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Felonies for silent supervisors a sticking point as anti-corruption bills clear SD Senate • South Dakota Searchlight [1]
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Date: 2025-02-18
PIERRE — Supervisors who know about state employee malfeasance and don’t report it deserve a felony charge and possible prison time, Attorney General Marty Jackley says.
Since a good share of such malfeasance would only net the misbehaving employee a misdemeanor charge, Gov. Larry Rhoden’s office says, a felony for the supervisor is a bit much.
That disagreement represents the brightest remaining daylight between Jackley and Rhoden on Jackley’s four-bill anti-corruption package.
All four bills started in the state Senate and have now cleared that chamber; action is pending in the House. The anti-corruption bills were born of a half dozen recent criminal investigations into state employee misbehavior.
The governor and attorney general agree on the language in three of the bills, but the question of felonies for state employee supervisors has confounded attempts for consensus on the fourth.
Felony charges remain sticking point
Senate Bill 62, which outlines the circumstances under which a supervisor must disclose employee fraud, theft, double dealing or conflicts of interest – and the penalties for failure to do so – cleared the House Judiciary Committee 5-1 on Feb. 11.
On Tuesday, the full Senate passed the bill 33-2.
Katie Hruska, a staff attorney in Rhoden’s office, pleaded with the committee on Feb. 11 to strike the felony charge from the bill. She noted that the failure of the average citizen to report a hit-and-run traffic accident, to report child and elder abuse, and to disclose knowledge of a felony are all misdemeanor charges under state law.
Hruska argued that fear of a class one misdemeanor charge, punishable by up to a year in jail, would be enough to scare skittish supervisors into disclosure “without creating a climate of fear” among state employees.
Her comments convinced Sen. Amber Hulse, R-Hot Springs, who nonetheless supported sending SB 62 to the Senate floor, that the governor’s office had valid concerns to address.
“If not reporting child abuse is a class one misdemeanor,” Hulse said, not reporting a conflict of interest doesn’t belong in the felony category.
Sen. Tom Pischke, R-Dell Rapids, sided with Jackley. Employee misconduct is serious, he said, and the recent cases are proof that the state’s current laws are inadequate.
“I applaud the attorney general for not backing down,” Pischke said.
One of the recent investigations into former state employees involved an alleged $1.8 million theft by a former Department of Social Services employee.
Another involved a Department of Public Safety employee signing off on – and getting paid for performing – food safety inspections that never took place. That one came to light, Jackley said, when a whistleblowing employee reached out to a lawmaker and asked her to report the issue on her behalf without revealing her name.
“I don’t think we should learn about a criminal case when a state employee calls a legislator,” Jackley said.
On Feb. 11, Jackley told the committee his office is looking into three other cases involving state employees.
An attempt to switch the penalties to a misdemeanor reappeared on the Senate floor on Tuesday.
“Failing to report a crime is not the same as committing the crime itself,” said Sen. Tamara Grove, R-Lower Brule.
Opponents of the amendment urged senators to side with the attorney general. Sen. Jim Mehlhaff, R-Pierre, said amending a bill on the Senate floor is not “respectful to the process,” as it doesn’t allow non-legislators to make their case for or against the change.
Hulse rejected that notion.
“As legislators, we always have the ability to amend the legislation as we decide,” Hulse said in support. “It is ultimately our decision.”
The Senate voted 22-13 to defeat the amendment.
Whistleblower protections
Senate Bill 63, designed to protect whistleblowers, sailed through the Judiciary Committee on the strength of a compromise between the Jackley and Rhoden camps.
Initially, Jackley’s proposed protective measures included his own office signing on to defend state employee whistleblowers sued over their disclosures. That “got a lot of resistance,” he told the committee.
He agreed to dial that back to a provision that would cover the whistleblower’s attorney fees in such a lawsuit. The bill wouldn’t protect an employee from prosecution if the employee was involved in the reported corruption, and its shielding provisions would expire two years after the whistle is blown.
SB 63 passed the Senate 35-0 on Feb. 13.
Auditor power expansion
The first of the anti-corruption bills, Senate Bill 60, would give the state auditor the authority to access state agency financial records – which the auditor doesn’t currently have – but no longer gives the auditor the ability to conduct forensic audits.
Sattgast told South Dakota Public Broadcasting in the wake of the recent scandals that his office’s limited authority is a measure of the state’s divided duties and limits the elected officer’s ability to monitor state records. The state’s auditor general is the official charged with monitoring agency inner workings.
The governor’s office argued that would be duplicative of current auditing rules, and that elected auditors don’t necessarily have the experience as professional auditors.
The forensic auditing provision was stripped from SB 60 as part of a compromise between Jackley, Rhoden and Auditor Rich Sattgast.
SB 60 and the last of the anti-corruption bills, Senate Bill 61, cleared the Senate on the same day, Feb. 6. SB 61 expands the authority of the state’s Internal Control Board. Rhoden’s office was involved in crafting that bill, a Jackley spokesman told South Dakota Searchlight.
Other pending legislation filed in reaction to the recent investigations include bills from lawmakers that would strengthen and clarify the ability of the Legislature’s Government Operations and Audit Committee to issue subpoenas compelling written or in-person testimony.
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