South Dakota's new whistleblower law probably won't help Gear Up witnesses

Police go over the call log at the Sioux Falls Police Briefing on Sept. 1

South Dakota's new whistleblower law, on the books since July, was an effort by lawmakers to protect public employees who come forward with concerns like those that led up to the state's recent EB-5 and Gear Up scandals.

But it likely won't help people called to testify on those specific cases.

Former Rep. Don Haggar, R-Sioux Falls, who wrote the whistleblower legislation, said he never meant for the law to work for former state employees. 

"You simply can't have anything retroactive. That just doesn't work," Haggar, who is now state director for Americans for Prosperity, said Tuesday. “I don’t know if that would be a dangerous thing."

Sen. Stace Nelson, R-Fulton, has raised concerns about requiring a former state director of Indian education to answer questions from the Government Operations and Audit Committee, but the law likely won't help him keep her from testifying.

The former NCIS agent submitted audio recordings of interviews between him and LuAnn Werdel discussing her concerns about the way the Department of Education handled her warnings of wrongdoing regarding the Gear Up program in 2011.

But in a letter dated September 5 Nelson urged the committee not to ask questions that could nail down her story. To do so could be considered an effort to intimidate Werdel or others who might want to testify, he said.

"It sends an intentionally hostile message to other whistleblowers and one of support to those responsible for this scandal," Nelson wrote in the letter.

In an email following up on Nelson's letter, Sen. Neal Tapio, R-Watertown, agreed that Werdel and others who pointed out the Gear Up program's problems should be treated as whistleblowers and not required to testify before the committee.

It's not immediately clear whether Nelson's appeals to his peers on the committee will have any impact. And given his frequent disagreements with committee chair and Sen. Deb Peters, R-Hartford, his requests likely won't resonate.

But they raise a good question about who is a whistleblower and which public employees that raise red flags get protection.

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