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Non-Disparagement Clause Doesn’t Prevent Ousted Appraisal Chief from Telling Truth About Noem’s Corruption

By the way, Lee Strubinger does us the favor of posting the complete settlement that the state and Sherry Bren agreed to last March to end her age discrimination complaint. That document lists all of the conditions, including the non-disparagement clause that Stephen Groves mentioned when he broke this latest story of Kristi Noem’s nepotism yesterday. Bren cited that non-disparagement clause as her reason for holding back some details of the completely inappropriate meeting to which the Governor summoned her last summer to complain about her daughter’s not receiving her real estate appraiser certification.

But the non-disparagement clause does not appear to limit Bren’s disclosure of details from that fateful meeting:

6.1—Non-disparagement. The parties and their attorneys further agree not to communicate any disparaging information about the State of South Dakota and the Department of Labor and Regulation or their elected officials, former officials, employees, former employees, or agents, or Bren, in relation to Bren’s employment with the Department of Labor and Regulation, resignation/retirement, and this action, either verbally or in writing, in any public forum, including but not limited to  any traditional media outlets, or social media forums such as Facebook, Twitter, SnapChat, Instagram, or similar form of social media, or by way of blogs [yes! I made it!], audio/video cases, podcasts, or any other internet websites, and/or other mass public digital communications of any kind except for the underlying facts regarding her employment, acknowledgement that the action has been resolved, and the specific terms of the settlement as stated in this Settlement Agreement and Release. Disparagement means the publication of false statements that are derogatory of another’s property, decisions, business, or governance, or the act or an instance of unfairly castigating or detracting from the reputation of someone or something [emphasis mine; Settlement Agreement and Release, signed by Sherry Bren 2021.03.31 and Labor and Regulation Secretary Marcia Hultman 2021.04.01; posted in Lee Strubinger, “Noem Administration Pays $200,000 to Settle Allegation of Age Discrimination,” SDPB Radio, 2021.09.28].

This agreement says disparagement involves false statements. If Bren says exactly what happened at the July 27, 2020, meeting in the Governor’s Office, if she produces a faithful transcript of every word the Governor, her daughter, her chief of staff, her lawyer, her Labor Secretary, and her Labor Secretary’s lawyer said to her and everything Bren herself said in response, Bren is not committing disparagement.

Ms. Bren, I welcome your further public statements about the corruption you witnessed in the Governor’s Office in the process of your firing. Your honest account of this corruption will serve the public interest in understanding and, we hope, eradicating the corruption that has taken hold in Pierre. And as long as your account is honest, the state can’t take back your settlement money.

38 Comments

  1. larry kurtz 2021-09-28

    $20 says the Governor’s Office of Risk Management ran the numbers and concluded a settlement was the best course. That this scandal is only surfacing six months after its occurrence is remarkable in itself. Little wonder Jason Ravnsborg has been able to dodge the bullet for over a year.

  2. Cory Allen Heidelberger Post author | 2021-09-28

    The state liability pool paid the settlement. Bren does not have to keep silent to keep that cash; she needs only avoid making false statements.

  3. Cory Allen Heidelberger Post author | 2021-09-28

    But yeah, when the boss screws up this badly, a settlement probably would be better then whatever penalty would come from regular due process.

    But I wonder: just how big a check of backpay and personal damages could Bren have gotten from the board of hearing examiners or from a jury? Did the state actually save money with this settlement, or is the state really paying to prevent political damage and a drop-off in donations to Kristi Noem?

  4. Porter Lansing 2021-09-28

    Come to Colorado, Ms. Bren.

    SD ain’t worthy of ‘ya.

    Governor Polis is well aware of your story and the appraisal pool here is always in need of dignified talent.

  5. Yvonne 2021-09-28

    Maybe this will mark a new era into a totally separate form of a “me too” movement regarding employees whom have been forcefully ousted out of their livelihoods due to der fuhrer – narcissistic, hitleriztic bosses.
    And this state is baffled they cant get workers to work for slave pay.

  6. DaveFN 2021-09-28

    The question is always who is the arbiter of a false (or true) statement: the one who makes the statement or the one who hears it. There’s the rub.

  7. ArloBlundt 2021-09-28

    Cory-I would say the State made the payment to prevent the particulars of this story of nepotism and self dealing from ever seeing the light of day.The Governor’s staff finally concluded, and convinced the Governor, that it was time to bury this hot potato.

  8. DaveFN 2021-09-29

    I hear you, Arlo Blundt.

    But how do you prove it?

  9. happy camper 2021-09-29

    She was eagerly corrupted the buck stops here. There is so much ammunition to take her down or replace her but the Democrats can’t produce a winning candidate. My suggestion Doug Daugaard. You may have disagreed with him on policy but how many personal corruption stories did you run about him? None that I remember. We need a man (or woman) with character. If Thune doesn’t run we’ll probably end up with a Tea Party Type who will sow more division. Of course the Radical Left will do their part to further instability of the country it’s all they know how to do, the only trick in their book. Sad how limited and restrictive they are in their thinking. The Regressives and their Tea Party cousins, more like twins really both radical elements at a very weak juncture in American history. Our country has been hijacked by the extreme left and extreme right.

  10. mike from iowa 2021-09-29

    Something wicked this way comes, soon. Stay tuned.

  11. Donald Pay 2021-09-29

    One thing you can be sure of is that Noem will not change this bullying behavior. She has an establish behavior pattern of abuse with employees and others, including a high school student. Many of Noem’s own staff quit in short order. Why? They can’t stand her, and decide to move on. With staff in her own office she seems to get away with obnoxious behavior. Their only option is to quit, but state employees aren’t her butt boys or girls. They have limited rights to a workplace that isn’t abusive, and if Noem refuses to curb her bullying, the state will be paying out.

  12. SuFuMatt 2021-09-29

    These non-disparagement clauses have been used by President Trump for years, but Trump’s have not survived court challenges. My vague recollection is that the courts didn’t like the fact that there was no end date to them.

  13. Joe 2021-09-29

    I’ll just add that – at the end of a long professional career with the state – Ms. Bren was being paid $26.25/hour. That’s less than Noem’s daughter was making in her second year out of college, working for her mom as a state “policy analyst”.

  14. Mark Anderson 2021-09-29

    Larry, that is a good one. Now Noem has to turn this around, “killer” DeSantis has sued the feds again, attacked Australia for lockdowns, lying about their military while at it. 1,200 deaths in Australia, well over 50,000 in Florida, makes sense right? Kristi has to do something major to get back in the race. What will it be?

  15. Mark Anderson 2021-09-29

    Oh happy camper, the radical left wants to add dental to Medicare, among other things, just so radical. They also want the wealthy pay more taxes. Here’s a good stat for you, the 7 wealthiest Americans have more wealth than than 3.5 billion people at the bottom in the world. Radical lefties also want to maintain Roe v Wade. There’s all kinds of things they would like to do, nearly all involve protecting people from corrupt Republicans who use their position to advance themselves and their family. Your either or about radicals just isn’t true, its a tactic. What’s radical about universal healthcare for instance, Brits would laugh at you. It’s the false equivalence argument. Throw in commie or socialist into it with a little bit of Soros for spice and you’ve got Kristi’s next speech.

  16. Yvonne 2021-09-29

    Yes, Larry spot on. Nothing like the pot calling the kettle black. And, an attorney from the AG office was in the meeting with this gang of bullies with no one to assist Ms. Bren. State employees have no union representation? They only have an internal grievance procedure, I believe. But, thereto, corrupt by the totalitarian whom thinks she governing this state…governing in the form of blatant corruption.
    Time a union is started state employees or your job may be next if you cross any beezlebub who reins over you within state and local government.
    No recovery, here, especially when more is going to come out about corruption within state government. Stay tuned.

  17. bearcreekbat 2021-09-29

    Mark Anderson’s comment about happy’s so-called “Radical Left” is spot on. I have asked happy and others to identify what exactly they think is “radical” about the current agenda of the so-called “Radical Left,” yet have recieved no meaningful response to date. The available evidence indicates the actual characteristics of happy’s so-called “Radical Left.”

    Trump administration spinmeisters, Fox News bloviators, and other members of the chattering classes like to blame anti-racism demonstrations and other disruptions on “the left,” usually amplified with adjectives such as “the far left’ and “the radical left.”

    They might as well blame unicorns or Sasquatch. The fact is, there is no “left” in this country and there hasn’t been since at least the 1930s.

    While progressive ideas like universal health care, higher education for all, and reducing income inequality may seem quite radical in this country, they are decidedly mainstream, and in the political center, in most of the industrialized world.
    . . .

    Terms like “right” and “left” are tossed around in a false equivalency so that one would think the American political spectrum is a neat, symmetrical, bell-shaped curve, with most people in the middle and fewer and fewer out at the extremes on both sides.
    . . .

    What we really have in this country is a political spectrum that is heavily skewed to the dishonest right. The left side of the curve is severely truncated close to the center while the right extends out into space.

    Does any of this matter? Of course it does. This is part of an on-going campaign by Trump and his Republican enablers to stoke fear of “The Other,” whomever that might be.
    . . .

    In our present weird state of national politics, if many people believe that a mythical “radical left” is causing all the nation’s problems, what other fairy tales might they believe? That COVID-19 is a hoax? That voting by mail is rife with fraud (even though it’s been done successfully since the Civil War)? That Hillary Clinton is running a child-sex-trafficking ring out of the basement of a pizza joint in Washington?

    https://www.concordmonitor.com/What-left-35883784

    My apologies to Cory for engaging in this off topic digression, yet happy’s repeated misrepresentation of the left cannot be allowed to infect the truth.

  18. O 2021-09-29

    bearcreekbat, Well spoken. The radicalization of the right and the gaslighting of America of what is the center is the downfall of this nation into a spiral of greed and death.

    I have SOME hope that SOME GOP faithful will take a look at the candidates – not jsut the party affiliation – and see the corrupt and unscrupulous wanna-be tyrants their slate of candidates have become.

  19. mike from iowa 2021-09-29

    If magats destroy their party ad themselves, then we will be definitely “left.”

  20. Cory Allen Heidelberger Post author | 2021-09-29

    Say, Arlo, I’m curious: if Noem wanted to bury her retaliation, why did she have Bren sign a non-disparagement clause instead of a full-blown non-disclosure clause? Non-disparagement doesn’t bury the story; it just holds the signatories’ feet to the fire if they lie about what happened.

  21. Jake 2021-09-29

    Bear Creek Bat, you nailed it to a “T” !!
    The GOP Republican’s only hope is to instill fear of anyone
    BUT a Republican…..

    Thanks, Cory, for a couple days of excellent reporting of thiings Dakota!

  22. Yvonne 2021-09-29

    Yes, great job Cory. As for why the type of agreement was required to sign at settlement…bad legal advice from the state’s attorneys that were involved or that was part of the agreement. Only a guess

  23. ArloBlundt 2021-09-29

    Cory–Why did the Noem team have Bren sign a non disparagement clause rather than a non disclosure clause???? You need to ask the Rick Johnson law firm which negotiated this severance agreement with the “Noem team” (I doubt the Governor had much to do with it…once she bullied her way to get the professional standards loosened or ignored to provide her daughter with what she sought, I assume the Governor “moved on to other priorities” and assigned the problem to the Department Secretary and the lawyers) The Johnson law firm probably set much of the particulars of the settlement—that firm, like the late Rick Johnson= are known as Junk Yard Dogs when it comes to defending clients. I’m sure the “Noem Team” just wanted to avoid “embarrassing the Governor.”

  24. Cory Allen Heidelberger Post author | 2021-09-29

    Wow, Arlo—are you suggesting that Noem is so distracted and so incompetent that she can’t even effectively manage the scandals of her own making?

  25. grudznick 2021-09-29

    Is this the Mr. Johnson, Mr. Rick Johnson who was the one armed lawyer, road dog of the venerable Bill Janklow?

  26. Bob Newland 2021-09-29

    And Bill Janklow is screaming from his grave, “Didn’t you learn ANYTHING from me?”

  27. ArloBlundt 2021-09-29

    Grudz–as I understand it, Rick Johnson is deceased and the law firm is now operated by his son and the son’s wife…Rick Johnson won some big cases…his son is very competent as well. Visualize this: Mrs. Bren is a 70 year old highly respected career employee of over 30 years. She lives in Pierre and is a loyal member of her community, church, professional and service organizations. She has suffered through what is for any State employee whose job is to enforce state regulations the “ultimate nightmare” ie crossing the Governor while doing your job. She consults with a local Pierre lawyer of her acquaintance and he tells her “You don’t need me, You need the Rick Johnson firm in Gregory”.

  28. ArloBlundt 2021-09-29

    Cory-yes…I am suggesting that Mrs. Noem has such an elevated opinion of her own infallibility and is so out of touch with consequence, that once her objective was achieved, the “clean up work” was delegated. She moved on to create other chaos.

  29. grudznick 2021-09-29

    Oh yes, Mr. Blundt, the one-armed fellow from Gregory who bested Newsweek on the behalf of our dear old friend, Governor Janklow, is long dead indeed.

  30. ArloBlundt 2021-09-29

    Cory-I’m searching for a greek word which describes Mrs. Noem’s behavior with Ms. Bren and in many other instances. It translates to “When men believe they are Gods” …I believe it starts with an H….sorry I can’t retrieve it from the vocabulary memory bank.

  31. Guy 2021-09-29

    Cory, Kristi can keep blaming the media and everyone else all she wants. But, the FACTS remain that Kristi Noem called a special meeting to meet with Labor Secretary Marcia Hultman, Sherry Bren, and included Noem’s daughter in that meeting in regards to the daughter not getting a real estate appraisal license (certification). Four months later, the daughter receives her certification and Sherry Bren is gone. Then, there is the whole issue over the $200,000 “retirement settlement”. Kristi can keep tweeting for sympathy, playing the victim card, but, her actions speak louder than her tweets.

  32. Guy 2021-09-29

    Arlo said: “that once her objective was achieved, the “clean up work” was delegated.” Arlo, Kristi may think that she’s getting out of this one by “delegating the clean up work,” but, I got a strong gut-feeling this time that the media has a very strong case to investigate here. It’s a good thing the Attorney General is going to follow-up with the concerns of many legislators and citizens who are willing to make sure the “buck stops with Kristi” on this issue.

  33. ArloBlundt 2021-09-29

    Guy–I’m just supposing..I have no great insight into this based on any document…perhaps the Governor washed her hands of it after her daughter was licensed and told the Department Secretary “Get rid of her…I don’t want to see her in any state office building.” Perhaps she said, “Let me know when she’s gone”….but others would do the firing…Ms. Bren was a Career Service Employee not an exempt employee. The greek word I’m looking for to explain the Governor’s behavior is “hubris”..defined as when “Men believe they are Gods”…Hubris brings down a lot of folks in Pierre.

  34. Guy 2021-09-29

    Arlo, I understand what you are saying and I hope the Attorney General really does a thorough investigation into this matter and more legislators come out pressing for it. Any ethical and honest legislator should be for a thorough investigation of what appears to be a clear conflict of interest and abuse of power in this case.

  35. Guy 2021-09-29

    …And I believe an abuse of power is a clear impeachable offense.

  36. Guy 2021-09-29

    …And a cover-up of an abuse of power is also a clear impeachable offense.

  37. Guy 2021-09-29

    As the investigation proceeds, maybe they should look into Labor Secretary Marcia Hultman next. Start with Hultman and see if she wants to help give us some answers because it sounds to me like Marcia has some explaining to do.

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