In Refusal to Appear Before GOAC, Schopp Asserts Executive Authority over Legislature

On September 12, the Government Operations and Audit Committee asked Education Secretary Melody Schopp to attend its October 5–6 meeting and answer thirteen queries following up on her prior responses to GOAC’s investigation of the GEAR UP/Mid-Central scandal:

1. Please explain the process used to apply for both the first and second GEAR UP grants.
2. How were these grants built into the State budget process?
3. The South Dakota Department of Education (SDDOE) made payments to BC Kuhn from July 2008 to September 2011. What were these payments to BC Kuhn for? If these payments were for contractual services please provide copies of the related contracts.
4. Please provide the names of your supervisors from the first day of your employment with the SDDOE until the date of your appointment as Secretary in January 2011.
5. Prior to being appointed as Secretary, you indicated your involvement with the GEAR UP program was minimal. Please explain what that means.
6. In the Committee’s letter to you, dated August 4, 2017, we asked for memos and emails in support of your decision to terminate the subaward agreement with Mid Central. We are interested in the documentation as it relates to conflicts of interest and related parties. Did you report your concerns about conflicts of interest and related parties to the Governor or the Governor’s Chief of Staff?
7. In April 2012 you received an email from Roger Campbell of his concerns about the GEAR UP program. In your testimony to the Committee you indicated that in April 2012 the SDDOE implemented an online system for submitting GEAR UP documentation and that invoices began to be reviewed on a random sampling basis. Was this done in response to Mr. Campbell’s concerns?
8. Who appointed the GEAR UP Advisory Board for the second GEAR UP grant?
9. Please provide a list of those individuals serving on the GEAR UP Advisory Board for the second GEAR UP grant and how much each member was paid.
10. In your testimony to the Committee on July 24, 2017 you indicated LuAnn Werdel was released from employment because of a change in administration. In your written response to Committee questions, dated August 22, 2017, you indicated you asked Ms. Werdel to resign for personnel issues. Please clarify the reason for Mr. Werdel’s resignation and provide any documentation relating to her resignation.
11. In the Committee’s letter to you, dated August 4, 2017, we asked for persons other than LuAnn Werdel and Roger Campbell that expressed concerns of improprieties or wrong doings of grants handled by Mid Central or any other related organizations. You did not answer this question in your response dated August 22, 2017. Please provide this information.
12. When asked how many Native American students went to college during the last 12 years of the program, you could only tell lawmakers that number was 285 for the most recent school year. How many of those 285 students went on to college specifically and primarily because of the GEAR UP program?
13. Please provide the annual GEAR UP evaluation reports prepared by other parties over time [GOAC to Secretary Schopp, 2017.09.12].

In his September 28 response on behalf of Secretary Schopp, attorney Paul Bachand opens with this desk-pounding restatement of the executive branch’s preferred narrative:

I appreciate that these are good faith efforts to clarify earlier answers. It is my hope that these facts will help certain committee members who have been repeating untrue claims or conspiracy theories relating to this matter.

• No GEAR UP money was embezzled.
• There is not $62 million that is missing or was misspent.
• The U.S. Department of Education has been kept fully informed about this matter, including receiving copies of audits and reports.
• And, most egregiously, there is no evidence to support the offensive conspiracy theory that the deaths of the Westerhuis family were anything other than a murder-suicide, as professional criminal investigators have found.

Based upon my advice, no SD DOE staff will appear at the October GOAC hearing with regard to this matter. Furthermore, because of the pending civil litigation and upcoming criminal trials, I have advised SD DOE against answering any further questions at this time. I believe the committee has what it needs at this time to consider proposals for legislation relating to this matter, and I need to protect the state’s interests in the civil proceedings [Attorney Paul Bachand for Secretary Melody Schopp to GOAC, 2017.09.28].

Wow, the nerve!

I indulge Bachand and DOE in their arrogant distraction by leading with Bachand’s lead. But it is worth looking at GOAC’s latest round of questions and Bachand’s opening response to them to see how hard the Department of Education is working to keep the Legislature or the press from focusing on the corruption that South Dakota state government let happen. Consider:

1. GOAC’s 13 questions don’t inquire about embezzlement specifically; in fact, they go far beyond that specific crime.
2. GOAC’s 13 questions don’t inquire about the $62 million spent on GEAR UP in South Dakota or any sub-sum that may be missing.
3. GOAC’s 13 questions do not inquire about the extent to which DOE has updated federal officials on the GEAR UP scandal.
4. GOAC’s 13 questions do not inquire about the Westerhuis family’s grisly deaths or imply any murderous conspiracy.
5. Bachand is now taking the position that a Governor’s political appointee and the employees of her state agency can refuse to provide information to a legislative committee.
6. And just to ice the cake, Bachand, an attorney for the executive branch, is presuming to tell the legislative branch what and how much information they need to legislate.

If I were a legislator interested in checks and balances, I’d be mad. If I were a committee chair listening to a witness open with the above statement, I’d gavel him silent at sentence #3 for not responding to the specific questions asked. If the witness persisted with his assertion of executive authority over legislative jurisdiction, I’d gavel him down again: “The Legislature will decide what information it needs to legislate, and you will provide the information we decide we need. Now, to Question #1….”

But that’s why Bachand is telling Schopp and other DOE staff not to appear in person before GOAC, because in person, legislators would not tolerate such arrogant disregard for legislative authority.

Of course, that assumes that we have any legislators willing to fully assert their authority and independence from an executive branch that seems to have pretty effectively set the Legislature’s agenda for years.

Coming up next: I’ll get past Bachand’s bluster and see what new information we get from the responses and documents he sent to GOAC last Thursday.