'Nobody thought this would be a governor': Noem complaint leads to key chapter in short life of ethics board
The Government Accountability Board, created in 2017 as a successful ballot measure in the wake of a slew of scandals, is facing its first serious inquiry in the dual complaints levied against Gov. Kristi Noem. Combining the public nature of these complaints with the board whose work is meant to be confidential has created a conversation of how to increase transparency and trust.
SIOUX FALLS, S.D. — The Aug. 22 meeting of the Government Accountability Board, where the board moved on two complaints against Gov. Kristi Noem, was the latest in a series of unprecedented events for the board, which was created in 2017 in response to a series of state scandals and an initiated measure passed statewide.
The board, made up of four retired judges, one of whom has recused himself from the Noem investigation because she appointed him, is treading in uncharted waters for two reasons. For one, this is the first set of complaints that the board has not simply dismissed, meaning the details of the process for a possible contested case hearing must be figured out on the fly.
The second factor, which has added to the pressure and attention on the ethics commission, is that the confidentiality inherent to the board’s process was undermined by Jason Ravnsborg, the former attorney general who brought the complaints public during a feud with Noem over her calling for his impeachment.
“This shouldn’t be a political process,” Karen Soli, a former Democratic legislator and one of the central authors of the bill that created the accountability board, told Forum News Service on Monday, Aug. 28. “It’s meant to be a way to examine if ethical lines have been crossed, and for it to be done in private, to protect both the one being complained about and the one who’s complaining.”
Ian Fury, the communications director for Noem’s re-election campaign, said it’s “clear that Ravnsborg filed these complaints as political retaliation.”
Scandals, lack of accountability precipitated board’s creation
In 2016, South Dakotans passed Initiated Measure 22 , a broad overhaul of the state’s lobbying, campaign finance and ethics statutes, by a narrow margin of just over 51% of the vote.
The referendum came on the heels of the EB-5 and Platte GEAR UP scandals, two separate incidents that each saw the embezzlement of money by state and state-funded employees that bled millions in taxpayer dollars and resulted in the deaths of seven people.
In the following legislative session, most of the items included in the framework, such as state-funded credits for political donations and strict limits on lobbyist gifts, were repealed by House Bill 1069 , although some tenets of the measure found their way into law.
One part of the referendum in particular, which called for the creation of an ethics commission to oversee the implementation of the measure, was the ideological predecessor to the Government Accountability Board.
“Karen Soli saw a couple of things, one that, while there was some oversight over the judicial and the legislative branch, there really wasn't over the executive branch,” said Reynold Nesiba, a Democratic senator from Sioux Falls. “She also could see the Republicans needed some cover for what they just did, along with a recognition that there was a need to do something.”
Soli worked with then-Attorney General Marty Jackley and a bipartisan contingent of legislators to finalize the framework, which passed overwhelmingly in both chambers.
The South Dakota board has a more narrow focus than ethics commissions in states such as Iowa or Minnesota, where the bodies also oversee campaign finance and elections. The Government Accountability Board's makeup and processes are similar to what one would find in ethics commissions across the country, including a level of confidentiality in the investigation stage and a partisan balance in the members of the board.
“To the extent that there's a debate about whether transparency is always good, I will suggest that there is a countervailing interest in ensuring that people's names are not smeared, unless a complaint is nonfrivolous,” Dino Ioannides, the executive director of the ethics commission in Colorado, told Forum News Service on Aug. 26. “Most of our complaints are dismissed as frivolous, I would say at least 80% of them are dismissed as frivolous. And so I think that is in the public interest.”
Soli expressed similar reasoning, telling Forum News Service the confidentiality of the board in the inquiry stage of the complaint was to avoid having someone “crucified in the press” before the board had come to its conclusions. However, Soli added that, in terms of the first major complaint facing the board, "nobody thought this would be a governor."
Complaints move forward as some legislators mull reforms
During the Aug. 22 meeting , the retired judges referred a complaint regarding misuse of the state airplane to the attorney general. Some legislators have called for Attorney General Mark Vargo to recuse himself from the investigation and appoint a special prosecutor. The board’s statutes specify that the investigation will be handled by the Department of Criminal Investigations.
The board also approved an initial determination in a complaint related to Noem helping her daughter attain a state appraisal license, finding that facts “sufficient to constitute a violation” of claims of conflict of interest and malfeasance were present.
The complaint procedures make clear that this initial determination “does not mean the complaint is valid, rather, it indicates that the allegations, if true, fall under the provisions” of the misconduct that the board is tasked with investigating.
In response to the actions of the board, the Noem campaign released a statement saying the board “did not follow state law or precedent.”
Codified Law 5-25-1.1 restricts use of the state airplane to state business. A 2006 ballot measure that passed with 55% of the vote extended the law to the governor, who had previously been exempt. The complaint regarding Noem’s daughter falls under the board’s power to investigate conflicts of interest and malfeasance, and, although a contested case hearing has not been confirmed, the language used in the initial determination made on Aug. 22 appears to trigger the clause by which the board “shall conduct a contested case hearing.”
In terms of whether Noem would participate in that hearing, Fury declined to comment on the Noem campaign’s “internal deliberations.”
Amid the movement on these complaints, some legislators think the current attention on the board is shining a light on some ways it can be improved. Linda Duba, a Democratic legislator from Sioux Falls, says she is hoping to bring forward certain changes during the next session to make the board “more tenable and transparent,” adding that the lack of transparency “breeds distrust from the public.”
While Duba did not share any details on this forthcoming legislation, one idea from Nesiba involves a more layered approach to confidentiality.
“There maybe should be a recognition that when something is a public case like this to allow the board to be more transparent, but if it was intended to be quiet for them to still be able to do that as well,” Nesiba said, though he added that he would want feedback from the members of the board on ways that the process can be improved. “There are already legislative conversations going on about whether we can help the board be more transparent and open.”