Then, when Allender launched his campaign for Rapid City mayor this spring, he appears to have deleted his prior blog content. I wasn’t following Allender’s Chiefsview blog closely enough to notice, but a couple of commenters on his campaign Facebook page (where he appears to engage his commenters quite regularly, in his own voice, not through a spokesperson) said the blog had changed and that pre-campaign material had disappeared.
Allender himself responded to one of those delete-complainants, saying last Wednesday, “I am not ashamed of my previous blog – I still have all of the posts. I hope you actually read those posts, because if you did you would know what I really said about the issues.”
I checked over the weekend and this morning, and Allender’s Chiefsview archive appears to be intact and publicly accessible.
I’ve stood for election for local public office thrice. I served in public office for six years as a trustee in the Lake Herman Sanitary District. I’ve thought about the political implications of leaving all of my blog content online where opponents can find plenty of material to provoke controversy and scare off casually attentive voters. But I’ve never hit that delete button. I’m willing to stand by every word I’ve said. As I look at the complete contents of Steve Allender’s blog, I am compelled to express my respect for him for doing the same.
I am curious about one thing: I see that Allender has added a little campaign finance tag—”Paid for by Allender for Mayor 2015″—to the top of Chiefsview. I check the WHOIS record and find the domain was last updated on October 30, 2014. Did the Allender campaign committee even exist at that point to pay for the blog?\
In the CPA-CYA department, the Department of Revenue tells us that it can’t tell us whether it’s going to take $2.4 million in unpaid bank franchise tax out of Joop Bollen’s hide:
South Dakota law prohibits the state Department of Revenue from disclosing whether it will decide to pursue back taxes from a company set up to recruit wealthy foreign investors in an investment-for-visa program that became entangled in scandal, the department said Tuesday.
Last month, the state’s Division of Banking issued a license to SDRC Inc., the Aberdeen-based firm managing loans to projects in the EB-5 visa program, that allows it to be a nonresidential mortgage lender. That means the firm must pay the state’s bank franchise tax, the division said.
The Revenue Department is examining whether it can retroactively collect the bank taxes from SDRC, a private firm founded by Joop Bollen, a department spokesman said. But Jason Evans, property and special taxes deputy director, told The Associated Press that state law bars the department from disclosing whether it decides to pursue those taxes.
Joop Bollen, through SDRC Inc., may have perpetrated more than $2.4 million in fraud against the state of South Dakota. Yet the state has been curiously resistant to holding Joop Bollen accountable for anything. Let us hope thisresistance to justice is not infecting the Department of Revenue and that this odd pronouncement of secrecy about the pursuit of unpaid taxes is a brief statutory technicality about an ongoing process and not a sign that there will be no process.
Related: Kevin Woster thinks Revenue’s closed-if-quivery-lippedness is illogical:
Right now, the state has issued some sort of mortgage-lender license to SDRC, which means it will have to pay the state bank-franchise tax. It isn’t clear to me whether that means the operations of the, uh, company (if SDRC has a fire drill, how many people rush outside?) will be changing, or whether it’s just now licensed to do what it’s been doing.
Some of my Democratic friends wonder why I’m not enthusiastic about putting up Sioux Falls Mayor Mike Huether as a statewide candidate for our party.
Knowing that any Democrat we put forward will face the usual assaults for liberalism, supporting an income tax, and whatever other traditional partisan pasta the GOP can throw at our wall, I don’t want the additional burden of a Huether candidacy forcing me to make excuses for Mayor Heuther’s tone-deaf, sneaky management practices that sound as bad as anything the Republican regime foists upon us. Let’s look at Joe Sneve’s report on the shady contracting behind Mayor Huether’s big new SiouxFallsHasJobs.com (self-)promotion:
According to City Attorney David Pfeifle, state statute requires all contracts valued at $25,000 or more go before the City Council. In this case, the city’s Community Development department paid a web developer about $24,000 to build the site. It then entered two separate contracts worth about $8,000 and $3,500 for kiosk and billboard advertising [Joe Sneve, “Spending Reform Talks Sparked by Jobs Website,” that Sioux Falls paper, 2015.04.09].
To what possible end does the Mayor engage in this shady contracting? His community development director offers a thin excuse about the element of surprise:
Community Development director Darrin Smith said last week that they kept the campaign from the council until the launch to prevent plans from being prematurely leaked to the press and public. Smith did not immediately respond to a request for further comment Wednesday [Sneve, 2015.04.09].
Help me out, marketing mavens: if Sioux Falls Has Jobs, and if the city is preparing an ad campaign to let people know that Sioux Falls Has Jobs, how would letting the city council or even the whole darn town know that such a campaign is coming cause Sioux Falls Not to Have Jobs? What’s the secret here?
Councillor Christine Erickson appears to be shaking her head over that same question:
For Councilor Christine Erickson, an open dialogue between the mayor, department heads and the council, no matter what risk there is of derailing a project in its planning stages, is good policy that wasn’t adhered to during the preparation of SiouxFallsHasJobs.com.
“When you are spending taxpayer dollars and launching programs, I don’t see the negative impact in having those conversations” with the council, she said. “There’s nothing necessarily wrong with the concept of the project at this point, it’s just how we got there” [Sneve, 2015.04.09].
The shady contracting and secrecy surrounding Mayor Huether’s jobs marketing program seems to be equal parts dumb and arrogant. Dumb and arrogant are not on my checklist for Democratic candidates or for any kind of candidate who wants to run my community or my state.
Mercer makes this central argument: the exceptions to South Dakota’s open records laws, which even Mercer acknowledges restrict release of criminal investigation records, can be trumped on a case-by-case basis by judicial review. Mercer does not argue for a complete overturn of open-record exceptions; instead, he argues that, if the court finds that public interest in a specific case outweighs the privacy interest protected by the open records exemption, the court can rule that the exemption does not apply and the state must release the requested documents.
Justice Kennedy held for a unanimous Court that a FOIA requester must establish much more than Favish did as part of the FOIA’s privacy balancing process in such a case — he “must produce evidence that would warrant a belief by a reasonable person that the alleged [g]overnment impropriety might have occurred.” Id. And this higher standard must be met, he repeatedly stressed, even “to put the balance into play.” Id. at 1582; see also id. (“Only when the FOIA requester has produced evidence sufficient to satisfy this standard will there exist a counterweight on the FOIA scale for the court to balance . . . .”). This is due in no small part, he explained, to the fact that “[a]llegations of government misconduct are ‘easy to allege and hard to disprove.'” Id. Here, Justice Kennedy concluded, Favish had not produced “any evidence” warranting disclosure under the proper FOIA standard, id. at 1581, so the Ninth Circuit’s disclosure ruling merited only reversal [Department of Justice, press release, 2004.05.13].
Mercer argues that the public interest in obtaining the Richard Benda death investigation documents is to ensure “ability of the public to assess the performance of the attorney general and law enforcement” [Mercer brief, 2014.11.04, p. 14]. In his December rebuttal to the Attorney General’s response, Mercer notes that the AG’s office failed question either Richard Benda or his partner in the EB-5 scandal, Joop Bollen, during its investigation. Mercer does not make this explicit accusation—and this is where Mercer the objective journalist gets in the way of Mercer the effective courtroom advocate—but he appears to be saying that the attorney general’s office has been negligent in its investigations of Benda and all things EB-5.
Assistant AG Jeff Hallem (who learned about illegal activities in the EB-5 program in early 2009, when Larry Long was still AG) responds that Mercer’s application of Favish is misguided. Favish hinges on the Freedom of Information Act, which, as I’ve had to explain to some blog friends, is a federal law. There is no FOIA in South Dakota. As I understand it, Congress wrote that public interest exception into FOIA for the courts to apply. State law includes no such “public interest exception.” Hallem contends that the court cannot write such an exception into law; such an exception would have to come from the Legislature.
The state’s desire to separate themselves from and burn Richard Benda properly arouses suspicion that South Dakota state government is more interested in selling a narrative than sharing the truth. Bob Mercer’s judicious review of the Benda death investigation files could actually bring Benda’s family and friends closure, as one way or another, Mercer’s review would largely end the sensationalist speculation that surrounds their loved one’s death. Attorney General Jackley could bring them even more peace of mind by laying bare the full extent of corruption in EB-5 and prosecuting all of those responsible, rather than laying all blame on one dead man who can tell no tales.
But those are moral arguments, not statutory arguments. Our conservative state Supreme Court seems unlikely to look past the letter of the law and help us learn what really happened to Richard Benda.
A conditional use permit allowing Westside Gilts LLC of Pipestone, Minn., to construct and operate a concentrated animal feeding operation has been revoked by a circuit judge.
…In his ruling, Circuit Judge Jon Erickson found that the county’s comprehensive zoning ordinance was improperly enacted in 2011.
The petitioners had alleged that the county had failed to give proper notice of the time and place of the public hearing on the zoning ordinance, and that no 10-day notice was given of a scheduled public hearing.
…In his decision, Erickson said that “Beadle County landowners were not provided with the opportunity to formally voice their concerns and present evidence in opposition to opposed measures, and providing an avenue for expression of public opinion.
Republicans profess to be suspicious of government and say we shouldn’t give government too much power. But when actual abuses of power, like Beadle County’s failure to properly notify citizens of an impending CAFO decision, support the corporate colonizers’ agenda, our Republican legislators give those suspicious governments more power.
Secretary of State Shantel Krebs has plenty of mess to clean up from her predecessor’s poor performance. The Lucy Burns Institute studied the accessibility of state election agencies in 2014 and found former Secretary Jason Gant’s office performing below the national average.
Specifically reviewed were the number of clicks required to access election information on the Secretary of State’s website, the quality of the information presented, and response time to e-mail inquiries. LBI found…
Secretary Gant’s office did get full credit for the quality of information, specifically for making petition signature requirements clear. (Remarkably, 14 states still don’t put that information online.)
Secretary Gant failed to respond (imagine that!) to LBI’s e-mail inquiry, earning South Dakota zero points in responsiveness. The average response time was between two and three days.
South Dakota’s net score on LBI’s 31-point scale was 15. Vermont topped the nation with a score of 30. The nationwide average was 20.2. We still beat ten other states (the lowest scorers: Louisiana, Alabama, and Alaska) but none of our neighbors (Wyoming and Montant both scored 25; Minnesota scored 23).
Secretary Krebs, put the LBI report on your desk, and make you boost those scores before the 2016 primary season.
That’s usually good advice, but today we urge the opposite reaction to all government bodies operating in the shadows, purposely avoiding public scrutiny and genuine transparency.
In other words, take closed government personally. Please!
Take it personally when a reporter is kicked out of a city council meeting so members can hold an illegal or unnecessary executive session.
Take it personally when public access to government records is refused, limited, or attached to excessive fees.
Take it personally when a judge jails a reporter for refusing to reveal a confidential source.
Take it personally when government fails to limit political contributions, and ignores ties of mutual benefit between private business and elected officials.
Take it personally when a governor issues secretive pardons.
Take it personally when a presidential administration works vigorously to identify and criminally prosecute government whistle-blowers.
Take all of this personally because it directly affects the quality and scope of government information you get from the press.
Wouldn’t it be great if more people understood a reporter’s exclusion from a meeting also excludes them, the general public, from learning details that are being hidden?
Wouldn’t it be great if everyone embraced the notion that government openness is an essential pillar of democracy?
Wouldn’t it be great if more people remembered the press serves as their eyes and ears in the halls of government?
Wouldn’t it be great if more people became aware that jailing journalists not only intimidates the press, but also chills the public’s right to know?
Wouldn’t it be great to see thousands of citizens press Congress to pass a federal shield law protecting reporters from being locked up for doing their job?
There is a moving scene in Return of the King when a resurgent monarch inspires his small army to stand against overwhelming odds by delivering a stirring cry to arms.
Wouldn’t it be great to see people everywhere show that kind of passion and unity in the fight for freedom of information and the battle against government secrecy? With apologies to J.R.R. Tolkien, that speech might go something like this:
“A day may come when the courage of men fails and our freedoms die; when speech and religion are governed; when we forsake our reporters and break all bonds of fellowship with the Fourth Estate … but it is not this day!
“There may come an hour of darkness, wolves and shattered shields that bring our First Amendment crashing down … but it is not this day!
“On this day, we battle for our Bill of Rights! This day, we join with journalists in the war against government secrecy, corruption, and waste.
“This day, the press and public stand … together! This day, we fight … together!”
Of course, Republicans aren’t going to up and invite us Democrats into the process on their own just for niceys. Their corrupt, complacent, calcified cronyism (a description that could only come from the Constant Commoner) forbids such action. The only way to get the Republicans to open that door and involve Democrats and all citizens will be to kick some of those Republicans out and replace them with more Democrats. Fill every slot, and run to win!
The Department of Justice says it is still investigating South Dakota’s EB-5 visa investment program… or at least that’s the excuse the feds give Jonathan Ellis for turning down his papers FOIA request:
The Department of Justice is refusing to release records related to former cabinet secretary Richard Benda, who was at the heart of a state and federal investigation into the state’s EB-5 program.
The department declined the Argus Leader‘s request for Benda’s FBI file, indicating the matter remains under investigation. The department’s response to a Freedom of Information Act request said that releasing the records “could reasonably be expected to interfere with enforcement proceedings” [Jonathan Ellis, “Jackley Not Happy with DOJ in Benda Investigation,” that Sioux Falls paper, 2015.03.16].
Continuing his tradition of tone-deaf, non-value-adding blogging on EB-5, Pat Powers apparentlies and possiblies his way to repeat his hopeful assertion that DOJ is just playing games. Attorney General Marty Jackley and friends of the GOP regime tell us there’s been no action they know of on the EB-5 investigation, but the knowledge and avowals of Republican officials hardly exhaust the universe of fact. If South Dakota Republicans were up to monkey business, they still have plenty of motivation to bluff. If the FBI was up to no good, their chief motivations for peddling EB-5 myths—hampering Mike Rounds’s Senate aspirations and boosting U.S. Attorney Brendan Johnson’s profile—have both gone poof, since Rounds has graduated to Senate to do other dumb things and Johnson has left the federal courthouse to help Indians.
The DOJ is saying on the record that there is enough possibility of enforcement proceedings to outweigh the Freedom of Information Act. I’d like to think that’s no casual claim.
But as good friend of the blog Roger Cornelius reminds me, if AG Jackley is really unhappy with the feds, if he really thinks the feds have nothing and are now just stringing us along for political purposes, he has an easy way to lay bare the feds’ charade. AG Jackley can do what candidate Rounds called for back in October: make the federal EB-5 subpoenas public. Show us the eight sets of information the federal grand jury came looking for two years ago. Show us that whatever the feds were looking at obviously couldn’t have involved any actual wrongdoing by anyone in South Dakota.
And while we’re on the openness kick (it is Sunshine Week), Attorney General Jackley, how about discloing the full record of your investigation of Richard Benda’s death? Bob Mercer’s appeal toward that end comes before the South Dakota Supreme Court next week Tuesday.
The state medical board adopted new conflict-of-interest rules Wednesday. Jonathan Ellis reports that members of the South Dakota Board of Medical and Osteopathic Examiners will be expected to recuse themselves from contested cases involving relatives, business connections, and doctors whose peer review committees they have supervised. Board members will also be expected to disclose other potential conflicts that may prompt the rest of the board to require recusal…
…to which I can only say, ‘What, the Board doesn’t already do that?”
Of course, if you’re going to have rules, you have to provide information that will help the public enforce them: