Press "Enter" to skip to content

Judge Gives Sexually Harassing Sheriff Second Hearing Before State Standards Commission

In sending sexually harassing Dale Elsen’s law enforcement revocation back to the South Dakota Law Enforcement Officer Standards and Training Commission, Judge Tony Portra made one really important point and one erroneous point.

The important point: Judge Portra said that none of the evidence of Marshall County Sheriff Elsen’s inappropriate, unprofessional, and downright scuzzy behavior is in question. Elsen made lewd comments to his subordinates about getting laid, masturbation, and an inmate’s genitals. Elsen handed out bikini calendars and displayed obscene toys at work. Elsen engaged in this offensive behavior in a public office, while working for the public.

“I want to make it clear this hearing on remand is to follow the court’s orders to find alternatives — not to retry the evidence,” Portra said. “We’re not having a second bite at the apple.”

…“We’re going to conduct the hearing with the understanding that Sheriff Elsen has admitted the allegations. The question is what is the appropriate response,” he said [Erin Ballard, “Elsen Case to Be Sent Back to State Commission to Consider Alternative Punishments {paywall},” Aberdeen American News, 2019.04.24].

The problem we have is that, even though Marshall County has a sheriff who engaged in unprofessional activity and whose online comments make clear that he doesn’t get it, 60-some residents packed Judge Portra’s courtroom in apparent support of his continued wearing of a badge and bearing of the public trust. And Judge Portra, alas, is willing to give those blinkered supporters wide berth in allowing misconduct in public office:

Portra said community support for Elsen was a significant factor in his ruling. Elsen began as sheriff in January 1983. In November, he was re-elected with 83 percent of the vote.

“Sheriff Elsen is not my sheriff. He’s not the commission’s sheriff. He’s the sheriff of the people of Marshall County — an elected official,” Portra said. “Before we subvert the will of the people, before we end the career of someone who has served the people for 41 years, the record needs to be clear that all alternatives were considered, and if they are not adequate (it needs to say) why they are not adequate.”

Portra listed some examples of disciplinary options, including further training, periodic reviews and suspension [Ballard{paywall}, 2019.04.24].

I haven’t seen the court documents in Elsen’s appeal, so Judge Portra may be looking at some specific statute or rule or precedent that requires the Law Enforcement Officers Standards Commission to at least talk about alternative punishments before revoking a law enforcement officer’s certification. But on face, his argument about the letting the will of the people supersede the judgment of a state standards board seems problematic. SDCL 23-3-43 explicitly overrides the will of the people, stating that elected county sheriffs must still satisfy the qualifications for service set by the LEOSC. Those qualifications include “good moral character.” I don’t see the in-between statute that says a person of demonstrated poor character has to undergo training or reviews or suspension before losing law enforcement certification, and there’s definitely no exempting statute saying the voters can overrule the LEOSC and elect as sheriff someone who has no law enforcement certification.

The voters can be wrong. The state law enforcement commission and the court can override their decisions. The fact that 83% of Marshall County voters think a sexual harasser is a fine sheriff does not mean that sexual harasser can legally remain sheriff.

But Judge Portra has spoken, and the Law Enforcement Officers Standards Commission will have to speak again. Let’s see what alternative punishment Elsen is willing to argue for and whether a discussion of alternative punishment leads the commission to any different conclusion about Elsen’s fitness to wear a badge and a gun.


  1. jerry 2019-04-24 13:29

    The similarities between the Marshall County Sheriff’s outlook on degrading women and the story of these men, who brutalized a young woman, show that even with anti-feminism brutality, there is still plenty of support for their actions. Here is an article that formed a political party in Spain, with it’s roots in anti-feminism and fascism, for starters.
    In this case, one of the attackers was a soldier and one was an off duty policeman. I seriously doubt that justice will be served and this man will not suffer any backlash for his actions.

  2. mike from iowa 2019-04-24 15:24

    Justice in South Dakota is dependent upon popularity and not guilt? Exactly when were mobs given the power to judge people?

  3. Brian 2019-04-24 15:48

    You have zero clue on what all happened and who left the toy and calendars in the desk of a former deputy. I was a fan of this writer but not anymore. Know the facts BEFORE you write again. Please. He actually made 3 mistakes and he himself actually ordered sexual harassment training prior to this coming out because he caught himself saying this. And he himself even admit that was wrong and was addressing it. Look up who was running against him and what that person said in the days up to the election and then couple weeks after he lost this came out. Hmmm… How about you write on that. Mr. Elsen is a very good person and sheriff for many years he had a slip up and acknowledged that. How about a suspension of 2 months and classes. Why lose of good sheriff over a bump in the road. I’m surprised you even wrote this article. Know the facts first. We cant even keep a deputy for more than 4 months. Yes he was wrong but to ban a good person. Come on. And I’m a Democrat but wish SD party would get their act together and stop being so extreme.

  4. jerry 2019-04-24 16:21

    So who put the toy and the calendars in the desk Brian? Was it Satan? Are we gonna have to get the Church Lady to find the answer? That bump in the road you speak of, can we call that justice? The prisons have plenty of folks that was a good person as well, and then, they did something wrong..that they knew was wrong. That don’t make it right. How is it extreme to demand good honest law enforcement?

  5. Roger Cornelius 2019-04-24 17:22

    Brian is supplying Mr. Elsen what we soon will be known as the Donald Trump.
    Trump as well as Elsen’s supporters believe there should be no impeachment or punishment for either men.
    Trump, in his own mind, thinks that he is the greatest president ever as evidenced by the robust economy, low unemployment, etc.
    Mr. Elsen’s supporters think he shouldn’t be punished because he is so popular.
    Watch for the Trump defense in all levels of government corruption.

  6. Robin Friday 2019-04-24 17:56

    I really don’t know enough about this case to comment. But I do know that if I were a Marshall County resident or owned property in said county, and had a sheriff who regularly and always talks this way and does these things, I would be uncomfortable about his overall character and ethical practices. Because this kind of language and behavior is the tip of the iceberg. It doesn’t stand in opposition to what’s below.

  7. Brian 2019-04-24 18:08

    so you’re generalizing false info, you must be a trump supporter. I’ve known him for over 30 years of my life and he never spoke like this around me or in the office. Did you know he asked a deputy to leave because he was acting this way around the public? KNow the facts first. This author should pull this article actually, some false info in it.

  8. Brian 2019-04-24 18:13

    A former deputy did as records clearly state, and Elsen found them in the desk while cleaning it out. Plus how would you relate this or my statement to Trump? wow, i don’t like trump and never have, but this article is acting like trump and putting out generalizations before knowing the facts that have been already stated in front of the county commissioners. Its sad that people supposedly hate trump but act just like him and bash people, learn the facts first.

  9. Old Spec 5 2019-04-24 18:44

    Aunt Bee, Barney and Floyd win again All is well in ‘Merica

  10. Roger Cornelius 2019-04-24 19:21

    Check your reading comprehension skills.
    I did not compare anybody to Trump, I compared the defenses of both Trump and Mr. Elsen as being similar.

  11. bearcreekbat 2019-04-24 19:23

    Like Cory, I haven’t read the decision by Judge Portra, but Cory’s story seems to make a couple points clear. Contrary to Brian’s implication about the facts of the case, they seem to be admitted by the Sheriff. The judge apparently said,

    “We’re going to conduct the hearing with the understanding that Sheriff Elsen has admitted the allegations. The question is what is the appropriate response,”

    The only issue was whether an appropriate punishment had been imposed. The issue that pops up in my mind is whether the Sheriff was permitted to submit testimony or letters from the 60 or so folks supporting the remedy he apparently sought. If not, then the Judge was correct in my view in remanding the case for further development of the record to support or undermine the punishment imposed.

    Evidence from community members is, in fact, important evidence that ought to be considered in any case without a statutory mandatory penalty. Such evidence deserves some weight in the exercise of discretion by a Judge or agency imposing a sanction for admitted misconduct.

  12. Cory Allen Heidelberger Post author | 2019-04-24 19:26

    Brian, my nonzero clue includes the violations that Elsen has admitted, that the LEOSC deemed true, and that Judge Portra said we’re not going to retry. He didn’t have “a slip up.” The LEOSC documented many slip-ups. I have never done at my workplace the things Elsen has admitted doing. I can think of no excuse for doing at work (or, really, pretty much anywhere else) the things Elsen did as a supervisor on the taxpayer’s clock. If I had an employee do such things, I’d get rid of that employee. Very good people don’t do those things.

  13. Cory Allen Heidelberger Post author | 2019-04-24 19:29

    Luckily, I don’t need people to be my fans. I need people to read and believe the truth. I’m infinitely less concerned to hear people say they aren’t my fan than to hear people working themselves into a lather to declare themselves fans of a sexual harasser.

  14. Cory Allen Heidelberger Post author | 2019-04-24 19:33

    Roger’s comparison of Elsen’s supporters to Trump’s is apt, if strange, given that Elsen is a Democrat. But party doesn’t matter on this issue: making excuses for sexual harassment is part of the misogyny that Donald Trump has stoked and capitalized on. That misogyny is a serious problem. Punishing sexual harassment, making clear that authority figures (especially those whose authority comes from the people) can’t objectify others, is an important part of rectifying that problem and opening the door for all Americans to participate equally in society.

  15. Roger Elgersma 2019-04-24 19:36

    Brian, when you say that you can not keep a deputy for more than four months, is a HUGE red flag. Cops seldom tell on each other but when a good cop sees he can not do his job properly because of bad management, they typically quit and go else where. When the police chief got a call to let Trayvon Marten go and drop it, he quit in a week. ZImmerman’s dad was a judge and could get that call made by the states attorney. So when you can not keep a deputy is a clear sign that management, the sheriff, is a huge problem. When a very small portion of the counties residents can be a problem themselves and want to cover their own problems, by covering for a sheriff like themselves, means that the devils are now ruling.
    Proper procedure is for the elected representatives to make laws for everyone. Not just for people in counties that are good enough to like good laws. Judges like to talk about rule of law. This judge ignored the law.
    When I took a business law class, the lawyer teaching it said that the courts greatest concern is not justice but to not rankle the populace. The judge wants everyone to respect him so he listened to the minority that showed up in court and forgot that a bad sheriff would be worse than just listening to a bad sheriffs bad friends.

  16. Cory Allen Heidelberger Post author | 2019-04-24 19:38

    Bear, I appreciate your reasoned legal perspective on community input. But I’m still uneasy about allowing popularity to wash out misdeeds. Brian is likely being entirely honest: Dale Elsen has probably never sexually harassed Brian. Sheriff Elsen probably hasn’t sexually harassed the vast majority of residents of Marshall County.

    Harvey Weinstein also didn’t harass the vast majority of actresses in the movie industry.

    Donald Trump hasn’t grabbed the majority of women by the ____.

    One need not violate the rights of the majority of the community to forfeit a position of public authority.

  17. Susan Wismer 2019-04-24 22:13

    Cory, please at least take the time to learn a few more facts of the situation before you continue to use your platform to spread what I feel is a rather uninformed opinion. I agree with Brian when he says that this reaction is a sad illustration of why some Democrats’ tendency to jump to conclusions based on standard liberal biases are so damaging to the cause of getting Democrats elected in this state. If we don’t have the common sense to recognize what’s going on here, how can Democrats be trusted to make big decisions? If you will spend an hour or two listening to the testimony in Senate Judiciary on SB 127, I hope you will see the larger issue here: how easily the process (of the Law Enforcement Standards and Certification Commission) can be manipulated by those who are determined to misuse it for personal gain. The comments so far on this issue here have been blissfully ignorant of the real world. No Marshall County residents are excusing the Sheriff’s language. They are, however, judging him by the personal experiences they have had with him protecting our county for a generation or more. One last point: you all are misconstruing Brian’s comment about our difficulty in keeping deputies. All small counties are challenged to keep deputies because of the pay scale; and our county has been doubly challenged because of the difficult dynamics created by a deputy running for county sheriff against his boss.

  18. Roger Cornelius 2019-04-24 22:54

    It would be nice to have Brian or Susan lay out precisely the facts that Cory and the rest of us got wrong.
    Both Brian and Susan make accusations that Cory did not get the facts right, prove him wrong with your facts.

  19. Debbo 2019-04-25 00:55

    I’m hearing nothing at all about the women who were affected by Elsen’s behavior. Zero. I’ve worked in misogynist settings and learned that it’s not necessary to hear every word or see every object to feel totally disrespected, vulnerable and ashamed. Nobody should have to put up with that, regardless of who’s out to get Elsen, or whatever.

    I too would like Brian and Susan to say what they have to say, rather than hinting about dark deeds or secret info. That’s not helpful.

  20. bearcreekbat 2019-04-25 11:41

    Cory, to clarify I am not aware of any sentencing procedures that “allow[] popularity to wash out misdeeds.” From your report I saw no statements in the case that directly or implicitly indicated that was the intent of Judge Portra’s order remanding the case.

    Your report indicates instead that the Judge appeared to be more concerned about the Board’s apparent failure to consider, and articulate reasons for rejecting, a sanction other than revocation, which is the harshest sanction since it would end a lifetime career in law enforcement. The Judge’s order doesn’t appear to prevent the Board from imposing the harshest available penalty. Instead, it directs the Board to consider less restrictive penalties and, if it rejects these sanctions, articulate reasons for a decision to impose the harshest punishment.

    Since any less restrictive punishment apparently means the sheriff retains his certification and will be able to continue in law enforcement, consideration of his relationship as a whole with the community he served, and perhaps will continue to serve, is a critically important factor to consider in deciding whether a less restrictive sanction is in the public interest.

    If I correctly understand Judge Portra’s ruling, it looks to me like Judge Portra made a legally appropriate and well reasoned decision to remand the matter for further analysis and findings.

    In my view, any time the state grants discretion in the exercise of state power to impose a punishment on an individual, due process of law requires that exercise of discretion to always fully and adequately consider imposing the least restrictive punishment that protects the both the public and the defendant, taking into account all other appropriate sentencing objectives.

  21. bearcreekbat 2019-04-25 11:47

    And Debbo is correct – those harmed by the sheriff’s misdeeds deserve a front row and full consideration by the Board of the harm they suffered and their opinion on an appropriate punishment.

    While due process prevents any single factor from controling or limiting the exercise of sentencing discretion, the harm to victims deserves great weight in whatever decision is forthcoming.

  22. Brian 2019-04-25 14:16

    WOW, just read his statements that HE said and was backed up on at his meeting with county commissioners and board. Everyone here is just going by this article, this article is generalizing. And shame on him, and to think i actually spent time reading his articles. I’m a Dem, but ashamed i am one if this is the direction of the party in SD. Its already sad that some of the SD Dems pushed to privatize Public Trust Waters, one even said in a public open forum which is on Youtube, when asked what he thought on the water issue, ” this water should be mine, and i would charge people to use it, its my DAMN water” , now we have a Dem that is generalizing and putting misleading info out about a sheriff? Come on. Our party is turning into Trump. Sad.

  23. bearcreekbat 2019-04-25 15:28

    I don’t know about Brian’s posts since he makes claims with no links nor other way to verify his claims, but I have noticed an interesting characteristic of phoney posters who only seek to spread false narratives aimed at upsetting people.

    The folks I am talking about will claim to be a member of an identifiable group, such as the democratic party. They will then claim, usually without documentation or links, that another member of that same group has views they disagree with. Then they will attribute such disagreeable views to the entire group in an effort to demean and create discord among group members.

    Since it would be just as easy to identify a different member of the group with admirable views and then attribute these admirable views to the entire group, these phoney posters seem to be posting comments in bad faith.

    Thus, an attribution of one democrats purported, but undocumented, disagreeable statement “in a public open forum which is on Youtube” sounds like a phoney claim from someone pretending to be something that he or she is not. Likewise, attributing a disliked blog opinion of Cory or his commenters to the democratic party as a whole, sounds on its face just as phoney.

    Absent some links or other verifiable documentation I doubt the accuracy of Brian’s claimed facts. And even if accurate, he has identified no rational basis to attribute the views of any individuals to the democratic party as a whole.

  24. jerry 2019-04-25 15:54

    bcb, I think you may have nailed it. Can’t wait for the rebuttal…

  25. Roger Cornelius 2019-04-25 17:02

    Brian’s comment at 14:16 is confusing, did he actually say something or is he just calling names

  26. Cory Allen Heidelberger Post author | 2019-04-25 22:51

    So, Senator Wismer, is the contention here that the LEOSC is corrupt? Is the contention here that it has acted on false charges? Is the contention here that Elsen engaged in no unprofessional conduct?

    I don’t think my distaste for Elsen’s comments on the job can be dismissed as liberal hand-wringing or hypersensitivity. If I came back to the office from vacation and my boss asked if got laid, I’d be shocked and appalled. I never made comments like that to co-workers, not when I was a young Republican conservative, and not now when I’m an older liberal Democrat. I can’t think of anyone to whom I would pose that question, for any reason.

    I have hard time sympathizing with an alleged victim of an allegedly corrupt LEOSC when the “victim” serves up a case for discipline this easy with his own stupid behavior.

    Is the contention here that, even if Elsen has it coming (and come on, really, he does) the LEOSC is showing its corruption by going after a Democratic sheriff in a Democratic stronghold but not going after comparable unprofessional conduct by guys like Milbrandt, Lunzman, Wollmann, and other cops with histories of sexual harassment? If so, proceed… but recognize that’s a separate point that we can support better by taking seriously Elsen’s admitted bad behavior, punishing him for it, and then saying, “All right, now for the rest of you creeps.”

  27. Cory Allen Heidelberger Post author | 2019-04-25 23:02

    Brian, I’m not sure you understand the word “generalizing,” which you use often but with no apparent connection to what I wrote. I point, and the record points, to specific instances of admitted unprofessional conduct. If I were generalizing, I’d be saying something absurd like, “Everyone in Marshall County must sexually harass everybody else,” or “All cops are pigs.”

    Generalizing appears to be more like what you’re doing (though there’s red herring mixed in, too), doing things like invoking your displeasure over the nonmeandered waters issue (about which it seems hard to apply any partisan generalization, and from which you’ll get no more relief from the GOP majority than from the Dems) to derive your general conclusion that… what? the whole Democratic Party is turning into Trump?

    I will offer this generalization: in general, I don’t want a sexual harasser in charge of protecting my wife and daughter. Do you disagree with that general principle, Brian? Do you contend that I should deal with sexual harassers on a case-by-case basis and let some protect my wife and daughter or occupy positions of authority over female citizens and employees?

  28. Cory Allen Heidelberger Post author | 2019-04-25 23:05

    I’m aware that state government is rife with corruption. I operate on the assumption that Dan Lederman would love to find something that he could hand to his puppet Jason Ravnsborg to use to drag me into court and give me a good public whipping. I thus try not to do really stupid things that the corrupt regime could use to prosecute me.

  29. leslie 2019-04-26 06:58

    Did the sheriff make inculpatory statements without counsel so the judge is giving him a second go around? 83% is a big deal but perhaps this elected official with a 30 year career is just now beginning to understand how the “justice” system wielded by our cozy judges, prosecutors, underfunded defense lawyers, chiefs and sheriffs can devastate a good persons life. It happens everyday.

  30. Dana P 2019-04-26 08:20

    Part of the reason we have a good ole boys network in this state is because of a bunch of good ole boys. Look the other way. Oh, that’s just him being him.

    It doesn’t appear that this was a one-off, “oopsie”, comment. This appears to be a pattern. A long pattern of behavior that shouldn’t be given tacit approval. We are all human and can make mistakes. This? Um, no.

    I also don’t think that someone should lose their jobs over either a false claim or an innocent mistake. That isn’t the case here. This type of behavior wouldn’t and shouldn’t be tolerated today. Maybe 41 years ago when he pinned on that badge, his behavior was considered a shoulder shrug. Today? Just can’t happen. (more than likely he has been offending people for 41 years — people just finally were brave enough to report it) A person who hasn’t grown or “evolved” with what is and isn’t acceptable isn’t fit to wear that badge, let alone be the sheriff.

    Forty one years is a long time……Mr Elsen needs to embrace retirement.

  31. Brian 2019-04-26 09:27

    again, people read the testimony from everyone involved that was said in front of officials. DON’T read this authors article. Then make a open minded choice. This author has lost all credibility in my opinion based on this article. I’m 100% against sexual harrasment in the work place, but to label someone without knowing exactly what happened, is poor journalism. To say the Dem party the past 6 years in SD isn’t leaning towards big money is blinders on. The state board made a extreme decision in this cased based on what happened in Brown county on the cover up attempt of the harassment case and I think based on the KNOWN information, the current Judge made the right choice. Knee jerk reactions on sexual harassment cases need to stop, why? Get the facts right first based on proof and facts sometimes take time. Doesn’t it make sense to have all staff take training classes on how to prevent this happening again, than to fire someone, go through the whole process of hiring/election(thats if anyone will even want that job again in SD, stats clearly show we have a issue in SD in this area) that process cost big money, and classes are way way cheaper and are more effective now days than 20 years ago. Then put that person on notice if this happens again with proof its instant firing after investigation. Again the Judges choice was the correct one in this specific case. I would add 2 months of half paid leave while doing harassment training.

  32. mike from iowa 2019-04-26 11:47

    This author has lost all credibility in my opinion based on this article. I’m 100% against sexual harrasment in the work place, but to label someone without knowing exactly what happened, is poor journalism.

    I find Cory to be 99.99% truthful and there is not a single moment where he has EVER made up stuff to serve a particular end. That means my vote for Cory cancels Brian’s vote against and now we are back at square one.

    You don’t like what the man says, your prerogative. You just aren’t going to find many sympathetic voices here. If you really believe in someone making stuff up, there is a network of right wing sites out theren more than willing to cater to your needs.

  33. Debbo 2019-04-26 12:06

    Brian said, ” Doesn’t it make sense to have all staff take training classes on how to prevent this happening again, than to fire someone, go through the…”

    Why is it one or the other? Why not do both? The initial decision could have included the firing plus retraining for the rest of the staff. Or training with a different level of punishment.

    Those of you minimizing Elsen’s actions, all men I believe, have little to no awareness of the pernicious affects on a woman working in that kind of atmosphere day after day after day. It’s wearing, eroding energy and productivity.

    It’s not one comment, one photo on the wall, one joke. It is the cumulative weight of it all and being powerless to stop it, to feel respected or valued. It’s feeling separate from what should be a team. It saps one’s ability to trust colleagues and do good work.

  34. Roger Cornelius 2019-04-26 14:05

    I’ve asked Brian several times exactly what Cory got wrong that makes him lose credibility and Brian has not responded with any specifics.
    Brian claims that Cory and his readers generalize, but if you read Brian’s comments closely he is the one that generalizes.

  35. Brian 2019-04-26 15:04

    Who said….” And Judge Portra, alas, is willing to give those BLINKERED supporters wide berth in allowing misconduct in public office….The fact(this is not a fact, this IS generalization) that 83% of Marshall County voters think a sexual harasser is a fine sheriff does not mean that sexual harasser can legally remain sheriff.” Just think if this author knew how this all started, pretty sure this article would be totally different. And all this information is public record, but hey cherry picking is way easier i guess for headlines. You might want to dig a little bit and see who was running against him and what was said online, pretty sure you would see the big picture on how this all started and why its at where it is. I was in that court house over 5 years ago for a document, and a inmate was holding on to his you know what, and Dale E. literally grabbed a blanket and put it up to block the inmate from staff. Now fast forward to what happened now, first read the public records on how this started and what actually happened on those days of these unfortunate events. Then decide with a open mind.

  36. Roger Cornelius 2019-04-26 15:11

    How did this all start?

Comments are closed.