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 Republican legislators immediately sued, got Republican Judge Mark Barnett to overturn IM 22, then repealed the entire law in the 2017 Session.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.