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Democrats Block State-Tribal Committee Inquiry into Mid-Central/GEAR UP Corruption

Lee Strubinger reports that federal investigators have determined that the shady non-profits Scott Westerhuis set up from his perch at the Mid-Central Educational Cooperative fraudulently over-charged two Native American schools. The feds have closed their investigation, says Strubinger, because the principal perps, Scott and Nicole Westerhuis, are dead.

The State-Tribal Relations Committee has shown some interest in the fraud perpetrated upon indigenous schools and students by Mid-Central and its cronies. Mid-Central and the GEAR UP scandal were not on yesterday’s agenda, but at yesterday’s meeting in Rapid City, committee member Senator Phil Jensen (R-33/Rapid City) offered this motion (transcribed by seconding Senator Stace Nelson, R-19/Fulton) to summon principals in the Mid-Central/GEAR UP scandal to tell their stories:

Senator Jensen, moves, seconded by Senator Nelson, that in accordance with SDCL 2-6-23, for the purpose of improving state tribal community relations, and for studying and consideration of information regarding diversions of monies intended for Native American youth education, meant to improve long-term economic development of these youth’s impoverished communities, in order to compile and present draft legislation, and/or policy recommendations to the Legislative Research Council Executive Board, that the Joint-Tribal Relations Committee issue official legislative summons to the following persons commanding their appearance before the next Joint-Tribal Relations Committee meeting: Melody Schopp, Don Kirkegaard, Tom Oster, Tamera Darnell, Brinda Kuhn, Keith Moore, Rick Melmer, and Kelly Duncan, with subpoenas sent to the Department of Education, MidCentral Education Cooperative, and each named individual commanding all records, documentation, vouchers, checks and memoranda on each individual’s personal service contract or personal employment agreement(s) relating to any federal or state grants administered or managed in any way by the State of South Dakota [motion before State-Tribal Relations Committee, text provided by Sen. Stace Nelson, 2017.12.14].

As happened at the committee’s last meeting in Vermillion, five members of the committee, all Republicans, voted for the resolution (or at least for a challenge to Chairman Troy Heinert’s (D-26/Mission) ruling that the resolution was out of order). The committee has ten members. Four members are Democrats. Any one of those Democrats could have joined Jensen, Nelson, Rep. Elizabeth May (R-27/Kyle), Rep. Steve Livermont (R-27/Martin), and Senator Lance Russell (R-30/Hot Springs) and bring those players to the table to talk. None of those Democrats did. Instead, Rep. Shawn Bordeaux (D-26A/Rosebud), Rep. Oren Lesmeister (D-28A/Parade), and Senator Kevin Killer (D-27/Pine Ridge) backed Chairman Heinert’s questionable technical position that the State-Tribal Relations Committee does not have subpoena power.

Now I can understand a rule-of-law argument in which a legislator chooses not to do the politically or morally right thing because the means proposed is illegal or unconstitutional. But consider that the five Republicans pressing for the committee to subpoena witnesses are arch-conservatives who generally don’t go in for unconstitutional government overreach. They have Senator Russell wielding his lawyerly wit to back the call to summon witnesses.

The Democrats have legal and political cover. Why not pick just one Democrat to join the mostly-Republican Jensen motion and see what happens? At worst, the principals all refuse, making themselves look all the more arrogant and boosting the public perception of corruption in Pierre that wily reformers can use as a campaign issue throughout 2018. At best, the principals respond and testify with new, useful information that helps us understand how the Department of Education short-changed American Indian students by farming out big federal education grants to a small, remote, crony-captured coop that couldn’t manage such programs without falling into corruption.

From a purely political perspective, Democrats have everything to gain and nothing to lose from backing these subpoenas. But yesterday, again, four Democrats on the committee dedicated to state-tribal issues said nope, we have better things to do than try digging further into this instance of corruption in a crown jewel in state-tribal education efforts that, as federal investigators have established, resulted in Native schools losing money.

Related Reading: Senator Nelson forwards this dissent submitted on behalf of the half of the committee that thinks the committee an and should summon witnesses in the Mid-Central/GEAR UP matter:

Pursuant to Joint Rule 1-10, Legislative Interim Rule 14, and Masons Manual of Legislative Procedures Section 674, we, the undersigned, do hereby respectfully dissent from, and protest against, the October rulings of the Chairman of the Joint Tribal Relations Committee, Senator Troy Heinert, in ruling against Senator Nelson’s point of order that Senator Heinert be excused & recuse himself from voting on Senator Jensen’s motion to summons and subpoena witnesses in the GEAR UP corruption due to Senator Heinert’s conflict of interest of voting on an issue in which his mother has been identified as being potentially involved; and, we do hereby respectfully dissent from, and protest against the plurality’s defeat of Senator Jensen’s motion to summons and subpoena said GEAR UP witnesses on claims the committee does not have the authority to do so on claims the statutory interim Tribal Relations Committee, which meets during the interim of the legislature, and is recognized in reports to and by the Legislative Research Council as an interim committee, is not an “interim committee” and is solely controlled and empowered by “best practices” exhibited within the Joint Tribal Relations historic committee minutes.

Senator Heinert’s refusal to recuse himself from his personal conflict of interest on a motion potentially affecting his mother, and from reviewing his own conflict of interest in the request to recuse himself, in our opinion, promotes a practice that undermines the very foundation of our State Constitution, weakens the rule of law, besmirches the reputation and integrity of the South Dakota Legislature, and violates legislative rules against such practice: Masons Manual for Legislative Procedures Sec 522 “It is a general rule that no members can vote on a question in which they have a direct personal or pecuniary interest.”

The interim rules of the South Dakota Legislature are clear and explicit that committees operating during the interim of the regular session of the legislature posses the Constitutional authority to summons and subpoena: Interim Rule 15 “..committee may administer oaths, require reports, issue subpoenas, compel the attendance of witnesses, and the production of any papers, books, accounts, documents, and testimony, and to cause the depositions of witnesses, either residing within or without the state, to be taken in the manner prescribed by law for taking depositions in civil actions in the circuit court.” The gold standard of “best practices” adopted by the SD Legislature, and recognized authority on parliamentary law in all 50 states, Mason’s Manual for Legislative Procedures explicitly cites in Sec 802 that committees in fact have long-standing Constitutional authority to summons and subpoena. Additionally, South Dakota’s own Supreme Court states the legislature is only limited if it has done so on itself explicitly in statute (See ¶ 22 Bob GRAY, President Pro Tempore of the South Dakota State Senate and Members of the South Dakota State Senate, Applicants, v. David R. GIENAPP, Circuit Judge, Respondent, Daniel Sutton, Intervenor and Respondent, No. 24407, January 18, 2007). No such limitations in statute exist which precludes the Tribal Relations Committee’s legislative authority to summons and subpoena.
In light of the catastrophic human and financial costs of the widely publicized and acknowledged corruption in the GEAR UP grant program, important tasks specific to the statutory obligations of the State Tribal Relations committee remain negligently undone. Nevertheless, a plurality of the State Tribal Relations Committee members opposed our committee from exercising its statutory authority to summons witnesses and subpoena records of this infamous corruption that has robbed countless Native American youth of opportunities which have and will negatively affect their lives and economic conditions in our Native American communities for generations to come.

For these reasons, we, a plurality of the Joint State Tribal Relations Committee, respectfully submit this dissent and protest to be entered into the minutes [Senator Stace Nelson, Senator Lance Russell, Senator Phil Jensen, Representative Elizabeth May Representative Steve Livermont; dissent, submitted to DFP by Sen. Nelson 2017.12.14].

39 Comments

  1. jerry 2017-12-15

    What the hell do you call a Democrat that does not seek the truth in corruption? A DemoRoypublican. In this case regarding corruption at its very base, the two go together like peas and carrots. Very disgusting and shows why no one trusts any of their integrity.

  2. tara volesky 2017-12-15

    All 4 of them need to be voted out. Shameful. Thank you to Stace Nelson and the other 4 Republicans that are striving to make SD ethical again. They had a second chance to expose the Gear-up scandal and twice, they threw the Indian students under the bus. These 4 need to answer to the media and their constituents as to why they did this unethical move. Thanks for reporting this Cory.

  3. Michael L. Wyland 2017-12-15

    Not surprisingly, I have a different point of view.

    Stace Nelson and his allies have been trying to find a legislative venue to pursue an investigation of the state’s role in the SD GEAR UP scandal. There’s no question that such an investigation should have been pursued long ago.

    Under current leadership, the SD Government Operations and Audit Committee (GOAC) is focused on financial audits and finance-related policy. State Auditor Marty Guindon told GOAC at its August meeting in Pierre that his office does financial audits (is the money properly accounted for?); it does not perform management audits (how well was the money spent). [NOTE: the SD Auditor General is the head of the Department of Legislative Audit (DLA), which provides staff support to GOAC.]

    Some GOAC committee members, including Sen. Nelson, believe GOAC’s authority includes management investigations and that legislative committees have subpoena power. This is a point of contention that has been decided in the negative in the case of SD GEAR UP. Will the SD Legislature’s Executive Board (the E-Board) meet to resolve the dispute over interpretation of the legislative rules? I don’t know.

    Nelson tried to have the State-Tribal Relations Committee do an investigation, but he was shut down on a party-line vote by the only committee I’m aware of chaired by a Democrat. That’s not a shot at Rep. Heinert or any Democrat – it’s just an observation that I think is worth making since we hvave a legislature with a GOP supermajority in both houses.

    Chairman Heinert said two things at the October committee meeting in Vermilion that are significant to me:

    1) The committee, in his view, is not designed to *do* anything other than act as a visible state legislative presence and a receptive sounding board for the state’s Native Americans and their interests and concerns. That presence *is* its role and its activity, according to Rep. Heinert; and

    2) There was a committee member who said that Sen. Nelson’s effort to have the committee investigate GEAR UP was yet another attempt by non-Native people to “use” Native Americans to satisfy their own agendas.

    The challenge for law enforcement (e.g., the feds, the AG, and the DCI) is that most of the SD GEAR UP-related acts committed against the taxpayers and the intended grant beneficiaries were not crimes. Sure, they were bad acts that should have been remedied and the perpetrators punished, but the acts were not crimes, and law enforcement sees many activities that are awful but not criminal.

    So, if the acts are reprehensible but not criminal, and the existing SD Legislative committees believe they lack oversight responsibility and/or investigatory authority (e.g., subpoena power), what should the next step be?

    I’ve discussed this with some individual legislators as well as with small groups of legislators meeting informally (though with public notice). I don’t know whether my ideas have taken root, but I’m waiting to see.

  4. tara volesky 2017-12-15

    Michael, you are just another enabler. So are you for legalized corruption? It’s time to drain the swamp of cronyism, favoritism, nepotism and corruption. To many players involved that cover for each other and make excuses for corrupt and unethical behavior. So if these acts are reprehensible but not criminal is that ok? Get real. We are smarter than you think Michael.

  5. Michael L. Wyland 2017-12-15

    Tara:

    I think the Governor, Sec. Schopp, and the rest would be laughingly surprised (maybe even gobsmacked, to borrow a British word) to hear me described as a SD GEAR UP enabler.

  6. tara volesky 2017-12-15

    Yes or no Michael, do you think these 4 Democrats were right voting against subpoenaing the Gear-up players. I don’t need an explanation, just a yes or no. Also, do to believe Troy Heinert should have recused himself because of a conflict of interest?

  7. daleb 2017-12-15

    Tick tock tick tock tick tock. Statute of limitations is running out.

  8. Cory Allen Heidelberger Post author | 2017-12-16

    Michael, an appeal to some unknown, inside-discussed next step is a pretty weak consolation prize. But the possibility that some other action is being taken is the only really good excuse for not taking action Thursday.

    I do recognize that the State-Tribal Relations committee is a very poor venue for conducting an investigation. But when the actual committee charged with investigating such matters won’t take its job seriously, when the system seems to work at every other turn to protect the powerful, what’s a concerned legislator to do?

  9. tara volesky 2017-12-16

    Say what you want about Senator Nelson and the so called nuts, but the “Wingnuts” are the only people on the Tribal Relations committee that are fighting for the Indian kids. Troy Heinert and his other cohorts are a disgrace to the Indian people. I have talked to a few that who will be changing their registration.

  10. Darin Larson 2017-12-16

    Tara, blaming the Democrats for not investigating GearUp is like blaming the “dog catcher” for a city’s out of control crime rate. Now you suggest electing more Republicans whose crony-capitalism and failure to exercise any oversight at the highest level of state government led to the scandal? Do I have to remind you that Republicans made this mess, tried to sweep it under the rug, and have utterly failed to clean it up and hold people accountable. If you think the Republican legislature was going to allow this investigation by the Tribal Relations committee to go anywhere you are more naive than I imagined. Quit beating up on people that are trying to fight for the rights of those without a voice.

    How about we talk about our regressive tax system which hits the poor on food and clothing and every incidental purchase necessary to live? Are your Republican cohorts going to be there voting for fair taxes for the poor and indigent? Are your Republican cohorts going to be voting to increase school funding necessary to give all of our kids the best chance at succeeding in life? I thought not. While you are distracted attacking allies of the powerless, the Republican leadership of our state government will go on favoring the wealthy and connected.

    Maybe you should take your righteous indignation and put it to good use on issues like education, fair taxation for the poor, higher education scholarships for poor kids and any number of issues that Republicans pay little or no attention to in this state.

  11. Cory Allen Heidelberger Post author | 2017-12-16

    Darin makes a fair point, that Democrats in general still offer a whole heck of a lot more to indigenous people, working people, women, minorities, farmers… well heck, pretty much everyone but the 1%. The Nelson wing offers little to really help the 99% on most issues; their culture-war distractions only make things worse.

    However, on the specific issue of GEAR UP and the broader issue of corruption in South Dakota government, Democrats and the Nelson/May wing could collaborate more to make things hot for the GOP elites that detrimentally control state government and cover for their cronies. Michael offers some reasonable arguments not to use this committee to forward that effort… but there are some equally reasonable arguments to use whatever channel may be available… and perhaps especially this channel, one of the rare committees dominated by anti-establishment legislators.

  12. tara volesky 2017-12-16

    Darin, I don’t care what party these people belong to. They could be Republicans as far as I am concerned, and I would say the exact same thing as my comments above. They had not one, but 2 chances to expose this horrific injustice to Indian students. Quit playing the party card Darin. I hope everyone had a chance to watch it.

  13. Lynn Ryan 2017-12-16

    Tara, you brought up the party card by saying several committee members would be changing their registrations.

  14. Michael L. Wyland 2017-12-16

    Cory:

    Note in my initial comment that the SD Government Operations and Audit Committee (GOAC) itself doesn’t believe it is the appropriate entity to conduct *management* (or, by implication I would say, operational) audits of state government; it sees its scope limited to financial audits.

    This conundrum raises a new question – if there is currently no legislative entity equipped or empowered to exercise management and operational oversight of state government to the extent it can conduct investigations and, if necessary, compel testimony in non-criminal matters, shouldn’t there be one?

  15. grudznick 2017-12-16

    Lance Russell.
    Lawyerly Wit.
    grudznick laughing. grudznick laughing.

    Decided by the Supreme Court
    Lance Russell = Corruption

  16. grudznick 2017-12-16

    Mr. Nelson is simply hiding behind these Indian kids and using their name as a justification for his vendetta against the Conservatives with Common Sense and those who are not insaner than most in the legislatures.

  17. tara volesky 2017-12-16

    Lynn, I was at the first meeting. I am just reporting what was said. The committee members didn’t say they were changing parties, it was Indian students. Oren Lesmeister, a Legislator that voted no, told me he didn’t understand what he was voting for. Grudz, doesn’t surprise me that you are against Indian kids getting justice.

  18. grudznick 2017-12-16

    Why do you hate society, Mrs. Volesky? What does Ron think about all of this business and would have have voted with the other Democratic members if he was on that committee?

  19. grudznick 2017-12-16

    I believe Mr. Heinert and his other Democratic fellows are standing tall to oppose Mr. Nelson and his Lords of Salem. Mr. Heinert is trying to prevent the burnings and danglings at the stake.

  20. tara volesky 2017-12-16

    He sure as hell would not have voted with them, he would have voted for the Indian kids. I love SD, I just hate corruption. Grudz is insano, insaner than insane.

  21. tara volesky 2017-12-16

    Lora Hubbel ·
    Vermillion High School
    OIG and others will have hell to pay when I am Governor for this BS investigation….I have SOOO much info on this…but where does one go with it? The Republican “Authorities”? The RINO-controled media? Hardly! Thank goodness this isn’t the final investigation. But just wait…..
    Unlike · Reply · 4 · 7 hrs · Edited. comment from the Argus Leader today

  22. tara volesky 2017-12-16

    Michael L. Wyland ·
    Owner/Partner at Sumption & Wyland
    Two things to note about this article: 1) the Dept. of Interior IG investigation focuses on only $100,000 of $32 million in GEAR UP federal funds awarded to South Dakota and $32 million in matching funds. GEAR UP is a Dept. of Ed. program; and 2) the last two paragraphs actually contradict the state’s assertion that only Mid-Central Coop monies were embezzled by the Westerhuises.
    Like · Reply · 3 hrs
    Facebook Also from the same Argus Leader story. The real facts come from Cory.

  23. grudznick 2017-12-16

    Mrs. Volesky, if that’s the case then he would have been the only Democrat and the only Indian on the committee to vote against sanity.

  24. tara volesky 2017-12-16

    Absolutely 100%correct. He would have voted with Stace Nelson and the Indian kids. Never a doubt. One thing about Ron, he is not a wuss.

  25. grudznick 2017-12-16

    I am surprised to hear you call Messrs. Heinert, Killer and Bordeaux “wusses.” It is unclassy, almost like hitting old ladies with a belt.

  26. tara volesky 2017-12-16

    Hey coward, Grudz….what’s your name. Man up and call Ron. 605-352-0493. 605 354 2126. Do it and get back to us.

  27. tara volesky 2017-12-16

    Did you call him Grudz? You are such a coward you can’t even say your name, can you. I am Tara Volesky, now who are you Mr. cyber bully.

  28. tara volesky 2017-12-16

    Cory, out this guy.

  29. tara volesky 2017-12-16

    Come on Grudz quit being a wuss. Man up buddy and tell us your name. Cant’t do it can you?

  30. tara volesky 2017-12-16

    Hey Cory better yet you call Ron. Law office 605-352-2126. Home 605-352-0493. That would be a great story for you. I am all for it. Cory would be the best.

  31. tara volesky 2017-12-16

    What is Grudz’s name? Let’s out him and have him debate Ron. Ok Grudz. let’s see if you are man enough to go against Ron. Do it buddy. You can throw anything you want at him. Bring it. What a Wuss! Can’t do it can you?

  32. Cory Allen Heidelberger Post author | 2017-12-17

    At the point where we dwell on the identity of commenters, the conversation loses public interest.

    Michael, yes, the Legislature must have some subpoena power. Is there any reason that power should reside with only one committee? Should not the Legislature in general be able to summon witnesses to get the information it needs to make law? And if any given committee is an essential part of gathering information to support law-making, should not every committee have that power?

  33. tara volesky 2017-12-17

    why even have a Legislature if the have no over site and power to address and question. Aren’t they suppose to represent their constituents by hold the executive branch accountable.

  34. Michael L. Wyland 2017-12-17

    Cory:

    In general, the SD Legislature has whatever powers it chooses to have as long as those powers comply with South Dakota laws, the SD Constitution, applicable federal law, and the U.S. Constitution.

    The SD Legislature’s operating rules are set by its Executive Board. Those rules are interpreted by the Legislature’s leaders, from the presiding officers and parliamentarians of each chamber to the respective committee chairs.

    Committee chairs apparently (I’m not an expert on the details) have great power to decide when to issue subpoenas. That power is checked by the capacity of a committee’s members to overrule the decision of a committee chair by majority vote. It’s also checked by the capacity of the majority party leadership to revoke a committee chairmanship. However, the decision to override and the decision to revoke a chairmanship are rarely used tools; committee chairs are typically given broad discretion and a presumption of professional respect as they carry out their job. That trust is part of why they were given chairmanships in the first place.

    As I have observed it, when discussing SD GEAR UP, there is a dispute in how the Legislature’s rules are written regarding which committees have subpoena power. Both Sen. Peters (GOAC chair) and Rep. Heinert (State-Tribal Relations chair) claim, as I understand it, that the Legislatures rules did not give them subpoena power because they are meeting as interim committees not specifically tasked with an investigation. Those believing that the committees *do* have subpoena power, even when the Legislature is not in session, say that GOAC and State-Tribal Relations are standing committees, not interim committees, and can exercise full powers, including subpoena power, regardless of when they meet.

    There are two other issues related to legislative subpoena power. First, there appears to be a question about whether a committee of the SD Legislature can subpoena a private citizen (as opposed to a state official). Second, even if a witness were compelled to testify against their wishes, they could always invoke their Fifth Amendment right against self-incrimination and refuse to answer questions. Invoking the right doesn’t mean one doesn’t want to confess; it only means that answering questions may lead law enforcement to believe or suspect the person has some responsibility or culpability. Pleading the Fifth cannot be legally interpreted as a presumption or admission of guilt, a committee hearing looking like this would make great theater but would do nothing to increase knowledge or identify, much less punish, the guilty.

    The argument I’ve heard in favor of using subpoenas in this case are that subpoenas can be used by investigators and prosecutors as tools to get reluctant witnesses to talk, regardless of whether criminal prosecution is really contemplated. Sort of a “Don’t make me testify in open court! I’ll tell you what you want to know here instead” scene we’ve all seen in police and legal dramas.

  35. Spike 2017-12-17

    Don’t ‘kid’ yourself that a vote ‘yes’ was a vote ‘for’ the indian ‘kids’.

    Can anybody here spell ‘college access program’?

    The state tribal relations committee is meaningless. Political reteoric at its lowest. The US Dept of Ed, DOI BIE, DOI OIG, US Dept of Justice and SD US Attorney are the ones selling out the tribes of SD on Gear Up, other federal programs and native education in general.

  36. Cory Allen Heidelberger Post author | 2017-12-18

    All reasonable arguments, Michael. Let’s put them to the test by having a committee summon witnesses. What do we have to lose?

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