The key words and missing definition in the Noem airplane controversy

When authorities announced the conclusion of a recent investigation into Gov. Kristi Noem’s use of a state airplane, their news release included a potentially key phrase.

The news release said, in part, “there were no facts to support a criminal prosecution under current law.”

Those last three words – “under current law” – leave some room for interpretation. It’s the kind of phrasing that could be read as an invitation to change the law, so charges could be filed in the future if similar behavior occurs.

We don’t know what the authorities involved in the investigation want us to make of their word choices, because they’re not talking. Hughes County State’s Attorney Jessica LaMie headed up the inquiry and issued the news release, but said she’s referring all questions to the Government Accountability Board and the Attorney General’s Office. I’ve been unable to get a response from the board, and the attorney general declined to comment.

There is at least one person involved in all of this who is talking, and that’s state Sen. Reynold Nesiba, D-Sioux Falls. He’s a key player in the saga, in more ways than one.

Nesiba’s involvement with state aircraft controversies goes back 16 years to the administration of then-Gov. Mike Rounds, who was criticized for using a state airplane to attend his son’s high school basketball games. Nesiba led an effort to place a measure on the ballot to tighten restrictions on the use of state-owned aircraft, and voters approved that measure in 2006.

That’s where we encounter another key phrase left open to interpretation. The current law concerning state-owned airplanes says they may be used only “in the conduct of state business.” But “state business” is not defined in the law.

Nesiba is loath to admit any mistakes in the wording of the ’06 ballot measure.

“The people spoke clearly. They wanted a limit on the use of state airplanes – only for state business,” he said. “Only for the conduct of state business, with no exceptions.”

It’s true, the ballot measure did repeal some exceptions in the prior law. But the ballot measure did not introduce a definition of “state business” into the law, and that may have been a mistake. Any prosecutor, judge or jury confronted with allegations of a misused state aircraft would seemingly have to consider what constitutes “state business.” And in the absence of a legal definition, state business would, presumably, be whatever the governor says it is.

Noem has taken essentially that position. She’s under 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 is also under scrutiny for using a state airplane to attend several political functions in other states.

The governor has defended all of those and her other uses of the state airplane as – you guessed it – state business. During the wedding weekend, Noem used the plane to get from Custer to official functions, including youth leadership events in Vermillion and Aberdeen where she was invited to speak. Regarding the out-of-state political functions, Noem’s office has said she attended those not as a mere politician but rather as an official representative of state government.

Nesiba sent a complaint about Noem’s airplane use to then-Attorney General Jason Ravnsborg in 2021. Before Ravnsborg was impeached and removed from office (because of a separate scandal that we don’t have time for here), he sent the complaint to the Government Accountability Board. That board ultimately asked the new attorney general, Mark Vargo, to investigate. Vargo, having been appointed by Noem, recused himself and forwarded the matter to LaMie, who recently decided against filing any charges.

So now it’s all come full-circle back to Nesiba. If he wins re-election against a Republican challenger on Nov. 8, will he try to address the definition of “state business” during the next legislative session beginning in January?

“If that is a problem,” Nesiba said, “then we will bring a proposed statute to tighten that up.”