Why forward any complaint to the Government Accountability Board if the Board won’t hold a corrupt government official publicly accountable?
Four weeks ago, the Government Accountability Board issued its first ever public statement about any ethics complaint it received, declaring that Governor Kristi Noem’s personal use of the state plane should be reviewed by the Attorney General and that Noem’s nepotistic intervention in her daughter Kassidy Peters’s struggle to become a real estate appraiser potentially constituted “misconduct” that warranted “appropriate action”. But strangely, the GAB appeared to let Noem herself choose the GAB’s response… and Noem gets to choose to keep the board’s action secret from the public:
South Dakota’s ethics board won’t publicly disclose the “appropriate action” it took after finding evidence Gov. Kristi Noem intervened with a state agency to influence her daughter’s application for a real estate appraiser license, a lawyer for the board told The Associated Press.
…A lawyer hired by the board, Mark Haigh, responded to an open records request by telling the AP this week that the board’s response would remain “confidential.”
…the board appeared to let Noem decide whether to defend herself in a public hearing, known as a contested case hearing, or simply accept the “appropriate action” and let the matter quietly die. As a deadline passed last week to contest the board’s finding, Noem stayed silent, and the board’s lawyer says the case remains closed [Stephen Groves, “Ethics Board Keeps ‘Action’ Secret on Complaint Against Noem,” AP, 2022.09.20].
Let’s universalize the maxim of the board’s action.
- You get to pick whether the HiPo gives you a ticket or a warning, and your interaction with law enforcement is never put on the record.
- Jason Ravnsborg gets to pick whether he’s disqualified from public office or just impeached, and the Senate never tells us whether he’s disqualified or not.
- Murderers get to pick life in prison or death by means of their choice (that would save a lot of trail expense) and we never tell the victims whether the convict goes to solitary or the gallows.
I’m sorry to be silly, but I can’t think of a non-silly example in which an individual commits an action that harms the public but is allowed to choose not to be held to account before the public. Even if we let some malefactress off with a tickle on the wrist (and malefact Kristi most certainly did, or the Government Accountability Board would not have deemed any response necessary), we still must announce that tickle so the public may determine if justice was done and or if its institutions of justice need a swift kick in the can.
The Government Accountability faced its first public test in the two complaints against Governor Noem. Its return of the state-plane question to the Attorney General appears to be a proper move, directing a complaint about lawbreaking to law enforcement. But the GAB’s sweeping of the appraiser-nepotism complaint under Noem’s expensive rugs betrays the public trust and tells other corrupt officials that the watchdog will not hunt.
It’s just another Wednesday in a state where the unitary executive of the majority party skates across the scum at the top a very fetid pond.
The appropriate action appears to be keeping the public in the dark as if one expected anything more from this poorly run state of magats.
Ah “Transparency.” Kristi, everyone is beginning to see right through you.
Can’t wait to vote against Gov Liar on Friday morning!!
I’m disappointed that the three retired Judges on the Government Accountability Board chose to let Mrs. Noem choose whether or not to have a public hearing to contest their findings. Governor Noem seems to be pleading “Nolo Contendre”, sort of a “Yah, I might have done it……I don’t have any evidence to present that I didn’t do it.” I don’t know if this is what the writers of this law establishing the GAB foresaw or if this type of outcome was envisioned by the Legislature when it passed the law. The outcome is that the Governor continues on having achieved the status of “Too big to fail”.
The political affiliations of the judges mean nothing; I’ve read about their exalted degrees, accomplishments, education, and appointments, and they all amount to Jack Sh*t.
This is the Primitive Land of Reptilians, ruled by and for Primitive Reptilians. I heard a circuit court judge ask Lance Russell in open court what the word “abruptly” meant. Big “DOH!” all around.
Is this a great state, or what?
Your examples were the basis of many plot lines behind the wildly popular “Squid Game” tv series from South Korea.
I am certain the Governor was very hard on herself. She probably flogged herself so badly she’ll be injured for weeks, perhaps to the point of having to receive medical attention related to the flogging. Let us hope she can forgive herself like the rest of us have and move on.
TERRIBLE, so the governor’s lap did Ian Fury can drag poor Sherry Bren through the mud, and by all accounts was a nationally respected voice in the appraiser field and there is no accountability? The governor needs to pay back that 200 grand the state gave her as a settlement.
I see it a bit differently, especially given the qualifications and background of the individual former Judges on the Board. As I previously pointed out, a SD statute explicitly requires confidentiality unless there is a contested case challenging whatever sanction the Board decides to impose. According to a Steven Groves article in today’s RC Journal (9-21-22), Kathleen Clark, a law professor teching government eithics, disagrees with the Board’s action and identifies some SD statutes that she argues require a contested case hearing before the Board can impose any sanction. She may be right, but the SD legislature does not have a record of always making statutory requirements clear and a primary function of lawyers and judges is interpret the meaning of SD statutes. The fact that the Board interprets these ethics statutes to require confidentiality does not strike me as evidence of bias or political corruption, especially considering their legal backgrounds (the SD ethics statutes and rules for attorneys also require confidentiality in most cases)..
And Cory’s artgument that a government official accused of an ethics violation gets to pick his or her GAB punishment is clearly incorrect. This particular ruling by the Board indicates that the confidentiality statute only gives the accused the ability to quietly accept whatever sanction, if any, the Board decides to impose, or to challenge the Board’s decision by requesting a contested case. It does not give the accused any opportunity at all to decide what sanctions, if any, the Board imposes on him or her.
It seems to me that Cory’s real complaint is two-fold.
First, he objects to the GAB interpretation of the arguably ambiguous confidentiality SD statue. The Board could indeed be wrong in its interpretation of this statute. Many judges and lawyers often interpret statutes in a different manner than an appellate court deems to be correct. So if the Board is wrong, the remedy is a legal challenge to this interpretation. The other possibility is that the Board is correct and the legislature has failed to protect the public’s right to know,. The remedy for that is to change the law, either by iniative or legiislative action. Attacking the members of the Board is inappropriate and really misses the point of solving the perceived problem.
Second, Cory seems to assume the Board imposed some sanction without teeth, which is certainly a possibility given’s Noem failure to contest whatever action the Board has taken. Yet without knowledge of the Board final, decision it seems a bit premature to argue or imply the Board swept anything under the rug, “betrays the public trust and tells other corrupt officials that the watchdog will not hunt.” Such a claim seems disapointingly similar to what one might hear in a conspiracy speech at a MAGA rally.
This is the fallout of the corruption of “elected” judges. Judges essentially, in South Dakota, become judges via appointment by a republican governor, then later are subject to a retention election. No legislative oversight. No checks and balances. The GAB comprises judges retired under this non-democratic malfeasance.The judges, justices, and governor act like they are imperial. Instead, they SHOULD work for us, but rarely act like it. The GAB shows us there is little accountability.
Professor Card, I presume.
Robbinsdale Radical, in following the GAB’s precedent of keeping official actions secret, the result of your vote and that of your fellow citizens will not be made public. The state will not tell us who wins the election. The state will not tell us whether the voters choose to hold Noem accountable for her corruption or by what margin.
Grudz, maybe she had the GAB fly Corey Lewandowski in for the flogging.
I’ll be ordering pasta tonight in honor of the wet noodle. He must’ve had quite a work out with those three lashes.
Yes, let’s read that statute, BCB. The GAB seems not to be reading it.
SDCL 3-24-7 says, “If a majority of the members of the board vote that there is sufficient information to believe that a statewide office holder or executive branch employee has engaged in misconduct related to any subdivision of § 3-24-3, the board shall conduct a contested case hearing according to chapter 1-26 to afford the accused person the opportunity to respond to the allegation.
SDCL 3-24-8 says, “At the conclusion of the contested case hearing before the board, if the board determines by a majority vote of the board that a violation has occurred, the board may: (1) Issue a public or private reprimand; (2) Direct a person to engage in coursework or community service; or (3) Make a specific recommendation to the Governor.”
SDCL 3-24-8 appears to prescribe the only actions the board itself can take against the subject of a complaint. SDCL 3-24-8 is only triggered at the conclusion of a contested case hearing, by a majority vote of the board.
Chapter 3-24 does not lay out any alternative path for the GAB to take “appropriate action” against a subject of a complaint prior to a contested case hearing. Chapter 3-24 does not lay out any process by which the subject of a complaint may either call for or avert a contested case hearing.
BCB is correct that, per SDCL 3-24-4 the SDCL, “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.” But the GAB has released the complaint on Noem’s nepotism and information (filings from complainant and subject/defendant, with exhibits) related to that complaint into the public record, before any contested case hearing has been held.
The GAB’s actions here are thus irregular in multiple ways. They have acted on a complaint and released confidential information without the contested case hearing that statute requires. They appear to have manufactured some extralegal process giving the subject of a complaint some say over whether or not a contested case hearing would happen.
As for sweeping under rugs, the intent of the GAB law passed in 2017 was to make corruption known to the public. The statute keeps complaints confidential when they are only allegations and while the GAB investigates them. Only if the GAB finds substance does the law release the complaint and information, but it clearly releases that information if/when the GAB determines “there is sufficient information to believe that a statewide office holder or executive branch employee has engaged in misconduct.” There is no confidentiality clause attached to the punishments prescribed after a contested case hearing; one punishment allows for a “private” reprimand, which seems curious, but I will contend that at the very least, the board must tell us it has issued a reprimand, even if it does not have to publish the text of that reprimand.
Something is wrong here. Maybe I’m wrong about what’s wrong, but something is wrong.
I had a great deal of confidence that the three retired judges would “do the right thing”. I am not 100% certain that they did not. I believe the door is now opened, the onion is being peeled, one layer at a time. This issue of the Governor’s malfeasance and misuse of government money just won’t fit under the rug. It won’t fade away, but will continue to fester.
C’mon, man! I’m sure we will all move along now to more important things.
I’ll admit Grudz, that in South Dakota politics only the most cynical prevail. But, what in your mind what is more important than the destruction of the faith South Dakotans have in their government by the shallow and blatantly ego driven pursuit of power and notoriety by our Governor? Once more Grudz, why didn’t she just pick up the phone and charter a plane through Ice Flying Service to fly her wedding guests to Custer?
I enjoy the research done when Cory and Bear disagree. Continue, please.
Cory, one reading of the actual language of SDCL 3-24-7 seems to support your conclusion and I think that was the same statute referenced by government eithics law professor Kathleen Clark in Steven Groves’ story. Reading these statutes as limiting the Board’s power would raise serious questions about the Board’s actions here.
While SDCL 3-24-8 authorizes certain action by the Board after a contested case, however, neither section 8 nor any other section that I saw within that chapter explictly restricts the Board from taking action without a contested case. And SDCL 3-24-3 authorizes the Board to “review and investigate any person holding a statewide office” for specific acts but does not place explicit limits on the Board’s power, other than limiting the matters that the Board is authorized to investigate.
I saw two main Board mandates: (1) it is required to hold a contested case hearing if there is a majority vote “that there is sufficient information to believe that a statewide office holder or executive branch employee has engaged in misconduct related to any subdivision of § 3-24-3;” and (2) it cannot publicly disclose “information, reports, or complaints and the investigative records and files of the board . . . until the board votes in favor of conducting a contested case hearing.”
Together, the implications from these statutes, and from the lack of explicit statutory restrictions on Board action if the Board does not order a contested case, seem to imply that a majority the Board simply did not “vote that there is sufficient information” of misconduct requiring an order for a contested case hearing. Without that specific vote SDCL 3-24-7 does not mandate that a contested case take place, but the statute likewise does not explicitly prohibit holding a contested case without such a vote if the government official involved wishes to contest whatever action the Board decided would be appropriate under the circumstances. And of course a government employee such as Noem would seem to have the right to demand such a hearing as a right of constitutional due process.
Since information about the Board proceedings has been determined by the Board to be confidential since no contested case took place, it really is not possible, however, to fully understand either the Board’s actions or it legal rationale. That said, I do see more than one possible reasonable interpretation of the statutes in SDCL chapter 3-24. And I no reasonable basis for claiming the Board conspired to help Noem or was politically motivated to protect Noem. Again, the background of the retired Judges on the Board certainly does not support such speculation. Indeed, the referral to the AG for a criminal investigation also cuts heavily against speculation that the Board was acting inappropriately based on some favortism or political goal, as well as the implication that the Board may have taken confidential negative action against Noem, since the Board publicly offered her a contested case hearing to clear her name.
Is it then fair to conclude that the Board found no wrongdoing?
sufficient information to believe that a statewide office holder or executive branch employee has engaged in misconduct related to any subdivision of § 3-24-3, the board shall conduct a contested case hearing …
but.but.but noem’s a nationwide office seeker and not a very good one at that.
P., that seems a reasonable possibility, yet why would they offer Noem the opportunity to request a contested case if she had been cleared? It is pure speculation on my part, but my best guess is they decided not to take an official vote to confirm any finding as for some reason they did not want to trigger the contestd case requirement. Yet, by making that offer to Noem they sure implied she would have a reason to challenge whatever they proposed, and the obvious reason seems to be they felt Noem’s behavior was not innocuous.
I have a soft spot for Governor Noem, and not just because she’s pretty and rides horses, Jerry.
Her signature is on 6 (SIX) cannabis legalization bills.
Also, she didn’t try to force my kids to wear masks or get that damn deathypooshotyshot.
Plus, I mean .. you have to admit .. she looks great riding on horse back.
Kristi Lynn Arnold Noem (KLAN) is Mr. Dale’s MILF of the week!
Rabbit Hole Refugee has a soft spot for liar Noiem. You can get a prescription to fix the softness.
Support your governor because, you know, ‘nads.