In dismissing a complaint against South Dakota Gov. Kristi Noem on Tuesday, a state ethics panel managed to find a loophole in a law that appeared to have none.
As approved by a majority of the voters in a statewide ballot in 2006, the law in question states “any aircraft owned or leased by the state may be used only in the conduct of state business.”
“No exceptions,” the ballot added, noting that a violation was a Class 2 misdemeanor.
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Noem was alleged to have repeatedly broken the law in 2019 when she used a state plane to fly to political events such as a NRA convention, a gathering of the right wing group Turning Point USA and a meeting of the Republican Jewish Coalition. She also flew to a family wedding.
Noem maintained that she attended the political events as an “ambassador for the state.” Her office insisted that the wedding was in line with official state business, because if she had taken slower transportation she would not have also been able to attend two meetings with “hundreds of teenage future community leaders” who “would have been deprived of the opportunity to hear from their Governor and ask her questions.”
Never mind that the wedding was three days after the meetings.
One of the private citizens in a bi-partisan group that succeeded in getting the law enacted statewide 16 years ago has since been elected to the South Dakota legislature. Sen. Senator Reynold Nesiba (D-15/Sioux Falls) subsequently read news accounts of Noem’s travels and decided she was flouting a law that could not have been clearer.
In February of 2021, Nesiba submitted a complaint to the office of South Dakota’s then Attorney General Jason Ravnsborg charging that Noem had used state aircraft for “personal use, out-of-state political campaigning and attending partisan political events.” But Ravnsborg was himself facing investigation for an alleged fatal hit-and-run accident in September 2020 while returning home from a Republican fundraiser at a bar & grill.
Noem had been pushing for Rvansborg to resign. Ravnsborg decided that this was not a time to consider a complaint against the governor.
“Rather than doing the investigation that he should have done in his office, he kicked it over to the Government Accountability Board,” Nesiba told The Daily Beast. “The Government Accountability Board took a look at it and said, ‘You know what? This really should go to the Attorney General.’”
The three retired judges who comprise the panel referred the complaint back to the state attorney general’s office after Ravnsborg was impeached and replaced by Mark Vargo. The office’s Division of Criminal Investigation completed a probe and submitted the result to the board, which found itself faced what seems a clear cut violation of a law that allowed no exceptions The board then announced a loophole in a law that had seemed immaculate of any.
“It is not felt that the board has authority to establish a definition of state business,” board member David Gienapp told the press after a 30-minute closed session on Tuesday.
Noem issued a statement saying the board had made the right decision.
“From the beginning, this was a political attack by a disgraced, impeached, and removed former Attorney General who killed a man, lied about it, and abused his office to try to cover it up,” said Gov. Noem. “I have always used the state airplane according to state law and the precedent set by previous governors. The GAB Board made the right decision to dismiss this frivolous attack.”
Nesiba suggested to The Daily Beast that this was an easy way for these retired judges to not have to take action in the face of what he views as “lawbreaking behavior.”
“This is a law that was made by the people of South Dakota,” he said. “I’m frustrated today that our government accountability board said that they can’t hold anybody accountable because they can’t figure out what state business means.”
Nesbia suggested that postal workers seem to understand what government business means at the federal level.
“The mail carriers with their mail vehicle, you don’t see it out shopping, parked at the mall or parked in front of a restaurant, unless they’re delivering mail,” he said. “You don’t see a mail carrier stopping and using their mail delivery truck to run errands or to do shopping or go out for lunch. They’re careful about it.”
He added that the same rules apply to official state and federal motor vehicles.
“Our Department of Transportation might allow somebody to use a car that they use to get back and forth between work sites, but we don’t expect them to use that car to go to a daughter’s wedding in Des Moines over the weekend. It’s just common sense; are you using this vehicle in the conduct of business for the state? Or not? And I think there has to be some sort of just reasonable standard, some appeal to common sense of what that means.”
In the session that begins in January, Nesbia will be minority leader of the Senate but he hopes Republicans will join him in closing the loophole. He figures that voters feel much the same as they did back in 2006, when a majority of them approved the law.
“The people of South Dakota do not want their elected officials using government assets for their own personal or political benefit,” he said. “And the state airplane is just one of those assets.”
