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Heinert Right, Peters Wrong: GOAC Already Has Subpoena Power, SB 125 Unnecessary

Senate Bill 125, Government Operations and Audit Committee chair Deb Peters’s effort to “clarify” her committee’s subpoena power, hit a bump in the Senate yesterday. After emerging from conference committee with a simple, single-word amendment to fix a House omission, SB 125 sparked a renewed and heated debate between Republican factions—the Deb Peters establishment versus the Stace Nelson right-wingers—that resulted in bouncing the bill back to a second conference committee.

After Senator Peters’s re-introduction of SB 125, Senator Nelson, who serves on GOAC, rose to denounce SB 125 as an effort to hamstring the Legislature’s ability to subpoena witnesses. The hamstringing arises in the House amendment that passed last week—the same one that left out “Government” from the name of the committee—that adds the requirement that the Legislature’s Executive Board approve any GOAC subpoena.

Nelson’s critique is spot-on: adding another layer of approval limits and weakens GOAC’s ability to investigate corruption like the GEAR UP and EB-5 scandals.

Nelson pointed to the official opinion issued by Attorney General Marty Jackley in December and said that the Attorney General concluded that (Nelson’s words) “absolutely the GOAC has the ability to summons and subpoena. It’s in statute. I offered the same analysis in December.

Senator Peters, who has often locked horns with Senator Nelson over GOAC authority, then made two statements vital to the SB 125: she abandoned the euphemism “clarify,” and she flatly stated Senator Nelson’s reading of the AG’s opinion was incorrect:

If you recall, Senate Bill 125 was to authorize the Government Operations and Audit Committee to have subpoena power. We did not have that power. The Attorney General did not tell us we have that power [Senator Deb Peters, floor debate, South Dakota Senate, 2018.03.07, ~42:30].

Surely puzzled to hear two people referring to the same text but coming to opposite conclusions about its meaning, Senator Troy Heinert, who requested the Attorney General’s opinion in the first place, played the usual Democratic role of reading the text verbatim to see what it actually says. Senator Heinert read on the Senate floor this portion of the A.G.’s opinion:

In comparing grants of statutory authority, the Government Operations and Audit Committee is clearly provided investigative ability.  This authority specifically includes the ability to “summon witnesses.”  [SDCL 2-6-4.]  In contrast, the State-Tribal Relations Committee was not so empowered.  Had the Legislature intended to give the State-Tribal Relations Committee similar authority to summon witnesses or secure documentation through compulsory process, it could have [Attorney General Marty Jackley, Official Opinion No. 17-06: “The Subpoena Authority of the State-Tribal Relations Committee of the Legislature,” 2017.12.20].

Senator Heinert then added, “GOAC has been given the power by statute. It does not or should not require it to go in front of the E-Board.” He concluded that Senate Bill 125 “should not even be in front of us today.”

Funny what one can learn by reading.

Majority Leader R. Blake Curd tried to ignore Heinert’s accurate reading and dismiss the heated but correct rhetoric of Senator Nelson (and his supporters on this matter Senators Lance Russell and Neal Tapio) as indecorous and “apoplectic” “bellowing and berating of members of the Senate.” However, faced with Heinert’s irrefutable reading, he tried to defuse the heat on the floor by suggesting the Senate send SB 125 back to another conference committee.

The Senate defeated Senator Russell’s motion to kill SB 125 14–21. All Six Democrats joined Nelson, Russell, Tapio, and other hard-right Republicans in the unsuccessful ayes. Senator Heinert then moved Curd’s suggestion to “not concur and reappoint,” saying that, as written, SB 125 “would put statutory committees in conflict with each other.” The Senate supported that motion on a voice vote with what sound (at 1:13:08) like maybe five nays.

Senator Deb Peters was flat wrong about the Attorney General’s opinion and the current statutory authority of her own committee. As Attorney General Jackley made clear in December and as Senator Heinert underscored with simple reading yesterday, the Government Operations and Audit Committee can subpoena witnesses. GOAC does not need SB 125 to grant power it already has. GOAC certainly doesn’t need to get permission from the Executive Board to exercise that power.

11 Comments

  1. Michael L. Wyland 2018-03-08

    The way SDCL 2-6-4 is written makes it possible to interpret as allowing GOAC to compel state government witnesses, but not “outside” individuals to testify. The language in the statutes (and in the AG’s opinion on State-Tribal Relations to a lesser extent) also can be read as saying that the Legislature must explicitly delegate its subpoena power to committees, including GOAC. Without seeing the committee charter, I don’t know whether or how that was accomplished.

    I hold no brief for Sen. Peters and I hold no brief for Sen. Nelson. I have been involved in the SD GEAR UP issue since it became public in Sept. 2015. I have written articles on it for NPQ, I have appeared on-camera with Angela Kennecke several times to talk about SD GEAR UP. I attended the 2017 GOAC meetings in Pierre and Sioux Falls we well as the State-Tribal Relations committee meeting in Vermilion. I’ve made three visits to the famed “GEAR UP wall” in Dakota Hall at USD and assisted students in their GEAR UP research. I’ve performed other activities related to investigating the scandal, including securing a copy of the state’s 2005-2011 grant application, which both the state and the feds said was too old to provide after a FOIA request. I want to see changes.

    However, there is an alternative scenario surrounding Sen. Peters and GOAC that is far less sinister than the prevailing narrative that opposing investigations must mean a cover-up is in progress.

    Simply put, GOAC has a lot on its plate, and arguably too much, to engage in protracted investigations given its current composition and staffing support. While GOAC has audit and government operations responsibility, under current leadership and staff GOAC leans heavily to the audit side of the work load. In short, GOAC can spend all its time doing financial audits and have a full work load. Besides, Marty Guindon told GOAC (at the August meeting in the early afternoon, if I remember correctly) that staff are not equipped to do management audits.

    SD GEAR UP is a scandal, but it’s not a state auditing scandal – it’s a state management (government operations) scandal.

    One explanation is that Sen. Peters is protecting her committee’s historic and current function. That’s also her comfort zone and that of the Dept. of Legislative Audit – Sen. Peters and the DLA staff are CPAs and financial experts, so they cleave to financial issues.

    If GOAC becomes a state investigating committee, it won’t have time to do its audits and financial oversight. That’s why I believe there should be a new committee and new committee staff dedicated to management audits and operations, just as GOAC is dedicated to financial audits and operations.

  2. Stace Nelson 2018-03-08

    Michael,
    What is often overlooked, or ignored by those in the legisalture who know better, is that in addition to the explicit statute empowering GOAC, our SD Constitution and laws provide for the legisalture to enact rules. Joint rule 11-3 enacts Mason’s Manual of Legisaltive Procedures which has explicit provisions in section 801 & 802 to summons & subpeona. Additionally, legislative interim joint rules have long provided for summons & subpoenas by committees that operate in the interim. In support of those rules and statutes, we have several statutes which provide for enforcment and contempt if such summons and subpoenas are not complied with.

    Legisaltive oversight is a long held Constitutional checks and balance. Sec 795 Right of A Legisaltive Body to make Investigations “1. The right of a Legisaltive body to make investigations in order to assist in the preparation of wise and timely laws exist as an indefensible incident and auxiliary to the power to excercise of Legisaltive power. This has been recognized from the earliest times in the history of U.S. legislation, both federal and state, and from the earlier epochs in the development of British jurisprudence. 2. The legislature has the power to investigate any subject regarding which it may desire information in connection with the proper discharge of its function to enact, amend, or repeal statutes or to perform any other act delegated to it by the constitution.” (Includes numerous U.S court case foot notes going back to 1821)

    The SD Supreme Court has this to say about Legisaltive power in its precedential decision cited in Mason’s Manual:

    “ [¶ 22.]  The powers possessed by the legislature are broad:

    The South Dakota Constitution, unlike the Constitution of the United States, does not constitute a grant of legislative power.   Instead, our constitution is but a limitation upon the legislative power and the legislature may exercise that power in any manner not expressly or inferentially proscribed by the federal or state constitutions.   Thus, except as limited by the state or federal constitutions, the legislative power of the state legislature is unlimited.   What the representatives of the people have not been forbidden to do by the organic law, that they may do.   Consequently, in determining whether an act is unconstitutional, we search the state and federal constitutions for provisions which prohibit its enactment rather than for grants of power.”
    http://caselaw.findlaw.com/sd-supreme-court/1219456.html

  3. Michael L. Wyland 2018-03-08

    Stace:

    I agree that the capacity exists within the legislative branch – no argument there. My first concern is about the fine-tuning of how the legislative capacity is delegated to committees. As I said before, I don’t know how GOAC’s charter is written. I don’t question that it *can* be done – I just don’t know how the capacity has been delegated to legislative committees generally and GOAC specifically.

  4. grudznick 2018-03-08

    Messrs. Wyland and Nelson, does this Mason’s Manual of rules cover random citizens of the state and enable some future rogue committee from dragging them in off the street to ask them “are you a witch?” What the legislatures really need is a uniform, armed, and well-trained militia under their direct control or under the direct control of the Council of Legislative Researchers to march about the meeting rooms and go out into the streets to do the bidding of the executive director to haul the witnesses into this new committee.

  5. Jenny 2018-03-09

    Sen Nelson thank you for standing up and reminding the legislators of the responsibilities they have to the people of SD. Kudos to Sens Russel and Heinert also.
    It’s nice to know that there are a least a couple of republicans that will work with the lonely democrats to fight for the people!
    Your speech was right on. Keep fighting the good fight!

  6. Cory Allen Heidelberger Post author | 2018-03-09

    GOAC’s workload doesn’t seem to be the issue. In two major scandals, EB-5 and GEAR UP, GOAC could have subpoenaed witnesses but chose not to, under a thin interpretation of statute that the Attorney General has rejected. If GOAC is too busy to call witnesses, then the chair can decide not to call witnesses. SB 125 seems to be an effort to give GOAC an excuse not to call witnesses, or at least to use the E-Board as a firewall against calling witnesses.

    Under current law, without SB 125, GOAC has the authority to call witnesses. GOAC also has the leeway not to call witnesses and to turn down entire investigations that it feels are not part of its purview. Senator Heinert’s point stands: SB 125 unnecessarily puts two equal statutory committees in conflict.

  7. Stace Nelson 2018-03-11

    ..and now the rest of the story:

    After she threw her public temper tantrum to my opposition to SB125, Senator Peters gathered her trusty RINOs together, met with Senators Curd, Maher, & LtGov Michels and demanded I be thrown out of the legisalture for my floor speech. She was reportedly confronted with the fact that she “lied” to the caucus about the conference committee and the snowflake caucus was told nothing in my floor speech warranted being expelled or censured. She purportedly admitted she wanted to make it so the GOAC could not summons and subpeona witnesses in the future as she is concerned that Rep Haugaard will become Speaker of the House and may appoint conservatives like Rep Taffy Howard, Sue Peterson, and Liz May to the GOAC, who would use the authority to actually look into such corruption. Term limits, the voters best friend.

  8. Cory Allen Heidelberger Post author | 2018-03-11

    Senator Nelson, while I disagree with you on term limits—term limits are big government making decisions for voters, and we already have term limits: they’re called elections—I am fascinated by your story about caucus machinations and will promote it to a full post of its own. Thanks!

  9. Cory Allen Heidelberger Post author | 2018-03-11

    By the way: “reportedly confronted” and “was told” by whom?

  10. Stace Nelson 2018-03-11

    You have experienced the difficulty in taking on an entrenched incumbent. At the national level its even worse.

    Senator Ryan Maher.

Comments are closed.