Republican legislator and GOP gubernatorial candidate Steven Haugaard called on Governor Kristi Noem to release former appraiser certification chief Sherry Bren from the non-disparagement clause that limited what Bren could say about her forced retirement and Noem’s nepotistic interference in her daughter’s appraiser certification. Bren’s testimony to the Legislature’s Government Operations and Audit Committee yesterday revealed a lot about Noem’s corruption, but at the end of yesterday’s hearing, Democratic legislator and GOAC member (and a guy I think would make a great Democratic Governor!) Reynold Nesiba made the same recommendation:
At the end of the legislative hearing on Tuesday, South Dakota Sen. Reynold Nesiba, a Democrat, argued that the state should eliminate the non-disparagement clause in Bren’s settlement agreement so she could speak more freely about what happened.
“This is a question about — was a longtime, dedicated employee, was she wrongfully fired? Was she wrongfully fired on behalf of a relative of the governor and did the state end up paying $217,000 to cover that up,” Nesiba said. “And we’re not going to know the answer to that question because of this non-disparagement clause.”
“What we really need is an elimination of this non-disparagement clause and then I think we could have deeper insight into what actually happened in that meeting at the mansion,” Nesiba said [Maeve Reston, “South Dakota Gov. Kristi Noem’s Daughter Was Given an Extra Chance to Obtain Real Estate License, Former State Employee Testifies,” CNN, 2021.12.14].
Noem hasn’t said anything about rescinding the gag agreement for which she paid Bren over $200,000 from the state coffers. But is it possible that her administration’s vituperative response to Bren’s testimony may have broken and thus nullified the agreement?
As I mentioned this morning, Governor Noem’s spokesboy Ian Fury emailed several reporters and called Bren a liar… in Latin:
Folks,
Truth matters. Today, the media breathlessly ran with a claim by Ms. Sherry Bren that there had never been a “stipulation agreement” prior to Ms. Kassidy Peters’ case.
The only problem? That claim was false. Worse, Ms. Bren uttered this false claim under oath. Worse yet, when given an opportunity to clarify, Ms. Bren doubled down on the falsehood.
The committee was presented with an example of a previous stipulation agreement with another appraiser upgrade candidate from 2017. Who was courtesy copied on that previous agreement?
Ms. Sherry Bren.
Those are the facts.
Moreover, she wasn’t just copied on the agreement. Ms. Bren had a direct hand in shaping the specific stipulation agreement in question. She edited the document before it was approved. That is another fact.
Falsus in uno, falsus in omnibus is a Latin phrase meaning “false in one thing, false in everything.” It is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter.
Whether that applies to Ms. Bren is for others to judge.
Sincerely,
Ian Fury [email to reporters, 2021.12.14, in Bob Mercer and Dan Santella, “A Harder Side of Noem Came Out During Bren’s Testimony, as an Opponent Calls for Subpoenas,” KELO-TV, 2021.12.15]
Let’s pause and review the non-disparagement clause in the March 31, 2021, settlement to which Sherry Bren and the State of South Dakota are parties:
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, 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 [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].
Fury, as an employee of the Governor’s Office, is part of the State of South Dakota and thus party to the state’s settlement with Bren. Fury cannot communicate any disparaging information about Bren in relation to her employment with the state. Fury responded to a statement Bren made about her employment.
Fury offered an argument that Bren lies about everything. Let’s not get cute and say Fury was just stating a legal principle and leaving judgment to others: Fury called Bren a chronic liar. He sent that statement on the record to members of the press, with intent that the statement be made public. His state political party’s public response shows the disparagement of Bren carried by Fury’s statement:
Bren stated reasonable arguments under oath yesterday that support the truthfulness of her statements and inaccuracy of Fury’s response. Fury has thus unfairly detracted from the reputation of Bren.
Interestingly, the March settlement says Bren has to pay back her settlement money and pay attorney fees for the state parties she wrongs if she breaches any portion of the entire agreement, but it does not impose any comparable penalty on any state party who breaks the deal. The non-disparagement clause includes separate language that encompasses both sides:
The parties further agree that any break of this non-disparagement portion of this Agreement shall be subject to a temporary restraining order or permanent injunction, and will pay Releasees’ reasonable attorney fees incurred in seeking such relief if they are found to have breached this non-disparagement obligation under this Settlement Agreement and Release [Settlement Agreement and Release, 2021.03.31, in Strubinger, 2021.09.28].
The March settlement says Fury and the Administration could get hit with a restraining order and legal fees for disparaging Bren, but only if Bren takes them to court and gets a judge to rule in her favor. The Settlement thus appears rigged to put Bren at much greater risk if she calls Fury a liar than it puts Fury or anyone in the Noem Administration for ripping Bren publicly.
But if the Noem Administration disparages Bren—and Fury’s fury sure reads like disparagement—does that disparagement not just break but nullify the agreement? Now that the Governor’s spokesboy has accused Bren of lying about literally everything (falsus in omnibus), is Bren free to tell Senator Nesiba, Representative Haugaard, and all of South Dakota the complete story of her work on the Governor’s daughter’s appraiser certification, the infamous mansion meeting, and her forced departure from the job she did well for 30 years?
Related Reading: Haugaard says the Governor’s disparagement of Bren is blatant and disgusting:
It is clear that nothing like the treatment given to Kassidy Peters has been given to another applicant for the state appraiser certification in three decades, and perhaps ever. It appears that Governor Noem forced her subordinates to go outside the realm of standard procedure to give her daughter a third chance—one that no one else gets. To attack the credibility of Sherry Bren—a woman already intimidated and treated poorly by her superiors—is, frankly, disgusting, and a new low for this administration.
The “statement” put out by Noem’s spin doctor Ian Fury yesterday was nothing more than a baseless attack on the credibility of a woman who did a fine job with no stains upon her record for 30 years. The supposed smoking gun they came up with is a document that is used for entirely different reasons in normal procedure of the appraiser certification process. Sherry Bren has been and continues to be the victim of the Noem Administration’s bullying and intimidation [Steven Haugaard, campaign press release, 2021.12.15].
Update 2021.12.16 05:21 CST: Sharing Haugaard’s disgust and rebutting the Noem Administration’s disparagement of Bren is a Republican not running for office, David Volk:
David Volk, a long-time Republican who won elections as state treasurer and later was a member of then-Governor Bill Janklow’s administration, took a different view. He wrote on Facebook: “I knew and worked with Sherry Bren for over 20 years when I was State Treasurer and in Janklow’s cabinet. During all that time I never knew Sherry to be anything but an honest, dedicated and hard working official. The very idea that a governor would have such a meeting involving her daughter is unbelievable. For Noem then to have one of her lackeys smear the good name of Sherry Bren is despicable” [Mercer and Santella, 2021.12.15].
I’m pretty sure Volk has nothing to do with Haugaard’s campaign, but he could be writing Steve’s posters:
Haugaard would never use the second one, with Trump, but I would.
Great analysis. Fury and NOem opened the door for Bren to sue for another $200k or millions. It’s not for her. It’s for righteousness. It’s for her heirs.
Fury claims a Latin “Falsus in uno, falsus in omnibus.”
I’ll see that false equivalency and raise him a “passive infestantibus”.
The blogboys, both in and out of state, have called their names, and the disparagement is free.
Let us all hope you fellows are not the next target of young Mr. Fury’s fury.
Look i understand that it’s 2021 and we’re all mature, progressive adults and whatnot… but that fury fella sure has a face i’d enjoy punching. A good blast in the lips and teeth has a way of teaching a man some humility to an extent not otherwise possible.
But of course, we aren’t cave men any more… so we’ll all say words instead and he’ll continue to live in comfortable luxury, ego growing exponentially, off to abuse and insult more vulnerable folks for scumbag cred. Yay civilization.
Fury kicking down. Fury kicking the most powerless and vulnerable person in the whole affair. Fury as mean and senseless as an indulged, person of unearned status can be. Fury is lying for a living.
It would indeed, Mr. Ryan, be a better move if Ms. Noem were to employ an older fellow to be her spokesperson. Perhaps a fellow who stays off the twitters and the face books and who just answers questions from a podium and fires off press releases using a good old-fashioned typewriter. And who was cleanly shaved.
Maybe the ACLU could take a hard look at this and see what is clear, Fury stepped in it.
Careful, Jerry: the ACLU might have to step in and defend Ian Fury’s First Amendment rights in court. Of course, they’d also have to defend Sherry Bren’s free speech rights as well and argue that the whole NDA is unconstitutional and unenforceable.
Be sure to check out my update above, in which I note that Janklow Republican David Volk calls the presence of Noem’s daughter at the mansion chewing-out of Bren “unbelievable” and Noem’s assassination of Bren’s character “despicable.” Roll the campaign posters:
That’s Kristi Noem, Arlo: speaking power to truth.
Boy, John, it would be a shame if Bren distracted Noem from all of her other lawsuits by forcing Matt McCaulley to spend time in court haggling over this settlement. If Bren sued and won, would Noem get to pass the cost off to the state’s liability fund again, or would Bren be able to get the court to enforce some penalty on Fury and Noem personally?
Just like Trump, blaming others.
Just like Trump’s Administrations, people constantly leaving because they cannot put up with the King or in Noem’s case the Queen.
Just like Trump, using Covid and the “BIG LIE” to make money.
Just like Trump, Noem is a loser.
Yikes! What a scary image of Kowgirl Kristi; she has that same Xanax-glazed gaze that Laura Bush has, but not the surgically altered Joker rictus. Love those ‘brows. Meow.
U.S. 45 and S.D. 33 share a common theme: the best lie is a believable lie to be told over and over. The smart voters in S.D. sent 33 to Pierre a few times, then to Washington a few times. Now she sits in Pierre as the Governor thanks to them. When 33 began developing sellable political traits that could aligned with her bankrupted personal constitution, the erosion of collaboration between political parties, the division of parties ideologies and the surfacing of a paper millionaire came together at the right time by 2018. The perfect alignment for 33 to become a one term governor. She knew in time her failings of person, beliefs and meanness could not be masked. She found in 45 a person with personal traits and behaviors, including his temperament that matched her’s. She hooked up her future to 45.
Those in her person space soon found out who she is and where she stands. Self, broods, close friends, friends, political buddies, Fox News then down the road voters, oh and the state of SD. She fooled them with low profile offices, but becoming 33 the true “her” surfaced. Is 33 done? Is 45 wanting to be 47 going to bring her along? Questions to be answered in 2022 and if she wins in 2022, the next chapter gets revealed in 2024.
Will the inept inbred Republicans legislators have the moxie to break the breakable non-disparagement portion of the kick Sherry Bern of state government Agreement? Ms. Bern broke the golden rule of the inept inbred GOP, she told the truth.
What is 33 thinking under that hat and what is she feeling behind that belt buckle?
I have never understood the relationship between nondisclosure agreements (or non disparagement agreements in this case) and legal proceedings. I would have thought that investigations of crimes trumps those civil agreements. How can agreements like these be seen as anything else other than conspiracy to cover up crimes? I also believed that only legal contracts had to be entered into.
ps Is Bren’s agreement with “the state” or with Noem personally? I would argue the state owns the agreement because the state paid for it — therefore the state can renegotiate that agreement with Bren.
I believe O has the answer here. The legislature may need to renegotiate that agreement via a veto-proof bit of legislation.
Sir Walter Scott called this one in 1808. ” Oh what a tangled webb we weave/when first we practice to deceive “. It hasn’t caught the grate one yet, but it looks like Kristi’s Fury has blown it for her. Noem can always retire to a convent. Another Scott one for all of you, “come he slow, or come he fast, it is but death who comes at last”. Both of those are true and truth doesn’t fit in the Republican mind anymore. It’s all the liberal media Cory, they just won’t stop! It’s her family she’s cheating for. You know she was never going to lose the farm to the estate tax either, but it just SOUNDS so good.
Cory…thanks for the update on Dave Volk. He’s always been a class act and a good guy. As a politician, he always got my vote. I’m glad he’s allowing himself to be quoted in this unfortunate and outrageous affair. His views reflect many old school Republicans.
I wonder if her lawyer would take this up on contingency and bring suit for breach of agreement. He should be able to get his money back with minimal effort – and help to develop a better legal reputation – even if he loses out on some deep red customers.
I would hope both the lawyer and Bren agree to advance this on principle. The Noem governorship is continuing to make a joke of the state government in South Dakota.
Mine is not a legal opinion nor do I know whether the following necessarily is:
“It’s important to note that disparagement differs from defamation. Defamation typically applies only to false statements and requires some degree of ill-intent, while disparagement is broader. Defamation is essentially, “Don’t make up bad things about us to hurt us,” while disparagement is, “Don’t say bad things about us—even if they’re true.”
https://www.themuse.com/advice/non-disparagement-clause-agreement-sample
Mr. Dave, you are right, you are the FNG and not a lawyer like some of grudznick’s friends are.
But you posted a blue link, and an quote about disparagement, and I’m sure Ms. Bren’s hack shill lawyer from here in Rapid City will run with that idea. He is a known hack and skirt chaser, or so grudznick is told. Those people saying that could be mistaken, but I bet they are not.
Dave – the agreement they signed described disparagement as untrue statements specifically. this is why i don’t understand the problem this agreement seems to pose. if she were to say what she knows to be true, even if not flattering for noem or the state, it is not disparagement according to that document. i think people are stuck on it without understanding it. i don’t think it will matter in the long run, though, as the details will come out and either the legislature holds noem and other bad actors accountable or they ignore the evidence and they do nothing. the contract matters very little in my view.
“or so grudznick is told.” How MAGATY – and un-Christian of you as well, to rely on rumor for your guidance grudz.
haha un-christian to rely on rumor?
that’s like saying it’s unamerican to roast a turkey in november.
On the surface the idea that “if she were to say what she knows to be true, even if not flattering for noem or the state, it is not disparagement according to that document” makes a lot of sense. The problem I see is that the ‘truth” is evasive when there is no objective way to determine which one of two claims is in fact accurate (i.e. the “truth”). For example, they are now arguing about whether Bren lied about whether there had been another “stipulation” helping an applicant get licensed, or whether the Noem was sui generis. Bren says there was only one such stipulation and Fury/Noem say Bren lied.
Bottom line seems to be whether it is worth the risk to Bren to tell the actual “truth” when it is entirely possible that Fury/Noem might be able to convince an adjudicator to accept a false claim and conclude Bren lied and must repay her settlement?
fair point, bcb, and that seems to be the conservative approach of bren and her attorney. if the state felt she breached the agreement, obviously the burden would be on them to prove what she said was untrue, so it makes sense she would want to be thorough in her descriptions of events to avoid ambiguity that could be considered “untrue” but i don’t see how her testifying about her impressions or opinions would be a concern if she provided a clear explanation of what she is stating as a matter of fact and what she is stating as opinion.
Ms. Bren was “invited” into the lion’s den of the governor’s lair and was ambushed by a myriad of people who wished her only harm to save the job of the worthless spawn of our feckless but God-fearing governor. I mentioned this before in another post, but if Ms. Bren had only the opportunity to record the conversation (depending on how South Dakota considers “one party recordings” and admissability) this could have been avoided.
But then, there’s always lawyers.
Ryan, contemporary American Evangelicism is NOT Christianity. Don’t let them confuse the issue.
richard – if you are attempting to portray “real” christianity as “better” than american evangelicism, i have a couple thousand years of tyranny in the name of jesus christ that i’d like to talk to you about haha