FEBRUARY 10, 2024:
South Dakota Attorney General Marty Jackley issued the following information in reaction to the state Supreme Court’s issuance of an advisory opinion regarding conflict of interest for state government employees and legislators.
The Supreme Court has issued a very thorough decision clarifying and detailing the scope of Article III, Section 12. This clarification will help the Governor in exercising her executive authority to fill legislative vacancies, the Legislature in identifying potential conflicts, the Auditor in authorizing the payment of tax dollars, and the Attorney General in the enforcement of our Constitutional and related laws.
“The Attorney General will continue to enforce our State’s conflict of interest laws as defined by statute and interpreted by the South Dakota Supreme Court. I appreciate our Supreme Court’s thorough, deliberate and expedited decision, and we are pleased to have the Court’s guidance to assist in enforcing Article III, Section 12 conflicts going forward,” stated Attorney General Jackley. “To the extent questions remain concerning the application of the Supreme Court’s decision, the Attorney General will continue to be guided by the principle formulated by then-Attorney General Bill Janklow that an actual conflict of interest will exist if a public servant’s financial interest in a public contract influences or affects his or her decision-making in carrying out public duties.”
FEBRUARY 9, 2024:
The South Dakota Supreme Court issued an advisory opinion Feb. 9, 2024, in the matter of interpretation of the South Dakota Constitution and state laws regarding state legislator interest in state or county contracts.
The opinion follows the Supreme Court hearing oral arguments on Jan. 8, 2024, for Gov. Kristi Noem’s request for an advisory opinion on nine individual and fact-specific questions concerning the constitutional restriction upon legislators contracting with the state of South Dakota.
View the advisory opinion at https://ujs.sd.gov/uploads/sc/opinions/30488ac53a4b.pdf.
JANUARY 8, 2024, UPDATE:
The South Dakota Supreme Court heard oral arguments Monday (Jan. 8, 2024) from the South Dakota attorney general and legal counsels for the governor and the state legislature. The purpose of the 70-some minute session of the state’s highest court was to try to determine what does and does not constitute a conflict of interest for legislators.
Katie Hruska, general counsel for Gov. Kristi Noem, says the governor is looking for clarity. However, Justice Mark Salter may have determined the real issue.
What’s at stake in the short term Noem’s ability to appoint fill two vacant seats in Rapid City area districts with people who won’t later be found to have conflicts.
In the longer term, the governor, legislators and the attorney general want the court to issue an advisory opinion that clarifies not just what a conflict is, but also what a direct and indirect conflict is.
Ron Parsons, attorney for the legislature, says that line needs to be clarified.
The South Dakota Supreme Court Justices will issue a written opinion at a later date.
(Todd Epp, South Dakota Broadcasters Association, contributed to this story.)
JANUARY 8, 2024:
By Todd Epp, South Dakota Broadcasters Association.
On October 20, 2023, Governor Kristi Noem invoked Article V, Section 5 of the South Dakota Constitution for an advisory opinion concerning legislative conflicts of interest.
Noem poses a series of questions involving the exercise of her executive power and the proper application of the Contracts Clause of Article III, Section 12 of the state constitution.
Her request contains nine interrogatories, covering topics such as whether a vendor of the state can receive a state payment if a vendor employs a legislator, and the legislator is not an owner of the vendor; whether a legislator can receive retirement compensation from the South Dakota Retirement System for services rendered other than acting as a legislator; and whether a legislator or a business owned by a legislator can receive Medicaid reimbursements administered by a state agency.
The Governor’s request was supported by Representative Hugh Bartels, Speaker of the House, Senator Lee Schoenbeck, President Pro Tempore of the Senate, and Attorney General Marty Jackley.
According to the Governor, there currently is substantial misconception and disagreement casting a shadow of uncertainty across the spectrum of state government.
In addition, there currently are at least two pending vacancies in the Legislature in Rapid City-area districts. The Governor has appointment authority under Article III, Section 10 of the state constitution that may be affected by clarification of what constitutes a legislator’s conflict of interest.
On October 31, 2023, the court entered its order directing the Governor, Attorney General, and Legislature to submit briefs.
After Monday’s (today’s) hearing, the state supreme court will eventually decide whether the Governor’s request meets the standard for advisory opinions, and if so, consider the merits of the questions she has presented to the court.
NOTE: The story was written with the assistance of Bing AI’s analysis of the briefs submitted in the case.
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