The majority of voters in South Dakota on Nov. 8 decided to pass Initiated Measure 22, the Anti-Corruption Act, despite Republican legislators in some instances openly opposing it. The restrictions are bringing to light just how closely many lobbyists worked with legislators, of which 80 percent are Republicans. We’re now seeing that same type of relationship in the backlash against the Anti-Corruption Act during the past week, as legislators decide they don’t want to risk running afoul of the $100 limit on gifts from a lobbyist or company or organization. As someone who lives in Fun City, I know $100 buys two to three to four to five to six to seven to eight to nine to 10 meals, depending where you’re eating and which meal of the day and if you’re running a bar tab too.
In fact, there are enough lobbyists and companies and groups represented by lobbyists that legislators can eat free three meals a day even with a $100 gift limit. But the passage of the Anti-Corruption Act really does shine a light at some questionable situations that go beyond the ingrained practice of free meals any day a lawmaker wants one. The state constitution long has restricted conflicts of interest for legislators in Article 3, Section 12:
No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased during the term for which he was elected, nor shall any member receive any civil appointment from the Governor, the Governor and senate, or from the Legislature during the term for which he shall have been elected, and all such appointments and all votes given for any such members for any such office or appointment shall be void; nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected.
South Dakota went through the fight in 2001 over whether then-Rep. Carol Pitts, R-Brookings, could be paid for a job with the South Dakota State University Cooperative Extension Service while she was serving as a legislator. The state attorney general at the time, Mark Barnett, told Pitts she had a conflict of interest under the state constitution. She sued the state treasurer at the time, Vern Larson, to be paid for her job. The South Dakota Supreme Court refused to order Larson to do so. The decision is here.
What hasn’t been directly decided by the state’s five justices is whether a spouse of a legislator can be paid for work for state government. Three current legislators come to mind. They are:
Rep. Mary Duvall, R-Pierre, whose husband, Ron, holds a $77,404 job in Pierre in the state Department of Environment and Natural Resources;
Sen. Terri Haverly, R-Rapid City, whose husband, Jeff, holds a $58,059 job in Rapid City with the Governor’s Office of Economic Development; and
Rep. Tim Rounds, R-Pierre, whose wife, Kristin, has a $59,164 position in Pierre with the state Department of Health.
The question has been whether those types of household arrangements pose a violation under the state constitution. The passage of the Anti-Corruption Act now forces the related question of whether Gov. Dennis Daugaard would allow employment to continue and, likewise, whether the legislators would continue to serve. Would the current attorney general, Marty Jackley, pursue an extension of Barnett’s position regarding Pitts? Would the current treasurer, Rich Sattgast, refuse to pay the spouses of the three legislators? So far Jackley and Sattgast have stood clear of that ice.
The trigger in the Pitts case was the 2002 state budget taking effect on July 1, 2001. She had voted for it and thereby violated one of the prohibitions in the state constitution. During the 2015 legislative session, when the fiscal 2016 budget legislation passed, the three current legislators voted for it. The same during the 2016 session when the current fiscal 2017 budget legislation passed.
In 2002, Carol Pitts resigned from her seat in the state House of Representatives. She later returned in the 2006 election and served from 2007 through 2010. Her case split the Supreme Court 3-2. The only remaining member from the Pitts decision is the current chief justice, David Gilbertson, who wrote a dissent arguing for a narrow definition of the constitutional provision. He would have allowed Pitts to be paid. The majority decision written by now-retired Justice Richard Sabers, the special concurrence by the late Max Gors as an acting justice and the dissent by Justice Gilbertson show the path has somewhat zigged and zagged on the broader issue of legislator conflicts of interest. As Gilbertson noted, at least three people served in recent decades as legislators while working for the Board of Regents (Lyndell Peterson, R-Rapid City; the late Mary Wagner, R-Brookings; and Alice McKay, R-Rapid City). And as Gors retorted in his special concurrence, “Although this may be true, acquiescence does not make a prior practice constitutional.”
Some legislators and commentators are complaining that the Anti-Corruption Act reaches into marriages In the cases of lawmakers Duvall, Haverly and Rounds, that is a true observation. It is a thorny matter. If it is resolved, South Dakota could have clarity going forward. Another matter yet to be explored is whether the Anti-Corruption Act affects Lt. Gov. Matt Michels, who has continued to work for a major healthcare provider while also serving in his state post. That one cuts to the heart of the Daugaard administration.