During the year 2020, the Statewide Economy was very much affected by the government induced Covid-19 Economic Pandemic. It has ruined several businesses across the State, both big and small alike, placing many of them out of business, or close to going out of business.
The Coronavirus Aid, Relief, and Economic Security Act or CARES Act, was passed by Congress on March 27th, 2020. This bill allotted $2.2 trillion to provide fast and direct economic aid to the American people negatively impacted by the COVID-19 pandemic. Of that money, approximately $14 billion was given to the Office of Postsecondary Education as the Higher Education Emergency Relief Fund.
The intent of the ‘act’ was to help save, and protect the economy, allowing Americans to remain active in business, yet alone maintain payrolls, and the cost of doing business all across the 50 United States making up the country. The State of South Dakota, at the request of Governor Noem, took slightly more than $1,200,000,000 billion dollars of these pandemic funds.
On March 13, 2020, Governor Kristi Noem signed into law, an Executive Order (2020-05) of which directed all public Officials, Officers, and Employees, and while the order only affects public employees, it also instructed, and advised all other units of government and the private business sector to make independent judgements concerning the public matter. With this ‘act’ signed into law by the governor, it entirely upset the apple card of doing business all across the “State”.
Nearly a week later, the Congress signed into law the Care’s Act Economic Funds, of which were set to be utilized by all 50 States, with the intent of keeping businesses and schools, and other units of government open, attempting to maintain a sense of normalcy throughout the country, itself.
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Among those businesses was the Little Nest Preschool, of which Jessica Castleberry had formed, and incorporated within the County of Pennington, doing business within the City of Rapid City, South Dakota.
Then on April 2, 2020, Governor Kristi Noem enacted, and put into place Executive Order 2020-11 of which Declared an Emergency Management of which instructed the Department of Health of which allowed the department to utilized S.D.C.L 34-48A, of which to adopt policies of the state that puts into effect emergency management of this state shall be coordinated to the maximum extent and shall cooperate with the federal government including its various departments and agencies, with other states and localities, and with private agencies of every type, to the end that the most effective preparation and use may be made of the nation’s manpower, resources, and facilities for dealing with any disaster that may occur.
And by enacting this “executive order” it gave permission to, all persons to accept any form of federal grants with the intent of continuing all essential services of the “State” of whom any person may accept such funds:
If the federal government, or any agency or officer thereof, or any person, firm, or corporation offers to the state or to any political subdivision thereof, services, equipment, supplies, materials, or funds by way of gift, grant, or loan, for emergency management, the Governor or the political subdivision, acting through the Governor, or such political subdivision, acting through its executive officer or governing body, may accept such offer. Upon acceptance the Governor or executive officer or governing body of such political subdivision may authorize any officer of the state or of the political subdivision, as the case may be, to receive such services, equipment, supplies, materials, or funds on behalf of the state or political subdivision, and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer – S.D.C.L 34-48A-36
And with the adoption of Executive Order 2020-15, Governor Kristi Noem had suspended all administration and statutes allowing for the department to help provide economic support to all persons under the state in order to provide relief to any such person or persons of whom asked for, or requested.
And finally, the South Dakota Constitution, despite its wording under Article 3, Section 12, allows for the Legislature to do the following during times of “Emergency” where the economic threat to the “State” is in jeopardy:
Notwithstanding any general or special provisions of the Constitution, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, the Legislature shall have the power and the immediate duty (1) to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations. In the exercise of the powers hereby conferred the Legislature shall in all respects conform to the requirements of this Constitution except to the extent that in the judgment of the Legislature so to do would be impracticable or would admit of undue delay. – Article 3, Section 29
The Federal Funding was to also provide to Non-Public Schools the following – To reimburse non-public schools for allowable activities that address educational disruptions resulting from the pandemic, including:
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supplies to sanitize, disinfect, and clean school facilities
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personal protective equipment
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physical barriers to facilitate social distancing
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other materials necessary for reopening
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expansion of coronavirus testing
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educational technology
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the leasing of sites and spaces for social distancing
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reasonable transportation costs
Awarded to states to allocate at least 90% of the funding to local education agencies within 60 days of receipt for the same uses allowed under ESSER I and ESSER II…
Whether or not any such legislator is restricted from entering into any such ‘contract’ with the “State” where the distribution of public monies is concerned, under the federal law, these grant funds were created to help all Americans equally, regardless of the fact of a person’s legal standing across the fifty states.
At the time of which the COVID-19 Pandemic was transpiring, Jessica Castleberry was appointed to the South Dakota Legislative District 35 Senate Seat on January 1st, 2020 in the middle of, and during the early beginnings of the pandemic itself, just months prior to the Federal Government adopting, and leading the effort to help struggling Americans, both businesses and private citizens alike.
As a private business, Little Nest Preschool is and was eligible to request, and receive Federal Grants under the Care Act Stimulus Block Grants. At stake was whether or not Jessica Castleberry grabbed the funds herself, or as a private business, the entity itself utilized the funds to provide economic relief for the educational services to the many parents and children of whom purchased the services from the school itself.
A federal grant is an award of money or economic aid provided by the United States Government out of the funds available in the general federal revenue. The money provided can be a loan, a portion of a certain project or organization’s cost, or a complete funding of a particular project, research or other undertaking. When it comes to receiving funds, all grants are divided into two generalized classifications, direct grants and pass-through grants:
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A direct grant means that the recipient receives the money directly from the federal government, with no intermediary in between. These grants are beneficial as there is no additional red tape to wade through – just a single application and subsequent agreement with the federal government.
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A pass-through grant is first given to the state by the federal government, which in turn distributes the funds to local applicants. This essentially means that applicants have fewer competitors for the grants, just the other organizations or possible recipients in their state, and applicants simply have to make a trip to their state capital for in-person clarification, appearances, or any other communications that would benefit from personal contact.
The Covid-19 Block Grant Funding were most likely known as “Formula Grants” of which distribute funds as predefined by the law. A formula grant is determined by pre-existing factors such as population, poverty level, taxes, or even housing density, and where a community or potential recipient falls on this formulaic spectrum indicates the amount of funds they are qualified to receive.
And this leads us back to the South Dakota Constitution, Article 3, and Section 12 to determine, whether or not Jessica Castleberry directly, or indirectly benefited from the federal funds, of which under federal law, of which administers and provides the formula to which the funds can be utilized, falls under the restrictions placed on S.D Legislators, themselves…
No member of the Legislature shall:
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be appointed or elected to any civil office in the state which shall have been created,
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no emoluments of which shall have been increased during the term for which he was elected,
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no member may receive any civil appointment from the Governor, the Senate, the Legislature (all appoints shall be void),
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no member of the Legislature during the term for which he or she shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof
These “Rules” only apply to where any such “individual” was elected to the legislature, and at the time, Jessica Castleberry was NOT elected, she was appointed to the legislature by Governor Kristi Noem on December 31, 2019 within the current term of Lynn Disantos of whom ‘was’ elected to the post.
She had no way of knowing the Governor was going to put into law, the “Emergency”, and she had no means of knowing she was going to become a S.D Legislator, finishing out the term of which was vacated by Lynn Disanto upon announced that she was moving to the State of Montana, and of whom had played a highly active role in searching for the truth in the Serenity Dennard case, to which the Box Elder Police had issued a “Trespass Order” against Ms. Disanto, and to which, she was first “elected” to become the District 35 Full Time Senator.
She would not have been officially elected by the ‘voters’ of District 35 until ‘after’ her company, Little Nest Preschool had requested, applied for, and had received the Federal Covid-19 Care Act Grant Funds…did she violate any part of the South Dakota Constitution?
Article 3, Section 12 only deals with “Legislators” to whom are elected by the people, not appointed by the Governor’s Office itself. Therefore, she had not yet broken any such constitutional provision, nor any such Codified Law enacted by the legislature. And knowing that each Legislative Session takes place only between January 15th to March 15th (March 30th Veto Day) – the constitutional provision would not have played a role in her company requesting federal funds.
Look closer at the “Letter” sent by Governor Kristi Noem, to Attorney General Marty Jackley himself:
The Department of Social Services recently discovered apparent violations of S.D. Const. Art. I, § 12 involving Senator Jessica Castleberry’s receipt of COVID-19 federal stimulus funds. This letter is a formal request for your investigation and enforcement of this constitutional provision, which may include disgorgement and other penalties. Based on public records filed with the Secretary of State, the Senator is the owner of Little Nest Preschool, LLC in Rapid City, SD since its organization in 2010. Beginning in 2020, Little Nest Preschool applied for and received COVID-19 federal stimulus funds totaling, what is believed to be, over $603,000. Payments were found by Department fiscal staff who recognized the Senator’s name on a recent grant application for Little Nest Preschool to receive another $4,000.1 At that point, further review into Little Nest Preschool turned up over a dozen payments since 2020. The Senator was appointed to a vacant seat in the Senate of the state legislature in 2019 and continues to serve today. These federal stimulus funds where appropriated by various General Appropriations Acts that Senator Castleberry voted on in 2020 Special Session (HB 1001 and SCR 601), 2021 Regular Session (SB 64 and SB 195), 2022 Regular Session (HB 1340 and SB 60), and 2023 Regular Session (SB 210). The South Dakota Constitution prohibits a state legislator from having a direct or indirect interest in a contract authorized during their time in office and up to one year thereafter. See, S.D. Const. Art. III, § 12. The South Dakota Supreme Court strictly construed this prohibition and said that this provision “precludes a current state legislator from contracting directly or indirectly with the State to receive funds from [COVID-19] grant programs.” In re Noem, 950 N.W. 2d 678 (2020). The Supreme Court could not have spoken more clearly or on point to this issue. The Senator has a personal and ethical obligation to avoid conflict of interests. The Senator also swore an oath to support the state Constitution. While the ethics of this malfeasance may be resolved by the Senate body itself, the multiple alleged constitutional violations are within your jurisdiction to determine and your duty to enforce. For a century, the Supreme Court has declared that such contracts are null and void. Supporting documentation will be forthcoming separately for the Department. In addition, while SDCL 5-18-17 through 5-18A-17.6 does not ordinarily apply to members of the Legislature because members are already bound by the state Constitution to not self-deal, the subrecipient grant agreements include a provision that references these conflicts of interest statutes. Please review the content of this provision in your investigation as the State may have a breach of contract claim which it is your duty to prosecute as well [Gov. Kristi Noem, letter to A.G. Marty Jackley, 2023.07.25].
She is simply seeking an opinion, requesting the current Attorney General to perform an investigation into the public matter, to which is discussing an “Elected Individual” to the South Dakota Legislature. If Marty Jackley is a smart man, he would know that Jessica Castleberry was NOT yet Elected, therefore, the constitutional provision does not yet apply to her, nor her indirect role of owning the private company.
Now, this appears to be a witch hunt being conceived by the Governor, herself, being projected upon Ms. Jessica Castleberry, for some reason unbeknownst to any citizen of the State, and it is likely to silence the “Political Voice of District 35”.
Did we not recently just go through this with another sitting Senator? District 30’s very own Julie Frye-Mueller over her own battles between herself, the Governor, and the Senate Leadership over comments, or discussions made between Ms. Frye-Mueller and a L.R.C Staffmember?
Ms. Jessica Castleberry, as per her own personal website, prides herself on being a lifetime resident of District 35, a devout christian, a valued member of her community, a proud supporter of Public Education, let alone both the Federal and State Constitution, and is a huge supporter of small business, being a business owner herself, and a mother of three precious teenagers, and has relished the chance to serve her community, her neighbors in Pierre, S.D serving on legislative committees – Education, Transportation, and Local Government.
Now we must look deep into why Kristi Noem wants to punish, or silence Jessica Castleberry, and knowing that Governor Noem works well with Senate Pro-Tempore, Lee Schoenbeck, there may be some intent to remove Ms. Castleberry from her committees, which allows the two to conspire together to control, let alone appoint new members to the committees themselves, so we must look more into what important policies are being discussed on the three “committees” of which Ms. Castleberry sits upon.
The answer to the title question – Did Jessica Castleberry violate Article 3, Section 12 when her company took $603,000 worth of Federal Funds to help operate, and manage Little Nest Preschool? To rightfully answer that question, honestly – No. She did Not. She was not yet “elected” at the time, therefore, she could not yet be held liable, nor accountable for any “constitutional provision” restricting her to such terms.
Written By,
Mike Zitterich
Minneha County,
