Those of you have been awake and following along know that Sandy Blunt -- according to Sandy Blunt -- tendered his resignation during a meeting with then WSI Board Chairman Bob Indvik (who since resigned under a cloud of controversy) and Vice Chair Mark Gjovig, before a meeting during which the WSI Board first took up the idea of offering a severence package to Blunt.  Not to rehash this whole story, but Blunt was apparently upset when he found out his personnel file did not reflect that he had resigned.  He sent an e-mail to WSI's open records ayatollah, Mark Armstrong, demanding that his personnel file be corrected.

Why does my 12/06/07 Employee Status form show "other" and not "resignation" as my reason for separation.  I verbally resigned to Chair Indvik on 12/06/07 with Vice Chair Gjovig as a witness.  I ask that my Employee Status form be corrected to reflect "resignation" and that I receive a copy of the updated form that has been placed in my employment folder.

Thank you.

E-mail from Sandy Blunt to Mark Armstrong dated Monday, August 11, 2008, 8:02 PM

There's some legal significance to the fact Blunt resigned on December 6, 2007; In North Dakota, a state employee who resigns is not eligible to receive any severance package.  Read NDCC § 54-14-04.3(2) by clicking here.

You may ask "Why do we have a law making it illegal for a state employee to collect severence pay after resigning?"  Good question.

The history of this legislation, ch. 543, 1979 N.D.Sess.Laws, reveals that the purpose was to end the practice of buying resignations from State employees. The sponsor of the legislation [ -- a Representative Fleming (see footnote 4) -- ] cited two examples in his testimony before the House and Senate committees which considered the proposal. In each example a State employee was given his regular salary for a period of time during which he performed no services and at the end of which time he resigned. House State & Federal Government Committee minutes, January 31, 1979, and Senate State & Federal Government Committee minutes, February 27, 1979.

North Dakota Supreme Court Case of Piccagli v.ND State Health Dept. 319 NW2d 484 (ND 1982) 

Kinda makes sense, doesn't it?  That's not a good use of public money.

So the law clearly says state employees who resign may not collect severance from the State of North Dakota, and Sandy Blunt has insisted his personnel file needed to be corrected to reflect that he had resigned.  This combination of facts causes the State Auditor's Office to ask the Attorney General whether Sandy Blunt's jackpot severence package had been illegally given to him.

Again, kinda makes sense, doesn't it? I mean, isn't that what auditors do?  Check to see whether money is being appropriately moved around?  (Among other things.)  On September 22, 2008, State Auditor Bob Peterson requested an Attorney General's Opinion.  Last week, A.G. Stenehjem ducked the question by sending a letter to Peterson dated ten days after the election of 2008.  In the letter, Stenehjem writes this:

Although you raise the possibility that Mr. Blunt may have resigned prior to the Dec. 6 meeting, the resolution of that question would require a factual determination that is beyond the scope of legal opinions that can be offered by this office.

Stenehjem's Letter Dated November 14, 2008

Hmmmm...  Bob Peterson "raised the possibility that Mr. Blunt may have resigned?"  That's interesting.  I thought it was Blunt who insisted he had resigned.  Didn't Blunt "raise the possiblity"?  And why would that require a "factual determination?"  Isn't the resignation/non-resignation question kind of irrelevant to the inquiry?  What if Peterson had asked the question this way:   "If a state employee has resigned and become ineligible to receive a severance package, may the employee collude with his/her former state agency employer to avoid the express language as well as the spirit and intent of NDCC § 54-14-04.3 by entering into an agreement that re-writes the factual history to indicate the resignation never took place in order to allow for a jackpot severance package for the former employee?"  (That's probably a little saucy for an auditor, but you get my drift.)  The Attorney General doesn't have to make a fact finding.  He just needs to express a legal opinion.  No factual determination required.  And it seems like an important question to get answered; not just for the Blunt case, but also for lots of future cases where agency heads are trying to decide whether they should skirt around the law, change the facts and hand out government jackpot severance packages.

Peterson should re-frame the question and send it back.

Next issue, right?

But before getting to the next issue, I want to ask a question:  What if Stenehjem had provided legal advice to WSI relating to Blunt's severance package?  What if Stenehjem has a personal or professional stake in preserving the legitimacy of something a lot of folks might think was an illegal severance package (because it was given to Blunt even though -- according to Blunt -- he had resigned)?  Wouldn't Stenehjem have a conflict of interest in expressing a legal opinion regarding problems with the severance package when asked for such an opinion?  Wouldn't he have a duty -- rather than ducking the question by saying "I'm not going to resolve a factual dispute" -- to say, "My office may have a conflict of interest, so I am asking you to seek legal advice on this issue elsewhere"?  I ask because -- if Stenehjem has a conflict of interest -- by doing what he has done, Stenehjem has been able to kill this issue entirely.  (Or he may think he has done so.)  For discussion's sake, let's assume Stenehjem had a conflict of interest.  (For those of you in law school, this will be on your P.R. exam, so study up.)  Let's assume Stenehjem specifically advised WSI it was okay to give Blunt a severance jackpot even though the law says it would be illegal to do so.  Let's say, for discussion's sake, that Stenehjem gave bad legal advice, causing WSI to commit the crime of misapplication of entrusted funds (i.e. giving away public money without legal authority to do so).  Assuming these things to be true, is there an avenue, in North Dakota law, that would allow Bob Peterson to get a legal opinion from someone other than the guy with the great big conflict of interest?!?  I truly don't know.  If there's not a meaningful "out," maybe we need a new law that provides an alternative to agencies who want legal advice but who are forced to seek an A.G. opinion from an A.G. who has a clear conflict of interest (for discussion's sake).  I don't have the answer.  I'm just asking the question.

Next question asked by the State Auditor's Office:  Is WSI breaking the law by having huge amounts -- tens of millions of dollars -- in illegal excess reserves?  And, if so, what can be done about it?

This week we got an answer (sort of) from the Attorney General.

"Uh.  Yeah.  I guess WSI is kinda breaking the law.  Sorta.  Well, I mean, they are, obviously, breaking the law, but I'm not going to do anything about it.  [Use your best George W Bush voice to say the following:]  Government is hard.  It takes a lot of work and time to follow the law.  Let's give this rogue state agency some time to stop breaking the law.  Or better yet, let's let the legislature change the law so they can make it so what they've done isn't illegal anymore." 

That's essentially what we've gotten from North Dakota's top law enforcement officer (paraphrased).  (Click here to read what he really wrote.)

Nice.

There's some decisive, hard charging legal advice for ya.   </blue flag>

Wouldn't it be cool if the rest of us could just break the law and get an opinion from North Dakota's top law enforcement officer that, "Shucks, it's just tens of millions of dollars in public money that's being illegally misapplied, so we should let my buddies in the legislature change the law to benefit some law-breaker (or group of law-breakers) during the next legislative session"?

And we keep re-electing these Republicans to office.

Maybe we don't deserve better.

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