The South Dakota House approved a useful amendment to our open meetings laws yesterday. My Representative Al Novstrup (R-3/Aberdeen) brought House Bill 1153 to include "text colloquy" in the definition of "teleconference". Under HB 1153, e-mails, text messages, chat room messages, and other such electronic communications among members of any public body become public record, to be made available to the public during the meeting and kept on file for at least one year following the meeting, if those communications involve a quorum of that public body and discuss official business.

Majority leader Rep. Brian Gosch (R-32/Rapid City) led the 22 Republicans who opposed House Bill 1153. He fretted that investigators could riffle through elected officials texts and e-mails. I would suggest to Rep. Gosch a simple solution: use one official e-mail account exclusively for public business, and don't communicate with fellow members of the body to which you are elected on your personal e-mail or phone. I would also suggest Rep. Gosch not worry: Rep. Novstrup's record on last year's EB-5 investigation shows he's not really interested in serious investigations of elected officials.

Joining Rep. Gosch in resisting open records was Rep. Tim Rounds (R-24/Pierre), brother of U.S. Senator Mike Rounds. That family's resistance to making e-mails and other official communications public is entirely understandable. But now that the EB-5 coast seems clear, the Governor and AG Jackley support this bill.

House Bill 1153 now heads for the Senate.

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I think we need to talk out in the hall—New Angus CEO Doug Cooper (far left) and executive chairman Keith DeHaan (far right) consider what they'll say on the record to Brown County Commission on their effort to resurrect the former Northern Beef Packers processing plant in Aberdeen, SD, 2015.02.17.

I think we need to talk out in the hall.... New Angus CEO Doug Cooper (far left) and executive chairman Keith DeHaan (far right) consider what they'll say on the record to Brown County Commission on their effort to resurrect the former Northern Beef Packers processing plant in Aberdeen, SD, 2015.02.17.

Walk into a room with a press tag and a tripod, and the first thing New Angus officials will say to you is, "We're not giving interviews at this time." Ask to record their comments to the Brown County Commission about their plan to reopen the former Northern Beef Packers processing plant, and the first thing they'll ask for is an executive session.

Brown County Commission, prior to meeting, Aberdeen, SD, 2015.02.17

Brown County Commissioners prepare for the excitement of the New Angus briefing and local blog coverage, Aberdeen, SD, 2015.02.17

New Angus CEO Doug Cooper and executive chairman Keith DeHaan came to this morning's Brown County Commission meeting at the courthouse in Aberdeen to update commissioners on their progress toward processing beef on the south side of town. Cooper and DeHaan seemed to think that their update, listed on the agenda as a public item item and recorded like every Brown County Commission meeting for posting on YouTube, would be a confidential matter. Alerted to the presence of a local blogger and the commission's own camera, Cooper and DeHaan indicated they'd prefer to speak in executive session. Commission chairman Duane Sutton said the commission could consider that. I asked Commissioner Sutton if the New Angus update would fall under any of the exceptions for legal or contractual matters that allow public boards to close their meetings. Commissioner Sutton said he'd check with the state's attorney.

Ten minutes later, the meeting began, and it remained open.

Among the highlights of these public comments:

  • CEO Cooper sticks with previous projections to reopen the plant this year. He says if the plant doesn't open in 2015, he and DeHaan "probably be sitting here, because it means we didn't get it done. It's not anybody's fault but ours. We accept that." Cooper declines to give an exact date, because he says that disclosing an exact date could "send a wrong signal" that would cause producers to make decisions and investments that could cost them thousands of dollars. "We're trying to fill a bucket with credibility and not drain it in one shot." To that last comment, one commissioner replied, "That would be something new for out there."
  • CEO Cooper says the plant was set up properly and was USDA-inspected. He says New Angus is only making minor changes to accommodate the production plans dictated by their current market analysis.
  • Commissioner Doug Fjeldheim asked if New Angus is primarily targeting the export market. CEO Cooper said yes, primarily Asia, although the Canadian and Mexican beef markets are also open and cheaper to export to. Cooper says Brown County has "the finest cattle in the world" and that the Asian market is particularly hungry for marbled beef younger than 30 months.
  • Commissioner Sutton asked if New Angus plans to operate at the 1500-head-per-day capacity. Cooper said yes: "That's what the engineer plate says."
  • Commissioner Rachel Kippley said a lot of folks come into her tax office who worked for Northern Beef Packers, have stuck around Aberdeen doing other jobs, and are ready to go back to work at the plant when New Angus opens. DeHaan said the handful of staff they've brought in say they know others around the community who are ready to come back to work when the plant reopens.
  • Chairman DeHaan notes that he looks forward to discussing cattle deals with Commissioner Kippley and her husband Jeff. No conflict of interest there when time comes to check on the beef plant's compliance with zoning and environmental regulations or to spend county dollars on road upgrades around the plant....
  • CEO Cooper said he doesn't know what happened in Northern Beef Packers' operations, but he says New Angus's operations are "going to be transparent." Looking forward to that transparency, I presented my card to Mr. Cooper and said that I'll be happy to come for a tour of the plant when he and DeHaan are ready to give interviews.
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During the Senate Judiciary hearing on Senate Bill 162 Thursday, Senator Brock Greenfield (R-2/Clark) said he had patterned his plan to arm certain legislators to play security guard after the 2013 school gunslinger bill. Then-Rep. Greenfield thought it was a good idea to distract teachers and put students at risk by bringing more guns to school, so why not apply the same logic to the Capitol?

Senator Greenfield's effort to link his Capitol gunslinger bill to the school gunslinger (sorry—we're supposed to call them sentinels) bill inspired Senator Troy Heinert (D-26A/Mission) to ask a logical question:

Sen. Heinert to Greenfield: "Senator, do you know how many schools have used the school sentinel bill?"

Greenfield: "No, and I don't believe that information would be publicly available because of the confidentiality—er, Mr. Tieszen*, I saw three fingers sticking up."

Dick Tieszen, lobbyist, in audience: "No, that is a zero."

Greenfield: "Oh. Zero."

Chairman Craig Tieszen: "Senator Heinert?"

Heinert: "I do believe the answer is zero" [Senate Judiciary Committee hearing, South Dakota Legislature, Pierre, SD, 2015.02.12, timestamp 34:40].

After a question about current security measures in the Capitol, Senator Jeff Monroe (R-24/Pierre) contradicted Senator Heinert's and Dick Tieszen's statements that no one is using the school sentinel program:

Sen. Monroe: "The answer to the question, are any schools— have any schools enacted the sentinel bill, the answer is not zero, and for the confidentiality again, I'm not going to tell who. I just wanted to clear that up. That's all I had, Mr. Chairman."

Sen. Tieszen: "Senator Heinert?"

Heinert: "I'm not here to debate the good Senator from Pierre, but the answer is zero."

Sen. Tieszen: "All right, the debate stops. This is question time to start with. If you have a question, direct it to someone who testified. If not, we'll—discussion in a moment" [Senate Judiciary, 2015.02.12, timestamp 36:10].

Do some schools have sentinel gunslingers roaming their halls? And do confidentiality prevent them from telling us about that lurking danger to our children?

The answers, Mr. Chairman, are no and no. In reverse order:

Back in 2013, House Education amended the school gunslinger bill to keep discussion and implementation of the program secret in each school. Senate State Affairs quite sensibly eliminated that secrecy clause, thus requiring the House to vote on that bill again. Then-Rep. Greenfield cast an aye on that concurrence vote; had he cast an eye, he'd have known he was voting for a law that contains no confidentiality clause. Review SDCL 13–64, ARSD 2:01:15 and ARSD 2:01:16, the chapter and rules enacting and managing the school sentinel program, and you will not find a single clause saying that schools shall or may keep their use of the school sentinel provisions secret. Part of the 2013 bill, now SDCL 13-64-7 (you read this when you voted on it, right, Brock?), allows school district residents to refer implementation of the school sentinel program to a public vote, meaning the decision to implement is necessarily public.

That means that when I call a school district and say, "Got school sentinels?" they have to tell me. When I call the Attorney General's office to ask whether any schools have submitted applicants for school sentinel training and whether any applicants have taken and passed that training, the Attorney General's office can tell me numbers and maybe even names.

But the only number the Attorney General's office has is zero. I called yesterday, and spokesperson Sara Rabern confirmed that, since the enactment of training and certification rules on September 17, 2013, no schools have submitted applications, no school staff have come to Pierre for training, and no teachers or janitors or other school personnel are currently roaming our school halls as certified school sentinels. This fact is consistent with previous reports of skepticism and widespread condemnation of the school gunslinger program among school officials, as well as concerns that arming school staff would cause schools to lose their liability insurance.

I have contacted Senator Monroe to ask where he got his information to the contrary. I await his response.

Update 2015.02.15 11:18 CST: I originally reported, based on my listening to the SDPB audio of the hearing, that Senator Craig Tieszen had made the "zero" hand gesture and made the comment "No, that is a zero." Senator Tieszen informs us (see below in comment section) that that gesture and comment came not from him but from lobbyist Dick Tieszen, who was in the audience at the hearing. I have amended the above text to reflect Senator Tieszen's clarification, and I apologize for the error.

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Rep. Rev. Steve Hickey (R-9/Sioux Falls) saw seven bills that he prime-sponsored killed this week, five in committee yesterday. Among them was House Bill 1210, which would have clarified that quora of legislative committees cannot meet privately, including via group texts and e-mails, to discuss, debate, or decide bills.

Rep. Hickey testified yesterday before House State Affairs that he has seen the message spread in private meetings of committee members that legislative leaders want certain bills killed. He testified (meaning it's true!) that some pre-hearing meetings even determine who will move and second the tabling or 41st-day-deferral of doomed bills. Rep. Hickey contends that such decisions violate Article 3 Section 15 of the South Dakota Constitution, which says "The sessions of each house and of the committee of the whole shall be open, unless when the business is such as ought to be kept secret."

Hmm... wait a minute: does that clause actually declare committee meetings open, or just sessions of the full House and Senate?

No one debated the state constitution with Rep. Hickey. No one testified in opposition. House State Affairs member Rep. Kris Langer (R-25/Dell Rapids) said the bill was poorly written, failing to specify who would report violations and who would decide what penalty. Rep. Langer also said HB 1210 as written would prohibit her from e-mailing superintendents to get information about a tech school bill and forwarding that e-mail to other committee members.

I would debate that point with Rep. Langer: forwarding materials from other sources to committee members could be construed as something less than "discussing, debating, or deciding" an issue on the committee agenda. It certainly is not the sort of organized bill-killing Rep. Hickey targeted with HB 1210.

But House State Affairs didn't need much more discussion or debate to make its decision. Rep. Roger Solum (R-5/Watertown) moved to table HB1210. Unlike the more usual bill-killing motion to defer to the 41st day, the motion to table, per Joint Rule 5.5, is no debatable, meaning we just call the votes—10–2, party-line vote, Dems supporting Rep. Hickey, his own GOP spurning him, in favor of tabling—and put HB 1210 away.

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As I listen to the audio of today's marathon Senate State Affairs Committee hearing, I hear Chairman Tim Rave (R-25/Baltic) open discussion of the big transportation bill with this injunction:

Every member of this committee is well aware of the bill. We've heard several presentations. We've been lobbied by several folks. So we don't need to cover a lot of old ground [Senator Tim Rave, opening remarks, Senate State Affairs Committee hearing, Pierre, South Dakota, 2015.02.06, timestamp 02:05].

Hold on: Legislators have been lobbied—meaning spoken to out in the lobby, off the record—so we don't need to hear certain arguments for and against the transportation bill?

I know legislators are busy and have lots of bills to tackle. Hearing the same arguments multiple times surely gets tiring, and hearing them repeated in committee hearings surely seems a waste of time when so much else remains to be done.

But do committee hearings exist solely for legislators' convenience? We hold committee meetings in open session to edify not just legislators but the public. These hearings are our only chance to hear the arguments that interested parties are using to shape legislation. If the Chamber of Commerce or Americans for Prosperity or Dakota Rural Action has won the votes of a majority of committee members with some brilliant ploy out in the hall, I'd like them to repeat that argument on the record, so we can all understand what made or broke that bill.

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Democrats, on your to-do list for winning a majority in Pierre, add "Lure Steve Hickey to the dark side.

The Right Reverend Republican Representative from District 9 is aiming to get treated like the aliens in District 9, fenced off by himself, for bucking his party leaders with simple legislation like House Bill 1210:

No legislative committee, or quorum thereof, may meet privately, including group texts and emails, to discuss, debate, or decide an item or bill on the committee's upcoming agenda.

South Dakota law applies a rule like Rep. Hickey's HB 1210 to pretty much every governing board in the state: deliberations and decisions affecting the public need to happen in public. Citizens have a right to know the reasoning that leads to the passage or rejection of a statute, ordinance, or school board textbook purchase.

Rep. Hickey charges that his Legislative colleagues flaunt that principle by deciding bills in private caucus before public committee hearings. He contends that his House Bill 1086, the Long Economic Winter study proposal, fell victim to such predetermined machinations last week. Last Wednesday, House State Affairs gave Rep. Hickey twelve minutes to speak his piece, in which he challenged my characterization of his bill as prepperism for legislators by noting he was motivated to bring this bill by an official at Avera McKennan who said the hospital has a contingency plan for dealing with exactly the sort of massive federal budget cuts HB 1086 proposed to study. The committee heard Mark Chase of the South Dakota Family Policy Council say the economic recovery is a "central-bank-driven bubble" leading us to collapse this year, then heard Jim Terwilliger of Bureau of Finance and Management explain that this bill circumvents the normal process for establishing summer studies and rebut Chase's assertion of apocalypse by noting that South Dakota has the least volatile state revenues in the country. Rep. Jim Bolin (R-16/Canton) brilliantly noted (at 48:00 into the hearing) that Chase's claim that disaster is coming this year moots the point of doing a study that wouldn't wrap up in time to address that disaster. Chase responded "Not necessarily..." which is usually the signal that someone just got caught with his rhetorical pants down. Chase said he's not an economist and just looks at a lot of charts.

After more than 30 minutes of discussion, House State Affairs killed the bill 12–1.

Whether HB 1086 is the best example of the problem Rep. Hickey wants to tackle, HB 1210 seems perfectly reasonable, requiring Legislative committee members to adhere to the same rules as other public bodies. Rep. Hickey's supermajority Republican colleagues will kill it, of course, and chide Rep. Hickey for suggesting that they conduct business in secret. The Republican leadership may even give Rep. Hickey a little Stace Nelson treatment, maybe making him wear a donkey tail during caucus meetings.

Democrats, Steve Hickey may be feeling a little lonely this week. Buy him a drink, lend him a shoulder... and maybe see what common ground you can find with the good reverend to challenge the Republican monolith.

28 comments

Attorney General Marty Jackley held a press conference in Sisseton Friday to discuss the details and conclusions of the state's investigation of the November 22, 2014 murder-suicide that shocked Sisseton and briefly put the entire tri-state area on alert. AG Jackley confirmed that Colter Arbach shot and injured Karissa DogEagle and shot and killed Vernon Renville Jr., Angela Adams, Candice Labelle.

DogEagle was Arbach's girlfriend. In the wee hours of November 22, he punched her three times. DogEagle's three friends took her outside to a car. Arbach followed and fired 18 rounds from a .223 rifle and three rounds from a 12-gauge shotgun. Arbach shot Renville, Adams, and Labelle dead at the car; he shot DogEagle several times in the back as she returned to the house. According to this shooting diagram released by the Department of Criminal Investigations, Arbach shot himself in the driveway.

Arbach shooting crime scene diagram, prepared by Special Agent Jeff Kollars, SD Department of Criminal Investigation, 2014.11.22 (click to enlarge).

Arbach shooting crime scene diagram, prepared by Special Agent Jeff Kollars, SD Department of Criminal Investigation, 2014.11.22 (click to enlarge).

The detailed information Attorney General Jackley released Friday raises three questions:

  1. AG Jackley said nothing (at least nothing published) about his office's failure to positively identify the dead shooter at the scene, an error that led law enforcement to unnecessarily alarm the public with warnings that Arbach was on the loose, armed and dangerous.
  2. The crime scene diagram identifies Item #22 at the foot of Arbach's corpse as a "Beretta 12 gauge semi-auto shotgun." The diagram and the Attorney General identify the other weapon, found in the front passenger seat of the white GMC, only as a .223 caliber rifle. Why does the AG specify the shotgun but not the rifle that did most of the rapid-fire killing? Is there a magic word we're not using to avoid grief for our NRA donors?
  3. This crime scene diagram offers significant detail about a crime about which there has been little public doubt. Why has Attorney General Marty Jackley not released a comparable crime scene diagram from his investigation of Richard Benda's death? With conflicting evidence and widespread public doubt about the plausibility of the official finding of suicide, it would behoove the Attorney General all the more to release the crime scene diagram and other details, like those released Friday in the Arbach case, to assure the public that law enforcement has done its job.

Attorney General Jackley's openness in the Arbach shooting is admirable, if incomplete. AG Jackley should revisit the Benda shooting with similar openness.

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The South Dakota Banking Commission has yet to take any public action on Brown County's request that it investigate EB-5 czar Joop Bollen's SDRC Inc. for possible evasion of bank franchise tax. Director of Banking Bret Afdahl sent SDRC Inc. a letter requesting information in September; as far as we know, SDRC Inc. is almost 60 days past the normal 30-day reply time.

If the Banking Commission is alarmed, they aren't showing it. Bob Mercer reports that the Banking Commission is meeting Friday at the Minnehaha Country Club (hey, can public bodies meet at private country clubs?), and SDRC Inc.'s bank status is nowhere on the agenda.

Well, maybe not nowhere. There is an executive session at the end. So maybe, just maybe, there's an interesting conversation to be had after the duck à l'orange. We can only hope that somebody in Pierre is taking their obligation to get answers about EB-5 seriously.

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