SIOUX FALLS — As a circuit court judge for 18 years, Art Rusch was often disturbed by the confidentiality clauses that came with a number of settlements.
The Vermillion judge’s concerns heightened when the confidentiality clause covered a government entity, shutting out the very taxpayers who were paying for the settlement.
“That’s when I decided there was a need to address the confidentiality clauses, particularly when it involved government entities and the government money being spent, that the public ought to know,” he said.
Now a Republican state legislator, Rusch has sponsored a bill for the past two years prohibiting government from entering into certain confidential settlements. He championed the ban last year and saw it passed in the Senate but fail in the House Judiciary Committee.
This year, his revised bill passed overwhelmingly in both chambers and gained Gov. Kristi Noem’s signature. State and local governments will no longer be permitted to settle lawsuits confidentially under the new law, which goes into effect on July 1.
Rusch’s efforts have earned him recognition as the 2019 recipient of South Dakota Newspaper Association’s “Eagle Award.” The honor is given by the newspaper association to an individual or group that has demonstrated outstanding efforts to protect and enhance open government and the public’s right to know.
He was honored Friday at a luncheon attended by about 50 people at the Minnehaha Country Club in Sioux Falls.
Rusch told the Press & Dakotan he was always bothered by the secret agreements that came before him on the bench.
“During that time, I had a number of settlement agreements brought to me that had a confidentiality clause so neither party could disclose the terms,” he said. “Even when both the parties were private citizens, I was always concerned about the fact that here was an entity, a court system, being paid for by the taxpayers, that has approved a settlement that the taxpayers will never know about. That fact troubled me.”
HEADED TO PIERRE
Rusch retired from the bench in 2011. While no longer part of the legal system, he found a way to address the confidential settlements and to open up the people’s right to know where and how its money was being spent.
He was elected in 2015 to the South Dakota Legislature. He headed to Pierre as the District 17 state senator serving Clay and Turner counties.
Rusch’s effort on the confidential agreements ran into opposition from the outset. Questions arose about the consequences if the public learned details about a lawsuit and agreement.
“A number of people came to talk to me, saying the public shouldn’t know because it would be embarrassing,” he said. “If it’s embarrassing, it’s even more reason that the public should know about it.”
Rusch credited the support of Noem, his fellow state legislators, SDNA and the general public for making the bill a reality.
“Every year, I try to have a signature piece of legislation. This was certainly my signature piece,” he said. “You can’t just assume you can get something done in a year. You really need to be willing to come back and educate people.”
What made the difference in 2019?
“We had new legislators, and there was more of a realization that we needed to do this (bill). The fact that the governor came out in support of it made a difference. It was part of her effort for more transparency, which was one of the hallmarks of her campaign,” he said.
“The governor’s counsel testified in favor of the bill. She let it be known that she was backing it. And I think maybe this year, some of the people who had been really opposed to it before now recognized that they were on the losing side of things.”
Rusch did learn from the 2018 experience and tweaked the legislation this year.
“One of the opposing things the first time we brought it up was the idea that victims — say, someone who was raped by a state employee — didn’t want their names revealed,” he said. “We put in the provision that the judge could keep the victim’s identity confidential.”
Rusch acknowledged his legislation wouldn’t have affected private lawsuits.
“On a regular basis, I would see a lot of the private lawsuits had a confidentiality clause. The big one was down in Union County, over the ‘pink slime’ lawsuit (where BPI filed a defamation lawsuit against ABC News for using the term in a description of lean finely textured beef) where nobody knows what they settled for (as the dollar amount),” he said.
“This (new legislation) wouldn’t have prevented that from occurring because we’re talking about two private entities. But when it’s public money or public employees, the public has a right to know.”
Rusch pointed to the timing of one lawsuit while his bill moved through the 2019 Legislature.
“One particular case that came out while my bill was under consideration was where the Brookings school board settled a lawsuit by a student against them,” he said. “But they didn’t disclose the amount, so taxpayers didn’t know if the student got $100 or $100,000.”
Rusch pointed to another example of the need for open records.
“I had situation where I got a call from a reporter who went up to the clerk of courts office and the clerk wouldn’t let (the journalist) have a file,” he said. “I called the clerk, because our policy is they need to release it. The clerk said, ‘I don’t know, this is a sensitive case.’ I said it didn’t matter. It may be sensitive, but it’s our policy to release it.
“People are afraid of reporters. They’re afraid the reporter will (misrepresent) the story and make them look bad. But you’ve got to have confidence in the reporter.”
Rusch said this year’s effort in the Legislature was much easier because people understood his motivation. He even had one official tell him that he wished the bill had passed years ago and had taken a confidentiality clause off the table in one lawsuit.
Exceptions remain on the books, Rusch said. He noted the language in those cases didn’t forbid disclosure, only that it wasn’t required.
SDNA First Amendment Committee Chairman Tim Waltner praised Rusch for his commitment to the open government legislation.
“It takes persistence to advance the ideals of open government, transparency and accountability,” Waltner said. “Senator Arthur Rusch embodies those qualities and we’re pleased to honor him for his willingness to craft legislation that shines light on the actions of elected officials.”
The citizens’ right to know forms the very foundation of good government, Waltner said.
“It’s gratifying when elected officials, who seek to serve the best interests of the citizens, recognize that openness, transparency and accountability are essential components in our democracy and act on it,” he added.
Rusch expressed pleasure at receiving the Eagle Award, but he said the real winners are the people of South Dakota.
“I really think the trend is toward more open government,” he said. “I hope this (award) encourages other people and serves as a motivator for others to take action.”
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