What is South Dakota’s Government Accountability Board and who’s on it?

South Dakota News

SIOUX FALLS, SD (KELO) — “There is hereby created a State Government Accountability Board to be composed of four members appointed by the Governor.”

This is the sentence which begins South Dakota Codified Law 3-24, the statute which brought into being the State Government Accountability Board (GAB).

This board has become the focus of attention as the result of a supposed meeting held by Gov. Noem involving her daughter Kassidy Peters and the former director of the state’s Appraiser Certification Program.

The circumstances surrounding the meeting led to concerns from state legislators being conveyed to the office of South Dakota Attorney General Jason Ravnsborg, who in turn has passed it on to the GAB.

According to law, the board is to be made up of former or retired circuit court judges or Supreme Court Justices. No more than two of the members may be of the same political party, and all appointees are subject to confirmation by the Senate. None of the appointees can be a member of the Legislature during the member’s term on the board.

Each of the members on the board serves a five year term, and a member can only be removed for good cause, which is defined as follows:

Good cause to remove a member is conduct such as: malfeasance or misfeasance in office, neglect of duty, corrupt conduct, gross incompetency, or active partisanship.

SDCL 3-24-1

In the event of a vacancy, the board’s membership is to be filled by the Governor within 30 days. If a vacancy occurs before a term expires, the new member shall serve for the remaining portion of the unexpired term.

If the Senate is not in session when a member is appointed, the individual can continue to serve until the Senate has an opportunity to consider the appointment.

In the event of a member recusing themselves, the Governor may appoint a temporary member who is not subject to Senate appointment.

When the initial appointments were made, they were staggered in such a way that one member would serve two years, one would serve three years, one would serve four years, and the last would serve five years, allowing the appointments to be staggered by one year going forward.

The current members of the GAB are:

  • Judge David Gienapp, retired (current vice chair)
  • Judge Gene Kean, retired
  • Chief Justice David Gilbertson, retired
  • Justice Lori Wilbur, retired (current chair)

Justice Wilbur and Judge Gienapp are registered Republicans, while Judge Kean and Justice Gilbertson are registered Democrats.

Of the initial members of the GAB appointed by Gov. Dennis Daugaard in 2017, Justice Wilbur, Judge Kean and Judge Gienapp remain.

The original appointed members are:

  • Justice Lori S. Wilbur
  • Judge Gene Paul Kean
  • Judge David R. Gienapp
  • Judge Patricia C. Riepel

Justice Wilbur and Judge Gienapp are registered Republicans, while Judges Kean and Riepel are registered Democrats.

The role of the GAB is to review and investigate individuals holding statewide office, as well as any employees of the state’s executive branch. Their scope includes the following:

  • Allegations of impropriety related to any contract, grant, or loan with any public entity that provides the authority to any other entity to expend public funds.
  • Documents filed under chapter 3-23 or alleged violations relating to conflicts of interest.
  • Allegations of a direct or indirect interest in a contract in violation of the constitution or law.
  • Allegations of malfeasance.
  • Allegations of misappropriation of public funds.
  • Allegations of use of false instruments to obtain public funds.
  • Allegations of theft or embezzlement of public funds.
  • Allegations of bribery.
  • Allegations of use of public money not authorized by law or in violation of the constitution.

Most recently the board was asked to investigate whether Noem had violated state law by flying on the state airplane to events hosted by political organizations.

Under state law, the board is allowed to establish its own procedures, issue subpoenas, administer oaths, and take sworn testimony.

Once the board has considered an issue, there are two main avenues they can take if they believe a wrong has been committed.

The first option is to refer the matter to the South Dakota Division of Criminal Investigation (DCI).

In the event that the board believes there is reasonable cause to to believe that a crime has been committed, it can refer any information, report, or complaint it receives to the DCI for investigation. If the DCI believes a law has been violated, they would in turn refer the matter to a state’s attorney or the attorney general for prosecution.

Any person who provides information, files a report or makes a complaint to the GAB is immune from civil liability as long as they can be found to be acting in good faith.

The second option available to the GAB is to hold a contested case hearing.

If a majority of the members of the board vote that there is sufficient information to believe that a statewide office holder or executive branch employee has engaged in misconduct related to any of the of the allegations listed above, the board has the power to hold a contested case hearing.

In such a hearing, the accused person will have the opportunity to respond to the allegation.

At the conclusion of the hearing, the board will vote by simple majority to decide whether misconduct has occurred. If the board determines a violation has been committed, three options are available.

  • The board may issue a public or private reprimand.
  • The board may order the person to engage in coursework or community service.
  • The board may make a specific recommendation to the Governor.

The activities of the board must by reported annually to the people, the Governor, and the Legislature, and must include data regarding any allegations of violations of subdivisions of § 3-24-3, including the number of reports filed, complaints received, number of unique persons filing complaints or reports, and hearings conducted by the board.

The board may not disclose information that is not subject to disclosure under state law.

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