Monthly Archives: July 2017

Oglala Lakota oddities from 2016 election

In South Dakota’s 2016 general election, Oglala Lakota was the only county to vote yes to accept election-law revisions that the Legislature approved in the 2015 session in SB 69.

Voters blocked SB 69 from taking effect, with 98,657 marking yes and 242,113 choosing no.

The bill came from the State Board of Elections but became more and more Republican-flavored each step forward in the lawmaking process.

The Senate passed its heavily amended version 25-8 with only Republican support. The House of Representatives followed with more Republican amendments and tied 34-34 on the first try, before approving it 41-25.

After the Senate refused to concur with the House version, the conference committee’s report won final passage 50-16 in the House and 26-7 in the Senate.

How Republican was it? The ‘pro’ statement seeking a yes from voters came from House Republican leader Brian Gosch of Rapid City; he wrote, in part: “Republicans drafted this bill, Republican Legislators passed it, and a Republican Governor signed it.”

So much for supposed neutrality on a measure that still said in its sponsor line “at the request of the State Board of Elections.”

Even so, Oglala Lakota County, one of the most heavily Democratic neighborhoods in South Dakota, voted for it.

The county’s 2016 general election registration was 5,710 Democrats, 569 Republicans, 1,684 no-party or independents and 74 Libertarians, Constitutionalists and others.

Yet Oglala Lakota voters supported SB 69 becoming law, with 1,436 yes and 1,231 no.

Zero counties voted yes to accept the lower minimum wage for workers younger than 18. The statewide vote was 104,185 yes and 256,686 no.

SB 177 came from then-Sen. David Novstrup, R-Aberdeen, in the 2015 session. The Senate voted 26-7 and the House 44-24 for it.

There were some other ballot measures in 2016 where Oglala Lakota didn’t match most of the rest of South Dakota.

Clay, Oglala Lakota and Todd counties supported constitutional amendment V that would have created non-partisan elections in South Dakota. Voters statewide rejected it, with 157,870 yes and 196,781 no.

Buffalo, Dewey, Oglala Lakota and Todd counties – all with concentrations of American Indian voters, and some of the most impoverished counties in the nation – supported constitutional amendment U that would have prohibited the Legislature from capping interest rates on loans. Voters statewide rejected it, with 130,627 yes and 224,876 no.

Clay, Oglala Lakota and Todd counties also voted for constitutional amendment T that would have taken legislative redistricting authority away from the Legislature and given the authority to a nine-member commission that would have been politically balanced with three Republicans, three Democrats and three other-registered voters. Voters statewide rejected it, with 149,942 yes and 198,982 no.

Oglala Lakota oddities from 2016 election

In South Dakota’s 2016 general election, Oglala Lakota was the only county to vote yes to accept election-law revisions that the Legislature approved in the 2015 session in SB 69.

Voters blocked SB 69 from taking effect, with 98,657 marking yes and 242,113 choosing no.

The bill came from the State Board of Elections but became more and more Republican-flavored each step forward in the lawmaking process.

The Senate passed its heavily amended version 25-8 with only Republican support. The House of Representatives followed with more Republican amendments and tied 34-34 on the first try, before approving it 41-25.

After the Senate refused to concur with the House version, the conference committee’s report won final passage 50-16 in the House and 26-7 in the Senate.

How Republican was it? The ‘pro’ statement seeking a yes from voters came from House Republican leader Brian Gosch of Rapid City; he wrote, in part: “Republicans drafted this bill, Republican Legislators passed it, and a Republican Governor signed it.”

So much for supposed neutrality on a measure that still said in its sponsor line “at the request of the State Board of Elections.”

Even so, Oglala Lakota County, one of the most heavily Democratic neighborhoods in South Dakota, voted for it.

The county’s 2016 general election registration was 5,710 Democrats, 569 Republicans, 1,684 no-party or independents and 74 Libertarians, Constitutionalists and others.

Yet Oglala Lakota voters supported SB 69 becoming law, with 1,436 yes and 1,231 no.

Zero counties voted yes to accept the lower minimum wage for workers younger than 18. The statewide vote was 104,185 yes and 256,686 no.

SB 177 came from then-Sen. David Novstrup, R-Aberdeen, in the 2015 session. The Senate voted 26-7 and the House 44-24 for it.

There were some other ballot measures in 2016 where Oglala Lakota didn’t match most of the rest of South Dakota.

Clay, Oglala Lakota and Todd counties supported constitutional amendment V that would have created non-partisan elections in South Dakota. Voters statewide rejected it, with 157,870 yes and 196,781 no.

Buffalo, Dewey, Oglala Lakota and Todd counties – all with concentrations of American Indian voters, and some of the most impoverished counties in the nation – supported constitutional amendment U that would have prohibited the Legislature from capping interest rates on loans. Voters statewide rejected it, with 130,627 yes and 224,876 no.

Clay, Oglala Lakota and Todd counties also voted for constitutional amendment T that would have taken legislative redistricting authority away from the Legislature and given the authority to a nine-member commission that would have been politically balanced with three Republicans, three Democrats and three other-registered voters. Voters statewide rejected it, with 149,942 yes and 198,982 no.

Judicial Watch sues seeking Comey metadata

Judicial Watch filed a lawsuit in federal court Thursday asking for the metadata showing when former FBI director James Comey wrote and edited his memoranda regarding meetings with President Donald Trump.

In its news release, Judicial Watch said metadata “includes, but is not limited to, dates and times of creation, modification, transmission, and/or retrieval of any electronic copy of any such memorandum currently or formerly in the possession of the FBI and/or drafted, modified, transmitted, and/or received via any FBI-owned computer or other electronic device.”

Judicial Watch also seeks related information such as laptop records for Comey, whom Trump fired. The case is here. The federal Justice Department didn’t respond to a previous freedom of information request.

The debate over legislative power to summon

The latest round of arguments between legislators over whether they have authority to summon, or subpoena, witnesses flowed through the past two days in the Legislature’s Government Operations and Audit Committee.

The Legislature clearly has legal authority to summon witnesses who work for state government’s departments, according to Doug Decker, the chief lawyer for the Legislative Research Council, the non-partisan staff.

Sen. Stace Nelson, R-Fulton, wanted to push to the next circle of non-state agencies and private contractors who work with state government’s departments and bureaus. Nelson repeatedly but politely clashed with GOAC’s presiding chairwoman, Rep. Jean Hunhoff, R-Yankton.

The panel agreed they want to bring back state government’s education secretary, Melody Schopp, to get further answers about the Gear Up scandal. Sen. Neal Tapio, R-Watertown, suggested asking questions of a broader group than just Schopp. Tapio spoke about the potential value of sending written questions in advance.

Sen. Justin Cronin, R-Gettysburg recalled the committee during its probe of the EB-5 economic-development program sent some 90 questions to Joop Bollen of Aberdeen, who later pleaded guilty to one felony count and wasn’t sent to prison.  Bollen, who was an employee at Northern State University before setting up SDRC for EB-5 purposes, had refused to appear before the committee. But he answered many of the written questions. “Let’s see what we can get beforehand,” Cronin said.

Nelson also ultimately succeeded in his argument to bring in Rep. Kyle Schoenfish, R-Scotland. His father’s firm was the private auditor for Mid Central Educational Cooperative for nearly a decade. Mid Central held the state contract to deliver Gear Up services until Schopp terminated the contract in a phone call on Sept. 16, 2015.

“I also find it’s gentler to ask first than to mandate,” Hunhoff told Nelson as the drama built Tuesday morning. Decker had opened the meeting Monday with a presentation about the Legislature’s investigative power. He returned to the witness chair Tuesday morning during the discussion about which witnesses to invite or subpoena.

“The invitation is the way to go first,” Decker said. The next step could be summoning, or issuing a subpoena, which Decker said amounted to the same thing. “Issuing subpoenas gets a little more complicated,” Decker advised. He said there are expenses for sending a subpoena and the committee could face additional costs if the potential witness goes to court to quash the subpoena.

Nelson had referred to a specific state law. Decker responded, “The key phrase there is ‘without lawful excuse’.”  Rep. Craig Tieszen, R-Rapid City, said he supports invitations first. Rep. David Anderson, R-Hudson, called for the committee to invite witnesses Schopp, Schoenfish and Brinda Kuhn, who was involved in the preparation of the original Gear Up grant application a decade ago and later was paid to evaluate the program.

Rep. Susan Wismer, D-Britton, cautioned the committee members they would be “just begging for lawyers to get involved” if the committee pursue whoever signed the private audits for the Schoenfish firm. Cronin replied, “If they feel comfortable coming forward, they’ll come,” Cronin said.

Nelson also wanted the state official identified in a 2015 email exchange with Mid Central’s then-director Dan Guericke regarding the value of Microsoft software. Legislative auditors didn’t find any documentation the 500 software licenses had been activated in 2014 or 2015, yet Mid Central claimed two rounds of $2 million value toward its local match for the federal Gear Up grant.

The committee voted 8-0 to invite Schopp, Kuhn and Schoenfish. Hunhoff said she was uncomfortable about sending a letter from the committee the state employee in the email chain. “I think this is out of our purview,” Hunhoff said. Cronin added, “We can’t fix everything in one month.” Cronin suggested the committee move on from the discussion.

Meanwhile Nelson had forwarded his copy of the email chain to the other committee members. After the first-round vote, he went to the next step with two words — “Tamara Darnall” — naming the state Department of Education finance officer who was on one end of the digital conversation with Guericke.

Tapio put some backbone behind Nelson’s request. “I think she would be very knowledgable on this issue,” Tapio said. Nelson called for Darnall to be invited, and Tapio provided the second to Nelson’s motion. That vote turned out 8-0 too,

“Miss Darnall will be invited to the meeting,” Hunhoff said.

Two of the 10 committee members weren’t present Tuesday. The actual chairwoman, Sen. Deb Peters, R-Hartford, was testifying in Washington, D.C., as the incoming president for the National Conference of State Legislatures, while Senate Democratic leader Billie Sutton of Burke was taking care of a sick child.

Schopp in her testimony Monday stunned some of the committee when she said none of the Gear Up money was part of the missing money — nearly $1.4 million, according to legislative auditors — that couldn’t be accounted in an inspection of Mid Central’s bank records. None of the questions Schopp received from the committee members Monday seemed to have the same degree of sharpness. But overnight the legislators seemed to recover.

There also was a sense Monday that the Daugaard administration was constructing a false wall with its lawsuit last month against Mid Central and its 14 school districts. Schopp testified Monday the lawsuit was an insurance policy of sorts, in case the US Department of Education delivered an adverse ruling and wanted more matching money from the state Department of Education.

Testimony Tuesday from Auditor General Marty Guindon referred to a letter in Schopp’s briefing packet. The letter from 2016 to Gov. Dennis Daugaard said the federal department had accepted the software value for 2014. Guindon said the federal department hadn’t ruled yet on the 2015 finding by legislative auditors. The email chain between Darnall and Guericke occurred in 2015, before Mid Central officials returned for more testimony to the Legislature’s committee.

That testimony was canceled after Schopp terminated the Mid Central contract for Gear Up on Sept. 16, 2015. Guericke called Mid Central business manager Scott Westerhuis later that day. After he arrived back in Platte, Scott Westerhuis allegedly shot to death his wife, Nicole, and their four children, and then allegedly set their house on fire and allegedly shot himself to death.

Schopp, in answer to a Tapio question Monday, said the combination of legislative auditors’ initial findings about Gear Up in the fiscal 2014 audit and the Westerhuis killings contributed to the perception that Gear Up was rife with corruption.

Two of the people identified in those early findings by legislative auditors were Rick Melmer, the former secretary of education under then-Gov. Mike Rounds, and Keith Moore, who was hired by Rounds to revive the state Office of Indian Education. They were identified by position as senior advisers, but weren’t directly named, in the Department of Legislative Audit’s report for 2014.

Guericke, Gear Up coordinator Stacy Phelps and assistant business manager Stephanie Hubers have been charged with state felony crimes in connection with trying to cover up Gear Up. State Attorney General Marty Jackley told the legislators Monday that the only person he’s ruled out for possible prosecution is the former chairman of Mid Central’s board who signed board documents presented to him in September 2015 after he no longer was chairman.

GOAC looking at university centers

Mike Rush filed on July 20 the financial reports for the three public university centers at Rapid City, Sioux Falls and Pierre. He is executive director for state government’s Board of Regents, whose members govern South Dakota’s public universities.

He submitted the reports to the Legislature’s Government Operations and Audit Committee, whose members are meeting today and tomorrow (Monday and Tuesday) at the Capitol in Pierre.

The reports show several trends:

Student numbers significantly declined at each university center during the period of fiscal 2013 through fiscal 2017; and

Tuition revenue followed the same line at each university center as well.

The committee’s responses to the reports promise to be interesting.

 

GOAC meets Monday about Mid Central again

The Legislature’s Government Operations and Audit Committee returns to action Monday, July 24, and Tuesday, July 25. The lawmakers will continue what’s become a three-year look into the federal Gear Up grant program and how it was managed by Mid Central Educational Cooperative at Platte.

Mid Central disbanded effective June 30, 2017. That move didn’t stop GOAC members.

The tale began with state government’s Department of Legislative Audit’s findings that were released in spring 2015. The legislative auditors spotted a small variety of problems, such as two senior advisors for Gear Up, former Education Secretary Rick Melmer and former Indian education director Kieth Moore, who didn’t complete work-effort logs for July through October of fiscal 2014 (see pages 270-275 of the audit).

State government ended its contract with Mid Central in September 2015. The same night, Mid Central’s business director, Scott Westerhuis, allegedly killed his wife, Nicole, and their four children at their home south of Platte. Then he set the house afire and allegedly killed himself.

Since then, three people face criminal charges. Mid Central’s school districts decided to close the cooperative and formed a new one that uses the same building. Legislative auditors completed a special review of federal funding that flowed through Mid Central; they released the report in May 2017. Gov. Dennis Daugaard sued Mid Central in the closing days of June.

The Westerhuis family’s killings left a hole in the story. Last week GOAC’s chairwoman, Sen. Deb Peters, R-Hartford, spoke with South Dakota Public Radio’s Lori Walsh. The interview ran 20 minutes on the network’s In The Moment mid-day program.

“We will never connect all of the dots,” Peters told Walsh.

The focus now is what’s known and what still isn’t. Legislators established the state Board of Internal Control last year at the governor’s suggestion. Lawmakers meanwhile are considering additional steps that could be useful in the future.

Peters said she doesn’t believe there was “a big gaping hole.” She said there is “a fine line” between freedom and state laws. Among the witnesses on the agenda Monday are Auditor General Marty Guindon, Secretary of Education Melody Schopp and Attorney General Marty Jackley.

Farewell

Kelly Thompson, director of advertising and public relations, announced this afternoon that today is her last day at the South Dakota Lottery. The final sentence of her final email:

“Thanks for your coverage and questions over the past 8 years! kt”

A test on the 72-hour law for meeting notices w/update

I haven’t visited Hillsview Plaza for many months, so frankly I don’t have any idea whether state government’s Department of Human Services posted an agenda July 19, as Daniel Hoblick claimed Friday, for its Monday, July 24, meeting of the Council on Development Disabilities.

But I do know this.

The agenda as of Friday morning, July 21, on state government’s boards and commissions website said the meeting was July 25.

When I asked Friday morning about the discrepancy, the response I received was that the date was a mistake and that Hoblick would change it.

Trouble was, July 25 — Tuesday — was the date on the agenda that was on the website. State law doesn’t seem to address changing the posted date to an earlier date.

Under state law that took effect July 1, state government’s boards and commissions must give public notice of a public meeting at least 72 hours before the meeting starts, not counting Saturdays, Sundays and holidays.

So when you add up the time — nine hours July 24, 24 hours today, 24 hours yesterday — the department would have needed to have the agenda in a publicly visible outside window by at least 9 a.m. on July 19.

I also know that each time I looked at the boards and commissions website prior to today, the meeting wasn’t posted there.

I also checked the minutes from the council’s previous meeting. The minutes said July 24 or July 25.

This might seem like a minor deal. But it’s important to those of us who are news reporters or interested citizens.

I’ll let you know how it plays out.

UPDATE: Just received this message…

“Bob,

“The Council on Developmental Disabilities is re-scheduling their Monday meeting to a later date.

Dan Hoblick
Communications Officer
Department of Human Services”

Regulators want H & I financial reports w/update

State government’s Public Utilities Commission issued a subpoena Thursday commanding Danielle Mikkelson to deliver financial statements for H & I Grain of Hetland covering the months of March 2016 through Aug. 31, 2016.

Commission lawyer Kristen Edwards signed the subpoena. Mikkelsen works for the Watertown accounting firm Vilhauer Raml & Snyder. Edwards cited SDCL § 49-45-13. The state law’s pertinent sentence says: “The commission may, in all matters arising under this chapter, exercise the power of subpoena and examine witnesses in accordance with chapter 1-26.”

The commission could decide this morning whether to revoke the grain-buyer licenses for H & I Grain’s operations in Hetland, De Smet and Arlington.

The company owes farmers from its area $6 million or more for grain delivered and has a $400,000 bond. Several dozens of farmers have officially filed with the commission notices of their intent to sue for pieces of the bond.

The company’s owners are Duane and JoAnne Steffensen of Hetland. Their son Jared Steffensen opened a grain-trading account in 2011 with a Minnesota-based commodity-hedging company. The parents signed a guaranty for the account.

The successor firm, CHS Hedging, sued the parents last year in federal court, after shutting off the trading account in July 2016. The parents in June 2017 filed a counter-claim alleging their son didn’t tell them about his increased volume of trades. CHS Hedging allegedly loosened and ultimately removed all limits on his trading.

UPDATE: The commissioners voted unanimously to do four things Friday. They revoked the licenses. They directed the staff to open a docket regarding the $400,000 bond. They further told staff to not-pursue receivership. And they asked staff to talk to Great Western Bank about posting a redacted copy of a letter filed with the commission Friday morning.

Zinter semi-concurs in the Bosworth case

At some point in the weeks ahead, Gov. Dennis Daugaard will announce his choice to replace retired Justice Lori Wilbur on the South Dakota Supreme Court. Then Chief Justice David Gilbertson will formally announce his retirement. In turn, Justice Steven Zinter presumably succeeds to the chief justice’s chair. Justice Zinter is the next longest-serving member of the high court.

All five justices agreed this week with Justice Janine Kern’s opinion Wednesday that set aside the six perjury conviction for Annette Bosworth and upheld Bosworth’s six convictions for filing false or forged instruments. The opinion includes a semi-concurrence from Justice Zinter in which he disagreed with some aspects of the court’s majority. Here is an excerpt:

“Bosworth’s petitions were not what they purported to be because
Bosworth verified petitions as the circulator even though they had been circulated
by someone else. Nor did they have the qualities of what nominating petitions
purport to have because they did not contain the signatures of voters the circulator
obtained. That type of falsehood was more than just an untrue statement of fact.”

Bosworth was a candidate for the Republican nomination for the U.S. Senate election in 2014. State law required that she be present when registered Republicans signed her candidacy petitions. A physician, she was on a medical mission to the Philippines when the leader of a Hutterite colony in South Dakota circulated petitions on her behalf and in some instances signed the petitions for the voters at the colony. Those petitions were among the stack that her consultant, Patrick Davis, filed with the South Dakota Secretary of State office.

Most of the Republican voters in the 2014 U.S. Senate primary didn’t support her. She received 4,283 votes. That number was 5.75 percent of the total cast in the five-candidate contest for the Republican nomination. The winner, former Gov. Mike Rounds, received 41,377 votes, or 55.54 percent. Rounds went on to defeat Democrat Rick Weiland in the November general election. State Attorney General Marty Jackley meanwhile obtained a grand jury indictment against Bosworth a few weeks after the primary.

The five justices agreed Wednesday on Kern’s main point in tossing the perjury convictions. She said state law defined a proceeding or action more narrowly than Jackley’s application of the law. She wrote: “Signing a nominating petition under a written oath before submitting it to a state authority is not a statement made in a proceeding or action under SDCL 22-29-1.” That point now becomes something for the Legislature to consider in the 2018 session.