SIOUX FALLS, S.D. (KELO) — In 2006, South Dakotans voted on Initiated Measure 5, a ballot measure to place restrictions on use of state aircraft.

The measure was added to the ballot following backlash over then Gov. Mike Rounds’ use of state planes to travel for personal family matters. At the time, Rounds opposed the bill, stating, “When an opportunity arises to combine state business and a personal or family event, the governor should be allowed to do so.

South Dakotans appeared to have a differing opinion, however, as the measure passed with 55.36% of the vote.

Now, 12 years later, flights by Governor Kristi Noem on state planes have led to a complaint, which currently rests in the hands of the Hughes County State’s Attorney.

Speaking briefly with KELOLAND News on September 16, Hughes County State’s Attorney Jessica LaMie said she was working with the DCI on the task of investigating the use of the state plane.

To get a better sense of the history surrounding the state law at the heart of the matter, we spoke with South Dakota state Sen. Reynold Nesiba (D-Sioux Falls), who sent the letter that lead to the investigation.

“I expressed my concern to Jason Ravnsborg (then Attorney General) that the governor was using our plane. It appeared as though she was using our plane for personal and political use,” Nesiba explained. “The only person that was really able to enforce that part of statute is the attorney general. So I sent him a letter. I had one of the interns drop that off to his office.”

After Nesiba’s letter was dropped of at the AG’s office, it remained there for some time before being passed along to the Government Accountability Board (GAB). While it was there, Ravnsborg was impeached and removed from office, and Noem appointed Mark Vargo to the position of AG.

In August 2021, the GAB sent the complaint back to the AG’s office for further investigation. In September, Vargo announced he would recuse himself from the investigation, instead turning it over to LaMie.

Nesiba says that he believes the investigation is in good hands while elaborating on what led him and others to get IM 5 on the ballot back in 2006.

“It was a small group of us, who back in 2005 and 2006, were really frustrated at then Governor Rounds’ use of our state airplane,” said Nesiba, citing stories from the time. “So we put a few lines of code together that became IM 5 on the 2006 ballot.”

Most recently, this law has come up again due to examination of state flight logs during Noem’s time in the governor’s office. One specific event saw Noem picked up from Custer State Park, where she was helping to prepare for her daughter’s wedding. She flew to Vermillion to speak at Boys State, then picked up her son, two nephews and a family friend before flying to Aberdeen to speak at Girls State. Everyone was dropped off back in Custer State Park to resume wedding events, and the plane flew back to Pierre with no passengers on board.

Noem’s office has claimed that the entire flight constitutes official business, despite the fact that she was dropped off afterward in Custer for the wedding and that non-official passengers were present.

Nesiba takes issue with this interpretation, citing the Attorney General’s explanation of the measure back in 2006.

State law currently allows state employees to use vehicles owned or leased by the State only for state business. There is a limited exception for state employees with a supervisor’s approval. The Governor and certain law enforcement personnel are exempt.
The proposed law requires aircraft owned or leased by the State to be used only for state business, with no exceptions. A person violating this provision would now be subject to civil and criminal penalties.
A vote “Yes” will adopt the proposed law.
A vote “No” will reject the proposed law.

Explanation of IM-5 by the Attorney General

Nesiba points to the AG’s use of the phrase “no exceptions” as reason enough to believe that no personal element should infringe on a trip made on a state plane, even if a personal event were to be in the same location as an official event.

“I just think that the state airplane should not be used for personal business. And if people are, you know, getting free flights at taxpayer expense, and if not directly a taxpayer expense at the potential liability of — if God forbid an accident would happen — the state would be liable,” said Nesiba.

This point of liability fell directly on the idea of whether non-government officials (such as members of the governor’s family) should be flying on the state plane.

“There’s no exceptions. It can only be used for state business. It cannot be combined with pleasure or any other personal or political benefit,” Nesiba said. “That’s what the people voted for, and that is how that law should be enforced.”

But enforcement will likely come down to a decision on how “only in the conduct of state business” is defined, and whether the interpretation of Noem’s office that the entire trip was official or that of detractors, that official business does not include flying family members to a wedding, even if it is in the process of conducting official business, is found to be more compelling.

Part of the reason such lack of clarity exists could come down to the lack of definition in the statute.

“We didn’t pass this statute with the idea that it would be something that would entrap some future governor or some other state official,” said Nesiba. “What we were trying to do was simply just create a deterrent — the hope was this would be a deterrent and we’d never have another conversation about misuse of our state airplane. But it’s 2022, and here we are.”

As to the political nature of the complaint — Nesiba is a Democrat — he says he never intended it to have any effect on the upcoming election.

“It’s unfortunate that we’re talking about it with 50 days in front of an election,” Nesiba said. “I sent this to the Attorney General almost two years ago (Feb. 24, 2021) — had Ravnsborg investigated this — or if the Government Accountability Board had worked more quickly, it could have been long behind us.”

While the nature of where to draw the line on official vs non-official travel appears to be an open question, the penalty should wrongdoing be decided is not. State law says that “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.”