaker and close political ally of Stenehjem getting

a sweetheart lease deal.

The other involves Stenehjem’s former assistant

going rogue and ordering the deletion of public records

to keep them away from open records requests.

These potential crimes, happening as they did in the state capital, fall under the purview of Burleigh County, and elected State’s Attorney Julie Lawyer. But, as we learned during a lengthy and tense meeting of the Legislative Audit and Fiscal Review Committee Tuesday, Dec. 19.,

no prosecutor wants to take the case.

Current Attorney General Drew Wrigley, who took over for Stenehjem, and who was instrumental in bringing a great deal of this information to light, cannot lead an investigation into his own office. Wrigley called in an independent investigator from the state of Montana to help establish facts, but that investigator was frustrated by an inability to get subpoenas to facilitate access to information and witnesses, something that wouldn’t have been a problem had a local prosecutor been working on the case.

To say that Lawyer’s office is uninterested in pursuing this is an understatement. Her office now employs Liz Brocker, the assistant who ordered the destruction of public records, and who is a subject of the investigation. Not only does that present a massive conflict of interest for that office, but it’s a tacit admission of Lawyer’s own biases in the case.

It’s hard to believe she sees this as a serious situation when she hired one of the people at the center of the controversies.

Perhaps this attitude explains her foot-dragging in assigning this matter to a prosecutor who will handle it. This is Lawyer’s jurisdiction. She’s responsible for these cases. If her office is compromised — and it is by Brocker’s hire — then she must ask for outside assistance.

It’s been more than 530 days since these scandals broke, and that’s not happening. It may be time to make it happen.

State law gives us some options, one more extreme than the other, but both are worth considering if this inaction continues.

Section 11-16-08

of the North Dakota Century Code gives the Burleigh County Commission the authority to appoint a special counsel to assist in “cases of public importance.” This appointment must be with the “advice and consent” of the state’s attorney, meaning that Lawyer must sign off on it. But the county commission could force the issue. They could offer to appoint a special counsel and, at the very least, make Lawyer, if she isn’t going to accept one, explain publicly why not.

Then there’s the nuclear option.

Section 11-16-06

allows a judge to appoint someone to step in if the “state’s attorney has refused or neglected to perform” their duties. The judge can request that the Attorney General appoint someone (not really an option in this situation) or appoint “an attorney to take charge.” The law even gives the judge the option of deducting the cost of that attorney from the state’s attorney’s salary.

That would be a drastic step, I know, but something has to happen. Whether these scandals rise to criminal wrongdoing or not, they have dealt a body blow to the public’s trust in North Dakota government. The public must be satisfied that there has been a thorough investigation, and rigorous consideration of potential criminal charges. We need someone to lead this effort and either bring charges or explain, in detail, why charges aren’t possible.

The public is owed this. It’s time for our public servants to deliver.