SIOUX FALLS, S.D. – A South Dakota ethics board’s finding that Gov. Kristi Noem may have engaged in misconduct by intervening in her daughter’s application for a real estate appraiser license isn’t likely the last word on the matter. But exactly how much more comes out on the episode may be up to the Republican governor herself.
The state's Government Accountability Board appears to be letting Noem decide whether to defend herself in a public hearing or simply accept an “appropriate action” that the board hasn’t detailed. It presents Noem with a choice: Stick to her defense that she has done nothing wrong and fight the allegations in a public hearing or let the matter quietly die while accepting the board's action.
How Noem handles the matter may not dent her prospects for reelection this year in a race where she's heavily favored to win a second term. But it may be important down the road for a politician who has methodically positioned herself to move up in national politics, including for a potential 2024 presidential run.
So far, Noem has chosen to fight — at least in the public sphere. Her reelection campaign spokesman, Ian Fury, lashed out at the board after it moved against her Monday, calling the board's action “illegal” and portraying the complaints against her as the work of an embittered political enemy. They were filed last year by Jason Ravnsborg, the former Republican attorney general, as he faced pressure from Noem to resign after he struck and killed a pedestrian with his car in 2020.
But neither her office nor her campaign has answered questions on whether she will fight the allegations through a contested case hearing before the board, which was created in 2017 and has never handled a case like Noem's. Such a proceeding would allow the board's three retired judges to publicly scrutinize how she took a hands-on role in a state agency while it was evaluating her daughter's application for an appraiser's license.
As first reported by The Associated Press, Noem held a meeting in July 2020 that included her daughter, Kassidy Peters, and key decision-makers in Peters' licensure just days after the agency had moved to deny a license. After the meeting, Peters got another opportunity to demonstrate she could meet federal standards and was ultimately awarded the license.
By accepting the board's action, Noem could avoid a public hearing over an episode that has drawn condemnation from government ethics experts, her political rivals and even some Republican lawmakers. Ravnsborg has said that it was concern from lawmakers that prompted him to send the complaint to the board.
“We'll have to wait until the governor’s office makes a decision,” said Gene Kean, a current member of the Government Accountability Board who was appointed after serving more than two decades as a state circuit court judge and chairing the state Judges Association. “That’s sort of a linchpin in this thing.”
But giving up the fight also could have political fallout for Noem, said Alex Conant, a GOP strategist who previously worked as the communications director for Marco Rubio’s 2016 presidential campaign.
“If she doesn’t have a good explanation or is unable to pivot, it could be something that follows her,” Conant said.
The board hasn't publicly said what action it may take against the governor. Its options in state law allow for a reprimand, a directive to do community service or coursework, as well as other “informal” resolutions that the governor would have to agree to. Statutes don't describe what the community service or “coursework” might be.
John Pelissero, a scholar at the Markkula Center for Applied Ethics at Santa Clara University, said it's “unusual” for an ethics board not to publicly announce the action it takes against an accused official.
“It lacks transparency if they do not announce the level of accountability,” he said. “That has the potential to undermine the public’s confidence in the accountability board and in state government generally.”
Meanwhile, the ethics board took another action Monday that holds the potential of not just a finding of ethical misconduct, but illegality. The board asked the state's attorney general to investigate Noem's practice of flying on state airplanes to gatherings hosted by political groups like the Republican Jewish Coalition and the National Rifle Association. State law bars the aircraft from being used for anything other than state business, though Noem has said she was acting as an ambassador for the state.
Noem's gubernatorial challenger, Democratic state Rep. Jamie Smith, pounced on the issue Tuesday and called for Attorney General Mark Vargo to recuse himself and appoint a special prosecutor.
Vargo played a prominent role in the conflict between Noem and Ravnsborg earlier this year by leading the impeachment prosecution against Ravnsborg in the Senate over his actions and accounting of the 2020 crash that killed a pedestrian. After senators convicted Ravnsborg on charges including one that alleged he misled investigators, and removed him from office, Noem — who had pressed for impeachment — named Vargo as interim attorney general.
Vargo said this week he hadn't made the decision on whether to recuse himself from the state airplanes probe, even as he issued a statement saying any investigation would remain confidential.
Pelissero, the ethics expert, agreed, saying that there was already a perception of a clear conflict of interest. And David Cleveland, a professor at the University of Minnesota Law School who specializes in legal ethics, referred to rules of professional conduct that ban lawyers from cases where they have a conflict of interest or stand to gain personally.
Even some Republican lawmakers said Vargo should recuse himself.
“I personally think it’s only appropriate for him to immediately recuse himself and appoint a special counsel," said Republican Rep. Scott Odenback. “So that there’s a continued faith and trust in the process that you are held accountable no matter who you are.”