dissenting.
[¶ 31] I respectfully dissent.
[¶ 32] The ALJ concluded that the February 11, 2003 letter from Dopson to Wah-lin was not an ex parte communication, regardless of whether it was addressed to Wahlin or Jolliffe. The ALJ noted that a copy of the letter was provided to Miller’s counsel. By definition, it was not an ex parte communication under N.D.C.C. § 28-32-37(1) because the communication was shared with Miller’s counsel. In Lawrence v. N.D. Workers Comp. Bureau this Court harmonized N.D.C.C. § 65-01-16(8) with what is now codified as N.D.C.C. § 28-32-37 and determined that WSI can consult with its outside legal counsel in reviewing an ALJ’s recommendation as long as those communications are not ex parte. 2000 ND 60, ¶ 20, 608 N.W.2d 254.1
[¶ 33] The other communication at issue was apparently a draft of findings of fact, conclusions of law, and final order for judgment prepared by Wahlin and communicated to Jolliffe. This communication is not contained in the record for this case. The ALJ determined.this communication was not an improper ex parte communication because it was permitted under N.D.C.C. § 28-32-37(2) which allows the agency head to “communicate with or re*817ceive aid from staff assistants if the assistants do not furnish, augment, diminish, or modify the evidence in the record.” The ALJ found no evidence Wahlin furnished, augmented, diminished, or modified the evidence. Miller, however, argues Wahlin furnished, augmented, diminished, or modified the evidence by commenting on the credibility of one of Miller’s witnesses. Specifically, Miller claims that by commenting on the evidence, Wahlin diminished the evidence with regards to Miller’s expert witness. Miller contends the prohibition on furnishing, augmenting, diminishing, or modifying the evidence is a prohibition on commenting on or evaluating the evidence and thus is an improper ex parte communication because Wahlin commented on the evidence.
[¶ 34] The language at issue in N.D.C.C. § 28-32-37(2), when adopted by the North Dakota Legislature in 1991, was taken from the 1981 Model State Administrative Procedure Act as adopted by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”). North Dakota, along with Iowa, Kansas, and Tennessee, adopted the “furnish, augment, diminish, or modify” language. Iowa Code § 17A.17 (2005); Kan. Stat. Ann. § 77-525 (1997); Tenn.Code Ann. § 4-5-304 (1998). None of these states have interpreted the meaning of that provision.
[¶ 35] Most other states have adopted provisions regarding ex parte communications but have not included language about furnishing, augmenting, diminishing, or modifying evidence. Some states have language that is much more permissive than the North Dakota statute that explicitly allows agency heads to receive communications from staff assistants, staff attorneys, or legal counsel. See Ark.Code Ann. § 25-15-209 (2002); 5 ' Ill. Comp. Stat. 100/10-60 (2005); Me.Rev.Stat. Ann. tit. 5, § 9055 (2002); Nev.Rev.Stat. § 233B.126 (2003); Okla. Stat. tit. 75, § 313 (2002); R.I. Gen. Laws § 42-35-13 (1993); S.C.Code Ann. § 1-23-360 (2005); S.D. Codified Laws § 1-26-26 (2004); Vt. Stat.Ann. tit. 3, § 813 (2003); Wash. Rev.Code § 34.05.455 (2004). Other states have language that is much more restrictive than the North Dakota statute and allows little or no ex parte communication. See Mont. Code Ann. § 2-4-613 (2005); N.M. Stat. Ann. § 12-8-13 (1998); N.C. Gen.Stat. § 150B-35 (2003).
[¶ 36] North Dakota legislative history provides no assistance in interpreting what is meant by furnish, augment, diminish, or modify, nor do the comments of the drafters of the 1981 Model State Administrative Procedure Act. Under the rules of statutory construction staff assistants, including staff attorneys, are allowed to comment on or evaluate the evidence. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “In interpreting a statute, words must be given their plain, ordinary, and commonly understood meaning; and consideration should be given to the ordinary sense of the statutory words, the context in which they are used, and the purpose which prompted their enactment.” County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 327 (N.D.1985). “If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute.” Id. at 325.
[¶ 37] If the words furnish, augment, diminish, or modify were interpreted to preclude staff assistants from commenting on the evidence, there would be little staff assistants could do under this provision. *818If staff assistants were not allowed to comment on evidence, they would be unable to provide guidance to agency heads and this provision would serve no purpose. If the legislature had intended to prohibit staff assistants from commenting on evidence, they could have clearly stated that intention. They did not. Rather, it seems the provision prohibits staff assistants from physically providing or taking away from the evidence given to agency heads.
[¶ 38] This conclusion is supported by the NCCUSL’s work and comments on the 2005 Draft Revision of the Model State Administrative Procedure Act. The NCCUSL is currently in the process of revising the 1981 Model Act. The 2005 revision makes changes to the provision on ex parte communications. Section C4-106 of the 2005 revision provides in part:
(b) communication otherwise prohibited by subparagraph (1) of this section from an employee or representative of an agency that is a party to the hearing officer is permissible in any of the following circumstances:
(1) The communication is for the purpose of assistance and advice to the presiding officer or agency head from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall not furnish, augment, diminish, or modify the evidence in the record; (emphasis added).
The comments to the 2005 draft revision explain that this section is taken from the California statute on ex parte communications. The comments further provide: “[t]he California sections address many of the problems that arise in this area, and attempt to distinguish technical, advisory contacts from agency staff to presiding officers or agency heads.” The drafters of the Model Act, by inserting the language “may evaluate the evidence in the record,” made it clear that staff assistants are allowed to evaluate the evidence. By adding this language to the provision while leaving the prohibition against furnishing, augmenting, diminishing, or modifying the evidence, the drafters have demonstrated that the 1981 language also contemplated allowing staff assistants to evaluate evidence. Although not a part of our statute as originally adopted, by inserting the language allowing staff assistants to evaluate evidence without removing the words furnish, augment, diminish, or modify, the NCCUSL has clarified that furnish, augment, diminish, or modify was not intended to prohibit comments on or evaluation of evidence. Under this reasoning, N.D.C.C. § 28-32-37(2) does not prohibit staff assistants from evaluating evidence.
[¶ 39] The majority opinion holds the improper ex parte communication between Dopson and Jolliffe occurred when Wahlin provided Jolliffe with the February 11, 2003 letter Dopson sent to Wah-lin. The majority finds Wahlin improperly augmented the evidence by providing Dopson’s letter to Jolliffe and the communication is an improper ex parte communication because Wahlin’s act of providing Jolliffe with the letter augmented or supplemented the evidence in violation of N.D.C.C. § 28-32-37(2). Wahlin did nothing to augment the evidence not only because N.D.C.C. § 28-32-37(2) does not prohibit staff assistants such as Wahlin from evaluating or commenting on evidence, but also because Wahlin did not comment on the evidence.
[¶ 40] Miller argues and the majority holds this communication was improper because Wahlin commented on the evidence. Wahlin did not change anything or comment on the evidence, Dopson commented on the evidence in a letter copied *819to Miller’s counsel pursuant to WSI’s customary practice adopted after Lawrence, and Wahlin forwarded that letter to Jol-liffe because Dopson inadvertently addressed the letter to Wahlin instead of Jolliffe. The letter containing Dopson’s comments on the evidence which was meant for Jolliffe was initially copied to Miller’s counsel. Because this procedure has been WSI’s standard practice since Lawrence, Miller’s counsel had notice and an opportunity to respond to the letter as is required by N.D.C.C. § 28-32-37(1). Although Miller’s attorney contends he had no reason to respond to Dopson’s letter to Wahlin, my experience has been that lawyers are not shy about responding to statements of which they have notice and with which they disagree. And significantly, that same comment made by Dopson in a letter directly addressed to Jolliffe would not, even under the majority’s analysis, have been ex parte and Jolliffe would have been free to discuss it with Wahlin. Therefore, the communication from Wahlin to Jolliffe was not an improper ex parte communication.
[¶ 41] GERALD W. VANDE WALLE, C.J.. We were told at oral argument that following the Court's decision in Lawrence, WSI established a practice of having its outside counsel comment on the ALJ's decision in a letter written to Jolliffe, which was copied to the injured worker or his or her counsel, and accepting any response from the injured worker. This practice has apparently not been incorporated in an administrative rule.