An unnamed Legislative Research Council employee reported to her boss last week that Senator Julie Frye-Mueller walked into her Capitol office last week and told her, among things, (1) that her new baby “could get down syndrome or autism” or “die from those vaccines”, (2) that the employee could have her husband “suck on my breasts” to stimulate milk production, and that (3) “a good time for that is at night”, to which (4) Frye-Mueller’s husband, whose presence in the room was unusual and intimidating, smiled and nodded as Frye-Mueller asked for her husband’s opinion as she “provide[d] hand gestures to her chest area”.
On Tuesday evening, Frye-Mueller and her husband denied that Frye-Mueller said or did such things.
Yesterday, everyone on the Select Committee on Discipline and Expulsion and 33 of 34 Senators said they believe the LRC employee and do not believe Frye-Mueller or her husband.
The Select Committee met for just four minutes yesterday at noon to approve the report it ordered drafted Tuesday night. The report is brief:
Your Select Committee on Discipline and Expulsion respectfully reports that it has completed its investigation of the conduct of Senator Julie Frye-Mueller; and, after due deliberation, recommends that the Senate do now endorse the finding of the Select Committee that Senator Julie Frye-Mueller should, and by the approval of three-fifths vote of the Senate shall be, censured for conduct by a senator unbecoming the Senate. Specifically, the Select Committee finds, and requests the Senate concur in its finding, that Senator Julie Frye-Mueller engaged in harassment, as specified in Joint Rule 1B-3(2), that had the effect of unreasonably interfering with an individual employee’s work performance and creating an intimidating working environment in the Legislative Research Council.
The Select Committee finds, and the Senate to concur, that Senator Julie Frye-Mueller’s suspension is part of the Senate discipline for bringing the Honor of the Senate into public disrepute. The Select Committee further recommends the Senate immediately lift the suspension of Senator Julie Frye-Mueller.
Finally, to ensure that an intimidating work environment does not re-occur during the remainder of the Ninety-eighth Legislative Session, the Select Committee recommends that Senator Julie Frye-Mueller’s interaction and contact with staff of the Legislative Research Council, including interns and pages, be limited to the director or the director’s designees.
Respectfully submitted, David Wheeler, Chair Select Committee on Discipline and Expulsion [Select Committee on Discipline and Expulsion, report to Senate, approved 2023.02.01].
The committee approved the report without discussion or dissent on a 9–0 vote.
Two hours later, the full Senate received and discussed the committee’s report. Select Committee Chairman David Wheeler (R-22/Huron) opened that discussion (starting around 19:00 in SDPB’s video) by explaining the legal basis for the Senate to act:
Wheeler cited a portion of Article 3 Section 9 of the South Dakota Constitution as the authority for this action against Senator Frye-Mueller: “Each house shall determine the rules of its proceedings, shall choose its own officers and employees and fix the pay thereof, except as otherwise provided in this Constitution.” He said the Constitution does not set limitations on how the Senate may discipline or expel a member. “Therefore we have complete plenary authority to choose how we wish to do that, to choose our rules and to exercise those rules as we deem fit.” He said Mason’s Manual confirms this authority, and that authority belongs exclusively to the Senate.
Wheeler said the LRC employee said she considers all 105 legislators her boss. Wheeler said that in a normal workplace situation, a boss could respond to a report of such inappropriate behavior as that ascribed to Frye-Mueller by immediately suspending an employee, conducting an investigation, and firing that individual. Wheeler said the Senate could only do such actions through its own adopted rules (although let’s not forget, the Senate suspended those rules last week to immediately boot Frye-Mueller from the floor).
Wheeler said the Senators who attended the closed-door testimony of the employee “were able to see the effect that the incident had on the employee. Those of us that were there could feel the emotional turmoil it caused for her.” This claim is, of course, problematic, because none of us voters were able to weigh that evidence in the same way. We are thus left having to trust the Senate that this secret testimony was more compelling than the testimony of Frye-Mueller and her husband, which took place in public.
“We believe her,” Senator Wheeler said of the employee. “We believe misconduct happened and that some sort of discipline is appropriate.” Senator Wheeler did not explain why the Senate chose not to believe Frye-Mueller, who made clear in her public testimony the emotional turmoil that this incident caused her.
Julie Frye-Mueller’s only friend in the Senate, Senator Tom Pischke (R-25/Dell Rapids) rose to disagree with the idea that the Constitution gives the Senate the authority to suspend a member. Pischke cited no Constitutional provision to the contrary. Pischke did cite one of the state laws I mentioned yesterday (SDCL 2-4-7) as protecting every member’s right to attend floor debates and vote, but Pischke did not address the argument I offered yesterday that that statute only applies to individuals, not actions of the Senate as a whole. Pischke claimed due process had not been afforded and “that there’s still more information to obtain; there’s still more things we could find out about what happened in this situation,” but Pischke gave no indication about what more relevant information might exist to change the Senate’s disposition to fry Frye-Mueller.
Pischke reminded the Senate that he had warned lawsuits would happen and that a lawsuit has indeed arisen, drawing the Attorney General “away from his duties protecting the people”. Pischke did not address the fact that Frye-Mueller’s lawsuit is both weak and now moot, meaning it will take little time away from the Attorney General and his able staff.
Pischke said he does not believe Frye-Mueller harassed the LRC employee. He said he could consider dividing the motion so he could vote to reinstate Frye-Mueller but vote against the censure and restriction on Frye-Mueller’s LRC access, but he didn’t want to drag the situation out.
Senator Michael Diedrich (R-34/Rapid City) said he disagreed “a lot” with the previous speaker. He said there was open due process. He said the only part of the process that was closed was the in-person testimony of the employee, whom the Senate has tried to protect from further harm with its secrecy. Diedrich said the substance of the complaint was known to the subject of the complaint from the beginning, giving her time to prepare her defense.
Diedrich suggested the lawsuit “doesn’t really have much traction” because precedent makes clear the Senate’s authority to manage its own affairs. He urged the Senate to “put this affair behind us” and signal its support to the LRC.
Senator Reynold Nesiba (D-15/Sioux Falls) noted briefly that the bipartisan committee voted unanimously for this report.
No one else spoke to the report. No Senator spoke to why they think Julie Frye-Mueller and her husband are liars and that the LRC staffer is not. No Senator spoke to the inconsistencies they must have found in Frye-Mueller’s statements. They just cast their votes.
The motion to censure, restrict, and reinstate Frye-Mueller required a three-fifths vote, 21 members. 33 members voted for the motion. Pischke cast the lone nay. Senate President Larry Rhoden directed the sergeant at arms to inform Frye-Mueller that she could return to the floor, and the Senate went on with its business. Senator Frye-Mueller returned to the floor less than five minutes later.