Why bother?
In 2006, South Dakota voters passed a law, Initiated Measure 5, saying that state officers and employees may use the state airplane only for state business. That law sat untested for 15 years, until a foot-dragging Republican attorney general in political trouble forwarded a complaint from a Democratic legislator about a Republican governor’s use of the state plane for personal and political gain to the Government Accountability Board.
In 2016, South Dakota voters passed a law, Initiated Measure 22, creating an ethics commission to enforce sweeping new anti-corruption measures. Republican legislators immediately sued, got Republican Judge Mark Barnett to overturn IM 22, then repealed the entire law in the 2017 Session. The 2017 Legislature then created the Government Accountability Board as one of a handful of watered-down substitutes for the IM 22 reforms that voters wanted.
This week, the watered-down Government Accountability Board effectively negated the voters 2006 expression of a desire to fight corruption by declaring the restriction of state plane use to “state business” as meaningless:
The state Government Accountability Board dismissed a complaint Tuesday regarding Gov. Kristi Noem’s use of state aircraft, citing no sufficient legal definition of “state business.”
The three retired judges on the board – minus an additional member who recused himself – called the definition necessary to determine if a legal or ethical violation took place.
Former Chief Justice of the South Dakota Supreme Court David Gilbertson recused himself from the complaint earlier this year, leaving retired Justice Lori Wilbur and retired Circuit Court Judges David Gienapp and Gene Paul Kean to consider the matter Tuesday during a meeting in Sioux Falls.
Gienapp made the announcement.
“A definition of the term ‘state business’ as referenced in SDCL 5-25-1.1 is necessary and it is not felt that the board has the authority to establish a definition of state business,” Gienapp said.
Gienapp said that is the responsibility of the Legislature.
The board made the decision after reviewing a Division of Criminal Investigation (DCI) reportabout the complaint. The board said it will not make the report public [Joshua Haiar, “Ethics Panel Dismisses Airplane Complaint Against Noem, Citing No Definition of ‘State Business’,” South Dakota Searchlight, 2022.12.20].
As South Dacola points out, finding a definition of “state business” isn’t that hard. Like pornography, we know it when we see it. Flying to attend a government agency hearing or a meeting with business leaders to negotiate a state contract or recruit a business to expand to South Dakota is state business. Flying to a political campaign event in Florida or giving teenage boys a lift to your daughter’s wedding in the Black Hills is not state business.
The judges on the GAB could easily turn to legislative intent, as courts often do when laws appear to be unclear, to define “state business”. Simply review the history of Initiated Measure 5: in 2006, voters were unhappy with revelations that Governor Mike Rounds was flying to nonpublic and partisan events and his son’s basketball games and giving friends and family rides on the state plane. Governor Rounds said he reimbursed the state for any non-government flights with his campaign cash, indicating that even he recognized a difference between state business and non-state business. Voters recognized a difference as well, said reimbursing the state wasn’t enough, and passed IM 5 to stop the use of the state plane for non-state business. Everybody—the writers of the law, the target of the law, and the approvers of the law (citizens acting as legislators)—understood what the law meant. The legislative intent behind IM 5 is clear.
But the Government Accountability Board, an entity created to make voters stop crying about the repeal of a 2016 initiative to stop corruption, has just declared that a 2006 initiative to stop corruption is not clear and thus cannot be used to hold anyone accountable for government corruption.
The lesson for elected officials in South Dakota: do whatever you want with the government resources at your fingertips. No one will hold you accountable.
The lesson for voters and taxpayers in South Dakota: why bother trying to hold government officials accountable for corruption? Even when you pass laws to fight corruption, the powers that be will find ways to declare your laws meaningless.
Bah. Like somebody else stated:
A non-issue. Nothing more to see here. Move along.
This is so right on. Proof they are unaccountable and answering to these ‘dust ups’ so inconvenient for her. So what’s to stop her & cronies from bolder more onerous behavior ? Nothing ! Little hope for accountability in this state, where there are NO statesman/women. Our state gov’t is an EMBARASSMENT.
He did it! Scrooge McGrudz actually said “Bah, Humbug”. Ahhh … there is a God. #Halelulah
Legislative intent? There is no such thing. It’s a fiction, just like originalism, which conservatives like to spout on about. To have intent, you have to be a sentient human being. That is never the case with a legislative body.
“State business.” Put the definition in state law. I tell you, my definition would not include screwing Lewandowski on the taxpayers’ dimes.
I’m a twenty year volunteer for DSCC, DCCC and DLCC charged with South Dakota as a territory but nobody in those organizations believes a Democrat can win any statewide race in the red moocher state. The only reason 2018 Democratic gubernatorial candidate Billie Sutton got any SDGOP crossover votes whatsoever is because Kristi Noem is loathed by almost half her caucus. Vote margins in the other statewide races proved that. Stephanie Herseth Sandlin, Brendan Johnson or Bernie Hunhoff would have done at least as well.
Your broader point is correct. SD state government has always been corrupt. That’s why citizens passed the initiative and referendum. Don’t expect the crooks will give up. You just have to keep fighting the crooks.
SD has it’s own Little Pootie. Baby Mussolini, or maybe even Hitler. Reading up on history is maddening when seeing it’s harsh lessons repeated, in total, here in SD. Right down to Machiavelli’s concern with “Christianity as a sect making men weak and inactive, delivering politics into the hands of cruel and wicked (wo)men without a fight.” https://en.m.wikipedia.org/wiki/Niccolò_Machiavelli
If the population were minimally aware of the machinations used by fascist dictators in the past, we would have spotted this lady coming for miles, and would definitely have put the kiboshes to it. Dementia is a killer.
Changing the law will not change the fact that we have created a system that some are above the law. They are above the tax code, they are above the ways of lesser-men (and women). Their status and wealth set them above such concerns. They know better. Nine out of ten time we, through our elected officials, even rewrite our legal code to conform to their vision. When all else fails, a judicial system that seems ever more beholden to advancing a political cult of personality and ideology has their backs.
There was a class war, and they won. We finally looked up at the scoreboard.
Since the esteemed?! retired justices were unable to ascertain “state business” . . . perhaps they be individually and severally sued for their pay and allowances on the matter since they, too, will be unable to ascertain or prove whether they were serving on “state business” as their part of this waste of taxpayer funds.
More single-party malarkey.
It is good to be queen.
I think Donald Pay makes a valid point about problems with so-called “legislative intent.” As he notes a legislature consists of a large group of individuals. This creates a wealth of opportunity to mine for a written opinion or statement by whatever particular legislator who might happen to say something that supports one view or another of the intent behind particular words or phrases in a law. A more disciplined approach is to simply use the plain and commonly accepted meaning of words or phrases without regard to individual statements or even the history leading up to the legislation.
A second problem for the judges that sit on this particular board is the fact that the board is not an independent branch of government like a court. To the extent a court has the constitutional power to determine the meaning of laws and words within those laws (as in Marbury v. Madison’s power of judicial review), these judges likely have doubts that any legislatively created board has similar constitutional power. Hence, they defer to the legislature to define ambiguous terms rather than follow the steps that a court might be able to take under the constitutional seperation of powers doctrine. IMHO the three judges sitting on the board gave absolutely no deference to politics or the desires of Noem or her supporters in making this decision, rather, they applied longstanding legal principles, including recognition of their own limited power, in an honest straightforward manner.
There are a couple more concepts worthy of consideration in this speculative analysis.
First, holding an individual culpable of violating legal restrictions is a serious business, regardless of the political leanings of the accused, here Noem. There can be a tendency to look for ways and interpretations of the law that support punishing a political opponent. Yet, these judges have long had it drilled into to their ethical values that everyone, regardless of political viewpoints, is entitled to a fair and impartial determination of whether they are guilty of the alleged transgressions. This includes Noem.
Second, the phrase “state business” clearly can be reasonably considered a somewhat ambiguous term, open to more than one interpretation. For example, it could easily be interpreted to cover literally any behavior by an elected official, as these officials are always state officials, 24 hours a day. This particular interpretation would have exonerated Noem from all allegations of improper use of the state plane. It certainly would have been an attractive interpretation for Noem’s supporters.
Of course, an alternative interpretation of “state business” could be very restrictive and limit state officials’ actions to particular activities, which apparently are not listed in the law. The judges could have decided whether Noem’s alleged particular actions were permitted or prohibited.
An important legal protection for individuals that are to be prosecuted by the government is advance notice of exactly what the law prohibits. If the judges adopted the second interpretation of “state business” then state officials would have to guess what future activities might or might not be deemed state business by the board. Such a situation is faced by political victims in totalitarian regimes.
So that left the judges on the board with a couple of choices: (1) adopt an interpretation that exonerates Noem completely; or (2) adopt an interpretation that subjects future state officials to uncertainty as to what conduct can get them in trouble with the state. Had the board been in Noem’s pocket, choice number (1) would have been a no brainer. By rejecting that choice, however, the board clearly expressed the idea that it could not exonerate Noem for her alleged behavior. And by rejecting choice (2) the board stayed true to protecting the right of all people to be informed by the written law exactly what particular conduct is punishable by the government.
BCB puts legal finality around why the board did what they did. In the end, people in a democracy get the government they deserve. If you don’t want your taxes paying for Noem’s booty calls, don’t vote for her. She won re-election in the face of such corruption and sexual immorality , both of which are rampant in South Dakota. It’s not as if Noem’s corruption is anything new. The abuse of the state airplane issue has been around since at least Janklow’s administration. I’m not sure if there was a state airplane during the Farrar and Kneip years, but if they had one, I’m sure it was controversial. Politicans, like toddlers, love them their toys, and the solution when they misbehave is to take away their toys until they behave.
I was always in favor of getting rid of the state air force. A governor should sit in his or her office and do the job for the constituents, not mixing with crooked corporate executives at baseball games or Texas campaign mixers that serve as cover for a hookup. The Legislature should just refuse to fund the goddamn plane. Let Noem pay for her own immoral behavior.
Maybe the insurance company which insures the plane should be asked what ‘state business’ is. I wonder had the plane crashed with the high school children on board who would be involved in the lawsuit. This reinforces my belief that 2 systems of Justice exist – ‘Just Us’ and ‘The rest of Us’.
Francis: good point, but it’s likely the state exercises being “self-insured” by virtue of the taxing power.
BCB: my preference is treating civilian government employees similar to military government employees — they take similar oaths. Military government employees are NEVER off duty – and NEVER on the clock because they are NEVER off the clock. They (military) are salaried and from private to general, NEVER fill out a timesheet. The ‘time off’ for the military is considered a ‘pass’ – to go home to rest, have a weekend/holiday off, etc., if duty allows, including leave (which includes weekend/holiday days if gone Friday-Monday, each day is a duty day). Our civilian government employees have a very cushy deal – especially in law enforcement, courts, and some first responders. The non-Accountability Board justices apparently failed their charter and task.
SD needs a constitutional amendment requiring senate public hearings and confirmation of cabinet secretaries and a few senior executive department posts and all judges/justices. The present old-ol-girl/bar system isn’t providing oversight. Clearly the republican party itself is incapable of oversight: election denier-Johnson, Ravnsborg, etc.
Ms. Magstadt may be fine soul, but who knows in the absence of a vetting – a vetting the SD compliant, happy-news, mainly-sports media is inadequate to provide. The sheer speed of the appointment (choking on that word) imparts desperation, a lack of due diligence, absence of vetting, and cronyism.
Her resume may be solid, or as phony as Ravnsborg’s or the new GOP fraudster, Santos. Why should taxpayers have discovery after the fact?
I wish her well. I hope for best. But as General Sullivan booked: Hope is Not a Method. As Reagan intoned, Trust, but verify.
https://www.thedakotascout.com/p/noem-appoints-advanced-nurse-former?utm_source=substack&utm_medium=email
Just asking. If these retired judges were not acting as part of the real judicial system, could not interpret the intent of “state business” because they were just a legislative formed board, then does it mean that an Initiative Measure is not enforceable in a real court system? Could anyone other than the State bring charges against someone that violated the law which used State funds to do the violation? Did the IM have a penalty for violation attached to it. I have been told that States Attorneys are to only participate in enforcement of State Laws that have a penalty in statute, so that leaves it up to private citizens to enforce all the rest.
Would offer this, the board did not find a definition of “state business” because it was not looking for a definition. Cory correctly points to legislative intent and other statutes that could have definition weight, but the base question is were they looking for a definition? I feel like this is the same discussion we had over the single subject rule or the discussion we can have on most any matter of law — given the possibility for interpretation, what deference or framework of deference will determine the ultimate determination or interpretation. So here we find ourselves again. Did the GAB have enough evidence, rule, and definition to find the Governor guilty of using state resources for personal benefit – yes; did they also have enough wiggle room to avoid that fining — obviously.
I will not skip like a broken record to my diatribe of how deference is given to to the powerful (usually defined by wealth) and away from the will of the majority — the very definition of a broken democracy.
RS, good questions. In my view a properly enacted Initiative Measure is enforceable in South Dakota courts. I also think that where an IM provides for a criminal penalty, only the State, either through a States Attorney or the Attorney General, may prosecute the criminal violation. And if an IM doesn’t contain a criminal sanction for a violation I think the State can also seek relief in civil court, such as an injunction or restitution, and in certain cases a private citizen may also be permitted to seek the same type of remedy in civil court.
O, as I understand the facts from Cory’s various postings and links “the board did not find a definition” of state business because there is no such definition in relevant statutes. I am unaware of any evidence that the board “was not looking for a definition.”
John, “treating civilian government employees similar to military government employees — they . . . are NEVER off duty – and . . . NEVER off the clock” might not quite solve the problem, as the question was not whether Noem was “off duty,” it was whether her actions in using the State airplane constituted doing state business. Military personnel that are always on duty have the same opportunity to act inconsistently with their sworn obligations as any state officer, such as Noem, so that their conduct might not be military business when they are on duty (e.g., think of some of the escapades of Hot Lips Hoolihan and Major Frank Burns).
And last, none of my comments are intended to imply I agree with the decision of the judges on the board. I do not think “state business” is so ambiguous that even obvious violations of the requirement cannot be remedied. From what I have read of DFP and Cory’s links I would certainly conclude that any reasonable person would know that using state resources to go to political conventions in other states or using resources to transport family and friends to non-state functions, such as weddings, does not constitute “state business” under any definition, hence Noem needed no further protection from inadvertantly violating the law.
That said, I also recognize that these three particular judges reasonably could have (and did) view the matter differently than I might have, with no desire or intent to grant some sort of inappropriate and highly unethical favoritism to Noem. I also acknowledge that any judge at any time may well make a corrupt decision or engage in favoritism. Given the background of these three partiocualr judges, however, I would easily bet a dollar against a dime that they made their decision in good faith because they honestly concluded it was the right decision under the circumstances.
Thanks bcb. Maybe a ‘Go Fund Me’ group could address the failure to comply with laws by elected officials thru civil courts. Just to level the field once in awhile.
Ethics law of the people? Stripped out by Daugaaaard and the daugaarderites.
State plane law passed by the people, restricting Republicans to state use only? Ignored by Republicans and judges.
The rep. Party is the antiPeople Party. Over and over.
Remedy? Obviously, more center left voters electing more center left leaders. Since we don’t have that. Next best then, be a Governor yourself, name tags are pretty cheap to print up, and print up a tag that says you are Governor of something. Hawaiian-ize and Scandinavian ize your life and the lives of others.
If you believe this can’t be done without government, you’re wrong. Did Edison ask permission before he created the light bulb.
Create!
Mr. ABC, I expect a high probability of a bunch of deeply entrenched Daugaarderites scattered across the governments, communicating with secret message drops amongst the statuary in Pierre. These embedded government ticks are steering the ship, behind the blind eye of the young and inexperienced staff of Governor Noem and Lt. Governor Rhoden. I have heard Lt. Governor Rhoden has the youngest staff of them all, so it must be tough for them to wrangle him without a food reward involved. Mr Rhoden, hisownself, has a reputation of head butting or Rhoden gut-punching to make his point known.
Mr. bat, from bear creek, I’ll bet you a gravy-laden breakfast that Mr. Nesiba, he being the new king of the Senate Libbie Army, brings a law bill this year to button up what is “state business”, and further that the committee it is sent to will include Mr. Schoenbeck, and that this committee will put Mr. Nesiba’s law bill out of our misery, with a 50% chance some mockery will occur.
Our IM would not be capable of containing a violation penalty because then it would be violating the single subject limit, then the whole effort is kaput. Like Banksy said, “From this moment, despair ends and tactics begin”.
I pray Pierre is buried under ten feet of volcanic ash.
I guess it’s certainly not ‘state business’ to provide emergency snowplows, fuels and firewood to Indian reservations by the National Guard until they are down to burning clothes for heat and dying. A state run by the GOP that keeps putting extra millions into “Rainy Day Funds” accounts (and has been for years) has to be asked “WHY is emergency response so slow to aid so many thousands of our residents in life -threatening situations?!!! Again-ask yourself WHY? A week and another bad storm later? C’mon!
Or, was our GOP governor et al. so busy planning a future ‘showboating’ of our National Guard at the Mexican border?