# Title 115 — North Dakota Ethics Commission

## Article 115-04 — Conflict of Interest

## Chapter 115-04-01 — Conflict of Interest

### § 115-04-01-01. Definitions.

1. "Disqualifying conflict of interest" means one of the following:
a. A potential conflict of Interest disclosed pursuant to this rule which the public official has
determined requires recusal and abstention from further action in the matter; or
b. A potential conflict of Interest disclosed pursuant to this rule which the neutral reviewer
has determined requires the public official to recuse and abstain from further action in the
matter.
2. "Potential conflict of interest" means a public official as part of the public official's duties must
make a decision or take action in a matter in which the public official has:
a. Received a gift from one of the parties;
b. A significant financial interest in one of the parties or in the outcome of the proceeding; or
c. A relationship in private capacity with one of the parties.
3. "Gift" means a gift not otherwise permitted under article XIV of the Constitution of North
Dakota, North Dakota Century Code chapter 54-66, or North Dakota Administrative Code
chapter 115-03-01.
4. "Immediate family" means a public official's parent, sibling, spouse, grandparent, grandchild,
stepchild, or child by blood or adoption.
5. "Neutral reviewer" means the individual or committee designated by an agency, legislative
body, board, commission, or committee to receive disclosures of potential conflicts of interest
and determine whether the potential conflict of interest is a disqualifying conflict of interest. In
the absence of a rule or policy designating a neutral reviewer, the following shall apply:
a. If a public official with a potential conflict of interest is a member of a legislative body,
board, commission, or committee the remaining individuals who are members of the
legislative body, board, commission, or committee shall be considered as the neutral
reviewer;
b. If a public official with a potential conflict of interest is an employee of the legislature, the
public official's supervisor may be considered as the neutral reviewer;

c. If a public official with a potential conflict of interest is a member of the governor's
cabinet, the governor's designated ethics officer shall be considered as the neutral
reviewer;
d. If the public official with a potential conflict of interest is an appointed public official, the
appointing official shall be considered as the neutral reviewer; or
e. If none of the above apply, the public official shall make the determination but must report
the disclosure and decision in the manner set forth in section 115-04-01-04 within seven
calendar days.
6. "Public official" means any elected or appointed official of the North Dakota executive or
legislative branches, including members of the ethics commission, members of the governor's
cabinet, and employees of the legislative branch.
7. "Relationship in a private capacity" means a past or present commitment, interest or
relationship of the public official in a matter involving the public official's immediate family,
individual's residing in the public official's household, the public official's employer, or employer
of the public official's immediate family, or individuals with whom the public official has a
substantial and continuous business relationship.
8. "Significant financial interest" means a direct and substantial in-kind or monetary interest, or
its equivalent, not shared by the general public; however, does not include investments in a
widely held investment fund, such as mutual funds, exchange-traded funds, participation in a
public employee benefits plan, or lawful campaign contributions.
History: Effective October 19, 2022.
### § 115-04-01-02. Disclosure of potential conflict of interests.

1. Subject to the requirements of section 115-04-01-05, this section shall only apply if an agency,
board, or commission does not have a current conflicts of interest statute or rule. In any
assessment of a possible conflict of interest the matter will be reported to the ethics
commission in accordance with section 115-04-01-04.
2. When a matter comes before a public official and the public official has a known potential
conflict of interest, the public official must disclose the potential conflict of interest.
3. The disclosure of potential conflict of interest must be made prior to the public official taking
any action or making any decision in the matter and must provide sufficient information
concerning the matter and the public official's potential conflict of interest. Disclosure shall be
on the written form approved by the ethics commission as set forth in section 115-04-01-04.
4. In emergency or other exigent circumstances where time is of the essence, and a public
official is not permitted or is otherwise unable to abstain from action in connection with the
matter, the public official must disclose the potential conflict of interest and the action with the
neutral reviewer in the manner requested by the neutral reviewer. The disclosure must occur
within seven calendar days of the public official's action in the matter.
5. Upon the completion of the required disclosure of a potential conflict of interest, the public
official may voluntarily recuse himself and abstain from further action in the matter.
History: Effective October 19, 2022.

### § 115-04-01-03. Neutral reviewer evaluation of potential conflict disclosures, decision, and

action.
1. Subject to section 115-04-01-05, this section shall only apply if an agency, board, or
commission does not have a current conflict of interest statute or rule. In any assessment of a
possible conflict of interest the matter will be reported to the ethics commission in accordance
with section 115-04-01-04.
2. If a public official elects not to recuse themself from the matter, the public official may consult
with or defer to the neutral reviewer. The neutral reviewer, if utilized, shall evaluate the
disclosure, may request further information from the public official regarding the disclosure,
and shall determine if the disclosed potential conflict of interest constitutes a disqualifying
conflict of interest.
3. Upon completion of the review of the potential conflict of interest, the neutral reviewer should
communicate to the public official one of the following:
a. The potential conflict of interest does not constitute a disqualifying conflict of interest, and
the public official may participate in the matter; or
b. The potential conflict of interest does constitute a disqualifying conflict of interest, and the
public official shall recuse himself and abstain from participating in the matter.
4. A violation of article XIV of the Constitution of North Dakota or these rules will not be found if:
a. The public official consults with and adheres to the neutral reviewer's suggested course
of action;
b. The public official acts in good faith; and
c. The disclosed material facts surrounding the potential conflict of interest are substantially
the same as the facts presented in the complaint.
5. If applicable the neutral reviewer shall comply with the requirements of North Dakota Century
Code chapter 44-04 in its consideration and review of the potential conflict of interest. During
any discussion of a potential conflict of interest, upon request by the neutral reviewer, the
public official may provide additional information regarding the potential conflict of interest and
the matter in question. Where North Dakota Century Code chapter 44-04 applies, the public
official may not be asked to leave the discussion of the potential conflict of interest; however,
the disclosing public official may voluntarily leave the meeting at which the discussion occurs.
6. If the neutral reviewer is a group of individuals in which the public official is a member, the
public official may not vote on the issue of whether a potential conflict of interest constitutes a
disqualifying conflict of interest. The public official may not be counted for purposes of
determining whether a quorum is present. Any quorum requirement established under statute
or rule shall be reduced as though the public official were not a member of the group of
individuals that constitutes the neutral reviewer.
7. The following standards shall guide the review and decision of either a public official or the
neutral reviewer with respect to any public official's potential conflict of interest:
a. Appropriate weight and proper deference must be given to the requirement that a public
official perform the duties of elected or appointed office, including the duty to vote or
otherwise act upon a matter, provided the public official has properly disclosed the
potential conflict of interest as required by this rule.

b. A decision that requires a public official to recuse or abstain from further action or
decision in a matter should only occur in cases where the independence of judgment of a
reasonable person in the public official's situation would be materially affected by the
disclosed potential conflict of interest.
c. The review of a potential conflict of interest and any decision that would require a public
official to recuse themself or abstain from further involvement in a matter shall consider
any applicable North Dakota law which precludes the public official from recusal or
abstention in the matter.
d. It is presumed that a public official does not have a disqualifying conflict of interest if the
public official would not derive any personal benefit which is greater than that accruing to
any other member of the general public or any general business, profession, occupation,
or group affected by the matter.
e. Any guidance issued by the ethics commission, including informal guidance, advisory
opinions, rules, standards, and precedent.
History: Effective October 19, 2022.
### § 115-04-01-04. Disclosure form and documentation.

1. Disclosure required under these rules shall be made using the form approved by the ethics
commission and available on the ethics commission website. The form will allow public
officials and directors, officers, commissioners, heads, or other executives of agencies to input
information and attach relevant documentation.
2. The neutral reviewer or public official shall document the decision regarding any disclosures
on the approved form. Upon completion, the neutral reviewer or public official shall provide a
copy of the completed form to the relevant department, agency, board, body, commission, or
committee, and the ethics commission. The public official may retain a copy of the completed
form.
3. Departments, agencies, boards, commissions, or public entities shall document in the official
minutes of a proceeding information, if applicable, that a public official or director, officer,
commissioner, head, or other executive has been recused from any further involvement in the
matter.
History: Effective October 19, 2022.
### § 115-04-01-05. Adoption of more restrictive rules.

Any agency, office, commission, board, or entity subject to these rules may adopt conflict of interest
rules that are more restrictive than these rules but may not adopt conflict of interest rules that are less
restrictive.
History: Effective October 19, 2022.
