Plus: State’s Attorney Lovrien Misreads County Referendum Law
The Brown County Commission Discussed consolidation of the auditor, treasurer, and register of deeds this morning. Their special committee report on the topic and state’s attorney Larry Lovrien’s explanation of the office-consolidation process are available online. The committee studied consolidations in Hughes County, which combined all three offices, and Brookings County, which consolidated auditor and treasurer. The report offers numerous pros and cons, but the Brown County Commission seems most impressed with one con: neither Hughes nor Brookings reports cost savings from the consolidation.
Commission chair Duane Sutton, a good conservative Republican, says he welcomes members of the public to use the report as information for starting a grassroots campaign for consolidation, but the commission as a whole doesn’t sound sanguine about leading that charge itself. Commissioner Rachel Kippley says no one on the commission is chomping at the bit to bring such consolidation forward without the public first bring the idea forward. Commissioner Kippley also reports that Commissioner Tom Fischbach, who had to step out for a medical reasons, is completely against consolidation.
According to to Chapter 7-7 of South Dakota Codified Law, either the county or the voters themselves can combine these offices. SDCL 7-7-1.2 allows the county commission to consolidate offices by ordinance. SDCL 7-7-1.5 allows citizens to initiate an office-consolidation vote by submitting a petition with signatures from 15% of the county’s registered voters, as counted at the last general election.
But what if the county wanted to consolidate offices and the voters did not? One would think that the referendum process would apply: under SDCL 7-18A-5, county residents may refer any ordinance or resolution passed by the county commission to a public vote by collecting signatures from five percent of the county’s registered voters, as counted at the last general election.
State’s Attorney Larry Lovrien tells the Brown County Commission that voters would need to meet a 15% threshold to refer a county ordinance seeking to consolidate offices:
This Ordinance would take effect in the ordinary way, (SDCL 7-18A), without a public vote on the question unless the Commission receives a petition signed by not less than 15% of the registered voters, based on the total number of registered voters at the last preceding general election [link added, numbering removed; Larry Lovrien, Brown County State’s Attorney, memo to Brown County Commission, 2014.11.25].
State’s Attorney Lovrien appears to confuse initiative and referendum. SDCL 7-18A-5 says we need 5% to vote on an ordinance that commissioners have approved. SDCL 7-7-1.5 says we need 15% to vote on an ordinance of our own that commissioners haven’t approved. We need 5% to stop a commission action; we need 15% to take an action that the commission won’t.
This misreading of state law on county-wide initiatives and referenda seems unlikely to impact voters, since the Brown County Commission signaled no strong desire to take action. That’s good, because letting one set of elected officials dissolve the positions of other elected officials ought to raise alarms. However, if Lovrien’s counsel on other legal matters is as shaky as his report on the referral process for a consolidation ordinance, maybe Brown County will consider consolidating the state’s attorney’s office and getting its legal advice from the county auditor.
As long as I have lived in Aberdeen, the State’s Attorney office has been shaky. My first encounter was with a state’s attorney who called me when I advised the student newspaper at NSU because of some articles not complimentary to local government and threatened to take action against the newspaper on the basis that it was supported by the taxpayers. It was not, but case law is quite clear that it would be protected by the First Amendment even if was. One morning shortly after, the state’s attorney’s secretary came to work and found a letter of resignation from the attorney on her desk. She had fled to Montana.
I have had other encounters with that office where ignorance and incompetence ruled over law. It has been suggested that the office be upgraded into a full-time position with commensurate pay, but the legal talent available just does not seem up to the task.
As for the consolidation of the three elected offices, the pretext for doing so is efficiency and saving money. The report indicates that other counties have not found savings in consolidation, but it repeatedly suggests that efficiencies and “cross-training” training have been noted. However, there is no substantive citations of those efficiencies or a lack of them in Brown County.
The report conceives of a chief executive officer which would be more efficient than three, although it fails to note that each of the departments would still need a lead person to administer the functions of those offices. This is that old bugaboo that government agencies need to be run like businesses to serve the public. The public has been well served by elected administrators in Brown County and as voters it has the power and right to endorse those who serve it well or vote out those who don’t. Consolidation eliminates the democratic opportunity for the public to have a direct voice in choosing the people who serve it, and the only apparent efficiency is in concentrating that political power in one office
The committee report also states that consolidation “lessened election cycle concerns as to whether qualified candidates would run for each office.” It would be informing to know upon whom such concerns were registered. But note that a member of the committee was the previous state’s attorney who filed criminal charges against Brandon Taliaferro and Shirley Schwab, which were so contrived that the judge threw them out of court. (Some wrongful conviction attorneys and I question why the state bar association has not addressed the malicious conviction aspects of that case.) You add this to the slovenly review of the laws on referenda and initiated measures, and the concerns about qualified candidates clearly
needs to be focused on offices other than the recorder of deeds, the auditor, and the treasurer.
One of the petitions currently being circulated in the state proposes that state and local government offices be made non-partisan to eliminate the political agendas and concentrate on serving the people. This report and the circumstances it examines makes a case for elections which deal with competence and service, not political contests for power and control.
Cory said, “letting one set of elected officials dissolve the positions of other elected officials ought to raise alarms.”
What alarms are you referring to? Something similar to a Janklow v. Butler situation? What other methods do you have in mind to make such changes? Initative only?
the county lawyer may be right, annotations are crucial, cases matter, the question requiring 15% petitions may differ from initiative/referendum of ordinances ect requiring 5%, emergency, administrative decisions, and other complications.
reference to 7-18A-5 is in error. just thinking out loud.
DANGER, DANGER WILL ROBINSON!!
Alarms, Deb? David’s comments capture my concern nicely. There is no cost or administrative gain to be had. It sounds like a way to concentrate power and leave the offices more under the control of one administrator who might be more under the thumb of the commission. More elected officials mean more people who answer to the voters, not the commission. Consolidation would mean less check and balance.
Leslie, I read the statutes and Lovrien’s explanation a couple times, concerned I might be missing some small yet vital detail. I don’t see it yet. The statutes above refer to separate processes: the 5% threshold applies to the referendum process, while the 15% threshold applies to the initiative process.
Thanks Cory, I get it.
cory, we should visit w/ a muni/county lawyer sometime. it is complicated as i recall, but maybe just for me.
Well, I don’t know if visiting with Lovrien would be useful, since I’m pretty sure he got this one wrong!