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Ethics board hearing complaints, voters to consider wider-reaching replacement

PIERRE — As South Dakota's Government Accountability Board prepares to hear its fourth complaint since forming in July, an effort to replace the panel with a wider-reaching citizen-led board granted additional power is headed to the November ballot.

South Dakotans tired of scandals involving the EB-5 immigrant visa program and a poorly managed education program voted to create a strong ethics commission as part of Initiative Measure 22, 2016's sweeping ethics, campaign finance and lobbying reform effort. But legislative leaders calling the bill "unconstitutional" won a court injunction to prevent IM-22 from taking effect, then repealed the law and spent much of the 2017 session replacing some of its parts with watered-down measures.

House Bill 1076, the 2017 Legislature's bipartisan effort to replace IM-22's ethics panel, created a body of four governor-appointed retired judges — two Republicans and two Democrats — but limited its scope to investigate claims of misconduct only of executive branch employees and statewide elected officials.

Mitch Richter, a former Republican lawmaker co-chairing the Amendment W ballot effort to write many of IM-22's principles into the state constitution, said that the legislature's version of a Government Accountability Board isn't what South Dakotans had in mind when they approved IM-22 by a 52-percent to 48-percent margin. Numerous public officials including city and county administrators, water and school boards, drainage districts, sheriffs and auditors fall outside of the board's purview.

"It's a toothless barking dog," said Richter, who co-chairs Amendment W with former Democratic lawmaker Darrell Solberg. "It really doesn't do much of anything. It doesn't accomplish what IM-22 set out to do."

In July, Gov. Dennis Daugaard appointed former Supreme Court Justice Lori Wilbur and former circuit court Judges Gene Paul Kean, David Gienapp and Patricia Riepel to serve on the Government Accountability Board. HB 1076 placed the panel under the South Dakota Attorney General's office, which provides administrative support.

Judge Kean said the board had a lot of work to do just to begin operations. The former judges immediately got to work electing a chairperson, Wilbur, setting up protocols of how to take complaints, choosing an independent location to meet and creating a complaint form, website and mailbox.

Once the board receives a complaint, it's scheduled for consideration at an upcoming meeting.

The board goes into executive session, closed from the public, to determine whether there are sufficient facts to constitute a violation. From that discussion, the board can initiate an investigation into a complaint, refer alleged criminal activity to the Division of Criminal Investigation (DCI), conduct an open-to-the-public contested case hearing or dismiss a case for lack of jurisdiction.

The board handled two complaints in 2017. One of the initial grievances dealt with alleged misconduct that happened before the board's creation on July 1, 2017, so the judges ruled they did not have proper jurisdiction.

"Unless the statute is retroactively declared, what happened in the past is maybe interesting, but the state can't go in and do anything about it," Kean said.

The second and final complaint of 2017 was withdrawn, and the first 2018 complaint fell into the lack-of-jurisdiction category and was and referred to DCI. The year's second complaint, which was received earlier this month, will be scheduled for consideration at an upcoming meeting. Details of the complaints are not available to the public because they did not reach the stage of a contested case hearing.

Judge Kean said the board understands its limited scope, and its members are focused on judiciously and thoroughly assessing complaints and issuing rulings in a timely manner.

Richter said he doesn't understand why legislators created a panel with an even number of members, which can lead to gridlock.

"How do you pass anything if you're always 2-2 on the decisions?" he asked.

Constitutional Amendment W, to be voted on in November, calls for oversight from a seven-member independent commission with state employees, elected officials and lobbyists prohibited from serving.

The panel's members would consist of:

• Two retired judges, one from each party, appointed by the South Dakota Supreme Court

• One member appointed by the governor from a list of three applicants selected by the Speaker of the House

• One member appointed by the governor from a list of three applicants selected by the House minority leader

• Three members, including at most one lawyer, appointed by a majority vote of the first four appointed members

The panel would be given an annual minimum of $389,000 to fund operations and receive broad authority to:

• Investigate any allegation of ethics violations against any state or local official, judge or employee

• Adopt ethics rules

• Issue advisory opinions on matters of ethics and accountability

• Employ and manage staff members, such as lawyers, investigators and administrators

• Audit campaign finance reports, lobbying disclosures and other ethics-related disclosures

• Impose sanctions, such as fines and administrative orders

• Execute programs to educate the public and officials on campaign finance, election, lobbying and ethics rules

• Annually submit draft laws designed to reduce corruption and transparency for consideration by the legislature

Richter said by presenting the proposed legislation as a constitutional amendment, legislators wouldn't be able to repeal or change the measure without having to go back to the people. He said it's important to have a citizen-led initiative with wide-ranging authority to investigate alleged corruption wherever it occurs.

"People say, 'Well, we don't have any issues,'" Richter said. "Well you don't know if we've had any issues because there's never been a place where a citizen can just bring a complaint."

Kean said the retired judges understand that there's a possibility that the board disbands by the end of the year, but for now they're focused on their mission of considering ethics complaints involving executive branch employees and statewide office holders.