Last updated on 2014.01.10
Northern State University has been raising some challenges to accessing records relating to the state's EB-5 program, which operated on the NSU campus under the banner of the South Dakota International Business Institute until the end of 2009. But in response to an ongoing public-records request, Northern State University President James M. Smith appends one important paragraph concerning EB-5 coordinator Joop Bollen's handling of state records:
Joop Bollen resigned his employment at NSU on December 21, 2009; he took virtually all records in his office relating to his EB-5 activities with him and he requested no permission of NSU to do so [Dr. James M. Smith, president, Northern State University, letter, 2014.01.06].
Read those words carefully:
- Joop Bollen was a Northern State University/Board of Regents employee.
- As a Regental employee, Bollen created and curated many documents.
- Documents created by Regental employees belong to their employer, the Board of Regents. (See BOR Policy 4-34 on Intellectual Property... or if you're really picky, go see BOR Policy 4-34 as it existed on December 21, 2009, before the Regents next amended that policy, at their August 11, 2011 meeting.)
- When Bollen stopped working for NSU/the Board of Regents, Bollen took state records that weren't his to take.
Documents created by Regental employees are also subject to the BOR Record Retention Regulations. Among those regulations is REG-23 on Correspondence, Federal, which one would assume comprised part of the records of a federally authorized immigration-related program:
This series contains both copies and originals of letters and memorandums sent to and received from any federal agency. This record series is maintained for reference and possible use when federal litigation, claims, or audits are pending. This record series is an open record.
RETENTION: Retain 1 year in office, then transfer to storage for 3 years. Destroy after 4 years provided all litigation, claims, and audit findings involving the records have been resolved and final action has been taken.
(Note: When litigation, claims, or audits are complete maintain for an additional 3 years, then destroy.)
[South Dakota Board of Regents, Records Retention and Destruction Schedule, REG-23, revised 2012]
You'll need to pay me $73.30 an hour (that's what NSU claims for legal fees) to page through the files and figure out if the records retention policy in effect on December 21, 2009 was significantly different from the current policy cited above. But Dr. Smith does not appear to have designated Bollen's garage or storm shelter as an official NSU records storage site.
If the above records retention policy does apply, then arguably, now that it's 2014, NSU would have disposed of those records, anyway. But consider: Governor Dennis Daugaard ordered an audit of the Governor's Office of Economic Development on November 27, 2013. That audit covers GOED activities back to Fiscal Year 2010. SDIBI worked with GOED (then the Department of Tourism and State Development, DTSD) in Fiscal Year 2010. GOED's activities with SDIBI during its last six months of work are thus subject to that audit. REG-23 says don't throw out documents subject to audits...
...all of which means that, under REG-23, whoever runs the NSU paper shredder would have gotten a memo on or about November 27, 2013, telling them hold off on their normal shredding of four-year-old records on campus that might relate to GOED.
But records relating to GOED in the SDIBI office are no longer on campus, thanks to the error—or foresight?—of Joop Bollen.
Whether Bollen's removal of files is tied to the "records gap" GOED investigators have encountered is an open question. But there's little question about the impropriety of removing state records from a state facility without state permission.
So, how stupid are you?
Who, me? What did I miss, Rick?
Several thoughts. Taking something from your employer that doesn't belong to you is theft. This occurred during the Rounds administration. The theft was known in 2009. Nothing was said publicly about Joop Bollen's theft of records either at the time or now by the AG's office. The statute of limitation for theft has not expired. Regardless of how long the state must maintain records, Joop Bollen is not permitted to destroy state property at any time. With lawsuits going back some period of time these records would have had to be preserved for the lawsuits besides just for the state's record retention requirements. It seems as if the party in power for the past 40 years doesn't want the public to know about anything.
This is a distraction. The vast majority of the EB-5 records were never at NSU. Bollen has been operating out of both his home and the offices on Production street. Note that the letter says "virtually all" the documents. Of course, by this statement, Bollen must now produce (if requested) all SDIBI documents as the custodian of such for NSU.
EB-5 is a federal program. When do the feds (Immigration) get involved?
Those records would show the financial high jinks that were involved in the failed dairies as well as the Turkey Plant and, the first EB-5 "investment" into the Beef Plant. In fact, they might even reveal the identity of who really created Epoch Star!
Wow! The renowned journalist, Pat Powers, was all over Bosworth employees giving you documents over her misconduct, but seems to be too busy extolling Mike Rounds to report on an actual newsworthy story such as another Rounds crony involved in actual felonious activity.
My betting money is with Sid. There is a federal corruption clause that goes against state and local government involved in corruption, I hope that someone is doing something about all of this.
Sid, it's hard to tell distractions from relevant threads in a scheme this complicated. Dr. Smith's statement is useful at least in reinforcing the fact that, at least through Dec. 21, 2009, EB-5 was a state program directed by a state employee subject to state rules.
3-16-2. Keeping office or property at unauthorized place as misdemeanor. No state, county, township, or precinct officer in this state shall keep his office, or keep any books, papers, records, or other property belonging thereto, at any place other than that prescribed by law. Any state, county, township, or precinct officer violating this section is guilty of a Class 2 misdemeanor.
Source: SL 1883, ch 90, §§ 1, 2; CL 1887, §§ 1401, 1402; RPolC 1903, §§ 1820, 1821; RC 1919,
Since Bollen was employed by the State,can one assume this covers his employment?
Here is a link which makes one wonder how a good program went so far astray:
http://m.minneapolisfed.org/article.cfm?id=2695
Mike,
I don't know if anyone expects a strict interpretation of that law. How many State employees take things home to work on at night? More than those who think state employees are lazy clock punchers.
That said, Joop has an obligation to return them and i would think the time clock for not getting them back into State files began the day he was no longer an agent for the state. Not official employment. My hope anyway.
Troy...Really??? With what is going with this whole fiasco and you make that comparison ??
Troy, if someone takes some work home, that is generally an "authorized keeping" of the file. In Joop's case, doesn't look like he could take exclusive possession, even if state wanted him to.
Bret,
I'm not a lawyer. Trying to though propose that the time frame on destruction or statute of limitations for theft started at a later date. If not clear, I'm sorry but you shouldn't be jumping to any conclusions. Sheesh.
Jim,
You might be a lawyer which I'm not. My comment was just trying to give you lawyers ideas. Which when I think about it was stupid. to think my idea might mean something. Lawyers would be way ahead of me.
Well then,maybe Bollen decided that after having the files for sixty days and no one could find and retrieve them,they officially belonged to him. That I believe is statute law somewhere. I am not a lawyer,but I bet I can find it on the internet somewhere.
Troy,there isn't anything wrong with your ideas,as far as I'm concerned. It just seems that if stuff does get taken home from work there is a definitive time period when it has to be returned. In Bollen's case,that time has clearly passed,imho.
He hasn't started a document shredding company, has he?
Troy, I've read many thoughtful and well-reasoned opinions of yours. I just don't see many ways the eb5 fiasco can be spun positively.
Here's the thing about South Dakota. If Mr. Bollen (whom I've never met) took the records home, burned them in a giant bonfire and roasted hotdogs and marshmellows with them, who would know? Who would take action based on what? Nobody will ever know.
Richard Nixon went to his grave wishing he could have destroyed the libary of tapes in his administration, and that's a lesson not lost on later generations of crooked politicians in both parties. Bollen is not a politician. He's a feral, crony capitalist. Somebody else dropped the ball on keeping track of the fast-and-loose moneychangers and his name is Mike Rounds.
To Mr. Bollen I say "bon appetit!" He didn't let me down. Mike Rounds failed to do his job. Now it's time the press did its job. (Thank you Mr. Mercer for doing yours.)
Marty Jackley is finally headed in the right direction toward release of information. Nothing required him to seek a court order to do it. He could have sought a formal Attorney General Opinion to see if releasing the information was o.k. - just like others who want the law interpreted. But as the Attorney General that just doesn't seem necessary now, does it? It's just a shame that it takes intense and sustained political pressure to get elected officials to provide details about corruption in government.
Mr Jones, very sad to see you selling out principles just to carry the establishment buckets.
We keep hoping that you figure out that carrying the bucket for these dishonest politicians is not the same as being a good Republican. Matter of fact, sometimes they are diametrically opposed.
Has anyone asked Jackley the status of the state's investigation and prosecution of this corrupt Rounds' crony?
Wouldn't those documents have been generated by computers? The info is still in them*.
*(the sound of computer hard drives being smashed)
I don't think Troy is carrying a really big bucket here. He is right that we cut slack for state employees taking documents home to work on (that's what teachers do all the time).
But we aren't talking about a temporary take. Dr. Smith appears to be saying that the records requested from NSU pertaining to EB-5 aren't at NSU because Bollen removed them when his employment ended. He had no more work to do on those documents; he had no business taking them. without NSU permission. Even Troy acknowledges that Bollen needed to give those documents back.
Professors taking work home required to prepare for class or evaluate student work is in no way similar to taking records of official administrative proceedings off the campus. Scholarly papers, even though the university might claim intellectual property rights, might be done totally off campus and outside of work hours. With the workload in South Dakota institutions, such research and writing is for the most part done at home. The International Business Institute was from its inception a questionable enterprise for a university. The aspect of studying, research, and teaching involved with it was minimal. That's why it was eventually removed from the campus and the auspices of the university. The idea for it originated with the Board of Regents, most faculty thought it was not an appropriate enterprise for a university, and sister institutions questioned its academic legitimacy. Although the University housed the organization and supplied some operating funds, it had special status with the Regents and the University did not exercise much authority over.
When the IBI was closed down at NSU, the office was moved to the Aberdeen Development Corporation. Although the University had responsibility for the proceedings of the IBI, the question of who had stewardship over the records probably was never directly addressed. The prevailing attitude was one of "good riddance." The point is that as an agency acting in behalf of and on the authority of the Governor's Office of Economic Development, why did that office not have responsibility and control over the records.
Folks at NSU have good reason to be irked that they are asked to produce records for an enterprise that had no relationship to scholarship and teaching and was given special operational circumstances that seemed to exempt it from operational oversight of the administration.
David, did SDIBI's non-academic mission evolve? I get the impression they did a better job at their inception of putting an academic gloss on their activities, but that by 2008-2009, Bollen was pretty much just the EB-5 office.
The context for the IBI was set during the Janklow years when he was pressuring the universities to come up with money-making schemes. An example was getting the scientists at Mines to come up with a way to use forest-product waste to replace road salt, although the Wood Products Lab at Madison, WI, had worked on the idea for years and found the manufacturing of the product to be prohibitively expensive. The IBI was decided upon by the Regents, leaving the NSU administration and faculty to come up with a nice lip-gloss for the pig. They cobbled together an international business major which earned the derision of the sister institutions because it did not have a foreign-language requirement. The business college also, in order to have some academic pretext, took the English as a Second Language program away from the college of arts and sciences and the English Department. They did try to strengthen the program, and for a while our linguistics professor, a Chinese woman, offered courses in Mandarin for them, but that effort did not last long. What Chinese students we had then were more interested in education degrees than business. From the outset, the IBI was a scheme about getting money and contracts with foreign companies than it was about educating personnel. The academics, such as they were, were incidental to the attempts at running a financial wheeling and dealing center, which the EB-5 program made possible.