Update: KELOLAND News received the following info at 4:43 p.m. on Friday, Sept. 19, 2022.
SIOUX FALLS, S.D. (KELO) — In response to a request for details on the May 30, 2019 flight in question, the South Dakota DOT provided the following info regarding who was on the flight on each leg of the journey.
All legs of the subject flight occurred on May 30, 2019. The legs of the flight and the passengers on board are as follows:
Leg 1 – Pierre to Custer – no passengers on board;
Leg 2 – Custer to Vermillion – Gov. Noem, Beth Hollatz and Ryan Tennyson;
Leg 3 – Vermillion to Aberdeen – Gov. Noem, Beth Hollatz, Ryan Tennyson, Booker Noem,
Nash Grantham, Hunter Arnold, and Jack Ferguson
Leg 4 – Aberdeen to Custer – Gov. Noem, Beth Hollatz, Ryan Tennyson, Booker Noem, Nash
Grantham, Hunter Arnold and Jack Ferguson;
Leg 5 – Custer to Pierre – no passengers on board.
The DOT also provided a justification for the flight, echoing Fury’s language from 2021, stating that “if the Governor had not been able to use the state plane that day, hundreds of teenage future community leaders would have been deprived of the opportunity to hear from their Governor and ask her questions.”
The wedding in question occurred three days after Noem was dropped back off in Custer. Along the way, she picked up her son, two nephews and a family friend.
KELOLAND News has confirmed more details about a Summer 2019 flight taken by Governor Kristi Noem in which a state owned aircraft was used to fly, in part, to the wedding of one of the Governor’s daughters.
In response to a question about this flight in particular, KELOLAND News was sent the response given to RawStory in 2021 by then Noem communications director Ian Fury.
On May 30, 2019, [Noem] began her day in Custer, where she was helping her daughter Kassidy prepare for her wedding. She flew from Custer to Vermillion to Girls State meeting, where she spoke. She then flew to Aberdeen for the Boys State meeting, where she also spoke. She was then dropped off in Custer, where she had begun her day.
Statement from Ian Fury in 2021
In addition to forwarding this statement, the Governor’s Office also added: “If the Governor had not been able to use the state plane that day, hundreds of teenage future community leaders would have been deprived of the opportunity to hear from their Governor and ask her questions.”
Speaking to RawStory in 2021, Fury further clarified the position of the Governor’s Office, saying: “Picking her up for official travel is part of the official travel, and the same is true for dropping her off,” Fury said. “In the specific instance of Custer, Governor Noem originally got herself to Custer at her own expense.”
South Dakota’s law pertaining to the use of state vehicles, including aircraft, is short, but is not in danger of being called “overly defined.”
5-25-1.1. State-owned or leased vehicles and aircraft to be used only for state business–Exceptions for vehicles–Violation as misdemeanor–Civil action and penalty.
Vehicles owned or leased by the state may be used only in the conduct of state business. No state officer or employee, except the Governor, law enforcement officers of the South Dakota Highway Patrol, law enforcement officers of the Division of Criminal Investigation, and conservation officers may use, or permit the use of, any state-owned motor vehicle other than in the conduct of state business. Nothing in this section prohibits any use of any state vehicle, if, in order to provide for the most efficient use of state equipment or personnel, supervisory personnel issue written instructions to any state employee to use a state vehicle for transportation:
(1) Between the employee’s permanent residence and work station; or
(2) Between the employee’s temporary residence or eating place and work station if assigned to a locality other than the employee’s permanent residence.
For purposes of this section, any aircraft owned or leased by the state may be used only in the conduct of state business. None of the exceptions listed above are applicable regarding the use of any aircraft owned or leased by the state or any of its agencies.
A violation of this section is a Class 2 misdemeanor. The violator is also subject to a civil action by the State of South Dakota in circuit court for the recovery of a civil penalty of not more than one thousand dollars plus ten times the cost incurred by the state for misuse of any aircraft owned or leased by the state. An action for the recovery of a civil penalty or compensatory damages shall, upon demand, be tried by a jury.
South Dakota Codified Law
Under state law, state vehicles are only permitted to be used for official state business. Certain officials, such as the Governor, Highway Patrol, DCI and conservation officers are permitted to state-owned vehicles for other purposes (such as a Highway Patrol officer who may take their patrol car home with them). Importantly, however, this exception to the state-business-only rule does not apply to any aircraft owned or leased by the state.
Hughes County State’s Attorney Jessica LaMie is currently in receipt of an official complaint about Noem’s use of state planes, filed with former Attorney General (AG) Jason Ravnsborg. The complaint was referred to the Government Accountability Board, who in turn referred it back to the AG’s office.
Current AG, Mark Vargo, who was appointed by Noem, has opted to recuse himself from the handling of the complaint, instead placing it in the hands of LaMie.
Speaking with KELOLAND the morning of Sept. 16, LaMie declined to discuss details of the investigation, but said she received the complaint from GAB and has been meeting with DCI while gathering information.
The facts known to KELOLAND are these:
A state plane flew from Pierre to Custer State Park, where it picked up Governor Noem, who was helping prepare her daughter’s wedding, and flew her to speak at Girl’s State in Vermillion. From Vermillion, Noem flew to Aberdeen, where she spoke at Boys State. After Aberdeen, the state plane returned to Pierre, where it is based, but not before detouring back to Custer State Park, where it deposited Noem, along with her son Booker, two nephews and a family friend, all of whom joined the flight at some point. Deputy Chief of Staff Beth Hollatz and Highway Patrol official Ryan Tennyson were also aboard.
Within state law, what exactly constitutes “state business” is not explicitly defined. Fury offered an interpretation that states the entire trip, even the portion from Aberdeen to a private family function before the plane returned to its hanger in Pierre, constitutes state business, because it was returning the Governor from said business. However, that interpretation may be up for debate.
Neil Fulton is the Dean of the University of South Dakota Knutson School of Law. He spoke with KELOLAND News on Friday, noting his views do not represent those of the Law School or the Board of Regents.
Fulton points out an interesting factor in the course of the discussion.
“I think one thing that’s just a little bit curious with some positions, is that it is harder maybe to define the full scope of state business for a constitutional officer, like the governor, or like the Attorney General, who has, you know, a certainly inherent mixing of personal, professional and political to a degree,” Fulton said.
Put simply, there are relatively few situations when the governor is acting fully in personal, political or official capacity. “Sometimes you’re on the clock for all three of those things,” said Fulton.
“Let’s say you go to a college campus and give a speech,” said Fulton. “You’re probably going to talk about higher education, higher education policy, which is very much a state business item. Inherently, there’s a political component of that, right, you’re out in front of potential voters. And in a state like South Dakota, there’s a pretty good chance you’re gonna run into a friend or the kid of a friend and have a personal conversation along the way.”
This axis of interest can be visualized a triangle divided into three sections; Official, Political and Personal. Every action the governor takes will fall somewhere within this triangle.
A dinner at home with the family, for example, would fall entirely into the ‘Personal’ corner, as far from ‘Official and ‘Political’ as possible. But where would a flight from a wedding to Girl’s and Boy’s State, and back to the wedding with family in tow fall on this axis?
Most would say there is certainly an official element to the trip, considering Noem spoke in her capacity as governor at both Girls and Boys state. The trip likely has a political element to it as well, as any public speech given by an official, whether for state business or not, is sure to impact public perception.
What may be the crux of the issue is the personal aspect of the trip, which could be argued as being the presence of family, and leg of the flight, from Aberdeen to Custer State Park, of which the entire purpose was to deliver Noem to her daughter’s wedding.
Does the presence of a personal element make the trip a personal one, or does the presence of an official motive override the personal element?
“I would say one of the questions here that I think the statute leaves open is the phrase ‘used only in the conduct of state business’,” said Fulton. “You’re going to have to assess — does that refer to the predominant purpose of a trip? Or are you going to say that if there is any personal component that creeps into it, that trip is tainted?”
Fulton also pointed out that the state statute allows exemptions for personal use for other state vehicles, but not for aircraft.
“I think it’s certainly a plausible reading to look at the statute and say that the legislature thought it could treat airplane usage differently, and more restrictively, in that no one stops off for a gallon of milk on the way home in an airplane,” Fulton said.
This highlights a potential reason for the lack of an exemption for aircraft. While it’s conceivable that an officer driving home in an assigned state vehicle might make a short detour to pick their kid up from school, or to grab a gallon of milk from the store, such detours could seem much less rational in an airplane.
This may be due to the increased distances that planes travel compared to cars, the greater cost of travel, or the regulation with how planes travel, take off and land. There would be a big difference between detouring a few blocks to the local school to pick up your kid, and flying a few hundred miles to do the same.
“There’s a reason you got in your plane and took off and flew to a particular location,” Fulton explained. “You don’t really along the way say, ‘Hey, let’s just swing off and say hi to Bob because we’re driving by his house.’ So I think the different nature of planes and cars is certainly a part of it.”
Fulton says anyone looking to determine if a wrong has been committed will be attempting to parse out the intent of the body that instituted the law in 2006, which was the voting public, who passed it in an election as an initiative. Anyone ruling will likely need to take into account just what the intention was when the law was approved saying “other than in the conduct of state business”.
Currently, that responsibility lies in the Hughes County Courthouse, with State’s Attorney LaMie.
