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].