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Lawmakers probing GEAR UP offer drafts of legislation for public review

South Dakota lawmakers looking into how more than $1 million went missing from a Platte educational cooperative's bank account decided Friday they should seek public comments on their ideas for possible new laws.

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South Dakota State Capitol

South Dakota lawmakers looking into how more than $1 million went missing from a Platte educational cooperative's bank account decided Friday they should seek public comments on their ideas for possible new laws.

The Government Operations and Audit Committee listed five potential measures on the agenda Friday at bit.ly/2yLGLjC. Staff for the Legislative Research Council and the Department of Legislative Audit could add more in the coming weeks.

Committee members chose Monday, Dec. 18, to take testimony at the Capitol. Sen. Deb Peters, R-Hartford, said legislators could introduce bills individually if the committee doesn't reach consensus on any of the ideas. She is the panel's chairwoman this year.

The committee has met repeatedly since 2015 regarding Mid-Central Educational Cooperative and its management of federal programs.

The measures discussed Friday included one from Peters, two from Senate Democratic leader Billie Sutton, of Burke, and one from Rep. Wayne Steinhauer, R-Hartford.

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Sutton's proposals would have the broadest reach.

One would repeal an exemption in South Dakota's open-record law that allows public officials and employees to keep private their correspondence, memoranda, calendars or logs of appointments, working papers and records of phone calls.

Sutton's other proposal would require state departments and agencies to retain fiscal records for at least 10 years. He said state law doesn't appear to set a minimum period now.

State government policy now allows agencies to release emails if they choose but emails aren't official public records.

Sutton said he was trying to address that gap. He said South Dakota was one of 14 states where emails aren't public records.

"I want to be clear this is simply a starting point," he said.

Other committee members had a range of reactions.

Rep. David Anderson, R-Hudson, said he saw the general value of emails becoming available but worried they could reach into personal areas that he said shouldn't be open.

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"I don't want every minute of every day of my life public," Anderson said. "All that's going to do is shut down communications."

Rep. Craig Tieszen, R-Rapid City, said the designating emails as public records had "some merits" but he wondered how much change the Legislature would accept.

"Maybe we should go further than we are," Tieszen, a retired police chief, said. "Maybe there's a common ground we can agree on."

Steinhauer recounted for the committee how he recently went through a legal matter that required him to produce business records.

"Frankly I have no problem with what you proposed. It's time for government to put on its big-boy pants," Steinhauer told Sutton.

"If it's good for business," Steinhauer added, "it's good for government."

Sen. Stace Nelson, R-Fulton, said he spent many years being subject to federal open-record requirements as an investigator with the U.S. Marines.

"I 100 percent support it," Nelson said.

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Sutton's proposal to require state officials to keep fiscal records for at least 10 years drew comments from several members of the Department of Legislative Audit, including Auditor General Marty Guindon.

Guindon said he serves on state government's records boards. He suggested Sutton might want a more precise definition of fiscal.

Russ Olson, the department's supervisor for local government audits, said state government's Bureau of Administration currently has responsibility under state law to develop standards for record retention.

Olson said the bureau works with the records boards in providing manuals for each level of government - state, county and municipal - on how they handle each set of records.

Peters said the committee would invite the Bureau of Administration to send a representative to the Dec. 18 meeting.

One of Steinhauer's proposals would add situations when state employees, acting as whistle blowers, should alert their immediate supervisors, the state attorney general or the Department of Legislative Audit.

Steinhauer wants to include "violation of law or rule" and "substantial or specific danger to public health or safety." The list currently covers conflict of interest, fraud or theft.

Steinhauer also wants to make an additional level of reporting available for state employees to tell their immediate supervisor's immediate supervisor.

Said Peters: "I actually think that's a unique idea."

Replied Steinhauer: "It blends the two languages a little bit better."

The committee vice-chairwoman this year is Rep. Jean Hunhoff, R-Yankton. Steinhauer, replying to a question from Hunhoff, said he hadn't consulted with state government's Bureau of Human Resources about its whistleblower protections.

Hunhoff suggested Steinhauer might want to do that. Hunhoff said the bureau's policy might be a model for a state law.

The Peters proposal covers a variety of situations legislative auditors discovered in their work on Mid-Central that state laws don't address. They include:

Requiring the Department of Legislative Audit or an accounting firm furnish a copy of the audit report to each school board member by mail or electronic copy;

Requiring any county government, city government or school board that receives an independent audit to make the audit report available on its website;

Requiring a state government agency, when it acts as a pass-through for federal grant funding to reach a sub-recipient, to post on a website any sub-recipient evaluation report or program evaluation report;

Requiring any recipient or sub-recipient organization to disclose a conflict of interest to the state government agency and requiring the conflict to be posted on the website with the grant agreement;

Prohibiting any person involved in the determination of the recipient of a grant or contract from a state agency being awarded the grant or contract;

Prohibiting any recipient or sub-recipient of a grant or contract from a state agency from conducting any external evaluation of the performance of the grant or contract;

Requiring any person holding a statewide office, and any head of an agency in the executive branch, to annually sign a form, as created by the Bureau of Human Resources, acknowledging that the person has reviewed the state conflict of interest policy, and disclosing any conflicts that have not previously been disclosed; and

Requiring the Bureau of Human Resources to compile the conflict forms and present them annually for review by the Legislature's Government Operations and Audit Committee.

Anderson suggested a requirement that the person or organization that's been the subject of audit findings sign a form promising the agreed-upon response would be performed.

Peters said the committee, regarding conflict of interest statements, would "take a look at everything all the time."

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