Some legislators want to boost student privacy online at school. Others sought to reduce student privacy with school counselors. House Bill 1077 would have allowed parents to waive the confidentiality between a school counselor and their children under age 16.

As I understand it, lawyers brought HB 1077 to get counselor-student confidentiality out of the way and allow them to use counseling records in custody battles. Spearfish school counselor Brady Sumners tells me that this confidentiality is essential for doing his job. Confidentiality is not about keeping secrets from parents but building trust so students will explain their problems to him. Sumners says such trust allows him to build a professional relationship with students. Far from seeking to supplant parents with that relationship, Sumners says that once students explain to him what's wrong, he encourages them to bring parents into the loop and involve them in seeking solutions.

One would think that lawyers, who enjoy their own legally protected confidence, would understand the necessity of trust in such a close professional relationship. At least nine members of House Education understand: they voted yesterday to defer House Bill 1077 to the 41st day, which means we won't be hearing any more about it, and counselors may continue to offer students their confidence.

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If I only knew what I read in the papers, I'd say the allegations of ethics violations by South Dakota's House GOP leadership are dead. In his report on yesterday's ad hoc subcommittee hearing in Pierre, Bob Mercer declares the fuss "might be resolved" by a good manly hug:

House Republican leader David Lust, a Rapid City lawyer, sat down and publicly apologized for his comments during a private meeting last winter about the work product of the Legislative Research Council, the nonpartisan professional staff.

Specifically mentioned was Reuben Bezpaletz, the senior lawyer who's been at LRC since 1972.

Lust told the three legislators on the investigation panel that "a well-intentioned discussion" mushroomed into something that wasn't intended. He said that, in his zeal to look out for legislators and the process, he might have stepped on toes.

"I should have been more sensitive to that," he said.

Lust then stood, turned and hugged Bezpaletz with several loud man-claps on the back [Bob Mercer, "S.D. Legislative Spying Allegations Might Be Resolved," Aberdeen American News, 2012.01.04].

Contrary to their indications on Monday, Reps. Lance Russell and Stace Nelson made the trip to Pierre to testify, as did seven other legislators. Some were encouraged to attend by Rep. Cutler's announcement during the hearing that declining to testify when summoned is a Class 2 misdemeanor that can get a legislator kicked out of office for good. Rep. Lora Hubbel offered this explanation about her signing the original December 6 letter of complaint:

Rep. Lora Hubbel, R-Sioux Falls, told the investigatory committee that she signed the letter because she hoped to get information about why a legislative committee voted 13-0 to kill her legislation declaring President Obama's federal health-care law to be null in South Dakota [Mercer, 2012.01.04].

While the agenda for yesterday's hearing was somewhat vague, I'm pretty sure it did not include re-explaining to Rep. Hubbel in single-syllable words why nullification is bad. I was hoping Hubbel's interest in this matter was something more than a product of her futile and ill-informed Teabaggery. I was perhaps too hopeful.

The most important testimony came from Bezpaletz and LRC director Jim Fry, who "denied there was any confidential information passed or pressure exerted regarding other legislators' drafts." Bezpaletz "repeatedly disputed Rep. Stace Nelson's versions of events." I've been waiting to hear the straight dope from the LRC staff; now we have it on the record. If we can take anyone's word, it's the word of our Legislative Research Council. If they say there's no fire, there's no fire.

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Today's ad hoc subcommittee hearing called by the Legislature's Executive Board may be a wash. The two key legislators pushing for an investigation of the GOP House leadership for violations of confidentiality, Reps. Lance Russell (R-30/Hot Springs) and Stace Nelson (R-25/Fulton), are declining to attend the hearing, which is scheduled for 10:00 a.m. today at the Capitol in Pierre.

In letters sent yesterday to subcommittee chair Senator Joni Cutler, Reps. Russell and Nelson both complain that Sen. Cutler has not yet offered any response to their motion for subpoenas of Legislative Research Council director Jim Fry, LRC staff lawyer Reuben Bezpaletz, and former LRC staffer Jacqueline Storm. Without the guarantee of testimony from those individuals, Rep. Russell sees little point in rearranging his schedule to drive to Pierre today:

I am certain you can empathize with my situation in light of my belief that you are rushing a matter that has not been dealt with for more than six months, where discovery has repeatedly been denied, where the Chair of the subcommittee does not plan on even calling the first-hand witnesses who are present in the very building that the subcommittee is scheduled to meet and who provided the information to me, and where I have not even had the courtesy of a response to a formal written motion.

Thank you for your consideration. Should you continue to desire my hearsay testimony after you have heard from the LRC eye witnesses, I will be available at the above telephone number after 1:00 p.m. central standard time on January 3, 2012 [Rep. Lance Russell, letter to Sen. Joni Cutler, 2012.01.02].

Rep. Nelson expresses similar misgivings about heading to Pierre for what he considers an illegitimate deviation from the formal House rules for investigation of allegations of misconduct. He says the subcommittee hasn't even made clear which specific complaints are being investigated:

I provided NUMEROUS documents to include detailed written complaints about several incidents to include detailed complaints that Rep. Turbiville ordered ongoing obstruction of my bill research. Are you investigating that? If so, how is it not grossly unethical for you to consult with him on these matters or for Rep. Turbiville to remain involved with this investigation?! House Leadership assured me those complaints were received, being investigated, & they would ensure were addressed via this process as recently as Rep. Lust asserting as such on December 27th, 2011, in public. Please identify within those complaints what actual specific incidents you are investigating, if any, and if any require additional information from me.

Please advise what the purpose is of your investigation to include what the information will be used for. Please advise what the scope of the investigation is to include what specifically is being investigated; what if any is each legislator's required attendance or duties in this hearing; what the consequences are for any persons refusing to testify or providing fraudulent information or testimony; what are the procedures for legislators to obtain known evidence within the LRC; the procedures for introducing & requiring known witness testimony as well as the procedure to require disclosure of documentary evidence [Rep. Stace Nelson, letter to Senator Joni Cutler, 2012.01.02].

Senator Cutler may not have responded to the subpoena request all week, but she managed to fire off a reply to Rep. Russell right away asking him to stick with the process:

There are both procedural and legal reasons for addressing those issues in this manner. My hope is that you would refrain from drawing conclusions about what you think I intend to do in the hearing as you risk inaccuracy in so doing. That is one of the huge drawbacks in trying to assess this through email and letters and why it is preferable, in fairness to everyone, to handle all of this in an open meeting and on the record with witnesses personally present.

We really need your cooperation and presence so that we can have the type of dialog that will help us work toward a proper resolution. We would be happy to meet into the evening if that would help you come to Pierre [Senator Joni Cutler, letter to Rep. Lance Russell, 2012.01.02].

I appreciate Sen. Cutler's stated commitment to an open process. But I can also appreciate Rep. Russell's and Rep. Nelson's hesitance to trek to Pierre simply to repeat what's already been said in a somewhat fuzzy process. The legislators' complaints about abuse of LRC confidentiality are publicly documented: resolution seems to hinge now on hearing substantiation of those complaints from the firsthand witnesses, the LRC staff who would have experienced the alleged abuses of power. Senator Cutler could satisfy the complainants and the public with one simple response: "Fry, Bezpaletz, Storm—yup, they'll be there."

Inside Snark Bonus: No word yet on the opinion rendered by Rep. Kristin Conzet's hairdresser.

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The allegations of ethics violations by the South Dakota House Republican leadership receive their first official hearing on Tuesday, January 3, as a subcommittee of the Legislature's Executive Board meets to hear testimony "in Regard to Legislative Research Council Work Product." Despite a request from the complainants for her recusal, Republican Senator Joni Cutler has accepted Executive Board Chairman Rep. Charles Turbiville's appointment to chair this subcommittee. Democratic Representative Larry Lucas (D and Republican Senator Tom Nelson will round out the subcommittee.

This subcommittee hearing was supposed to happen a week earlier, on Tuesday, December 27. Sen. Cutler announced the Dec. 27 meeting in an e-mail sent out Friday, December 23, at 3:53 p.m. (From the documents available, I am unable to determine whether that's Central or Mountain Time.) Given such short notice on the eve of a holiday weekend, Rep. Lance Russell requested a continuance and proposed five dates when he would be available to testify shortly after January 1. Sen. Cutler moved the hearing back one week, to January 3. Sen. Cutler also responded to other concerns raised by Rep. Russell in a Dec. 27 letter, in which Sen. Cutler states the following:

  1. The Jan. 3 hearing in Room 413 of the Capitol will be open and the audio archived online along with other Executive Board minutes from this interim.
  2. Sen. Cutler is not recusing herself because Rep. Turbiville has told her he does not want her to recuse herself. Sen. Cutler feels her public statements on South Dakota's legislative process do not compromise her ability to chair the subcommittee hearing, gather information, and report that information to the Executive Board for its action at its January 10 meeting, hours before the noon opening of the 2012 Legislature.
  3. Rep. Russell questions whether the subcommittee is acting under proper authority by Executive Board motion and action. Sen. Cutler responds that the Legislature's joint rules and Mason's (easy, Sibby) Manual of Legislative Procedure empower a committee chair to appoint a subcommittee without formal action by the full committee.
  4. Sen. Cutler does not intend to swear witnesses at the hearing. Anticipating testimony primarily from legislators, Sen. Cutler feels their oath of office serves as sufficient guarantee of their veracity.

Rep. Russell may be satisfied with the extra week to prep, but he wants to ensure the hearing is more than simply a gripe session with him and his fellow complainants. Rep. Russell has moved for the board to invoke its subpoena powers and issue subpoenas duces tecum (that's Latin for "Come talk to us, and bring your papers!") to three members of the LRC staff. Rep. Russell submitted this motion on Tuesday; I haven't heard yet whether the executive board has taken action on it. But in her preceding communications, Sen. Cutler indicated that the subcommittee "may" call LRC staff to testify, depending on the testimony presented and evidence required.

Sen. Cutler says the subcommittee stands ready to take testimony all day long (starting at 10 a.m.) and into the evening. Mr. Mercer may wish this hearing was being held online. Pack a sandwich!

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Four legislators calling for an investigation of alleged ethical violations by the GOP House leadership are rejecting the Legislative Executive Board director's rejection of their request for information. Reps. Lance Russell, Stace Nelson, and Lora Hubbel and Senator Tim Begalka send the following Christmas card to Rep. Chuck Turbiville:

In calling for Rep. Joni Cutler's recusal from any investigative panel, Rep. Russell et al. are referring to her comments in this KELO interview.

More importantly, the complainants are asserting a pretty clear trail of evidence that would back up their claim that House leaders David Lust, Val Rausch, and Justin Cronin pressured the Legislative Research Council to violate its promised confidentiality to preview legislators' bills before publication and even block legislator requests for research. They say LRC chief Jim Fry has confirmed in writing that "Representative Turbiville ordered Representative Nelson's bill research, on placing cumulative voting records online, withheld." They say that an LRC attorney can confirm their confidentiality breach allegations. They say that the leadership was informed of these concerns months ago, by e-mail, with no action resulting.

O.K., folks, in for a penny, in for a pound. Your dirty laundry is on the line (oh, heck, there I go using metaphor; DWC will beat me like a dirty rug for that!). You say you have the proof. Post it. Let's see those e-mails. Let's see Fry's written confirmation. Let's hear that LRC attorney. If the alleged violations threaten the integrity of legislative process, if the GOP leadership really is committing "the worst abuse of authority in the Legislature" in decades, then it's time for the folks in the know, including the LRC staffers involved, to come forward and say so.

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Rep. Chuck Turbiville is sticking by his guns. As chair of the Legislature's executive board, Rep. Turbiville has ruled that the documents six legislators have requested in their investigation of possible violations of Legislative Research Council confidentiality are themselves confidential.

Executive board vice-chair Senator Joni Cutler says the ruckus over the GOP leadership's alleged spying on some members' legislative research is much ado over nothing:

But whether the claims are true or not, Cutler says she doesn't see what the advantage would be to having information on a bill while it's still being worked on because every bill in South Dakota is required to have a hearing.

"Any bill draft that a legislator offers has to come out and has to be brought out and made public. Those hearings are all public. There's nothing secret that anybody could do with information they would gain about a bill draft in the first place," Cutler said [Ben Dunsmoor, "Chair: SD Lawmakers Make Confidential Request," KELOLand.com, 2011.12.12].

The advantage gained is the advantage any debaters get when they can brief out opponents' cases ahead of time. Getting a look at a bill before it hits the hopper gives opponents more time to line up testimony and votes against it. It gives party leaders a chance to pressure members not to introduce potentially troublesome legislation in the first place, possibly denying that legislation any public hearing at all.

But the practical gamesmanship is secondary to principle: if communications between a legislator and the LRC are indeed confidential, then party leaders should not be able to snoop on any such communications. Reps. Russell, Nelson, Olson, and Hubbel and Senators Maher and Begalka are asking the Legislature to demonstrate its commitment to exactly that principle.

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Yesterday I discussed the political angles of a letter from six legislators accusing the GOP House leadership of using the Legislative Research Council to snoop on its own members. Today, let's look at the more important issue of what those legislators are saying actually happened.

KELO's Ben Dunsmoor does a good job of laying out the details. Most importantly, he posts the letter itself. The first paragraph succinctly lays out the charge:

It has been reported to legislators that during the 2011 SD Legislative Session instructions were given, and heeded, instructing LRC staff members to disclose confidential conversations and materials regarding legislation research between legislators and the LRC staff, to members of the House of Representatives leadership [Letter from Reps. Lance Russell, Stace Nelson, Lora Hubbel, and Betty Olson and Senators Tim Begalka and Ryan Maher to Legislative Research Council director Jim Fry, 2011.12.06].

Our legislators do not have personal staff to help them research and write legislation. They have to trust the Legislative Research Council, a staff shared by all 105 legislators, to do this vital brainwork to put together reasonable, workable bills. When legislators are working on controversial proposals, they deserve some intellectual privacy. They deserve to be able to seek good information and advice to revise and refine their proposals into the form they think best. They deserve to be able to investigate the possibilities for a bill, to look at the research and the draft legislation that the LRC helps them develop, and then to decide whether that bill is worth publicizing and proposing. With no staff under their own direct and exclusive control, legislators must trust the LRC to keep their confidence.

I'm all for open government, but I will concede that forcing legislators to reveal their ideas for legislation before they have fully developed and formally proposed those ideas gives political opponents an unfair advantage. We have a clearly defined public democratic process. You want to beat a bill? You use that process of proposal, committee, and floor debate to beat it, so we can all see (and participate!) what happens.

The LRC, in keeping the confidence of all 105 legislators, protects that democratic process. Allowing certain legislators to violate that confidence and gain privileged access to other members' legislative research and proposals subverts that democratic process.

Rep. Charles Turbiville, R-31/Deadwood

Rep. Charles Turbiville, R-31/Deadwood

Rep. Lance Russell tells Ben Dunsmoor that this violation of LRC confidentiality "did occur." Five legislators are willing to back him up with their signatures. Legislators seem to be notoriously bad at keeping secrets from themselves. Yet Rep. Charles Turbiville, chairman of the Legislature's executive board, which oversees the LRC, looks blinkingly into the KELO cameras and says that not only does he doubt the charge but that "There's never been an indication of anything I've heard or seen so we will look into it and make that determination at a later date."

Never an indication of anything amiss with confidentiality in the LRC that he oversees, when six other legislators from his own party are willing to say there was? Was Rep. Turbiville asleep at the switch, or is he covering for his party leaders?

Rep. Turbiville turns a fine phrase to Megan Luther, telling her that Reps. Russell, Nelson, et al. are asking to violate the very LRC confidentiality about which they are expressing concern. That line is quite clever of Rep. Turbiville, who's pretty good at making half-baked excuses for not sharing information he thinks could hurt the boss.

But fellow executive board member Senator Maher (the sixth signer of the letter) doesn't think this request violates the LRC's confidentiality. Senator Maher is likely right: that confidentiality exists to protect legislators while they are in the process of researching and crafting bills to propose. Once those bills are public, that confidentiality is no longer needed. LRC-legislator communications become discoverable items in future legal proceedings to help the courts ascertain legislative intent. Those communications should be discoverable items to help determine whether party leaders violated LRC confidentiality prior to the introduction of legislation.

Confidentiality, the integrity of the Legislative Research Council, and the sanctity of the democratic process: that's what's really at stake here. If the accusations from Russell, Nelson, Hubbel, Olson, Begalka, and Maher have substance, the South Dakota House GOP leadership should face some serious housecleaning.

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