Trump and South Dakota

In the months ahead, as President-elect Donald Trump’s new administration settles into place, the time will come for decisions on federal appointments for state-level posts such as U.S. attorney, farm agency directors and U.S. marshal. Traditionally the senior senator of the new president’s political party has sway on these. But that might not be true in 2017.

Whether Republican U.S. John Thune and Republican Gov. Dennis Daugaard have any say seems unclear and perhaps doubtful. Daugaard and Thune tweeted on an October Saturday that Trump should leave the race, after his comments about women.

At that time, the growing belief was Trump would lose to Democrat Hillary Clinton. Instead Trump won, nationally and in South Dakota. He also won the Republican primary in June in South Dakota. Thune, to my knowledge, didn’t endorse Trump at any point in the campaign until after Trump became the nominee. Daugaard didn’t either until after Trump was the nominee.

That leaves Republican U.S. Sen. Mike Rounds. He endorsed former Arkansas Gov. Mike Huckabee for the Republican presidential nomination; Huckabee had been an early backer of Rounds in his 2014 primary for the Republican Senate nomination. Rounds didn’t speak ill of Trump. Huckabee eventually supported Trump. Rounds endorsed Trump in May. During the October uprising against Trump, Rounds stuck with Trump but said the comments were deplorable.

Meanwhile Republican U.S. Rep. Kristi Noem went with Florida U.S. Sen. Marco Rubio for the Republican presidential nomination. There was a bitterness between Rubio and Trump. Noem endorsed Trump after Rubio dropped out. She stuck with Trump in October but criticized his repulsive language about women. Noem, whose positions align in many ways with Trump, announced days after the Nov. 8 elections that she will run for governor in 2018 rather than seek re-election.

She’ll likely remain a reliable vote for Trump policies in the Republican-majority House. More essential for Trump might be the votes of Thune and Rounds in the Senate, where Republicans will hold a 52-48 majority.

All of which points to yet another stroke of good fortune politically for Mike Rounds when it comes time for federal appointments in South Dakota.

Never mind the lawsuit. Look at sections 31 and 32.

Initiated Measure 22 does many things including limit gifts to a legislator or family member to $100 per year from a lobbyist for a company or group. Employment can be argued is a gift under IM 22. There’s part of the rub.

Section 31 of IM 22 establishes the gift limit. Section 32 establishes an ethics commission that the governor is supposed to appoint by Jan. 31, 2017. Section 31 says the commission is supposed to oversee the gifts limit.

The Legislature starts its 2017 session Jan. 10. That’s before the commission must be appointed. The Legislature would have 12 working days before the commission deadline.

If there are changes that Republicans and Democrats can agree upon in the House and the Senate, such as a definition of gift that doesn’t cause people to give up their jobs or their legislative seats, there would be time to make the changes.

Could the changes carry an emergency clause, so they took immediate effect upon the governor’s signature, and therefore be immune to a referral? That would be up to the legislators to argue.

But putting many people out of their jobs or forcing their resignations from the Legislature could be construed as an emergency. It certainly would be in those households hit by the $100 limit.

The Legislature is scheduled to meet for its final day March 27. Normally state boards, commissions and agencies don’t set rules during the legislative session.

If the commission would break from accepted current practice and work on the rules during legislative session, the commission would need to work at a fast pace to be done before March 27.

The commission will need time to discuss rules, formally propose the rules, hold a public hearing and adopt them.

Ultimately the Legislature’s rules review committee would need to see whether the commission followed state laws for setting rules. So those three representatives and three senators could have the final say. The rules review committee typically doesn’t meet during legislative session.

That means April at the earliest.

Some might call this a loophole. But it might be preferable to legislators asking the South Dakota Supreme Court for some kind of action that prevents IM 22 from taking effect.

It’s possible that three of the five justices would be willing to deny the will of the majority of voters who approved IM 22 on Nov. 8.

But it seems like a hard swallow.

Restricting scope of prison and jail impact statements

One of the transparency steps taken by the Legislature in the past few years was requiring official estimates of the effects that additional criminal penalties could have on prison and jail populations. The Legislative Research Council’s director, Jason Hancock, now has backing from the Legislature’s Executive Board to try to reduce some of that workload. He proposed legislation that would require the impact statements only for felonies; legislators wanted the work to continue for Class 1 misdemeanors too.

If the full Legislature agrees, the estimates wouldn’t be required any longer for Class 2 misdemeanors  The law, which was originally passed in 2013 and modified in 2015, currently requires the impact to be estimated for any legislation “that increases the period of imprisonment authorized for an existing crime, that adds a new crime for which imprisonment is authorized, that imposes a minimum or mandatory minimum term of imprisonment, or that modifies any law governing release of a prisoner from imprisonment or supervision.”

The proposed legislation also would eliminate the state Bureau of Finance and Management as one of the two agencies that could perform the estimates. The Legislative Research Council would be solely responsible under the proposal. The estimates are required to be completed before legislators can consider the bill or an amendment.

Rep. Bob Roe, 1954-2016

The funeral service will be held Tuesday, Nov. 22, for former state Rep. Bob Roe. The Brookings Republican died Nov. 18 at age 62. Flags in South Dakota are to be lowered to half-staff on Tuesday by order of Gov. Dennis Daugaard to recognize his legislative service.

Roe served during a different political climate at the Capitol. He spent 11 sessions in the state House of Representatives, after then-Gov. George S. Mickelson appointed Roe to a vacant House seat for Brookings County on Nov. 28, 1989, to replace Dean Krogman, R-Brookings. (Krogman entered the Legislature through a similar appointment, by then-Gov. Bill Janklow, on July 12, 1984, to fill a vacancy left by the resignation of Sheldon Cotton.) By being elected in 1992, he became subject to South Dakota’s new term-limits amendment that voters passed for the state constitution that year. He came up against the limit of election to four consecutive terms in the same chamber with his 1998 re-election and didn’t run in 2000.

It takes a lot of research through the legislative records to capture the essence of a legislator who served as long as Roe. I won’t bore you with all of that. Looking just at his final term, it’s worth noting that he was chairman of the House Commerce Committee and held a seat on the House State Affairs Committee, a panel where leadership resides from both parties. He was a true player within the House leadership even though he didn’t hold one of the big titles.

As for lasting impact from that final term, Roe was the House lead sponsor on the legislation that created an insurance fraud unit in state government; the prime sponsor was then-Sen. Dennis Daugaard. The measure, SB 75, initially failed in the Senate to get a two-thirds majority that necessary. Eventually Daugaard won a reconsideration vote and then picked up eight ayes from senators for passage 29-6. In the House, SB 75 rolled through 60-6.

In 2000, Roe was six years ahead of his time regarding renewable energy production; his Commerce committee killed his legislation HB 1232 that called for a net-metering system for billing customer-generators for producing electricity from renewable sources, such as solar and wind, that they could sell to their utilities. The Legislature in 2006 gave the Public Utilities Commission authority to establish rules for such systems.

Bob Roe loved hunting and the outdoors generally. A financial advisor, he was a courteous, friendly person by nature. The cause of his death was pancreatic cancer. He served under three very different governors in George Mickelson, who came out of Brookings and was a reformer of sorts on the environment and saw the need to add state loans to help economic development projects; Walter Dale Miller, who ascended from lieutenant governor upon the deaths of Mickelson and seven other men in the 1993 state airplane crash; and then Bill Janklow who made property-tax relief the cornerstone of his return as governor in 1995.

Roe cast his last votes as a legislator during the special session called in late December 2000 by Janklow regarding Janklow’s proposed sale of the state cement plant. Roe voted aye on all three major pieces of the package: SB 1, the bill that made the technical changes needed in state law; SCR 1, the concurrent resolution through which legislators gave their aye or nay on the sale itself; and SJR 1, the joint resolution seeking a public vote on the constitutional amendment that was necessary to put the proceeds in a permanent trust fund whose earnings could be used for public purposes.

Bob Roe served with grace during some important times in South Dakota’s political history. His was a life worth noting and remembering.

Watch for many new approaches in Legislature

The Republicans in the state House of Representatives certainly stayed conservative in selecting their new leadership team for the 2017-2018 legislative term. As expected Rep. G. Mark Mickelson, R-Sioux Falls, moved up one big step to House speaker after serving the current term as speaker pro tem. The race for speaker is traditionally decided two years earlier in the race for speaker pro tem, or assistant speaker. Moving into the speaker pro tem post will be Rep. Don Haggar, R-Sioux Falls, for the 2017-2018 session. He is one of the chamber’s fiscal and social conservatives, perhaps more so than the outgoing speaker, Rep. Dean Wink, R-Howes, who didn’t automatically go along with every socially conservative piece of legislation that went through the House.

Haggar has been a strong opponent to Medicaid expansion and was prime sponsor this year of HB 1234 that would have required legislative approval before a governor could expand Medicaid. The House approved his measure but it died in a Senate committee. Republican Gov Dennis Daugaard initially opposed Medicaid expansion, then began to pursue it during the past year as one piece of an effort to also improve healthcare services for American Indian people, and announced this month after the election of Donald Trump as U.S. president and a conversation with former Indiana Gov. Mike Pence, the vice president-elect, that he wouldn’t pursue it any longer for South Dakota.

The new House Republican caucus leader is Rep. Lee Qualm, R-Platte. He is a steady personality in legislative matters who hasn’t appeared to have aspirations for statewide office. He is a farmer by profession and a strong ally for moving agriculture forward in South Dakota. In that light, he served as chairman of the House Agriculture and Natural Resources Committee during the 2015-2016 term.  He also is a defender of the Second Amendment to the U.S. Constitution and was prime sponsor of legislation this year to allow concealed-carry of pistols in the state Capitol and county courthouses; he likewise was lead House sponsor of a Senate bill to allow concealed-carry in the Capitol. One of the co-sponsors of the Haggar Medicaid bill was Qualm.

The private elections Saturday chose Rep. Kent Peterson, R-Salem, as the House Republicans’ assistant leader. Peterson is a farmer and has been working with Mickelson the past two sessions on ways to streamline the local-approval process for farmers and ranchers who want to open or expand concentrated animal-feeding operations most frequently known as feedlots. He wasn’t prime sponsor of any House bills in 2016 and one in 2015. He seems to be well-liked in the House.

The five House Republican whips — each is assigned a group of House Republicans from whom they get information and opinions and likewise communicate information from the House Republican leaders — are fiscally and socially conservative across the board in Lynne DiSanto of Rapid City, Larry Rhoden of Union Center, Leslie Heinemann of Flandreau, Arch Beal of Sioux Falls and Isaac Latterell of Tea.

Rhoden returns after a one-term absence. He served four terms in the House 2001-2008 and, term-limited there, he then won three terms in the Senate 2009-2014 before running for the Republican U.S. Senate nomination in 2014.

The Senate Republicans overhauled their leadership for 2017-2018 as well. They chose Brock Greenfield of Clark as the Senate president pro tem, the No. 1 legislator in the body. He has promised that he won’t appoint any of the Senate leadership to positions as committee chairmen or vice chairmen. That will spread out responsibility and perhaps open avenues for more senators (and possibly more House members) to get their legislation through committee hearings to the Senate floor for votes by all 35 members. Many past House members who firmly were fiscal and social conservatives won election to the Senate for the coming 2017-2018 term, so that portends a cooperative working relationship between the two chambers. The Senate Republican caucus leader is Blake Curd of Sioux Falls. The Senate Republican assistant leader is Ryan Maher of Isabel.

With Medicaid expansion off the agenda by governor’s decision, and with state government receiving less in tax revenues than forecast, the coming session promises to focus on state government’s budget and services and on tax issues. Look for transgender policy to be a major fight again after Daugaard’s veto of Rep. Fred Deutsch’s restrictions in the 2016 session. Removing some concealed-carry restrictions will likely be attempted again. The new state-aid formula for state aid to public schools, now based on teacher-student ratios, likely will be considered for adjustment now that the first-year numbers are in. The other very big issue will be the many deep restrictions approved by voters on legislators, state office holders and lobbyists in Initiated Measure 22, known as the Anti-Corruption Act.

Republicans will hold 60 of the House seats in the coming session while Democrats hold 10. The House Democrats chose Spence Hawley of Brookings to return as their caucus leader. In the Senate Republicans will 29 of the seats, while Democrats have six in name; they aren’t including Sen.-election Reynold Nesiba of Sioux Falls in their caucus while he awaits prosecution on a sex-related charge. The Senate Democrats chose Billie Sutton of Burke again as their caucus leader.

With Anti-Corruption Act, thorny situations now face Daugaard administration and some legislators

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.

Some thoughts on future ballot measures

The 2016 elections exposed the need for many changes in South Dakota’s laws and processes regarding statewide ballot measures.

1. We clearly need a requirement that a fiscal-impact note be prepared on each one. Voters aren’t treated the same as legislators. A legislator can request a fiscal note and the process pauses for the preparation of one by the Legislative Research Council’s non-partisan professional staff. Voters don’t have this same opportunity on ballot measures. Getting a fiscal note from LRC on each ballot measure would provide voters with more information. Then they can know how much a Marsy’s Law or an Anti-Corruption Act potentially costs.

2. Related to the fiscal note, the sponsor or sponsors of a ballot measure should be required to supply a response to the fiscal note and explain the source of the funding. Right now, we have an unusual situation involving Marsy’s Law and the additional $500,000 that state Attorney General Marty Jackley estimates he needs to convert the SAVIN victim-notification system to comply. As attorney general, Jackley’s duty was to write the explanation of the ballot measure for voters. At the same time, Jackley has been preparing for years to run for governor. The consultant working with Jackley on his governor campaign is Jason Glodt of Pierre. The consultant hired to run the Marsy’s Law campaign by its California proponent is Jason Glodt. One of the funding sources that’s been suggested by the attorney general is to ask the California proponent for the SAVIN money. Meanwhile county governments face additional costs to meet the Marsy’s Law victim-support requirements. The SAVIN system has yet to be triggered statewide.

3. Clarification is needed whether voters can tell the Legislature to spend money, and if so, whether the voters can dictate the sources of the money and the specific amounts. This is what’s contained in one portion of the Anti-Corruption Act with its Democracy Credits program for public funding of candidates seeking state offices. The Anti-Corruption Act tells the Legislature to appropriate $100 for each registered voter and allows each voters two $50 Democracy Credit vouchers that can be directed to candidates. Supporters and critics can argue whether public campaign funding is a good idea — the federal government does it, but you have the option on your federal tax return whether you want part of your taxes to be used — but the unresolved question in South Dakota right now is whether a ballot measure can be used to establish a specific spending program.

4. It’s time to move the attorney general, regardless who holds the office, out of the responsibility for writing ballot-measure explanations. The attorney general must defend the state in court if a measure is challenged after voters decide it should be law. There is a clear conflict between requiring an attorney general’s pre-election analysis and ultimately opinion, and then requiring the attorney general to defend the initiated law in court. There’s also an inherent opportunity for bias from any attorney general in preparing the explanations. And then there is the potential, or in the case of Marsy’s Law, the actual political entanglements. The Legislative Research Council might be the better choice for performing the ballot-measure explanations. The LRC is non-partisan and answers to the full Legislature with lawmakers from multiple political parties and wings of those parties. Who would oversee the LRC’s explanations? It could be the Legislature’s Executive Board, which isn’t politically balanced but seems to fairly represent the House and the Senate. The board could serve as a forum for a public hearing on whether an explanation is fair and accurate. Right now that determination is up to one person and there’s really not any review. We saw another example of political entanglement when Rep. G. Mark Mickelson proposed the constitutional amendment empowering the Legislature to decide how the technical institutes should be governed and drawing a barrier against the regents running them; at the time Mickelson was aiming to run for the Republican nomination for governor in 2018, as was Jackley, and it’s fair to say the technical-institute community was surprised and somewhat disappointed by the way the attorney general framed this issue in his ballot measure explanation.

5. Require a statement on each ballot measure that tells voters when the law would take effect if voters approve it. Also tell voters that the Legislature has the authority to change an initiated law but doesn’t have the power to change a constitutional amendment. A wing of Republicans seems anxious to erase parts of the Anti-Corruption Act for various reasons when the 2017 legislative session opens in January. Their outcry naturally prompts the question from some voters: “How can they change what we just did?” We likewise saw the same situation in 2015 when the Legislature’s Republican majorities decided the new minimum wage that voters approved in November 2014 wouldn’t apply to workers younger than age 18; the youth minimum wage was forced to a referendum and put on the November 2016 ballot. Voters rejected the youth minimum wage law’s lower pay for those under 18.

There are various technical changes that could clean up the petition and signature-gathering process. The state Board of Elections has been considering some of those and the Legislature will get its crack in January. But there needs to be a significant overhaul so that voters — and petition signers — can know more about what is being put in front of them to decide.

Rail board meets new administrator

The state Department of Transportation hired Jack Dokken about one month ago as its administrator for air, rail and transit programs. Dokken introduced himself Wednesday to the state Railroad Board, one of the DOT panels he serves. He previously worked for six years in the state Department of Public Safety. He focused there on federal emergency management grants. Likewise, federal grants are a major source of funding for the rail, airport and transit programs at DOT. Dokken said he has “a pretty wide experience” with different types of infrastructure. Railroad Board members led by chairman Todd Yeaton of Kimball welcomed Dokken aboard.

Joel Jundt, who is deputy secretary of transportation, oversaw the rail, air and transit programs during the past three months since the departure of Bruce Lindholm. Jundt said Wednesday he’ll continue to work in those areas during the weeks ahead with Dokken. “We’re going to do well,” Jundt told the rail board members. “This transition is going to take a little while.”

Specifics in the air, rail and transit areas were somewhat new to Jundt, a long-time DOT employee whose expertise previously had been as director of planning and engineering in the roads and bridges program. State Transportation Secretary Darin Bergquist promoted Jundt to the post of deputy secretary in December 2015. Jundt had been director of planning and engineering since 2008. Succeeding Jundt in that post is Mike Behm.

Jundt announced Wednesday that the governor had reappointed rail board members Jerry Cope of Rapid City and Harlan Quenzer of Mitchell. Jundt said the governor was still working on a successor to Carl Anderson of Aberdeen, who resigned earlier this year for health reasons.

The Railroad Board and rural shippers have aggressively pursued federal grants, made loans and corralled more state and private funding to improve state-owned rail lines during the six years of the Daugaard administration and restore them to full service. The line west from Mitchell now serves two major elevators at Kimball and Kennebec. The Britton line serves a new elevator there. Service is about to be restored on the Napa line in the months ahead. New sidings are being added on the privately operated line connecting Rapid City, Pierre and Brookings so train traffic can increase.

So far this fall, the new Kennebec elevator and the new Britton elevator have loaded five trains apiece. “We’re seeing equal movement. That’s pretty impressive,” Yeaton said upon being told that. He manages the Kimball elevator.

Jundt said Wednesday that he attended a national meeting in Boston earlier this week where experts made their predictions on what to expect from the administration of President-elect Donald Trump. Jundt said expectations are more federal investment in infrastructure including TIGER grants for railroads. Yeaton asked Jundt to have the DOT staff ready to pursue another TIGER grant. Past ones were used on several rail lines in South Dakota.

State Board of Education delays rewriting statement of purpose in wake of ‘R’

The South Dakota Board of Education unanimously re-elected Don Kirkegaard of Sturgis as president and Deb Shephard of Watertown as vice president on Tuesday. That was after Kirkegaard asked for the brakes to be applied by the board to one of its planned tasks for the meeting: Reviewing its 1995-era mission statement to see if updates are needed.

South Dakota voters approved Constitutional Amendment R last week telling the Legislature to decide who governs the public technical institutes. The outcome wasn’t a landslide: 178,187 yes and 173,924 no. The amendment failed in two-thirds of the counties. Only Brookings, Brown, Buffalo, Clay, Codington, Davison, Deuel, Grant, Hutchinson, Hyde, Jerauld, Lincoln, Marshall, Minnehaha, Oglala Lakota, Todd and Yankton counties supported it.

Here’s how state Attorney General Marty Jackley described R in his official ballot explanation:

Under the South Dakota Constitution, the Board of Regents is responsible for postsecondary educational institutions funded entirely or in part by the State. Constitutional Amendment R applies to postsecondary technical education institutes that receive state funding and offer career and technical associate of applied science degrees, certificates, or their equivalents. Currently, there are four such institutes: Lake Area Technical Institute, Mitchell Technical Institute, Southeast Technical Institute, and Western Dakota Technical Institute. Under the amendment, postsecondary technical institutes will be governed separately in a manner to be
determined by the Legislature.

The amendment also clarifies that the Board of Regents retains control over state-funded postsecondary educational institutions offering associate of arts, associate of sciences, bachelor’s, and postgraduate degrees.

The Legislature proposed the amendment. Currently the regents govern the state universities and the two special schools for the deaf and visually impaired. The state Board of Education oversees the four technical institutes at Watertown, Mitchell, Sioux Falls and Rapid City, but the institutes are each separately operated by the local public school districts. (Some rainy day I’ll try to dig out the history of this unusual arrangement.) For decades there has been push and pull between the two state boards. Several regents have routinely expressed criticism that the tech schools encroach on the universities’ academic turf. For a while the two sides signed articulation agreements intended to ease the transition of tech graduates to state universities. And during the previous decade, then-Sen. Dave Knudson, R-Sioux Falls, labored at times to define a line separating the regents from the tech schools but he didn’t succeed. The latest attempt came from Rep. G. Mark Mickelson, R-Sioux Falls, during the 2015 session. He had overwhelming support to put it on the ballot. He wanted to create an opportunity for the tech schools to grow and expand their missions for the purpose of workforce development. The amendment doesn’t tell the Legislature how to draw the line but says the Legislature can. Here’s the exact text:

Postsecondary technical education institutes that offer career and technical associate of applied
science degrees and certificates or their successor equivalents and that are funded wholly or in part by the state shall be separately governed as determined by the Legislature.

All of which brings us back to Tuesday’s non-action by the state Board of Education and the board’s statement of purpose. “We just passed Amendment R. How will that affect the state Board of Education?” Kirkegaard asked. Board member Marilyn Hoyt of Huron agreed and suggested tabling the review until the May 15 meeting in Rapid City. Board member Glenna Fouberg of Aberdeen seconded Hoyt’s motion and the eight board members present voted unanimously for that path. The delay is intended to allow the Legislature time to finish its 2017 session. The final day of session is scheduled for Monday, March 27, after the board’s January and March meetings.

The reason, by the way, the board wanted to review its statement of purpose is the black eye over the Gear Up scandal. The board doesn’t have authority over the program but its members repeatedly say they’re taking heat. Perhaps there’s a message for the board in that heat: Rather than change a purpose statement that the average citizen likely doesn’t know exists, maybe the board should ask the Legislature for authority over more of the state Department of Education’s activities and personnel. Right now the board’s main functions are approving standards for K-12 schools, rule making for the department and setting courses, tuition and fees for the technical institutes.

You can read the existing 1995 version and the proposed draft version.