Ethics panel dismisses airplane complaint against Noem, citing no definition of ‘state business’

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 key words and missing definition in the Noem airplane controversy

The board made the decision after reviewing a Division of Criminal Investigation (DCI) report about the complaint. The board said it will not make the report public.

The DCI report about Gov. Noem’s use of state aircraft exists because of a vote the board took in August, when the board forwarded a complaint about Noem’s aircraft usage to the DCI.

Attorney General Mark Vargo, appointed to the post by Noem after Jason Ravnsborg’s removal from office, recused himself from overseeing the DCI’s investigation and transferred supervision of the case to Hughes County State’s Attorney Jessica LaMie.

LaMie announced in October that she would not file charges against Noem, citing “no facts to support a criminal prosecution under current law.” LaMie also concluded that a complaint on allegedly doctored flight logs was “frivolous.”

Noem has faced scrutiny for a number of her uses of state aircraft, including flights from Custer and back again during the weekend of her daughter’s 2019 wedding at Custer State Park. Noem has also used a state airplane to attend several political functions in other states.

State Sen. Reynold Nesiba, D-Sioux Falls, sent a complaint about Noem’s airplane use to then-Attorney General Jason Ravnsborg in 2021. Before Ravnsborg was impeached and removed from office, Ravnsborg sent the complaint to the Government Accountability Board. The board ultimately asked Vargo to investigate, and Vargo transferred the matter to LaMie.

Nesiba’s role in the controversy is not limited to his filing of the complaint. He also helped lead a petition drive that resulted in a 2006 law saying state aircraft may only be used “in the conduct of state business.” But as the Government Accountability Board pointed out Tuesday, the law does not include a definition of “state business.”

The board’s decision to dismiss the complaint is the final step in the process.

Another complaint to the board against Noem focuses on whether the governor abused her authority to help her daughter obtain an appraiser’s license. That complaint – which was not on the board’s agenda Tuesday – has been “partially dismissed and partially closed.” That leaves open the possibility of a contested case hearing.