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Published September 06 2012

Petition quota may have broken state law

BISMARCK – If paid petition circulators for a now-derailed petition drive were working under a quota, the practice may have run afoul of North Dakota law.

An Iowa company, Terra Strategies, paid circulators to collect signatures earlier this year for a constitutional amendment to set up a conservation fund in North Dakota.

Lane O’Brien, a Casselton man who was among the paid circulators, said this week that the company told him and other workers that it expected 70 to 80 signatures per eight-hour shift. He said his impression was that circulators who didn’t hit the mark could lose their jobs.

State law bars payment “on a basis related to the number of signatures obtained for circulating an initiative, referendum, or recall petition.”

Payment not contingent on the number of signatures collected is allowed.

The conservation measure and a separate effort to put a medical marijuana law up for a public vote were both rejected from the fall ballot this week amid allegations of widespread fraud. About 25,000 signatures were rejected between the two petition drives.

Prosecutors say at least 10 circulators, some of whom were current and former North Dakota State University football players, are expected to face misdemeanor voter fraud charges. Charges could be announced as soon as today.

O’Brien is not among those facing charges, authorities say.

Officials have not indicated that Terra Strategy is facing criminal scrutiny.

The company did not return multiple phone messages seeking comment this week.

If the company did set quotas for circulators, it may have ventured into legal limbo.

Lee Ann Oliver, an election specialist with the North Dakota Secretary of State’s Office, said it’s clearly against the law to pay circulators per signature.

But it’s less clear whether the prohibition extends to a quota system. Oliver said her office didn’t know the answer, but the practice is questionable enough that she’d refer it to the attorney general’s office if she learned it was happening.

“Is that paying by signature?” she said. “Is that just another way of getting around it?”

A spokeswoman for the attorney general’s office said the office is unable to issue legal interpretations.

Robert Wood, an associate professor of political science at the University of North Dakota, said it could take a court decision to clarify the matter.

He said if he were advising Terra Strategies, he likely wouldn’t have discouraged them from setting quotas because he thinks the company is within its rights to require a certain level of productivity.

The company couldn’t withhold payment for unproductive circulators, he said, but it could probably dismiss them.

“You would be free to fire them for not being as productive as you need them to be,” he said.

The distinction is evocative of a legal battle between the Moorhead police union and the city seven years ago.

The union said officers were required to hit monthly quotas for traffic tickets and drunken-driving citations. It said the practice was illegal and sued the police chief and the city to stop it. The city claimed the policy was a performance standard, not a quota.

The two sides later settled the case after the department instituted a new performance evaluation system.

Wood said most states, unlike North Dakota, allow payment for petition signatures. Petition management has become a robust cottage industry, and some firms boast of their ability to deliver strong results based on premium payments.

“It actually surprises me that it’s illegal” he said. “It’s common to pay per name.”

The organizers of the conservation petition said they paid Terra Strategies about $140,000. They’re looking into whether they can get their money back in light of the fraud allegations.

The separate petition to legalize medical marijuana was not handled by Terra Strategies, according to the chairman of the organizing committee, though some of the individuals named as suspects in the fraud cases worked on both campaigns.

Regardless of how North Dakota law, Wood said, the botched petition drive could hurt Terra’s reputation.

“I would guess that this is a big deal for that company,” he said.

Readers can reach Forum reporter Marino Eccher at (701) 241-5502