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Mistake to Arrest Walworth County Auditor for Violating Open Records Law?

Walworth County government is running poorly this year. They started the year with multiple resignations, and the county commission failed to follow their state’s attorney James Hare’s guidance on following the law in replacing one of those positions. The commission and the Walworth County auditor, Rebecca Krein, and have also ignored the state’s attorney’s guidance on open meetings and refused to place some citizen concerns on their agenda. The citizen so rebuffed, Linda Beaman, complained at a May 21 meeting that the countyw as breaking open records laws:

Beaman then questioned the commission’s compliance with state law 1-27-1.16, which notes that materials relating to the open meeting agenda items are to be made available on the county’s website 24 hours before the meeting or that at least one copy of the materials be provided in the meeting room and open to anyone’s inspection while the commission considers the material.

That law has not been followed, she said.

Krein said during the meeting that the materials would be available upon request. But Hare noted that state law requires the materials to be available during the meeting, even if not requested by anyone.

Krein then said that such materials will be available in future meetings.

“That’s all you had to say,” Hare said [Shannon Marvel, “Woman Not Allowed on Walworth Co. Commission Agenda Questions Chairman,” Aberdeen American News, 2019.05.31].

Rebecca Krein, Walworth County auditor
Rebecca Krein, Walworth County auditor

When Beaman brought further concerns to a July 25 meeting about auditor Krein also holding the full-time position of landfill manager and doing both jobs poorly, Walworth County Commissioner Kevin Holgard threatened to take Beaman to court for harassment.

But now it’s auditor Krein who’s headed to court: she’s been arrested for violating SDCL 1-27-1.16 by failing to provide printed meeting materials to the public on August 6:

The warrant for Krein’s arrest, issued by request of Walworth County State’s Attorney Jamie Hare, states the violation occurred on Aug. 6.
Hare said he had received a complaint that the requests from individuals for the printed materials was denied by Krein.

“I don’t understand why we just can’t cooperate with these people,” Hare said on Tuesday. “I got tired of hearing the complaints and the auditor’s office not doing what is required and doing what they wanted to.”

Hare said he was tired of getting complaints about agendas not getting posted on time, videos of the meetings not be available to the public in a timely manner and not providing the proper documentation to the public.

“We are here to have open government,” said Hare. “She did not provide the information required by statutory law and I got tired of the complaints” [Katie Zerr, “Walworth County Auditor Arrested on Misdemeanor,” Mobridge Tribune, 2019.10.17].

Editor Zerr says open records are vitally important but feels Hare’s action against Krein is just one more expression of an ongoing “Peyton Place” atmosphere in Selby:

I have had my run-ins with the Walworth County Auditor’s office about the availability of information. Krein was a deputy auditor in an office that clung to information like it was a national secret. It was her background to deny requests because that was the atmosphere of the office when she was learning her job. Had the open meetings commission been in play during that reign there may have been more serious repercussions from this office.

As the open meetings laws developed, the fierce protection of information lessened and the flow of information improved.

But now what is going on at the courthouse seems to have less to do with information availability and more to do with power plays. Krein has the power of the purse, Hare has the power of the law and the public has the power of the vote. One only needs to watch videos of the meetings in the past six months to understand what is going on during the meetings. It is clear in the tone of voice, the body language and atmosphere.

Hare said his push for the commission to comply with the requests of the public fell on deaf ears and Krein’s office did not comply, forcing him to have her arrested.

That seems more like teaching her a lesson rather than a need to protect the public. The “I am tired of people complaining” reason given by Hare seems like he is throwing his hands up and falling to the constant badgering of some taxpayers.

I am inclined to view this arrest as a mistake on all levels [Katie Zerr, “A Lesson or a Power Play? Neither Is Right,” Mobridge Tribune, 2019.10.17].

The Associated Press gets a couple of professors to say that arresting a public official for breaking the law is excessive:

Jane Kirtley, who teaches media ethics and media law at the University of Minnesota and was a longtime director of the Reporters Committee for Freedom of the Press, said arrests are “very, very rarely used” in cases where public officials don’t comply with open-records laws. She also said they’re unlikely to be effective.

“I’ve never been sold on the idea that this is a great way to terrorize government officials into following the law,” she said.

Sandy Davidson, an attorney who taught communications law at the University of Missouri, said few states even allow criminal charges in such cases and called the prospect “more theoretical than real.” She said the charges amount to “an extreme form of public shaming” [“Official Arrested Accused of Breaking Open Records Law,” AP via Minneapolis Star Tribune, 2019.10.18].

Did I miss the memo declaring that public officials should no longer experience shame for breaking the law? Publicly shaming elected officials for breaking the law is moral, necessary, and effective, even, sometimes, against the most shameless and corrupt of elected officials. We don’t hesitate to arrest and shame run-of-the-mill hoodlums on the street who wave shotguns and vandal murals. Why should elected officials not face cuffs and guff for violating the public trust?

I hesitate to contradict editor Zerr’s clear-eyed view of her local politics. There may well be all sorts of unreported personal drama behind the turmoil in Walworth County government. But no soap-opera details contradict the apparent fact that auditor Rebecca Krein and other elected officials in Walworth County have shown contempt for law. Arrest and public shaming are appropriate responses to this contempt.

Related Stifling of Public Participation: Following Krein’s arrest, Walworth County Commission chairman Scott Schilling announced that he will be restricting public comments during the statutorily required public forum period to items on the commission’s agenda. Whatever’s happening in Walworth County, commissioners clearly don’t want to talk about anything other than their chosen issues.

32 Comments

  1. mike from iowa 2019-10-20

    Is she above the law, or not?

  2. David Hubbard 2019-10-20

    Without enforcing the law there is no rule of law. The laws are to be obeyed.

    Let your conservative followers rebuke this statement. They will only out themselves as believing to be among the privileged who contend the laws do not apply to them but rather to lesser people (mostly Democrats). Hypocrisy is an ugly thing when worn proudly on the chests of the self-righteous.

  3. jerry 2019-10-20

    I’m always in wonder about how the Republicans get elected and then go into the deep state of secrecy in South Dakota. The only thing I can surmise is that they feel threatened by the truth and hope that there is an under the table offering that they can get their mitts on. Worked for Joop and his gang of elected officials.

  4. o 2019-10-20

    I don’t think elected officials (and I am more looking at you GOP) get elected then begin illegal actions, I think this is more the case of electing people who are not aware, not even really cognisant of the requirements and expectations of public service. It is what make my skin crawl when I hear, “we should run government like a business”; well, I fear all too often this is how business is done. Business does not look out for the public good. Governance cannot operate in that paradigm.

  5. Donald Pay 2019-10-20

    Thank you, Mr. Hare. Finally there is someone who respects the public’s right to know about public business so they can participate in it.

    I don’t know the culprit in this crime, but it is a crime that happens all too frequently in South Dakota and every other state. This perp walk could have happened to quite a few officials in the last 50 years. I’d like to say, “The law says you can not hide what you’ve got. I think I see a lota law breakers out there,” but a line like that was already copywrited. Maybe now officials will learn the lesson and that line won’t be needed.

  6. bearcreekbat 2019-10-20

    I fear that such a criminal charge, under the facts as presented in Cory’s post, can do nothing but deter good people from being willing to serve the public in elected offices. It is hard to imagine any criminal motive for the auditor’s behavior and without at least some criminal intent, criminal prosecution seems over the top.

    It is not as if the States Atorney lacked any other legal remedy. He could have pursued a civil Writ of Mandamus to obtain a court order telling the auditor exactly what was required, which would have likely accomplished protection of the public much more effectively than criminal prosecution.

    I tend to agree with Katie Zerr. All too often I have seen prosecutors use the power of criminal prosecution to bully or exhibit their personal power, or even to gain some publicity to aid re-election or seeking higher office.

    And here, to the extent there was a good faith, but misguided, dispute with a states attorney about how to carry out the auditor’s duties, based on the auditor’s prior training, that dispute could have effectively been resolved in a civil proceeding. “Shaming” the auditor seems a unnecessarily punitive, cruel and misguided emotional response to this conflict.

  7. First Amendment junkie 2019-10-20

    As a former editor of a small weekly paper, who struggled to get a City Finance Officer to comply with posting agendas and completing minutes in a timely manner, I personally applaud the effort of the State’s Attorney. It’s very frustrating to see officials abuse this law.
    A few years back at a newspaper conference Q/A session with then AG Jackley about open meeting laws, I asked him what weight a ruling by the Open Meeting Commission would have, he said there would hardly be any teeth behind it. A ruling would be more of a public admonition.
    Whether it was a political power play or not, for me it is good to see this level of action taken by a State’s Attorney at the local level after so many documented instances of violations. Perhaps his actions will encourage other SA’s to take similiar action and discourage other governing bodies or officials from violating the law. Nice change of pace to see an elected official being held accountable in this current political climate.

  8. jerry 2019-10-20

    Just sue her like Kim Davis. That might be the answer.

    “The Kentucky county clerk who in 2015 gained widespread attention for refusing to issue marriage licenses to same-sex couples may be sued for damages by two of those couples, a federal appeals court ruled on Friday.

    In a 3-0 decision, the 6th U.S. Circuit Court of Appeals in Cincinnati said Kim Davis can be sued in her individual capacity, though sovereign immunity shielded her from being sued in her former role as Rowan County Clerk.”https://www.nbcnews.com/feature/nbc-out/kentucky-clerk-who-refused-gay-marriage-licenses-can-be-sued-n1046306

    Do the job of your elected post or move on…or get sued.

  9. leslie 2019-10-20

    I think it is harsh prosecutorial digression (stupid spellcheck) to arrest in this mainly civil matter noting her commission may have been behind it. Struggling counties sometimes double up on related duties. Suing the religious zealot costs the plaintiffs attorneys fees and headaches so a letter to our esteemed? AG might have been a better route. Somebody perhaps incompetent lost their cool to get to this point.

  10. grudznick 2019-10-20

    Ms. Krein, who seems very young and very pretty, is not the haggardly, chain-smoking and gnarled wench nearly grudznick’s age that I envisioned, as most county auditors are. Ms. Krein should not have been arrested, and I am sure there are some shenanigans and sloppy poor decisions by all of the governments there in the hamlet of Selby. Selby is known for that, and has a new restaurant just opened up.

  11. mike from iowa 2019-10-20

    Why not throw the damn book at her for all the times real crimes and increasing body counts were never prosecuted in South Dakota? There has to be a line there somewhere even wingnuts won’t violate, isn’t there?

  12. Donald Pay 2019-10-20

    Sure, bear, he can pursue civil penalties as well as throwing her ass in jail. It’s long past time that public servants actually serve the public rather than themselves. This Krein crook and every other idiot out there who violates these public records and open meetings laws will now think twice. Lock her up.

  13. Debbo 2019-10-20

    BCB, is a fine a possible remedy? If Krein received a writ of mandamus and ignored it, what’s the penalty? The lawyer said he had talked to her about what her responsibilities are, but she ignored his direction. It sounds like she might ignore a writ as well.

    Cory, you’ll keep us updated?

  14. bearcreekbat 2019-10-21

    Donald, I am curious how her misconduct could have served her own interests. Do you see a benefit to her from her actions?

    Debbo, a judge issues the Writ of Mandamus. A Writ of Mandamus is “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”

    https://www.law.cornell.edu/wex/mandamus

    If she does not comply, then she normally would be held in contempt of court and jailed and/or fined until she complies with the order or orders contained in the Writ.

  15. Cory Allen Heidelberger Post author | 2019-10-21

    Bear, I wouldn’t feel deterred by this arrest from running for office, because I would run for office assuming there are great legal consequences to carrying out my duties properly. Maybe, as O suggests, there are lots of people running for office who don’t realize the expectations of public office; if O is correct, then those people could stand to be deterred from running for office… or at least educated by this arrest about the gravity of the obligations of public service.

  16. Cory Allen Heidelberger Post author | 2019-10-21

    Shame in this case is inescapable, isn’t it? She’d be publicly shamed whether she was arrested, fined, sued, forced to resign, or voted out, right?

    An elected official who breaks the law and fails to perform a pretty obvious duty deserves to be shamed, doesn’t she?

  17. Richard Schriever 2019-10-21

    So where’s the line? When I complained to my county SA that the mayor of my town had committed a CLASS 5 PERJURY FELONY when signing the plat of a piece of city property that stated that ALL ordinances (zoning, sub-division regulations etc.) would be followed, while not knowing whether that would be the case – or not, he referred me to the sheriff’s office for investigation. The response of the Sheriff’s deputy detective was “If you don’t like the way the town is run, why don’t you just move?” When I contacted the AG’s office (Jackley) about this situation, their response seemed to take the tone of; their job is to defend government officials against acts of the public, not vice versa.

  18. JW 2019-10-21

    Seems to me that the Commission bears the bulk of the responsibility for this misbehavior since the Auditor, though elected, serves the performance of the Commission as well as the public. Isn’t the principal liable for the torts of his agents? Who supervises who here? If the auditor doesn’t perform lawfully, why isn’t the Commission held culpable for malfeasance in it’s failure to ensure compliance with law directly involving their sworn normal duties. Just how much “instruction” is Krein receiving from Commissioners to withhold documents and information? Sounds like Walworth County Government is functioning like Trump’s Oval office. Beaman appears to be a nuisance but the law doesn’t provide protection to public officials from nuisances asking otherwise trival questions.

  19. bearcreekbat 2019-10-21

    Cory, can you describe, or even speculate, how the auditor’s actions contrary to statute may have personally benefitted her? I have yet to see a theory on this question.

    And does it appear from evidence you have considered that she intended to violate the statute, or was this merely a disagreement about what was required by the statute?

    These seem to be reasonable questions to ask before we can justify the use of the government power of criminal prosecution to “shame” any individual.

    Indeed, you indicate that you would not be detered from running for public office even though you understood “there are great legal consequences to carrying out my duties properly,” which implies your intent to comply with all statutory duties. But if you knew you could be charged with a crime for interpreting a statutory duty in a manner you believed to be lawfully within your discretion (or even non-discretionary), which conferred no benefit on you, why would you willingly put yourself and your family in such a precarious position?

  20. Richard Schriever 2019-10-21

    bcb – perhaps the auditor was under the impression that if she DID perform her duties properly – her employment by the Commission would be in jeopardy? That could be a way in which her performance (or lack of) would benefit her personally. And by “benefit” what do you mean exactly? Would one’s behavior leading to a feeling of self-importance, empowerment and satisfaction be considered a “benefit”? Or do you ONLY consider material things as beneficial?

  21. Cory Allen Heidelberger Post author | 2019-10-21

    Bearcreekbat, I could speculate about personal gain from hiding records, but I don’t need to. Whether it was rooted in some personal grudge, meant to inconvenience a political opponent, or curry favor with someone higher up to keep her side job as landfill manager, the sole salient (and undenied, even by Zerr) point is that an elected official illegally hid public records from the people. That’s a violation of the law and breach of duty.

    I’m puzzled as to why anyone is shocked that a lawbreaker can be arrested.

    Yes, I’ll ut myself in that precarious position. I have before as trustee of the Lake Herman Sanitary District, and I’d do it again. I put myself at risk of arrest every day as I drive, as I pay taxes, as I handle student information on campus. The only extra threshold of legal risk for an elected official is that you’re acting in the public eye. That’s made up for by having the benefit of a state’s attorney, whose job it is to give advice. It sounds like the state’s attorney has regularly given Walworth County officials clear explanations of the law, and Walworth County officials have ignored those explanations.

    I haven’t seen enough evidence to tell me that we should feel sorry for Walworth County officials. The auditor broke open records law. Absent some clear evidence that the documents she withheld weren’t public, I can’t jump in and excuse a public official not providing documents to the public.

  22. bearcreekbat 2019-10-21

    Richard, if the auditor thought the County Commission was requiring her to violate a statute, then that would seem to support the idea that she knew she was committing a crime by complying with the Commissioner’s unlawful directions. In that case it would seem the Commissioners would be equally or more culpable and also charged with a crime, perhaps a conspiracy to cause an illegal act by the auditor.

    By benefit I mean something tangible, such as a financial reward, advancement in her profession, benefit to a family member, etc. I did not mean the idea of a feeling of self-importance, empowerment or personal satisfaction, unless such feelings were the result of believing she was getting away with illegal conduct. If that were the case it would mean the auditor was fully aware she was commiting a crime and her culpability would be far greater. From Cory’s story, however, I got the impression that her actions were consistent with what she mistakenly understood her legal duties to be based on her training as a deputy auditor, despite complaints from people who disagreed.

  23. bearcreekbat 2019-10-21

    Richard, I will add that the three possibilities Cory mentioned while I was writing my response to you – “personal grudge, meant to inconvenience a political opponent, or curry favor with someone higher up to keep her side job” – would, in my opinion, constitute a tangible benefit demonstrating culpability.

    Cory, was I mistaken in concluding that according to the information in your post “her actions were consistent with what she mistakenly understood her legal duties to be based on her training as a deputy auditor?”

    As for advice from the States Attorney, do you believe officials should accept that advice and act accordingly even if their history and training is inconsistent with that advice? And would this depend on the experience, knowledge and/or reputation of the particular States Attorney? For example, if you were an elected legislator and AG Jason Ravnsborg gave you advice you believed to be inconsistent with the law and your duties, should you nevertheless refrain from what you believed you were supposed to do and, instead, follow Ravnsborg’s advice?

  24. Richard Schriever 2019-10-21

    bcb – “do you believe officials should accept that advice and act accordingly even if their history and training is inconsistent with that advice?” Laws change (and as pointed out previously – SD’s open records laws specifically have changed). It is the job of the SA to provide people who have been “trained” to do something one way with information about how changes in law are counter to their “training” and what to change in their behaviors/habits to come into conformity. Stubborn-ness or intransigent loyalty to “tradition” or “experience” or “training” is not an excuse.

  25. bearcreekbat 2019-10-21

    Richard is correct about the duty of a States Attorney, as this is codified at SDCL 7-16-8, which provides “. . . The state’s attorney shall give opinions and advice without fee to the board of county commissioners and other civil officers of his county, if requested by the board or officers, upon all matters in which the county is interested or relating to the official duties of the board or officers. . . . ”

    I did not find a statute, however, that required a civil officer to accept that advice. (There certainly could be such a statute, but I didn’t see it).

    Unfortunately, the advice of a States Attorney is never guaranteed to be correct and civil officers could find themselves in a dilemma about how to proceed, especially if facing advice that seems inconsistent with training. A recent example is the advice of Pennington County States Attorney, Mark Vargo, regarding the legality of some CBD oil or hemp products. His advice directly conflicts with the advice of Attorney General Jason Ravnsborg.

    https://rapidcityjournal.com/news/local/ag-s-statements-on-hemp-cbd-oil-cause-confusion-for/article_c00e2b65-2e13-5bc5-ad5a-23a31ddfdad2.html

    Thus a civil officer might well find herself in the middle of a conflict between two authorities on how to carry out her duties.

  26. leslie 2019-10-21

    She’s a DEPUTY auditor not THE elected auditor. Doing the work of her boss. You don’t criminally subject a civil employee to the horrendous experience of arresting, restraining freedom, finger printing and jailing over the weekend some poor sod except in Trumpville’s peyton place. Geez people. This Lil Hitler is, lemme guess, exercising Republican authoritarian “disgression” and is likely a very poor prosecutor. (beating a dead horse meme:) Jmo.

  27. grudznick 2019-10-21

    That makes more sense, if that attractive young lady is the deputy. I don’t think she is, however. Perhaps she was at one point, but she’s now in the power seat, at a very tender age, so we would all be wise to cut her a few slacks.

  28. Wayne Smith 2019-10-22

    Innocent until proven guilty, what happened to that? She was arrested not convicted. Do you know what the burden of proof required to attain an arrest warrant is?? Not much; it can be obtained simply based on hearsay, no facts or data required. Let’s save the throw the book at her talk until the facts have been laid out for all to see. There is obviously more to this story than we are aware of. Watch the meetings on YouTube and you will see the constant personal attacks against the County Auditor having nothing to do with job performance. The ALLEGED failure to post an agenda on-time is not grounds for an arrest. If this was in fact a reoccurring problem after many attempts by the States Attorney to get compliance, the next logical step would have been to get a summons to appear, not an arrest warrant. Hare’s motivation seems to be an attempt to humiliate the County Auditor into tendering her resignation, NOT an attempt to keep the public well informed with a transparent government. Again watch the videos and you will see multiple occasions where the County Auditor has been subjected to personal attacks not based on any facts but the word of two citizens with nothing to offer but conjecture.

    She was arrested not convicted…

  29. Porter Lansing 2019-10-22

    What in the world is wrong up there, South Dakota? Have the people become as harsh as the weather? You don’t arrest and put someone in jail for something like this. You give a warning, then have a judge give a stern warning. Then, you write a ticket. You punish the purse. Jail is serious and it’s being taken too often as nonchalant. You don’t risk jail for a traffic violation, do you? For a code violation or a misdemeanor? You sure as the devil don’t in normal places across America.
    ~ Just take a minute and read the Republican blog and you’ll see a moderator and a very big group of people personally enduring so much suffering and misery (from their own selfish choices) they’ll do anything to make another’s life worse than theirs. I’m talking about you, grudznick. (You hate name callers because it brings up the memories of what your father called you, huh? Loser. Worthless. Unable. Girly boy! You know I’m right. Look what that abuse did to your life. Sharing your pain is all you have for rewards?)
    If that’s what entertainment means to conservatives, you’ve lost all touch with compassion and humanity? Bless you!

  30. Cory Allen Heidelberger Post author | 2019-10-22

    Yup, she was arrested, as are lots of other people for alleged crimes. I contend the alleged crime here warrants arrest.

    If there is local drama going on, if SA Hare has some other agenda, I’d love to hear the evidence. But I’m still wondering why there’s this surge of sympathy for an elected official’s apparent failure to follow open records law.

  31. Porter Lansing 2019-10-22

    You don’t understand, Cory? Are you proud to live where more people per capita are arrested than any other state? Does that make you feel safer? How would you know? It’s SD and you’re taught to hide and deny your feelings.
    ~ This travesty of justice is the result of pent up and repressed emotional trauma released only to inflict and share pain with others. No wonder there’s brain drain. Most of your good jobs involve arresting people, bailing people out, defending people in court, guarding people in prison and snitching on people that might reoffend. It’s a self generating cycle of hatred towards your fellow citizens and low self esteem among South Dakotans who kinda like seeing other people damaged.
    ~ South Dakota, one of the least populated states in the country, jails the most people per capita, according to a new report from Prison Policy Initiative. The state jailed roughly 25,000 people in 2016, nearly 3 percent of the state’s population and almost twice the national average. That’s despite the fact that its crime rate is below the national average.
    https://theappeal.org/south-dakota-leads-nation-on-jail-admissions-new-report-finds/

  32. Sally 2019-10-23

    I do believe she is the elected auditor. There are also 2 others that work for her.

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