As petty power squabbles so stymie our Republican legislators that they’d rather surrender their constitutional redistricting duty to the Supreme Court, our supremely petty and incompetent Republican Attorney General meekly surrenders more of his duties to investigate and prosecute government corruption to a panel of retired judges. For the second time in two weeks, killer Attorney General Jason Ravnsborg has turned an investigation of corruption the Governor’s Office over to the Government Accountability Board, a four-year-old, relatively quiet and untested panel of four retired judges.
On Wednesday, a week after saying he was looking into Governor Kristi Noem’s intervention in her daughter’s application for real estate appraiser’s certification, Ravnsborg decided to punt that investigation to the GAB. This referral follows his decision the previous week to ask the GAB to look into Senator Reynold Nesiba’s seven-month-old complaint about Governor Noem’s use of the state plane for personal out-of-state campaign trips. The fact that it took Ravnsborg seven months to deem Senator Nesiba’s complaint GAB-worthy while it took only a week for him to pull the same trigger on Noem’s nepotism leads me to envision Boy Jason twiddling his thumbs in his office, stumbling upon the GAB on his office website, and shouting, “What?! I can pass off all the hard political investigations to a bunch of judges and not have to do any work or take any heat? Why didn’t you guys tell me about this sooner? I can send everything to the GAB and spend more time reading the blogs!”
But whatever Ravnsborg’s motivation or lack thereof, the Government Accountability Board now has two high-level investigations that provide the first real test of its authority. As I mentioned last week, in four years, the GAB appears not to have conducted a single public hearing to investigate any public official, let alone held any public official accountable for anything. The GAB conducts all initial investigations and discussions in secret: per SDCL 3-24-4, “the information, reports, or complaints and the investigative records and files of the board are confidential and not a public record according to chapter 1-27 until the board votes in favor of conducting a contested case hearing.” It takes at least three of the four board members to deem a complaint worth a contested case hearing. In such a hearing, the GAB and the parties involved would be able to subpoena witnesses. If that hearing convinces at least three of the GAB judges that misconduct took place, the GAB can take three actions:
- issue a public or private reprimand;
- direct a person to engage in coursework or community service;
- make a specific recommendation to the Governor.
Obviously action #3 was written by legislators who didn’t envision the GAB taking action against misconduct by the Governor.
The GAB could also put either Noem’s plane abuse or nepotism back in the Attorney General’s lap. If the GAB has “reasonable cause to believe that a crime has been committed,” SDCL 3-24-5 authorizes the GAB to refer complaints to the Division of Criminal Investigation, which can then either refer the matter to a state’s attorney or the A.G. or, if DCI doesn’t find grounds for criminal prosecution, bounce it back to the GAB for further consideration or for closure as frivolous.
The four retired judges on the GAB are David Gienapp, David Gilbertson, Gene Kean, and Lori Wilbur. The board’s website says Gienapp is a Republican, Kean is a Democrat, and GIlbertson and Wilbur are independents. KELO-TV says Gilbertson is a Democrat. However, their party affiliations must not matter much: SDCL 3-24-1 makes active partisanship one of grounds on which a member of the GAB may be removed.
The GAB last met on August 30; it has not yet announced the date of its next meeting. When it does, remember: we can all crowd into the room to watch, but we won’t even know if the board is discussing the complaints against Noem. All such discussions are held in executive session, and complaints are listed by number, not name, on the agenda.
The Legislature created the Government Accountability Board as a consolation prize to us voters for its repeal of the far toothier statewide ethics commission that we voters approved via Initiated Measure 22 in 2016. The GAB hasn’t done anything yet to live up to even the faint promises of the 2017 Legislature. The two complaints the Attorney General has sent them about our errant Governor will now spotlight the GAB’s ability to investigate corruption in Pierre.