South Dakota worker wins important case

The South Dakota Supreme Court, in a decision that was unanimous and written by Chief Justice David Gilbertson, has overruled an administrative law judge and a circuit judge in the worker compensation case of a Sioux Falls woman. Patricia Wheeler had been working three jobs when she was injured at one of them, the Cinnabon at the Empire Mall. She was unable to keep working at her other jobs at Westside Casino and a convenience store in Sioux Falls. Wheeler was granted worker compensation based only on her Cinnabon earnings; her lawyers contended the Cinnabon injury kept her from working at all and the earnings from her other jobs should be part of the calculation as well. Wrote Chief Justice Gilbertson:

The definition of “earnings” in SDCL 62-1-1(6) is ambiguous. We,
therefore, interpret “earnings” in Wheeler’s favor. Because “earnings” is utilized to
calculate a worker’s AWW, we hold that SDCL 62-4-24, SDCL 62-4-25, and SDCL
62-4-26 allow for the aggregation of wages when an injury at one employment
renders the worker incapable of performing that employee’s other concurrently held

To read the full decision released Thursday in Wheeler go here.

New Investment Council member will be picked

The South Dakota Investment Council’s citizen members serve single five-year terms. Jon Hunter, publisher of the Madison Daily Leader newspaper, is the current chairman and will be leaving mid-summer at the end of his term. The council helps steer the billions of dollars of investments made for state government’s cash fund, trust funds and related funds, as well as the billions of dollars in the investment portfolio for the South Dakota Retirement System’s members, who come from state government, state universities, public school systems, cities, counties and various special units of governments. The Legislature’s Executive Board makes the selections of the five citizens appointed to the council. The other members are the state treasurer, the state school and public lands commissioner and a representative of SDRS. The Executive Board currently is accepting applications. To learn more go here for the state law establishing the council and go here for the law regarding qualifications and restrictions for members. The application deadline is May 25.

Some big changes coming to DSU

Among the items to be discussed Tuesday at a special meeting of the state Board of Regents are two significant developments at Dakota State University in Madison. The National Security Administration wants to establish a formal agreement with DSU to conduct a cryptology program. And DSU wants to split off a piece of its current College of Business and Information Systems. The new alignment would feature the College of Computing, where computer science, game design and cyber operations / network security would be taught; and the same-named College of Business and Information Systems with business, information systems, and health and information management. Each college would have a dean, with department chairs below. The agenda for the meeting at Holiday Inn City Centre in downtown Sioux Falls is here. The regents’ new board president, by the way, is Randy Schaefer of Madison.

Schwarting chosen for national election panel

Jerry Schwarting, the Mellette County auditor now in his third term, last week received responsibility to serve as one of nine executive board members for the U.S. Elections Assistance Commission Standards Board. The EAC has 110 members, with two each from the 55 states and territories. South Dakota Secretary of State Shantel Krebs announced Schwarting’s selection today. Krebs said she is pleased the EAC is functioning again after four years of inactivity. Schwarting has been auditor since 2006 and previously was a member of the Mellette County Commission from 1994 to 2002, according to Krebs.

New video-lottery machines are producing more

Other newsworthy matters prevented me from attending the strategic planning session held by the South Dakota Lottery Commission last month. But the video lottery performance review assembled for the meeting shows the overall uptick in net machine income — the money lost by players — isn’t an aberration. The reason appears to be the gradual increased investment by owners in the line-up style of games. They are slowly replacing the standby of the past two decades, the VLC 8700. The new machines feature casino-style slot-machine games, rather than only the traditional poker, blackjack and keno games, and they are providing a slightly better payback to players while providing a clearly better NMI to the establishments and machine owners. What seems to be happening is the “hold” percentage is slightly lower for the new machines as a whole, which creates the perception of a better payback for the players. But the players in turn are losing more money per day on the new games when measured on a per-terminal average between the line-up games and the legacy games. I don’t know any players whose goal is to break even. What seems to generally happen is they sometimes hit a big number but more often play out the money they put in. The growth in NMI is a positive trend for state government and the businesses, who split the NMI essentially 50-50. Whether the NMI is coming from more players, or from the same players spending more, I don’t know.

Clusters of appointees in the Legislature

South Dakota has 35 legislative districts. Each district has two representatives and one senator. In Pennington County, there is a district — 32 — where all three legislators were appointed by governors to fill vacancies. The three lawmakers are:

Rep. Brian Gosch, R-Rapid City, who was named Sept. 24, 2007, to fill a vacancy left by the resignation of Alan Hanks;

Rep. Kristin Conzet, R-Rapid City, who received an appointment Dec. 1, 2009, to fill the vacancy left by the resignation of Brian Dreyer; and

Sen. Alan Solano, R-Rapid City, who was appointed Jan. 13, 2014, when Stan Adelstein couldn’t continue to serve because of health issues.

This comes to mind today after Gov. Dennis Daugaard chose Bill Shorma, R-Dakota Dunes, to fill the District 16 Senate seat left open by the resignation one month ago by Dan Lederman, R-Dakota Dunes.

Two of the District 16 seats now have been filled through appointment. Almost two years ago, the governor chose David Anderson, R-Hudson, to serve the remainder of Patty Miller’s term in the House after she resigned to care for her husband. Anderson won election last November.

The same will be true soon in District 25, as the governor ponders the replacement for Tim Rave of Baltic. Two years ago, Daugaard chose Kristen Langer, R-Dell Rapids, to serve the rest of Jon Hansen’s term in the House after Hansen resigned to attend law school. Langer won election last November.

And, for what it’s worth, serving a partial term at the start doesn’t count against the state constitution’s limit of four consecutive terms in the same chamber. Gosch, for example, just served his eighth session and he gets a ninth in 2016.

Some veterans seek to refer HB 1179

That’s the pending law that expands the definition of a veteran in South Dakota. The names on the petition are Theodore Fowler and Terry Bacon, each of Aberdeen. Here is the pending law but the actual legislation gives a better picture of what HB 1179 actually changes. The governor supported the measure, as did 97 of the 101 legislators who voted on the final version. The petitioners need at least 13,871 valid signatures of South Dakota registered voters and must submit them no later than 90 days after the March 30 adjournment of the 2015 legislative session. So the clock is ticking. This is third referral attempt in play this spring. The others attempt to refer the youth minimum wage in SB 177 and a catalog of election law changes in SB 69. If sufficient signatures are gathered — each measure has a separate petition — the measure wouldn’t take effect as law July 1 and instead would be suspended until after the November 2016 general election.

If you planned to attend the TransCanada proceedings…

… next week, make different plans. The state Public Utilities Commission decided today to push back the May 5-8 evidentiary hearing to either late July or early August. The new dates will be selected Thursday. The commission also postponed the public-input meeting that was planned for the evening of May 4. That too will be rescheduled. The proceedings deal with whether the TransCanada Keystone XL pipeline project can continue to meet the requirements set in the original permit granted by the PUC in 2010. TransCanada has been unable to proceed without White House approval that is needed to pierce the Canada-U.S. border. South Dakota law requires that a permitted project be certified whether it can continue to meet the permit conditions if the project hasn’t started in four years. That is the purpose of the present proceedings. While the opponents haven’t used their time to its greatest efficiency, the company also has been rapped twice now for moving slower than the PUC wants in providing information to the opponents during the discovery process. Commissioners Gary Hanson and Chris Nelson made clear today they won’t tolerate another extension of time. Nelson said he was ready to go. So appears to be TransCanada.

Will Legislature separate its IT system? (w/update)

The Legislature’s Executive Board meets today (Monday, April 27) and one of the topics is an IT (information technology) system upgrade. What we’re hearing through the grapevine is some lawmakers want to move forward with a separate IT system that would be independent of the executive branch. Currently the state Bureau of Information and Telecommunications provides services to the governor’s departments and bureaus and to those other elected executives who choose to use BIT. The judicial branch is already separate. We’ll know more later today. The matter is scheduled for this afternoon. The main meeting starts at 10:30 a.m. CT and the agenda is here. If you want to listen to the meeting, the audio link is here (click on the SDPB logo to the right of the chart).

UPDATE: The Executive Board voted 14-0 to proceed with an independent system. It would be in operation for the 2016 legislative session, although the Legislature would continue to pay BIT through the end of the session in what LRC director Jason Hancock described as belt and suspenders.

Opponents want protective order dropped on KXL pipeline documents

The state Public Utilities Commission just announced a special meeting will be held Monday morning at the Capitol regarding the evidentiary hearing scheduled for May 5-8 on the permit for TransCanada’s proposed Keystone XL petroleum pipeline. Opponents want a protective order vacated or changed regarding various documents that TransCanada wants kept confidential. The seven opponents jointly filed their 10-page motion today (Friday). The motion came from Dakota Rural Action, Rosebud Sioux Tribe, Yankton Sioux Tribe, Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Indigenous Environmental Network and Bold Nebraska. The PUC meeting will be at 9 a.m. CT in room 414. The motion is here. Exhibit lists are due Tuesday, April 28. The motion contends that the parties can’t file their exhibit lists without the protective order being vacated or changed. The motion further argues that TransCanada didn’t apply for the protective order as required by the PUC’s rules and the order therefore should be invalid. The order makes confidential, according to the motion, approximately 2,508 files in 222 folders. The motion also argues there isn’t sufficient time from April 28 to May 5 to sufficiently examine the exhibits that are being provided by TransCanada.