How are conflict of interests to be determine moving forward? Fixing leaks under general bill ok, being a contractor under a special appropriation is not.

In looking at the decision, it’s quite a bit to digest, but to answer the question about conflicts of interest moving forward, we look to the conclusions of the majority..

We agree and reformulate the questions presented by the Governor’s request into one question as follows:

Whether Article III, § 12 prohibits all contracts between legislators and the State.



This case presents an appropriate instance to exercise our advisory opinion jurisdiction under Article V, § 5. The current state of our decisional law concerning Article III, § 12 is not sustainable. Our holdings in Asphalt Surfacing and Pitts, which equated general appropriation for ordinary and current expenses with legislative authorization to enter into specific contracts, are contrary to well established constitutional limits on general appropriation legislation set out in Article XII, § 2 and our cases. These holdings expressed in Asphalt Surfacing and Pitts are, therefore, overruled.

Our answer to the Governor’s restated question whether Article III, § 12 prohibits all contracts between legislators and the State is: No, it does not. The contract restriction stated in Article III, § 12 is not a categorical bar on all contracts funded by the State. Instead, it prohibits a legislator, or former legislator within one year following the expiration of the legislator’s term, from being interested, directly or indirectly, in contracts that are authorized by laws passed during the legislator’s term. The purpose and effect of general appropriation legislation is restricted to simply allocating money to fund state government; it does not, itself, authorize specific contracts relating to ordinary or current expenses.

Big change is that while it would allow Kevin Jensen to benefit indirectly, if his wife’s business is being paid through the state as an expense through the general appropriations bill, it would now not be considered a conflict of interest under the constitution.

However, because the COVID money appropriated through the CARES act involved separate legislation, the court is holding that their decision in Noem “correctly prohibited legislators from participating in contracts relating to the grants the Legislature had authorized.” So, the unfortunate Castleberry situation would not have been prevented.

End result? I think this is going to open up a number of people to run for the legislature who had been barred or thought they may be barred previously because of how they’re paid, or who pays them.

In speaking with Senate President Pro Temp Lee Schoenbeck about what this means, which it seems this decision is going to take a lot of digesting before we see if it prompts more candidates to run, Senator Schoenbeck was complimentary towards the Governor in this challenging process noting “Governor Noem gets huge credit for taking the heat for leaving vacancies open until this was resolved – and you can quote me on that.”

It sounds as if we’re going to see some legislation coming that may clarify the decision, such as “how does it affect state employees?”  But this decision is sure to bring many changes to the bank from which parties can draw candidates from.

7 thoughts on “How are conflict of interests to be determine moving forward? Fixing leaks under general bill ok, being a contractor under a special appropriation is not.”

  1. Why the confusing, the Supreme Court simply affirmed exactly what most the legislature has been asserting this entire time.

  2. The day the powers that be, agreed to let each other reap personal unlimited profits from the general budget. IF the public understood what is about to start happening, they would rebel.

    The day a Governor can reach out and hire legislators to “get on the team with me. Be my Director or Secretary of this or that.”

    The legislature tried to repeal or gut this anti-corruption clause four times, on the ballot. Got walloped all four times. So now they got the supreme court to gut a century of prior rulings, and to gut the plain language of the constitution.

    And no one was there to defend the taxpayers.

    1. Yep, the end result is you’re going to see people running to get themselves rich AND powerful rather than just powerful. Corruption will be on full display. This is a terrible ruling.

  3. This decision opens up almost the entire general budget…..nearly all of state government, to legislator contracts. I forget, how many BILLION is that?

    The constitution says legislators may not have ANY interest, direct or INDIRECT, in state contracts. And then the supremes said “well, that doesn’t mean what it says. Actually they can have lots of interests in lots of contracts.”

    Its a black day for the taxpayers.

  4. This death rattle of the only real anti-corruption clause in the constitution, basically tells legislators the state budget cash register is open 24-7.

    Tax dollars as an ATM for legislators.

    someone ought to circulate an amendment saying that “any laws passed during the term INCLUDES THE GENERAL APPROPRIATION ACT.”

    Might be a good campaign issue for some aspiring AG. Public would love it.

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