AP’s Stephen Groves, whose September 2020 reporting broke the story of Governor Kristi Noem’s intimidation and firing of veteran South Dakota appraisal certification chief Sherry Bren in retaliation for the failure of Noem’s daughter to pass her appraiser’s exam, reports that the uncertainty surrounding the Government Accountability Board’s ruling on that nepotism case this week may depend on what Noem chooses to do next:
The state’s Government Accountability Board appears to be letting Noem decide whether to defend herself in a public hearing or simply accept an “appropriate action” that the board hasn’t detailed. It presents Noem with a choice: Stick to her defense that she has done nothing wrong and fight the allegations in a public hearing or let the matter quietly die while accepting the board’s action.
…“We’ll have to wait until the governor’s office makes a decision,” said Gene Kean, a current member of the Government Accountability Board who was appointed after serving more than two decades as a state circuit court judge and chairing the state Judges Association. “That’s sort of a linchpin in this thing” [Stephen Groves, “SD Gov. Kristi Noem Weighs Response to Ethics Complaints,” AP, 2022.08.24].
Wait a minute: what board action, and what decision by the Governor? According to the August 22 minutes, the Government Accountability Board dismissed unknown charges in the technically still secret complaint relating to misuse of public funds in the appraiser/nepotism scandal, but the board said the complaint “alleges facts sufficient to constitute a violation of SDCL 3-24-3” relating to conflicts of interest and malfeasance. The board says “appropriate action pursuant to Rule A.(c) has been taken” and the complaint as it relates to conflicts of interest and malfeasance “should be closed subject to the board’s discretion to reopen the file, if it deems appropriate.”
Rule A.(c) appears to refer to an initial stage prior to investigation, but if the GAB is telling us they’ve discussed these complaints at seven meetings over the last ten months and haven’t actually started investigating the nepotism complaint, someone needs to light a fire under the members. If they have investigated the nepotism complaint and determined “that there is sufficient information to believe that a statewide office holder… has engaged in misconduct related to any subdivision of § 3-24-3,” SDCL 3-24-7 dictates one action: “the board shall conduct a contested case hearing….” There is no decision for the subject of the complaint—in this case, the Governor—to make. There’s no plea bargain. The board holds a public contested hearing. In this case, if a majority of the board concludes that the Governor did something wrong, the board reprimands her or orders her to take courses or do community service. (There is a third option, to “make a specific recommendation to the Governor,” but that option envisions the Governor taking action against some other infractive state office holder or Executive Branch employee.)
I know it’s the Government Accountability Board’s first time in its five-year existence taking any complaint to this stage. But Accountability is literally this board’s middle name, and it’s tough to have accountability when when there’s no clear account of the board’s actions:
John Pelissero, a scholar at the Markkula Center for Applied Ethics at Santa Clara University, said it’s “unusual” for an ethics board not to publicly announce the action it takes against an accused official.
“It lacks transparency if they do not announce the level of accountability,” he said. “That has the potential to undermine the public’s confidence in the accountability board and in state government generally” [Groves, 2022.08.24].
Government Accountability Board, the law doesn’t seem to let you leave your responses to corruption up to the choice of the subjects of complaints before you. Your originating intent certainly does not give you such leeway. Please make clear to the public the conclusion you have reached and the action you intend to take to investigate and punish the corruption you hare suggesting may have happened.