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?
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.
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]
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.