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Definition of “State Business” Clear in Other Statutes and Rules; Why Can’t GAB Apply Definition to Governor Ethics Probe?

The Government Accountability Board wimped out of holding Governor Kristi Noem accountable for her use of the state plane for personal and political purposes by declaring they don’t know what “state business” is. The draft minutes of their December 20 meeting show that the GAB has just enough jelly in its spine to note that the Governor may indeed have abused her plane privilege and broken the law:

There may or may not have been actions contrary to the dictates of SDCL 5-25-1.1…

…but the GAB hides from its mission and the Governor’s corruption with definitional agnosticism:

…however, to decide pursuant to SDCL 3-4-7 a definition of the term “State Business” as referenced in SDCL 5-25-1.1 is necessary. The Board does not feel it has the authority to establish a definition of the term “State Business” as embodied in SDCL 5-25-1.1. The authority for such a definition is the responsibility of the State Legislature. From the Board’s research there is no statutory definition. That prohibits the Board from making a finding of sufficient information pursuant to SDCL 3-4-7 [Government Accountability Board, draft minutes, 2022.12.20].

Funny that the GAB can’t discern state business from monkey business when other South Dakota government entities have been doing so under statute for years.

The Department of Public Safety has to know state business from monkey business, as SDCL 1-13-8 charges DPS to “broadcast any other statement or report upon request of any constitutional officer, or the head of any state department, providing such message relates to state business.”

Under SDCL 3-9-1, the State Board of Finance fixes rates for reimbursing individuals “operating privately owned automobiles and vehicles on state business” and directs the state auditor to issue those reimbursements “upon the sworn statement of the party using the vehicle.” The State Board of Finance thus recognizes there is state business, drivers must be able to swear they were driving on state business, and the state auditor must be able to tell the difference between state and non-state business.

SDCL 3-9-2.2 allows the State Board of Finance to authorize per diem reimbursement for state officers and employees “conducting state business at an event extending entirely through a meal time without interruption….”

SDCL 3-9-4 prohibits reimbursement to any state officer or employee for travel, meals, lodging, transportation, or other personal expenses “except on official state business.”

SDCL 5-15-45 protects public access to historic areas of the State Capitol but allows the Bureau of Administration commissioner to restrict public access “to permit the orderly conduct of state business.”

ARSD 39:04:01:01 restricts the issuance and use of state bank cards by defining “traveler” as “any state employee authorized to travel in order to conduct official state business.” ARSD 39:01:01:01 uses a similar definition to limit travel advances to “state employees authorized to travel while conducting official state business.”

None of these statutory authorizations explicitly define state business, because apparently the meaning is so patently obvious that none is needed. But SDCL 3-9-2 allows reimbursement for meals and lodging “incurred by state officers and employees in the performance of their duties,” and SDCL 3-9-2.1 provides three criteria that a state officer or employee must satisfy to qualify for that reimbursement:

  1. The lodging and meals are in furtherance of the state’s interests, concerns, and activities;
  2. The activity for which the lodging and meal is required is related specifically to hosting a prospect for any business development, trade, or tourism promotional activity; and
  3. The officer or employee is performing an official duty at the direction of the head of the officer’s or employee’s department or office, which approval is certified in writing by the department or office head, or by the Governor [SDCL 3-9-2.1, excerpt, enacted 2015].

ARSD 3:05:03:13 gives the state auditor a similar contextual definition of state business that squares with our common understanding of the concept. That administrative rule prohibits reimbursements for travel expenses to any state officer of employee “who attends or is in the area of a political meeting, the state fair, the inaugural, state basketball or state football tournaments, or other public meetings of like character… unless the employee’s duties necessarily require that he be present at the meeting or he receives specific prior approval of the state board of finance” [emphasis mine].

ARSD 5:01:02:04.01 provides these criteria for who can get travel reimbursements for activities at the state fair, the inaugural, “or any other similar public meeting”:

  1. A constitutional officer or state employee charged by statute with the responsibility for the operation and administration of the state fair, the inaugural, or any other similar public meeting that is an official state function;
  2. A constitutional officer or state employee charged with the responsibility for maintaining public health, order, safety, tax collections, audits, or the investigation of complaints pertaining to the functions of the public meeting;
  3. A constitutional officer or state employee performing state duties in the same locality during the same time but independent of the state fair, inaugural, or any other similar public meeting;
  4. A constitutional officer or an employee of the state Department of Agriculture and Natural Resources attending the state fair, performing a support function considered necessary by the secretary of the Department of Agriculture and Natural Resources;
  5. An employee of educational television, public radio, or Rural Development Telecommunications Network attending a public meeting for the purpose of media coverage by that agency; and
  6. A constitutional officer or state employee attending a public meeting to perform work-related duties that necessarily require attendance at that public meeting. To obtain reimbursement under this subdivision, the voucher must include a written statement of the purpose of attendance at the public meeting and must be approved by the institution or head of the agency [ARSD 5:01:02:04.01, last amended 2021.04.19].

ARSD 39:04:02:03 further distinguishes official purposes from personal oopsies or unauthorized purchases by excluding interest charges and transaction fees for cash advances on state bank cards from reimbursement for state travel expenses.

The vast majority of state employees don’t need an explicit definition to explain the ethically queasy feeling they’d get about buying GQ and Runner’s World or going to a go-go club on the state’s dime. But even if we shut off our common ethical sense and look strictly at the text of state law and administrative rule, we can easily recognize a practical definition of “state business” underlying years of lawmaking and executive-branch practice: performance of duties to further the state’s interests, concerns, and activities. That definition is clear enough to the Legislature and numerous rule-making and reimbursement-approving agencies; why the experienced judges sitting on the Government Accountability Board cannot see that same definition is unclear.


  1. Donald Pay 2022-12-29 09:00

    “The vast majority of state employees don’t need an explicit definition….” Ain’t that the truth. Your lowest of state employees can figure out what’s state business, and what isn’t, as they fill out their forms for travel, food and lodging after traveling for state business. It ain’t rocket science, and it doesn’t require a law licence.

    Here’s what I don’t understand. A meeting of the GAB would be considered state business, or would it? If this group of brain-dead attorneys can’t make commonsense interpretations of the state Constitution and state statute, then maybe they shouldn’t be charging the state for their travel, food and lodging. I would expect if this board had to travel, or eat, or stay in a motel during the course of their meetings they would have received forms to fill out. These forms have basic instructions. Did they have a line on that form for mile high shtupping with Lewandowski or campaigning for fascist candidates in Florida? If not, it ain’t allowed.

  2. Richard Schriever 2022-12-29 09:23

    Noem’s claims will always be; 1. Promoting tourism (she can claim she is herself “an attraction”), 2. Whatever the Governor approves. Both are cited in SD-CL-3-9-2.1.

  3. John 2022-12-29 10:08

    Yep, the South Dakota “Government [un]Accountability Board” ought be stricken from the record and law. Impeach its members for dereliction.
    The near single party legislature refuses to provide any meaningful tri-branch government checks and balances. The legislature tried hiding behind a board to complete executive oversight. What a pack of weasels. Only when forced into a corner after almost 2 years, did the spineless finally muster the feeble courage to oust killer Jason Ravnsborg.
    The South Dakota legislature is willfully inept.

  4. bearcreekbat 2022-12-29 11:26

    The language Cory cited from the Adminstrative Rules of South Dakota (ARSD) looks quite useful for formulating a statutory definition of “state business.” Of course, until such a statute is enacted any rules codified by the ARSD have no application beyond the jurisdiction of the particular agency that has adopted the rule pursuant to the authority delegated by the legislature to adopt rules to carry out its functions. And even then the rule will be set aside if it conflicts with an actual statute or was adopted incorrectly under the state Administrative Procedures Act (APA). Hence rtules coddified in the ARSD simplyy do not have a similar legal force and effect as a State statute, which would make it a real stretch for the GAB to attempt to use the definitions adopted by completely different agencies to resolve a case.

    If the GAB has been granted legislative authority to adopt rules, however, nothing would seem to prevent them for proposing a GAB adminstrative rule to define “state business” with similar language to the ARSD rules Cory cited. But such a new ARSD rule would have to be adopted pursuant to the APA, with proper advance notice and an opportunity for public input before it could be used by GAB to resolve a dispute.

    And Richard Schriever s cite to SDCL 3-9-2.1 would certainly seem to provide Noem a useful counterargument against application of such rules by actually being a statute rather than a mere adminstrative rule. To complicate the matter further, all state officials would be entitled by constitutional due process protection to advance notice of how the GAB intended to interpret “state business” especially if the GAB were to reject the statutory “tourism” interpretation of state business.

    Thus, I don’t see how the ARSD’s cited by Cory provide any better legal and constitutional basis for the GAB to define “state business” than relying on the GAB member’s individual “common sense” or the GAB member’s personal “feelings” about what “state business” should mean. Either one seems a slippery slope.

  5. Francis Schaffer 2022-12-29 11:46

    The most certain way to determine if any state government employee is on state business would be to see what expenses were approved and reimbursed by the State of South Dakota. It would seem to me that Kristi’s trips using a state vehicle would require fuel for the vehicle, food, ground transportation, lodging and misc. expenses which would need to be reimbursed to her by the State of South Dakota or paid by her campaign. Also, any authorization for designation of ‘state business’ expenses would have to have been in writing. Of course, freedom of information in South Dakota, isn’t.

  6. Nix 2022-12-29 11:59

    It’s Crystal clear ….
    Same reason Christina Klinger ruled
    against recreational cannabis in the
    Thoms/ Miller Single subject ruling on
    Amendment A in 2021.
    The law in South Dakota only matters if
    The SDGOP agree with it.
    Thank you Bill Janklow for planting the seed that grew into the Cancer that we
    have in Pierre now.
    The mutants have learned well.
    The cancer continues to grow.

  7. P. Aitch 2022-12-29 13:20

    Recreational marijuana failed because recreation is not embraced in South Dakota.

    Try again but label it “Just think about how much money you aren’t spending while not doing that entertainment activity.” marijuana. Or “Deriving enjoyment from denying yourself enjoyment.” marijuana.

    It’s all in the marketing and knowing your target audience’s mindset.

  8. Nix 2022-12-29 13:43

    That may be true if you are referencing
    I am talking about Amendment A.
    And, in that vote, Recreational cannabis
    passed because it was embraced by the
    majority of the people.
    It was overruled by a Noem appointed
    Circus Flea.
    IM27 did not pass because of the
    lies and mistruths puked out by Fred
    Deutsch and Jim Kinyon.

  9. P. Aitch 2022-12-29 16:41

    @Nix – I was trying to be clever with a funny back note about SD’s uninspiring, unexciting Germanic culture. Sorry. Not a pro.
    – Everything you said is wholly accurate, though. Thanks for sharing. :)

  10. DaveFN 2022-12-29 22:51

    I fail to see how SDCL 3-9-2.1 is relevant, and if it is, why did the GAB not cite it?

    3-9-2.1. Meals and lodging actual cost reimbursement regardless of whether away from residence or headquarters.

    The State Board of Finance may authorize reimbursement of the actual costs of lodging and meals, excluding any alcoholic beverage as defined in subdivision 35-1-1(1), but including a gratuity incurred by a state officer or employee in the performance of his or her duties, regardless of whether the officer or employee is away from his or her place of residence or headquarters station, if:

    (1) The lodging and meals are in furtherance of the state’s interests, concerns, and activities;

    (2) The activity for which the lodging and meal is required is related specifically to hosting a prospect for any business development, trade, or tourism promotional activity; and

    (3) The officer or employee is performing an official duty at the direction of the head of the officer’s or employee’s department or office, which approval is certified in writing by the department or office head, or by the Governor.

    The authorization shall be made on a form prescribed by the Governor and supported by receipts and the certification of the department or office head and shall accompany the claim filed pursuant to § 3-9-8.

    The reimbursement for a gratuity authorized by this section may either be a voluntary service gratuity, not to exceed eighteen percent, or a mandatory service gratuity added to the bill by the establishment, not to exceed twenty percent.

    Source: SL 2015, ch 24, § 2.

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