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GOAC Draft Buries GEAR UP, Puts All Blame on Mid-Central, Denies Subpoena Power

During its conference call today, the Government Operations and Audit Committee will discuss a sixteen-page draft of its annual report. Discussion of the GEAR UP/Mid-Central scandal, which dominated GOAC’s time this year, is buried at the bottom. The draft report recites the Department of Legislative Audit’s eight findings of misconduct by Mid-Central and says zip about any possible errors by the Department of Education.

The Committee had numerous questions about the reports over the course of the interim period. In addition, the Committee questioned various employees and former employees of the SDDOE, past MCEC Governing Board Chairs, past GEAR UP Advisory Board members, the independent public accounting firm’s partner in-charge of the MCEC audits prior to FY15, and the Attorney General. The Attorney General provided an update on the pending criminal charges filed against three former MCEC employees. At this time, the courts have not set trial dates. Based upon the Committee’s review of the DLA reports and answers provided from additional Committee questions, the Committee drafted legislation for consideration during the 2018 Session [draft 2017 report, GOAC, 2017.10.30, p. 16].

Farther up in the report, GOAC writes a reminder of its leadership’s conveniently limited interpretation of its subpoena power:

Legal Counsel from Legislative Research Council (LRC) described the Committee’s investigative authority as granted to the Committee by the Legislature. LRC referred the Committee to South Dakota Codified Laws 2-6-2, 2-6-4, and 2-7-6. LRC explained the Committee can summons any department, institution, board, or agency of the State for the purpose of enacting, amending, or repealing legislation. The investigatory authority of the Committee is limited to the determination of public policy. LRC cautioned the Committee, in the process of exercising their authority, that investigations relate to public policy and not criminal or civil matters. A question was raised about the authority of the Committee to summons local government board members and individuals from private entities. LRC believed the Committee could invite these individuals to testify, however, a summons to appear would most likely be challenged in court. The Attorney General agreed with LRC’s legal opinion on this question and believed the statutes have limitations beyond departments, institutions, boards, or agencies of the State [draft 2017 report, GOAC, 2017.10.30, p. 5].

Note that GOAC’s draft does not explicitly say it lacks the power to subpoena private entities contracted by the state, a power Senator Stace Nelson and I have argued GOAC does indeed have. GOAC only asserts that they would likely taken to court if they tried to demand answers from anyone other than state employees. And heck, in making no fuss over Secretary Schopp’s refusal to answer more questions about GEAR UP, GOAC has surrendered the Legislature’s authority to the Executive branch, so why bother subpoenaing anyone?

GOAC clearly wants to bury GEAR UP and get back to the kumbayah of the Pierre/GOP establishment.


  1. John 2017-10-30 08:01

    It appears that we need a voter initiative to give the legislature, its committees, and subcommittees unlimited subpoena powers.

    If such initiative begins, watch the foxes guarding the henhouse suddenly claim that ‘it’s unnecessary for they already have subpoena power’.

  2. jerry 2017-10-30 11:02

    South Dakota needs Mueller Time to get these crooks and liars rounded up. Here is the hammer starting to fall on the big punkin head, trump. Damn, this indictment is gonna leave a mark. Ya gotta get tough on these criminals or they will just keep stealing.

  3. Donald Pay 2017-10-30 11:50

    What I was told once by a State Senator was this: “We have as much power as we want to have.” He was threatening me, a citizen, with compelling me to be put under oath and making me reveal the source of a document I presented to his committee. It was a document that was apparently supposed to be kept secret, but I had obtained it from a state employee, and made it public during my testimony to that committee. He pulled me aside, during a recess, and told me he could compel me to testify and, if I refused, I could be sent to jail. He chickened out, and didn’t do it. I guess he felt, upon reflection, that this document should have been made available to the committee by the executive branch. However, he never, as far as I know, confronted the DENR Secretary for hiding information from the committee.

    My guess is if they want to hide stuff, they can figure out a legal reason why they don’t have power to investigate. If they want to unload on some innocent citizen, they will use whatever power they have.

  4. mike from iowa 2017-10-30 12:07

    People don’t seem to be interested in learning stuff if it is in their best interests not to know.

    Maybe it is just me, but I figure if there was something bad enough a guy would murder his entire family, set his home on fire and kill himself, maybe there should have been a more considered answer than we don’t have subpoena power.

  5. Roger Elgersma 2017-10-30 12:11

    The government has what ever power it wants to have. They say business can do it better. It is easier if you want to make a lot of money to have business do it and then not be able to figure out what business did. Business can make a lot more money at the same thing than government can. When government employees become consultants to tell business how to do it, then the government employees make far more money because the business people did not know how to do the job in the first place.

  6. Jenny 2017-10-30 12:22

    When I worked at the Pierre hospital, state people would come in and appeal the diagnoses on the Medicaid babies to have a lower diagnosis that wasn’t as severe. They would have these form disputing the diagnosis and have a place to sign for the doctor agreeing to the less severe diagnosis. The doctors signed off agreeing b/c I guess they didn’t want to fight the state. Trust me, these babies had medical problems, the doctor wouldn’t have diagnosed them as otherwise. A less severe diagnosis means a less reimbursement rate the state has to pay out.

    I always wish I would have called out this unethical behavior by the state of SD back then. No one else at St Mary’s Healthcare Center thought anything of it. These are the kinds of unethical games the state of SD does and gets away with. I know, I saw it happen.

  7. Jenny 2017-10-30 12:29

    I’m thinking they targeted Pierre especially b/c it is a small rural hospital in the middle of nowhere. If this was happening in Sioux Fall Avera or Sanford I would like to think doctors there would speak out against such unethical behavior.
    I swear to god this is what the state did and I was always disgusted b/c these doctors didn’t deserve to be treated by the state that way. They were simply doing their job and treating sick babies.

  8. Cory Allen Heidelberger Post author | 2017-10-30 12:52

    That is appalling, Jenny. I thought conservatives didn’t want government coming between people and their health care… and I thought they loved babies.

    You’re likely right that Pierre hospitals are uniquely susceptible to such pressures from the state. Company town, right?

  9. Cory Allen Heidelberger Post author | 2017-10-30 12:56

    Interesting, Roger’s observation and Donald’s experience that the Legislature can have as much power as it wants to have. Where there’s a legislative will, there’s a way. Of course now, anyone threatened as Donald found himself threatened should appeal immediately to the GOAC precedent set in its discussions of EB-5 and GEAR UP.

    John, there would be an interesting tension in a popular initiative working to give the Legislature more power. And I feel my own inconsistency in railing one moment about Legislative excesses then railing the next about GOAC not using the power it already has to the fullest. Given finite initiative energy, I’d want to focus on initiatives to rein in Legislative power first. But if we did initiative a clarification/extension of GOAC subpoena power, would GOAC use it?

  10. Jenny 2017-10-30 12:59

    I was unpopular when I lived in Pierre, being an outspoken progressive democrat. I’m sure they would have shut me down right away and had me fired if I would have spoken out. In Pierre, you feel especially vulnerable in the first place when the politics go against everything you believe.

    This was during the Janklow era in the 90s and I’m sure the young doctor there that they targeted especially did not want to go against him. I learned that that was just the way they do business there.
    I don’t know why the CEO that ran St Mary’s never tried to appeal to the State. I don’t know. You never speak out in Pierre and ask about the way things are run.

  11. Donald Pay 2017-10-30 17:35

    This is off topic, but just to reply to Jenny about Pierre, which sometimes gets a bad name. My experience was different living there. I was very outspoken as a liberal when I lived in Pierre, but there was a decent-sized community of liberals there, and I know a few who are still there. When I lived there in the 1980s the Kneip administration hangers on were still there, and the Mayor was a Democrat. Some state workers are pretty progressive, but they can’t be too political. Also, I found a way to work with many conservatives on issues that we cared about (eg. opposition to Oahe Irrigation and corporate hog farms), so I wasn’t automatically pigeon-holed and shunned. A lot of folks there are into the outdoors, so there was always a common thread. Governor Mickelson’s Secretary of Labor used to swing his little twin girls in a park where I would take my daughter. We had several good conversations, and he told me once that we had more support in the bowels of the Capitol Building than we knew. I guess I related to him more as a father than as a political comrade, but it was nice to hear that some people in Pierre were, if not liberal, at least not dismissive. I think I got some respect because I’d stand up for what I believed, rather than hide. I loved Pierre mostly for the vast areas of nothing that surrounds it, though.

  12. Jenny 2017-10-30 19:20

    There were very few white people and a few Native Americans in Pierre that I knew were Democrats. The lady I worked with actually told me about a time when she worked at the Capital that they once had passed a hat around to employees and that if they wanted to, they could donate to the State Republican party.
    She refused to donate since she was a Democrat, but why on earth were they asking for donations for the State GOP in the first place! Isn’t that against the law in a govt building?
    It becomes so common place to support the GOP in Pierre that no wonder Powers set up a campaign business in the Sec of State office! (thank goodness at least one respectable republican was smart enough to put a stop to this. Thanks Stan Adelstein!)

    Also, there was a lawyer there that told me that when he got a job for the State they told him that it would be best to support the GOP!
    Also when I first moved to Pierre, I got this call from the local GOP asking me to support them and register Republican. I sure as heck spoke my mind and told them I am a proud Democrat and would most certainly not support their Party!
    Pierre has gotten worse with its unethical partisan behavior. I can guarantee that.

  13. Cory Allen Heidelberger Post author | 2017-10-30 19:48

    Welcome Wagon calls from the local party? Hey, maybe Democrats should pick up on that tactic!

  14. drey samuelson 2017-10-31 00:36

    good catch on GOAC’s pathetic excuse not to use its subpoena power, Cory. It would be awful to force people under oath to testify about any scandal, wouldn’t it? But we learned that during the EB-5 “investigation,” didn’t we?

  15. Tara Volesky 2017-10-31 14:34

    It only took 1 out of 4 Democrat votes on the Tribal Relations Committee to subpoena the Gear-up people involved with taking large sums of money. All 4 Democrats voted NO. Very upsetting. 5 out of 6 voted yes to subpoena the takers of Gear-up.

  16. leslie 2017-11-01 16:34

    I was offered a job by a state department head, picked out an apartment, started planning, packing, looking forward to “the vast areas of nothing that surrounds” pierre and a blooming relationship nearby, but janklow and his counsel shot it down.

    To “…make a lot of money to have business (republican law firms) do it and then not be able to figure out what business did. Business can make a lot more money at the same thing than government can. When government employees become consultants to tell business how to do it, then the government employees make far more money because the business people did not know how to do the job in the first place.” There is mystery, thus unaccountability, in SD state government and “the GOAC precedent set in its discussions of EB-5 and GEAR UP” and lack of interest by governors (present and former) to get to the transparent bottom of these two government created debacles with beef packing and Lakota higher ed, are profound; rank SD GOP Regents/DOE protectionism. The sunshine state…riiight? Kristie or Marty do not bode well for SD. SDCL “2-6-2, 2-6-4, and 2-7-6 [provide,] LRC explained, the Committee can summons any department, institution, board, or agency of the State…limited…to public policy…not criminal or civil matters. No forensic audit, eh? maybe bullsheit flag is necessary. Billie will turn the state right side up.

  17. leslie 2017-11-01 16:49

    2-6-2: GOAC is “…for the purpose of inquiry and review of any phase of the operations and the fiscal affairs of any department,…”; 2-6-4: “…may examine all records and vouchers, summon witnesses, and thoroughly examine all expenditures and the general management of each department”; and 2-7-6: “the general management of each department”, and there are likely ARSD regs that flesh these powers out.

    this “public policy…not criminal or civil matters” stuff may be a flimsy excuse.

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