North Dakota auditor says he'll follow legal opinion, draws some pushback

North Dakota State Auditor Josh Gallion appeared before the Legislative Audit and Fiscal Review Committee on Wednesday, July 17, 2019, in the state capitol in Bismarck.

BISMARCK — North Dakota State Auditor Josh Gallion told lawmakers Wednesday, July 17, that he will follow a recent attorney general’s opinion and won’t seek their blessing to launch performance audits.

Gallion, a first-term Republican, went before the Legislative Audit and Fiscal Review Committee Wednesday for the first time since the Legislature approved the new requirements in a bipartisan fashion in the waning days of this year’s session.

Attorney General Wayne Stenehjem issued an opinion late last month arguing the requirements were likely unconstitutional because a court would find they violate the separation of powers doctrine. In response, Gallion has said his office would conduct business as usual.

“What I’m here to tell you is I will follow the opinion of the attorney general’s office. We will not be seeking approval of performance audits,” Gallion told the committee.

But one lawmaker warned Gallion that his stance affects his “credibility.”

“The attorney general is not the Supreme Court,” said Rep. Mike Nathe, R-Bismarck. “I just think, Josh, that ignoring the Legislature, ignoring the law does you and your office no good.”

The audit committee took no formal action regarding the dust-up between the two branches of government. Bowman Republican Rep. Keith Kempenich, a member of the committee, said he plans to introduce legislation next session to remove the requirement for legislative approval.

“We have to change it,” he said, adding that the language wasn’t meant to be “punitive.”

Lawmakers have said the new restrictions were merely meant to ensure communication between the Legislature and Gallion’s office, which has seen some major changes since he was first elected in 2016. But critics have seen it as an effort to rein in the new auditor.

House Majority Leader Chet Pollert, R-Carrington, recently argued Gallion should follow the law as passed by the Legislature because a court hasn’t ruled on it.

But Stenehjem, a Republican, has cited a 1940s state Supreme Court case that says state officials who don’t follow an opinion issued by the attorney general “will be derelict to their duty and act at their peril.” His opinion on the auditor restrictions says it “governs the actions of public officials” until the issue is decided by the courts.

Meanwhile, a citizen group is nearing a deadline in its quest to overturn the Legislature’s actions. They have until July 31 to submit the 13,452 signatures needed to place the measure on the ballot.

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