South Dakota ethics board pushes ahead in Noem investigation

FILE – South Dakota Gov. Kristi Noem speaks in Orlando, Fla., Feb. 25, 2022. A South Dakota government ethics board Wednesday, Aug. 3, 2022, pressed forward in its investigation of two complaints against Gov. Noem. She is under scrutiny from the state’s Government Accountability Board for allegations she misused the powers of her office by interfering in her daughter’s application for a real estate appraiser license and flying on state-owned airplanes to political events. (AP Photo/John Raoux, File)

SIOUX FALLS, S.D. (AP) — A South Dakota government ethics board on Wednesday pressed forward with its investigation of two complaints against Gov. Kristi Noem, resisting an effort from the Republican governor to see them dismissed and extending the time it has to examine the allegations.

Noem, a potential 2024 White House contender, is under scrutiny from the state’s Government Accountability Board for allegations that she misused the powers of her office by interfering in her daughter’s application for a real estate appraiser license and flying on state-owned airplanes to political events. She has denied any wrongdoing.

As attorney general, Jason Ravnsborg last year filed the complaints against Noem. Ravnsborg, a fellow Republican, was removed from office through impeachment in June for his conduct surrounding an unrelated car crash in which he killed a pedestrian. He has continued to bring the complaints as a private citizen.

After meeting in a closed-door executive session for roughly one hour, the board’s three retired judges who are evaluating the complaints voted unanimously to deny the governor’s requests to dismiss the complaints. They then voted to give themselves a 60-day extension “for further investigation” to evaluate the merits of the complaints.

Ravnsborg said he was “pleased” the board had continued with its investigation, adding that “the people of South Dakota deserve to know the truth of these two matters.”

Noem’s office said it would be a violation of state law to comment on the board’s actions, referring to a statute that holds the board’s files are confidential unless the board decides to hold a contested case hearing.

The governor’s requests to the board, as well as the presence of an attorney for Noem for the first time, showed a willingness to take action to see the allegations dismissed. The board has broad powers, and if it decides the complaints have merit, could refer them for criminal investigation, subpoena evidence and witnesses or eventually hold a contested case hearing.

The Government Accountability Board has taken steps to insulate itself from conflicts of interest while it takes up an issue that involves the state’s most powerful political figures. Noem’s appointee to the board, former state Supreme Court Chief Justice David Gilbertson, recused himself from evaluating the complaints. The board’s attorney, Katie Mallery, was recused from advising the board because she works in the attorney general’s office.

If the board decides laws may have been violated, state law calls for it to refer a criminal investigation to the Division of Criminal Investigation. That would put the investigation under the oversight of the interim attorney general, Mark Vargo, who was appointed by Noem after Ravnsborg was removed. The board could also choose to subpoena witnesses or hold a contested case hearing if it instead finds possible “misconduct” rather than criminality.

Vargo said in a statement, “Decisions regarding recusal, either of DCI or the office in general, will be made when the issue squarely presents itself, not in advance of a possible, hypothetical situation.”

It’s not always the case that a prosecutor should recuse themselves from an investigation into someone who appointed them, said Kathleen Clark, a law professor who specializes in government ethics at Washington University in St. Louis. But, she said, the timing of Vargo’s appointment — while the board’s investigation was already underway — added an additional reason for recusal.

“It seems to me that failure to recuse would undermine the credibility of any decision in Noem’s favor, particularly because she appointed this attorney general after this investigation already started,” Clark said.

Noem has also forged a political partnership with the likely next attorney general, Republican Marty Jackley, with the pair exchanging endorsements earlier this year.

Ravnsborg showed an increasing willingness to bring the complaints against Noem after they fell out over his fatal car crash and she pushed hard for his impeachment.

Ravnsborg’s first complaint came after The Associated Press reported that the governor took a hands-on role in a state agency soon after it had moved to deny her daughter, Kassidy Peters, an appraiser license in 2020. A Republican-controlled legislative committee concluded that Peters’ application received special treatment, but did not say whether Noem’s actions were appropriate.

The director of the Appraisal Certification Program, Sherry Bren, was pressured to retire soon after Peters received her license and eventually received a $200,000 settlement from the state to withdraw an age discrimination complaint.

The former attorney general’s other complaint was sparked after news website Raw Story found that Noem in 2019 used a state airplane to travel to events hosted by political organizations including the National Rifle Association and the Republican Jewish Coalition. South Dakota law bars state airplanes from being used for anything other than state business.

Noem has said she was traveling to the events as an ambassador for the state.