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Newspaper Association Suggests Government Accountability Board Not Following Open Meetings Law

Kristi Noem’s campaign still has not provided any evidence to back up its Trumpian claim that the Government Accountability Board broke the law in handling two ethics complaints against the Governor. But the South Dakota Newspaper Association suggests the GAB may have violated open meetings law.

I could see cause for such a complaint in the draft minutes from the August 22 meeting describing the board’s action on Complaint 2021-03, pertaining to Noem’s nepotistic intervention in the appraiser certification process on behalf of her daughter Kassidy Peters.

Gienapp moved that the Board dismiss Complaint 2021-03 as it relates to subsections (5) and (9) of SDCL 3-24-3. Gienapp further moved that pursuant to GAB Rule A.(c), the board make an initial determination that the complaint, as it relates to subsections (2) and (4) of SDCL 3-24-3, alleges facts sufficient to constitute a violation of SDCL 3-24-3 and, further, that appropriate action pursuant to Rule A.(c) has been taken and Complaint 2021-03 as it relates to subdivisions (2) and (4) should be closed subject to the board’s discretion to reopen the file, if it deems it appropriate. Kean seconded the motion. Motion carried unanimously [emphasis mine; Government Accountability Board, draft minutes, 2022.08.22].

The minutes say action has been taken; however, the GAB has not held a public vote to take such action. The law creating the GAB is unclear, but for every other public board or commission, no matter what a board may be allowed to discuss behind closed doors, it must open the doors to approve taking any action.

According to state law, “any official action concerning the matters pursuant to this section shall be made at an open official meeting.”

“It goes back to this board and to what degree does this board have to comply with the open meetings law,” he said. “But you would assume still it’s a public board, it’s a government board and it needs to comply with the open meetings law unless otherwise directed and at this point, I don’t see where it says that it can vote in closed session” [Annie Todd, “Ethics Board That Investigated Kristi Noem Is Under Fire for Vague Interpretation of Rules,” Sioux Falls Argus Leader, 2022.09.02].

We should all keep in mind that the difficulty the Government Accountability Board is having in dealing with its relatively new and untested statutes is far less grave than the ethical soup Governor Noem has brewed for herself by abusing the power of her office for her daughter’s professional gain and her personal travel comfort and Presidential campaign. But if we’re going to hold Governor Noem and other members of the Executive Branch accountable, we need an accountability board that can do its job by the book, with public accountability.


  1. bearcreekbat 2022-09-06 09:02

    Since the Board itself has not ordered a contested case hearing (although they have apparently “voted in favor of” giving Noem the opportunity to do so), perhaps they have concluded the following statute prohibits public disclosure of their decision at this time:

    [SDCL] 3-24-4. Information, reports, and complaints to board–Confidentiality of records.
    . . .
    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.

    I don’t know how a judge might rule if the Newspaper Association brings a civil case under the open records law, but I would bet the Board is most likely to fall back on SDCL 3-24-4 as a defense.

  2. All Mammal 2022-09-06 09:45

    I still think one way to prevent liars from propagating false information via all forms of media consumed by the body politic might be to sue the grinning little shiitake eaters. The FCC should step in and start cracking the whip so the public doesn’t have to. It has gone beyond the archetypal people pleasing politician’s fib. Their lies are hindering intelligence from occupying any discourse.

  3. Cory Allen Heidelberger Post author | 2022-09-06 13:38

    BCB, is there any reason they would make the statement they did on August 22 pertaining to the nepotism complaint and not vote for a contested case hearing?

  4. bearcreekbat 2022-09-06 13:57

    Cory, that is a good question. That statement, which could qualify as a committee “report,” also seems inconsistent with the statutory confidentiality language.

  5. Cory Allen Heidelberger Post author | 2022-09-06 16:37

    I wonder if things would have been clearer if we had just stuck with IM 22 instead of repealing that and replacing it with the consolation prize the Legislature cooked up to keep its fat out of the fire.

    I am wondering whether the GAB adds any value to the process. If the Governor broke the law, shouldn’t the A.G. or some state’s attorney prosecute, and shouldn’t the case be heard in court? Why add this extra layer of quasi-judicial oversight?

  6. bearcreekbat 2022-09-06 17:34

    To the extent these retired judges will act without political motivation or inappropriate bias perhaps the extra layer of judicial oversight could serve a positive role by giving the politically motivation AG a scapegoat to blame for actually prosecuting a politically popular governor or other official. Here the referal to the AG certainly offers a theoretically non-potical justification for bringing criminal charges against Noem. Whether either Vargo or Jackley will act on this is really the next question. The Board referral itself publicly suggests that the Judges found probable cause or reasonable cause to conclude Noem committed a crime, despite the Board’s current public silence about the details.

  7. Bonnie B Fairbank 2022-09-06 17:34

    Golly, without me typing my usual “jfcffs” to avoid offending Our Lady of Goats’n’Gravy and much smarter posters than I, I suggest the Government Accountability Board be renamed the “GOVERNOR Accountability Board”. Of COURSE the GAB isn’t following Open Meeting Law. It might have to work itself.

    My thoughts aren’t from Kristi Lynn’s Gawd, but they do have merit. I mentioned I was a gummint employee (not as exalted and beloved as our GOVERNOR) but she SHOULD have to fill out time sheets that document every fifteen minutes and every penny she spends.

    Yes, I had to do that. Ask the government to spend $23.47 on RapidioGraph pens? That was me. Recording every fifteen minute increment segment on my time sheet meant I was present and accounted for and wasn’t absent and screwing off somewhere OR person.

    No one is above “THE LAW” right? Guess it depends upon the person, the law, and the governing entity.

    “No one is above the law.”

  8. Edwin Arndt 2022-09-06 20:01

    I’ve always been of the opinion that if the law is so murky that reasonably
    intelligent people can’t agree on what it says, then the law is at fault.

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