Officials posting opinions on pot measure: Does it violate law?

Published: Sep. 21, 2018 at 7:33 PM CDT
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As debates of whether or not to legalize marijuana light up on both sides, some county leaders are taking to social media to give their opinions—sparking a different debate: of whether officials are legally allowed to post political stances on a professional Facebook page.

We spoke with Whistleblowers who say a North Dakota sheriff violated century code—as well as the sheriff, who says he's done nothing wrong.

Cavalier County sheriff, Greg Fetsch, says he personally opposes a measure that would legalize marijuana.

"I guess the part that scares me most is that puts a real threat against our children,” he said. “Because I don't think it's right, if people can sit and smoke marijuana in front of children."

Dave Owen chairs Legalize N.D., a group campaigning to—you guessed it—legalize recreational pot use in the state. Owen, who says he doesn’t use pot himself, says he’s seen too many of his peers facing difficulties from a criminal record because of possession of marijuana.

"My biggest issues with it are the criminal justice side...In North Dakota, if you're within a thousand feet of a university it's an automatic felony,” Owen said. “Simple possession."

The differing stances are about as strong as a high THC strain. But Measure 3, a petition that would legalize marijuana and wipe out previous pot convictions (except for pertaining to someone younger than 21 using—or one selling to or distributing to anyone 21 years or younger) has various officials using their positions to voice their opinions.

We found on the Williams County sheriff's office Facebook page, a post telling people to "stay informed" while linking a "Vote No" website.

Meanwhile, the sheriff of Cavalier County posted to the county sheriff’s Facebook page that the N.D. Sheriff's Association "opposes" legalization, before taking the post down—and then reposting something similar.

"They're using a position of authority to try and influence an election,” Owen said. “There's a reason we have this law in the books."

The law Owen referred to is N.D. Century Code 16.1-10-02. It states “No person may use any property belonging to or leased by...any agency...for any political purpose.”

To see the entire code, click here:

But according to Sheriff Fetsch, who posted the message, the Cavalier County Facebook page doesn't count as agency property.

"I have spent no money to push this,” Fetsch said, “I mean I posted it on Facebook. I just think it's my right to help my citizens…and that's what I did."

But Fetsch is employed by the county’s sheriff department—and he posted his stance on the measure to the county sheriff’s Facebook page—not to his personal page.

"That is my personal sheriff's page," Fetsch said. “…I have a right to do that."

Fetsch says he’s not trying to impose his opinions on others, but he feels a public responsibility to share the information that’s been shared with him.

"I want them to vote the way they feel,” he said. “After they read the bill. I mean I oppose the measure the way the bill was written...And I have a First Amendment right to say that."

The Cavalier County State’s Attorney hasn’t yet responded to our request for comment—and when we reached out to the attorney general about it a spokesperson said it's "not in our jurisdiction."

Other attorneys say the way the measure is written leaves room for interpretation.

To read the measure in its entirety, head here:

But Dave Owen says he believes the sheriff made a simple mistake—though he says it doesn't make it right.

"When the police tell us something we inherently trust them,” Owen said. “When our representatives tell us something, they think that's the opinion of the state. And it's not.

Here’s a little more background on the century code some say the sheriff violated—and why it's not as black and white as we'd like it to be:

One attorney tells us it was written in the 80s—and though it was revised in the 2000s, it doesn't really specify websites or social media in its language.

So while it says you can't use agency property for political purposes, it's not totally clear whether Facebook counts as property.

On the other hand, another attorney tells us if it's a matter of public concern, an official should be able to use his or her First Amendment right to inform the people.

One attorney says he advises—in order to stay out of legal trouble—that it's best not to opine one way or another using official resources of any kind, whether they're free or paid for.

But he says you can post factual information, as long as you present both sides in an equal manner—and that could be paid for or free.