While the GOP leadership treats Joop Bollen with kid gloves, accepting without complaint his refusal to testify in person before the Government Operations and Audit Committee, I am reminded of a somewhat testier Legislative committee that responded to balky witnesses with somewhat more intensity.
In December 2011, Rep. Stace Nelson and five other Republican legislators complained that the GOP House leadership was violating ethics rules. Leadership threw together an ad hoc committee, chaired by Sen. Joni Cutler, that declined to exercise subpoena powers or take testimony under oath. Dissatisfied with that lack of rigor, complainant Reps. Nelson, Lance Russell, and Lora Hubbel decided the hearing was not worth attending.
Chairwoman Cutler implored Rep. Russell to play nicely and said his attending the hearing in person would be much better than discussing the matter in writing:
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].
When the hearing convened the next day and certain legislators remained absent Chairwoman Cutler got out the stick:
Emphasizing the seriousness of the hearing, Cutler reviewed statutes outlining the consequences of a legislator neglecting or refusing to testify when summoned. The penalties include a Class 2 misdemeanor, the forfeiture of public office and disqualification of running for public office again in the state.
It was the chairwoman’s review that prompted Rep. Lora Hubbel, R-Sioux Falls, one of the three missing legislators, to hop into her car and make the 225-mile drive to Pierre.
“They said we had to or we are breaking the law. If they want to beat me up there, I will let them beat me up,” Hubbel said while getting into her car to leave [Megan Luther, "Legislative Probe Hears Conflicting Testimony," that Sioux Falls paper, 2012.01.04].
Cutler's January 2 letter to Rep. Russell doesn't appear to be a subpoena; she's simply inviting him to come speak in person to the committee. But when Rep. Russell refused to attend in person, she broke out statute:
SDCL 2-6-5: Disobedience of legislative summons as misdemeanor. Any person who is summoned to attend as a witness before either house of the Legislature or any committee thereof authorized to summon or subpoena witnesses, and who refuses or neglects without lawful excuse to attend pursuant to the summons or subpoena, is guilty of a Class 2 misdemeanor.
SDCL 2-6-6: Refusal to testify or produce evidence before Legislature as misdemeanor. Any person who, being present before either house of the Legislature or any committee thereof authorized to summon witnesses, willfully refuses to be sworn or affirmed, or to answer any material and proper question, or to produce upon reasonable notice any material or proper books, papers, or documents in his possession or under his control, is guilty of a Class 2 misdemeanor.
SDCL 2-6-7: Forfeiture of office by legislator in violation--Disqualification from public office. The conviction of a member of the Legislature of any crime defined in § 2-6-5 or 2-6-6 involves as a consequence, in addition to the punishment prescribed therein, a forfeiture of his office and disqualifies him from ever thereafter holding any public office under this state.
Chairwoman Cutler wielded this statutory threat on an ad hoc committee, in the absence of any formal summons.
Fast forward to today. Senator Larry Tidemann chairs the Government Operations and Audit Committee, which is specifically empowered by SDCL 2-6-4 to summon witnesses in its thorough examination of every state department's management and expenditures. He asks former state employee Joop Bollen to testify before the committee. Bollen refuses, with no apparent lawful excuse, and Tidemann shrugs.
The moral of the story: make millions of dollars while promoting a prominent Republican's pet project, and the Legislature will go easy on you. Question the Republican leadership, and the Legislature will discover its teeth and its statutory authority to bite.