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:
- The lodging and meals are in furtherance of the state’s interests, concerns, and activities;
- 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
- 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”:
- 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;
- 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;
- 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;
- 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;
- 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
- 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.