For the first time in its five years of existence, the Government Accountability Board did something other than completely dismiss an ethics complaint against an elected official. But the GAB’s actions yesterday on two ethics complaints against Governor Kristi Noem still do not make clear whether the GAB or anyone else will actually hold Noem accountable for abuses of her office.
Since October 2021, the GAB has had before it two complaints against the Governor: one dealing with her nepotistic intervention in her daughter Kassidy Peters’s struggle to pass the real estate appraiser’s exam, the other with questions about whether Noem misused the state plane and state personnel for her frequent out-of-state political campaign trips.
Yesterday, the GAB said Noem may have “engaged in misconduct” in the real estate appraisal affair, but it did not make clear what action it intends to take:
After meeting in a closed-door session for one hour Monday, the board voted unanimously to invoke procedures that allow for a contested case hearing to give Noem, who has denied wrongdoing, a chance to publicly defend herself against allegations of “misconduct” related to “conflicts of interest” and “malfeasance.” The board also dismissed Ravnsborg’s allegations that Noem misused state funds in the episode.
However, the retired judges left it unclear how they will proceed. Lori Wilbur, the board chair, said the complaint was “partially dismissed and partially closed,” but added that the complaint could be reopened. She declined to discuss what would cause the board to reopen the complaint [Stephen Groves, “Board: SD Gov. Kristi Noem May Have ‘Engaged in Misconduct’,” AP, 2022.08.22].
The GAB did not make any pronouncement on the state plane complaint, but it did refer that complaint to the attorney general for investigation. Things start to sound like farce here: this complaint originated with the previous attorney general, who sat on the complaint from Senator Reynold Nesiba for seven months before punting it to the GAB. The GAB sat on it for nearly eleven months before punting it back to the attorney general—not the original punter, whom we finally impeached and convicted for killing a man, lying about it, and abusing his office, but the new top cop, Mark Vargo, who co-prosecuted the impeached S.O.B. in June and was appointed attorney general a week later by Governor Noem.
Attorney General Vargo assures us his office “will be diligent in our duty and throughly investigate the complaint….”
The original complainant and originator of the 2006 initiated law on state plane use on which the complaint is based, Senator Reynold Nesiba, is understandably frustrated with this opaque runaround:
It shouldn’t take a legislative complaint to the AG, who then sends the investigation to the GAB, to assess whether our elected leaders are appropriately using public resources,” he said.
Nesiba echoed frustrations about the board’s lack of transparency.
“They should be able to have public hearings where they can tell the public what issues are under consideration and investigation,” he said [Annie Todd, “Attorney General’s Office to Investigate Ethics Complaint Against Gov. Kristi Noem,” Sioux Falls Argus Leader, 2022.08.22].
The Governor previously declined to comment on the GAB complaints by claiming that such comment would violate the law. Her campaign tweeter Ian Fury evidently reread the law, realized it does not prohibit subjects of GAB complaints from commenting on GAB inquiries, and let fly last night with shouts of the Governor’s innocence:
Fury’s first rage is correct: the GAB hasn’t cited any statute or given us any other useful public statement on the statutes related to these complaints, the evidence the board has considered, or the reasoning behind its actions on these complaints. That critique only reinforces Senator Nesiba’s critique: the GAB needs to be reformed so that it can conduct public hearings and make clear what it is doing to hold public officials accountable.
Fury’s second rage reinforces the point I made in June when Jason Ravnsborg crawled out from under his impeachment rock at a GAB hearing and called for Noem’s impeachment. Any intervention by Ravnsborg now in these ethics complaints only tee up Fury’s obvious deflection from Noem’s misconduct. Jason—shut up!
Fury’s third rage is false, no matter how many periods and exclamation points he puts on it. The Government Operations and Audit Committee found what was plain to everyone reviewing the facts of her daughter’s case: Kassidy Peters got special treatment in her appraiser certification process.
But amidst Fury’s smoke and the GAB’s fog, it’s hard to tell what accountability Noem will face for her ethical violations.
None of this is a surprise to anyone.
Fury’s “fury” is amusing.
And still, none of this is a surprise.
Is the GAB done now with the first issue? Is it even within their power to do more? Is it just up to the Republican electorate in SD to hold her accountable?
Seems like a mealy mouthed result as of now.
According to the law,
The board is to vote and make a determination, by majority vote, if misconduct HAS occurred, not may have. With one judge recusing himself this leaves a vote of 2:1. There should be no may here unless there are more hearings. Right?
I feel like Roseanne Roseannadanna as I have found my answers and now would just like to say, never mind.
Truth and justice are “endangered feces” in magat land. Noem is not likely apt to have her testimony made public.
While I certainly haven’t analyzed the statutes and regulations in depth, on the surface it appears that the GAB has taken some pretty intense action on these complaints, especially with the referral to the AG’s office for investigation. Apparently the referral to the AG was made pursuant to SDCL 3-24-5:
I may be wrong but I read this statute as indicating the GAB makes the referral to the AG for investigation on improper use of the State plane only if “the board has reasonable cause to believe that a crime has been committed. . . . ” Since the plain language of the statute states the case will be sent back to GAB only if “If an investigation does not reveal sufficient facts to support a criminal prosecution,” there would be no other point in the referral other than for a possible criminal prosecution. If this reading is correct, the GAB has determined that there is “reasonable cause” to believe that Noem has committed a crime. This referral seems much more serious than an order allowing Noem to requested a “contested case” proceeding.
A “contested case” is a matter of due process of law in a civil administrative proceeding without apprent criminal implications. Providing Noem with an opportunity to participate in a “contested case” proceeding over the nepotism allegation would seem to be constitutionally required by “due process of law.” Noem or anyone else is entitled to a full and fair public opportunity to defend herself against allegations of wrongdoing, whether in a criminal or administrative proceeding. That is exactly what a “contested case” proceeding provides: an administrative trial to receive evidence and arguments giving Noem the opportunity to be heard and defend against any possible civil administrative sanctions. In a typical contested case there should be a prosecutor assigned to present the charges against Noem and Noem’s lawyers then can present any defense evidence and argument that they believe exonerates her. Only then can the GAB make a final decision whether “misconduct has occurred.”
To a layperson this GAB decision of its face may seem somewhat wishy washy, but from a legal perspective it sure looks to me like Noem is in deep doo-doo (a legal term of art). To the extent the GAB has a hammer, they have used it in this case.
I was reading 3-24-5 as either the board refers to the DCI and then specified the action they are to take ending at termination or prosecution, or they refer it to the AG in which case no direction is provided.
jkl, that reading certainly looks reasonable based on the heading or title of the statute, but once you read the substance of the statute there seems to be no reference at all to referring the case the the AG other than the AG’s DCI division. Thus the plain language of the statute seems narrow the possible scope of the title or heading by indicating that a referral to the AG means the GAB is referring it the the DCI office of the AG.
Attorney General Vargo, recently appointed by Kristi Noem needs to RECUSE himself from the investigation referred to him by the Government Accountability Board (GAB). An independent person needs to be appointed in his place with no ties to Noem.
While apparently not mentioned by GAB, which has upset Ian Fury, it looks to me like this could be the criminal statute that the GAB apparently found reasonable cause to believe that Noem violated with her personal use ofg the State plane, which led to the referral to the AG:
I note that SDCL 22-30A-11 disqualifies anyone convicted under SDCL 22-30A-10 from holding public office. Hence if Noem is charged and convicted under this statute her political career would take a similar turn as did her pal Ravnsborg.
The public’s desire for more information is understandable, and more than likely, when the governor is served with notice of a public contested case hearing, we will also learn the subject of that hearing, as well as the part of the Bren complaint that was dismissed. With regard to investigating the use of the state airplane by the DCI, we are unlikely to receive any information until the investigation is completed. That’s how the process usually works, even when the person subject to investigation is high profile.
The attorney general should consider bringing in outside investigators to investigate the governor’s highly questionable use of the state airplane.
Nesiba’s complaints about the process can only be changed by the legislature. The members of the GAB carefully complied with the law as passed by the legislature.
Yesterday’s announcement was a bad day for Noem’s national aspirations. Unless fully cleared, she will be a hobbled contender. Bluster, anger and distraction are par for the course responses by team Noem, but this latest predicament is solely caused by her own poor judgment.
Your Governor was more cautious as a U.S. Representative. Since becoming a MAGA not so much.
“Lay down with dogs – get up with fleas.” – unknown
P. Aitch – You may recall the interview last month on CNN’s “State of the Union,” when Rep. Adam Kinzinger reacted to his former House colleague Kristi Noem’s defense of Donald Trump’s complicity in the Jan 6th insurrection saying the Noem he knew appears to be a victim of the “invasion of the body snatchers.”
“Yeah, I mean, this — I’m blown away,” Kinzinger replied. “This is not — I served with Kristi Noem in the House. It’s like invasion of the body snatchers, this is not the Kristi Noem I served with.
“The Kristi Noem I served with, you know, was conservative, dedicated to truth. And I at the time would have thought would put her country above her political career at any moment. It is clear she is running for president or vice president. She’s scared to death of the base. For her to call into question, you know, a 26-year-old patriot who stood in front of the committee alone and told the truth, and then to avoid saying that Donald Trump bore even an ounce of responsibility for January 6th, I get amazed still every day by what some of my colleagues do.
“This is one of the biggest ones, she used to something very different,”
And Rep. Kinzinger is a Colonel in the Air National Guard. He’s interacted with folks from a diverse range of ethnicities and geographies.
Psychoanalyzing Governor Noem is quite simple. She wants power so bad that she’s standing on the neck of her own dignity.
Growing up in Castlewood someone like Don the Con Trump is just so fascinating to the young lady. That he lies with impunity and has gotten away with it with money is her irresistible temptation to take the easy road.