Republican District 17 Senator and retired judge Arthur Rusch and Democratic candidate for District 17 House Mark Winegar are having a semantic disagreement over the GEAR UP scandal. Was it corruption, or was it employee theft?
According to Attorney General Marty Jackley, former Mid-Central Educational Cooperative business manager Scott Westerhuis stole GEAR UP grant money through his office. He was an employee, and he committed theft.
But are employee theft and corruption mutually exclusive terms? I search “corruption” in South Dakota Codified Law and find two references (SDCL 3-17-6 and 9-13-30) in which corruption and theft are listed side by side and separately, as if they are distinct actions requiring distinct reference.
Yet it seems reasonable to treat corruption as a larger term that can encompass theft along with other bad behavior, or perhaps the disease of which theft is one symptom. Black’s Law Dictionary (at least the free online version; I’ll defer to Judge Rusch’s copy on his desk, if he cares to offer a counter-definition) offers a definition that fits that hierarchy:
Illegality; a vicious and fraudulent intention to evade the prohibitions of the law. The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others [The Law Dictionary Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed., retrieved 2016.11.07].
Reaching into the till over and over again for years is illegality. Westerhuis (and, says A.G. Jackley, his numerous co-conspirators) worked hard to evade the prohibitions of the law against theft. Team Westerhuis wrongfully used their stations to procure benefits for themselves, contrary to the duty entrusted to them by the state and federal governments. And, perhaps most importantly to candidate Winegar’s point, officials in state government appear to have remained silent about warnings of this financial misconduct for six years, which, as I wrote in March, represents pervasive corruption preventing people of good conscience from speaking up to protect the rights of Indian students and taxpayers.
I wouldn’t want to be the sitting state legislator running semantic interference for the crimes of Scott Westerhuis. The GEAR UP scandal was employee theft. It also competes with EB-5 for designation as Exhibit #1 in Winegar’s and the people’s case against corruption in Pierre.