PIERRE, S.D. (KELO) — Representative Ernie Otten believes that members of the Legislature should know about settlement agreements that involve South Dakota state government as one of the parties.
The Republican lawmaker from Tea learned on Friday that he’s not the only one. Members of the House Judiciary Committee recommended 11-0 that the House of Representatives pass his legislation.
HB 1041 would require that the person signing a settlement for state government transfer a complete copy to two legislative panels, the Executive Board and the Government Operations and Audit Committee, within 30 days of its execution date.
Otten’s legislation also would declare that a non-disparagement clause in such a settlement is “void and unenforceable to prevent the communication or disclosure of facts” to the Executive Board or GOAC about state government activities associated with the settlement.
GOAC’s members have spent months trying to learn more about a $200,000 settlement, discovered by Associated Press reporter Stephen Groves, that Sherry Bren received from Governor Kristi Noem’s administration.
The payment to Bren came after she was forced to step down last year as executive director for state government’s program that certifies real estate appraisers. One of the governor’s daughters was trying to get a higher certification. Bren filed a complaint alleging age discrimination. Her settlement included a non-disparagement clause.
Otten serves on GOAC, as do two others who are signed onto his bill, Representative Linda Duba, D-Sioux Falls, and Senator Reynold Nesiba, D-Sioux Falls. His other co-sponsor is Senator Art Rusch, R-Vermillion, who sponsored a 2019 law saying that a monetary settlement involving state government or a political subdivision is a public record in most instances.
Otten was the only witness to testify in favor Friday during the House committee hearing. No opponent came forward. Otten said gets “a little nervous” about state government settlements when they have been reached by what he called bureaucrats and without an elected official involved.
“This will provide that oversight I think is necessary,” Otten said.
Representative Scott Odenbach, R-Spearfish, asked what the Executive Board’s lawmakers could do if they didn’t like the settlement — “There’s a bit of this that’s left unsaid.” — and added the extra step could make reaching a settlement more difficult.
“I get that end of it,” Otten replied.
Representative Mike Stevens, R-Yankton, asked whether the Executive Board could void a settlement. Otten said he only wants legislators to have the opportunity to be informed and find out the who, what, where, when and why.
Stevens called for the committee to recommend passage, but he also said that something complex such as a 300-page settlement for opioid damages was beyond the Executive Board’s normal capability.
Odenbach gave his support — “Balance of powers here.” — and, noting what he described as “recent news,” said, “Over the years it could be helpful.”
Representative Jon Hansen, R-Dell Rapids, chairs the committee. Hansen said Otten’s legislation doesn’t expand the Executive Board’s power but does provide transparency. Hansen said government shouldn’t hide settlements from citizens.
Non-disparagement agreements, he said, have “a chilling effect.”