* SB 58 revises provisions related to human trafficking, prohibits the obstruction of human trafficking enforcement, and provides a penalty therefor
* SB 59 revises provisions relating to the delivery, possession with intent to deliver, and possession of unauthorized articles in a state correctional facility, and provides a penalty therefor
* SB 60 expands the access and investigatory authority of the state auditor
* SB 61 modifies the authority of the Board of Internal Control
* SB 62 establishes mandatory reporting requirements related to improper governmental conduct and crime, and provides a penalty therefor
* SB 63 establishes protections for state employees who report improper governmental conduct and crime
Transcription:
Dave Roetman: This is the Making Waves Podcast. My name is Dave Roetman. We're here with Attorney General Marty Jackley.
Marty Jackley: Dave, thanks for having me.
Dave Roetman: Thank you for being on. What are some of the issues that you see in South Dakota government in regards to transparency and accountability?
Marty Jackley: You know, certainly through the investigative process, we've learned that there are some supervision issues across the state government.
Those supervision issues really stemmed from numerous thefts that we've experienced, really going back to EB-5, GEAR UP, and then six additional investigations and prosecutions. As Attorney General, I've made it a focus of the office to begin and to continue addressing from a criminal standpoint those thefts of taxpayer dollars and from a legislative standpoint addressing how can we better manage taxpayer dollars and how we can bring accountability, especially to state supervisors, to make sure they're doing the work that they're being paid to do.
Dave Roetman: What sort of legislation have you brought? I know you've brought some this legislative session.
Marty Jackley: This last legislative session, I had a lot of help from both Rich Sattgast and Josh Haeder. Both the auditor and treasurer were involved in looking at the audit system and how can we better both protect the taxpayer dollars and catch it ahead of time and how we can then enforce the ability when that management fails. When we looked at the way to do that, I brought four pieces of legislation.
The first piece of legislation, and it came to surprise to me, but the elected state auditor, the ones that the convention delegates elect, the people of South Dakota pick, did not have access to the state books, to the accounting system of the state. We needed to change that. Both Rich Sattgast and Haeder jumped on board with that and ultimately the legislature said, yes, there needs to be an access of the state auditor so that he or she has the ability to potentially check and review what the executive branch is doing.
That made its way through the legislature and passed. The second protective component was the internal control board. After the wake of EB-5 and GEAR UP, the executive branch put in an internal control board.
But what didn't happen is there wasn't sufficient resources and teeth to that internal control board and group, so they weren't really catching these errors and these problems. So I wanted to have more accountability to that internal control board for their rule making authority so that they could have some teeth in what they were doing. Again, Rich Sattgast was really pivotal in that component because he serves as part of that internal control board.
Ultimately we reached a compromise with the governor and were able to pass what I think was good legislation for the executive branch to police itself better, to have each agency put in place a designee that's going to be held accountable. So if a potential theft comes to the Attorney General and it's from a particular agency, I'm able to have a person that I can go to and say, hey, it's alleged that this happened. What documents do you have? What has been reported to you? And to hold them accountable.
The third step was we were starting to see a lot of these cases by whistleblowers. It was state employees stopping a DCI agent at a gas station, state employees calling me late at night saying, I want to be careful to report this because I'm concerned that it might affect my job. As Attorney General, I can say, well, if I bring a criminal case, there are protections. There’s witness tampering and other things. But if we start looking into it and we don't bring a criminal case, there can be issues that maybe I can't assist as much as I'd like to. So we felt we needed a whistleblower protection.
I had actually brought this in the wake of EB-5 and GEAR UP, and a past legislature simply didn't feel it was time yet. With six additional criminal investigations, this current legislature said, yes, it's time to give state employees protection. Without me asking, the head of the state employees came and testified in support of it.
State employees wanted this, and I think it's been good legislation. We were able to work through some differences in that legislation and pass it. So now, when a state employee brings it to a supervisor, an issue, that supervisor can't take adverse employment against them. And I think that's important because it will bring up more transparency and protect those state employees trying to do the right thing.
The fourth component was really, I was asking the legislature for a heavier hammer. As Attorney General, to say when that supervisor doesn't report it to the Attorney General or law enforcement, when that supervisor conceals it, takes steps to hide it, there needs to be consequences.
That was probably the biggest difference that we experienced in trying to pass this legislation. I felt it should be a felony. I think when somebody knowingly tries to hide something, knowingly destroys evidence, that rises the level of a felony.
These are significant taxpayer dollars. Certainly the Senate agreed with me, but in the House side it got a little more difficult. So they passed a misdemeanor, which it's still going to be a crime, not as significant as I felt it deserved, but in July it will become a crime and we'll have to see where it goes.
If that works to try to keep this from happening as a deterrent, then good. If it doesn't, then you may see me back as Attorney General asking this legislature for a little heavier hammer. I would say, I talked about in the past trying to get whistleblower through.
This conservative legislature was very interested in passing laws that brought in transparency, government accountability, and I should say that transparency I put on the Attorney General to say that when we do receive complaints from supervisors, I was willing to report to the legislature what each of those complaints were, generally speaking, and what I did with them, whether they were investigated, criminal cases brought. So I think overall this was a good legislative package that dealt with prevention, finding these things earlier, which protects the taxpayer, and then really protecting state employees and giving me the ability to address it when something bad happens.
Dave Roetman: That sounds all very good. Is there any future legislation that you're planning on bringing?
Marty Jackley: As we move forward with some additional criminal investigations and criminal charges, we're just going to have to see on the felony versus misdemeanor. We're already starting to see some additional cases come out even after legislative session, which is a concern to me. One of the things I think we're seeing with EB-5 GEAR UP, six criminal cases, a couple more coming, that it sends the message that the Attorney General will continue to do something about it.
I mean, the reality is in EB-5 there was a conviction. In gear up there was a conviction. In every one of these cases we brought, with the exception of Sandra Day because she had passed away, criminal cases have been brought.
I personally tried the Lana Carroll case, and a Hughes County jury a couple weeks ago convicted her of stealing $1,777,685 and a few cents. I think that sends the right message, but again, it's disheartening that there will be additional criminal cases brought. I can say that with a level of certainty.
We're just going to have to see whether or not we need to make further adjustments to that. I hope that with what we've done to the Internal Control Board is sufficient, but we need to see whether or not… they have the rulemaking authority. Now they have to act on it, and we need to make sure those agencies that designate somebody are carrying through with what they said they would do and what they're required to do by the law.
Dave Roetman: Can you tell us a little bit more about some of the cases that are being brought or have been brought?
Marty Jackley: Certainly. You know, Lana Carroll was the big case. It was the $1.8 million theft. It was a situation where there just was not supervision. It was an individual dating back to 2010. So I don't say that as it's all on Kristi Noem.
It began happening as early as January of 2010. It was a situation where a state employee was allowed to make a voucher request or request for funds and then literally served as the approving supervisor at three levels. She was allowed to go to a bank, put the check in a kid's own account, and then 215 times pull the money out as cash.
She was also able to intercept those checks 215 times, and nobody caught it. It wasn't caught by the audits that were done. It wasn't caught by supervisors.
As testified by the witnesses, it was literally caught by an individual that had just begun working for the state, had a high school diploma, not an accountant, not a CPA, and did the right thing. Immediately saw something was wrong, took it to a supervisor. And as it went through the chain, I want to say this:
The minute the head of that agency saw it, she immediately stopped anything and said, you need to call the Attorney General, and they did. And that was a large part of the trial was whether or not the statute of limitations had run because this began in 2010. And so I as Attorney General felt just this last year, actually we began the case in February, whether or not we were time barred by that seven-year statute of limitations.
And I go back to that's why it was so important when I spoke to the legislature that this has to get reported to the Attorney General because I have seven years to act, and so I'm not able to go back beyond seven years if it's discovered. And the big issue was if a supervisor had put it, you know, swept it under the rug or hadn't properly reported it, I could not have obtained a conviction in that case. And that was a large part of what the trial was about for the full week was the conversation about and witnesses testifying as to what they knew and when they knew it. It wasn't whether or not she took the $1.77 million. It was when did DSS find out about it, and what did they do about that?
The other cases dealt with, and sometimes they're both a public health and a public safety issue. We had a state employee, and I want to be careful because some of these cases convictions have been obtained. Others are pending. They're presumed innocent, but had literally indicated that they had gone and done the food inspections, and they had forged the restaurant owner or the food server's signature because what's required is when there's an inspection that the owner of the business knows about it and has to sign off on it, and the inspections were never happening. So across our state on numerous occasions, food was not properly inspected.
They hadn't gone through the proper process, and a state employee had been paid with taxpayer dollars for not doing their responsibilities. We've had a couple other situations where there was personal gain by motor vehicles with tax consequences whereby they would designate a personal transaction as something it wasn't in order to save taxes. So it's a variety of different cases, and really, in my opinion, what it comes down to is a lack of proper supervision, a lack of proper accountability, and I think it's time to change that in state government.
And I say that because we have about 14,071 state employees. The vast majority of all those employees are hardworking. They want to see taxpayer dollars protected. They have a great lot of respect for their jobs. They have pride in what they're doing, and it's just a few of those bad apples have taken advantage of the lack of oversight in Pierre, and I think that needs to change.
Dave Roetman: Are there any tools that you think that the Attorney General's Office or other state agencies or state elected officials need to, in the future, to continue this transparency and accountability?
Marty Jackley: I think, first and foremost, a level of accountability of supervisors. If you're a supervisor in state government and you're being paid to supervise, you should have to supervise. And when there's a breakdown in that supervision, there needs to be consequences. Those consequences don't always need to be criminal.
One would hope that it's done administratively or with employment, but all too often, I see, and this is across state government, whether it be in the government accountability side or probation and parole, there isn't the necessary accountability. When there's a breakdown, there needs to be consequences in that breakdown. We do that at the Attorney General's Office, and we have numerous supervisors here, and they do their job, and they're required to do their job. They're paid to do that job. There's an accountability up the chain, and when you hold people accountable, this doesn't necessarily happen. And certainly, if it's caught much earlier, it would have saved the taxpayers a considerable amount of money.
In the Lana Carroll case, if that would have been caught back in January of 2010, like it should have been, the state of South Dakota would have been out $1.77 million.
Dave Roetman: What other legislation did you bring this session?
Marty Jackley: One of the goals I had as Attorney General was to make our communities safer and to address some of the concerns we saw within the walls of the prison. As far as keeping children and the public safer, we brought a human trafficking bill.
We've seen about 858 investigations last year dealing with the ICAC, which is the Internet Crimes Against Children Task Force. It is state, local, and federal authorities. So we felt we needed stronger protections for victims and stronger penalties for those that are trafficking, particularly young children and women.
So I brought an overhaul, so to speak, of our human trafficking rules. I wanted to better define some of the required items of proof, like coercion. Wanted stiffer penalties, including mandatory minimums, so that we were more consistent with some of the federal laws.
And that gained overwhelming support for the legislature. We also brought bills to better protect mainly our prison staff. Not just prison guards, but medical staff and other folks that are working in the prisons.
We felt we were seeing in our investigations tools such as cell phones being inappropriately used to harm guards, other lines of communication. So we wanted to bring more stiffer penalties for what was occurring within the walls of the penitentiary. Last year alone, we brought 117 criminal cases.
This is my fourth term as Attorney General. Never been even close to that, which sent us a signal that more needs to be done to protect prison staff. And the legislature, again, overwhelmingly supported that.
It was good legislation. And I think overall, it'll better protect our prison guards.
Dave Roetman: Going back to human trafficking, obviously human trafficking is increasing in the United States with the recent border being unchecked. But what do you see as problems in South Dakota that need to be addressed with human trafficking?
Marty Jackley: A couple things. One is we are doing a better job with victims. For the longest time, many of the grants that are out there, the federal grants and other dollars, go to domestic violence, which it needs to go to.
It's important. But they had qualifiers. And so certain human trafficking victims or survivors were not qualifying necessarily for certain funds.
One thing that I worked with the legislature on that was to fix that $5 million that was recently given to the Attorney General's Office to pass out in grants, we made sure that human trafficking was a qualifying for victims. And some of that went to the various human trafficking organizations. So that number one is important.
Number two, we have certain large events across the state that oftentimes attract the human traffickers. It could be a large event in Sioux Falls. It could be a large rally in western South Dakota.
I always want to be careful with that. I'm a Sturgis boy, and I love the Sturgis motorcycle rally. And at some level, though, when you bring a million people together, it's a signal for the bad guys to try to take advantage of that.
And so we continue to run those operations. As long as I'm Attorney General, we'll run those operations. We'll try to catch ahead of time those bad guys so that they go to meet up with a law enforcement officer rather than a young child to snatch up in a hotel or another meeting place.
Those are, I think, some of the big things. On the fentanyl side, of course, the legislature saw the need to pass additional legislation for those distributing fentanyl in our state. They strengthened the penalties.
I'm happy to report that I've been working with several nonprofits like Emily's Hope to get out naloxone or Narcan to better protect the public. I intend to continue to do that, everything we can, on prevention, treatment, and then heavier prosecution of those distributing fentanyl. On the treatment side, I think we have some future opportunities with some of the settlements that are coming in from the opioid companies.
We're using some of those settlement opportunities and dollars for naloxone and Narcan, which would be more on the prevention side. But on the treatment side, as we have the conversation about a new prison or penitentiary and what that looks like, I want to see a treatment component. And I think some of those settlement dollars, rather than putting them in a trust fund, we need to put those dollars to work right now for treatment.
I think it'll have a better benefit to our state overall, and I think overall it'll bring down the prosecutions for fentanyl as well as methamphetamine here in the state of South Dakota.
Dave Roetman: Tell us a little bit about your relationship with the legislature and how you've been able to cooperate with the legislature. What is the tone of your relationship with the legislature?
Marty Jackley: Right now, the conservative legislature has been very supportive of reasonable law enforcement legislation protections.
The legislature was very accommodating, very open to good ideas, not just with protecting taxpayer dollars and government accountability, but the human trafficking, the fentanyl distribution, certainly the Attorney General's budget. We had very good, productive conversations with appropriations. So I've enjoyed working with this legislature.
Certainly legislature leadership was accommodating. There was one occasion, I can't talk about caucus, but I was invited in as Attorney General on short notice. And again, that opportunity to work with them, and the Attorney General serves as a lawyer.
We worked with them on the legislative conflicts recently, and I want to continue to be that Attorney General that is an advisor to the legislature, but respectful that the South Dakota citizens elect 105 legislators to pass laws. I've always been given an opportunity to address them, to give my position on it, but then need to be respectful that they're the ones that are responsible for passing that legislation. The governor's responsible for signing that legislation.
My responsibility then is to enforce that legislation. But overall, it's been a good working relationship. I've enjoyed some of the new faces.
We had a law enforcement top gun shoot at the Attorney General's office. It's an opportunity to have the legislators see the office, to see what their appropriations go to, and I think a time to maybe get away from the Capitol and not talk about legislation, but just to get to know each other a little bit better. And I think that's all productive, and it's what we do best in South Dakota.
We have strong relationships. We're respectful. They come to Pierre and get the job done.
I always joke with other Attorney Generals. I live in a state where law enforcement's obtained a lot of trust over the years with the public, and we respect that and we want to keep that. We don't have to deal with defund the police.
Legislators frequently come visit the Attorney General and ask my position on whether legislation would be constitutional or not, and I want to keep it that way.
Dave Roetman: Who did win the top gun contest?
Marty Jackley: Representative Terri Jorgensen. She's an amazing shot.
Chris Karr's pretty dang good, though, I will tell you. It was close, and we switched it up on him a little bit. We didn't let them use their own guns in the last championship round.
We had an old DCI revolver that went way back, and we allowed them to shoot with that, but both of them are excellent marksmen and women, and they get a trophy when they win, and they get to display it on the legislative floor, and it was pretty impressive.
Dave Roetman: That's very cool.
Marty Jackley: In addition to that, we have a simulator that they paid for that better prepares our officers for an officer-involved use of force or shooting scenario, and it's always good to see the legislators try that.
I think they gain a higher respect for some of the split-second decisions our officers have to make, and I think it signifies why that 13 to 14 weeks training that we do up here as well as in Sioux Falls is so important. Keeping our officers safe, making sure they make the right decisions in those split seconds is very important, but again, it was that opportunity for legislators to be up here, to be away from lobbyists, to get to know each other better and see who's the best shot.
Dave Roetman: Any final thoughts?
Marty Jackley: You know, again, I appreciate this opportunity to talk with you.
I appreciate and love the opportunity to serve as Attorney General. I oftentimes joke that I love this job so much, I can't believe you pay me to do it.
Dave Roetman: Well, Marty, thank you very much for your time.
Marty Jackley: Thanks, Dave, for having me.
Dave Roetman: This has been the Making Ways Podcast. My name is Dave Roetman. We've been here with Attorney General Marty Jackley.
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