This morning I explained how Mike Rounds gave up the competitive advantage South Dakota's EB-5 program when he let Joop Bollen privatize his state job.

Funny thing is, as Sibby discovered last October, Joop Bollen agrees with me completely. Or so he told potential investors when he still worked for the state:

South Dakotaʼs Regional Center is truly a state government run regional center where economic development is the reward and not profit for company which manages the regional center!!

...unlike a privately managed program where the company can call it quits and disappear overnight, I can assure you that the State of South Dakota is here to stay!! [Joop Bollen, open letter to potential EB-5 investors, South Dakota International Business Institute, circa 2004–2009]

Don't take my word for it; listen to Mike's man Joop: South Dakota was better off when it directly managed EB-5 investment.

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On Monday, the South Dakota Democratic Party launched a local ad campaign encouraging citizens to call Senator Larry Tidemann and urge him to subpoena Governor Dennis Daugaard, former Governor Mike Rounds, and other state officials who could explain just what happened in the GOED/Northern Beef Packers/EB-5 scandal. Remarkably, the discussion on this blog turned to the propriety of publishing Senator Tidemann's phone number (a number which is published on Senator Tidemann's official Legislative webpage, as are phone numbers for every other South Dakota legislator).

One eager reader took up the ad's challenge and called Senator Tidemann. The reader got voicemail and left a message. Senator Tidemann called the reader back. Here's the reader's account of their very civil conversation:

When he called me back he was very nice and tried to be helpful explaining what he was doing and what they hoped to accomplish.... We talked about [Richard] Benda, Joop [Bollen], records missing and he basically held to the party stance on this whole thing. He said it was a federal program and I agreed but I pointed out my concern was how it was administered here in SD. It was almost as if there were things with standard responses he made that are used to throw me off and diminish this but I held on and was pointed yet very tactful and respectful.

He said the reason he did not want Joop to be present was that it would have been a circus atmosphere and that the written responses were the same as a subpoena. He mentioned the U.S. Department of Justice ongoing investigation and covered the basis of they are legislators and some of this is better left to police, FBI and DCI agents [blog reader, e-mail, 2014.09.17].

Senator Tidemann's willingness to call a questioner back and discuss serious issues seems to deflate the critique of the propriety of encouraging citizens to call legislators. Senator Tidemann gets extra points for affirming that a federal investigation continues and acknowledging that there appears to be criminal activity in this scandal that warrants investigation.

But Senator Tidemann loses points for talking points. Bob Mercer has rejected the "EB-5 is federal " dodge; so should everyone else.

Senator Tidemann loses more points for his circus-phobia. Is Senator Tidemann saying he is incapable of maintaining order at any committee meeting where a prominent or controversial figure may testify? When is the last time any Legislative committee meeting turned into a circus? How circusy can things get in Pierre? Is Tidemann afraid Bob Mercer will bring peanuts and thundersticks?

The worst that happens if Joop Bollen appears in person in front of the Government Operations and Audit Committee on September 24 is that two bloggers, five reporters, and ten lawyers come to the meeting. Chairman Tidemann raps the desk, points his gavel, and says menacingly, "No circus, or you're out!" And then everyone sits in rapt silence, punctuated only by the raindrop tap of laptop keys, as Senator Larry Lucas and Rep. Susan Wismer grill Joop Bollen.

Senator Tidemann is serving the public trust by talking with voters directly on the phone. Now let's serve the public trust by having former public employee Joop Bollen talk directly with the public at GOAC, in person, under oath, on September 24.

p.s. [09:52 CDT]: The caller notes that Senator Tidemann deserves extra credit for taking a call from a South Dakotan outside his district. The caller made clear in the voicemail that the caller lived in another legislative district, yet Senator Tidemann still took the time to call back. Well done, Senator Tidemann!

7 comments

David Montgomery gets Republican Senate candidate Mike Rounds to come out from hiding and answer a few questions about Joop Bollen, the man who ran the state's EB-5 visa investment program while Rounds was governor. Predictably, Rounds says he "wasn't informed of the specifics" (Montgomery's words) and "was not aware that [Bollen] was signing items on his own behalf" (Rounds's words).

Rounds is thus claiming that he did not know that state employee Bollen signed a contract with his own newly formed corporation, SDRC Inc., on January 15, 2008, the company to which Rounds's Office of Economic Development granted a lucrative no-bid contract on December 22, 2009.

Montgomery reports that "Bollen didn't disclose his connections to SDRC, and officials last week said they hadn't known at the time." I don't know the full roster of officials who said that last week, but Bollen did disclose his connections to SDRC Inc. when he formed it. Check out the articles of incorporation for SDRC Inc.,* which Bollen signed on January 3, 2008, and filed with the South Dakota Secretary of State on January 10, 2008. Joop Bollen lists himself as registered agent, incorporator, and president. No one else's name appears on the document, most certainly not James Park of the Hanul Law Firm, who signed the January 15, 2008, contract on behalf of SDRC Inc. On April 7, 2009, the Secretary of State received a statement of change naming Park as SDRC Inc. president and registered agent, but on June 1, 2009, the Secretary of State received articles of amendment from Aberdeen attorney Jeffrey T. Sveen naming Bollen again as the only director of the corporation.

The State of South Dakota knew that Joop Bollen was SDRC Inc. It stretches belief to claim that Mike Rounds had no knowledge of his employee's conflict of interest in 2007 when his administration helped request that the USCIS recognize SDRC Inc. as an integral part of South Dakota's EB-5 program, in 2008 when it started, in 2009 when his office rewarded Bollen with a five-year contract, or in 2010 when he wrote a passel of lame-duck grants to Northern Beef Packers, the pet project that Bollen was keeping alive via SDRC Inc.

But if Rounds wants to confess his inability to root out corruption in his own administration for three years, fine. Let him run on that.

*I'd direct you to the Secretary of State's corporate database, but during the past year, Secretary Gant appears to have scrubbed most of the corporate archives, providing only the last year or two of documents for corporations.

60 comments

On October 18, 2011, EB-5 investors Zhang Zhen, Feng Wei, Ma Yirong, and Yao Xiao Ping sued SDRC Inc., South Dakota Investment Fund LLC 6, and Joop Bollen for providing them with incomplete and inaccurate disclosures about the project they were investing in, Northern Beef Packers, and for mismanaging the investment fund in violation of their contract and SDIF 6's fiduciary duties. After some rotation of complainants, both sides agreed to drop the lawsuit, and Judge Karen Schreier dismissed the lawsuit without prejudice on March 27, 2014.

Without prejudice means litigants can refile their lawsuit. That lawsuit may be afoot:

NBP’s second batch of EB-5 investors, namely the 70 Chinese investors in group LP6, have organized to sue Bollen, seeking reparations for their lost investments....

According to the group’s attorney, James A. Lombardi, NBP’s EB-5 investment prospectus and memorandums are under significant suspicion of having purposely misled investors. The prospectus never divulged NBP’s financial troubles to investors, and also never showed Bollen’s previous failure with another South Dakota EB-5 program. Lombardi says that the statute of limitations on the case is six years, meaning that the suit must be filed before November of 2015 since the initial prospectuses were released in November of 2009... [Yuxuan Li (trans. Jack Chen), "NBP Scandal Rocks Chinese EB-5 Applicants," World Journal, 2014.09.04].

One member of the litigating investor group says South Dakota beef backers filled them full of bull to get their money:

Ms. Lu, one of the members of the group, said that she received a text in 2010 from an immigration middleman recommending this South Dakota, government-backed EB-5 program. At the time, the middleman touted the program as a safe, reliable, and quick route to a green card that could also recoup the initial investment within five years. Following up, Ms. Lu attended a middleman-organized meeting at a five-star hotel in Beijing, a mixer for potential investors and investees. At the meeting were ill-fated South Dakota state economic development director Richard Benda and NBP assistant Oshik Song, who pitched Chinese investors feverishly on NBP, touting it as the largest beef packing industry in America for decades with a bright future and government backing. Investors need not worry about their green cards and returns, they said [Li, 2014.09.04].

Investor Lu says that Bollen forced investors to give up some of their contractual rights in what looks like an effort to bolster White Oak Global's chances of acquiring Northern Beef Packers in bankruptcy:

According to Ms. Lu, after some of NBP’s problems surfaced, Bollen and his middlemen called a meeting with LP6 group members in Beijing, where they claimed to have received financial backing and assistance from a White Oak group based in San Francisco. At the meeting, they told Chinese investors that they must relinquish their mortgage rights and high place in the pecking order. With Bollen emphasizing that only White Oak’s assistance could get the plant working again, thus allowing the Chinese investors’ to actually receive a return as well as their green cards, LP6 had no choice but to sign over their mortgage rights [Li, 2014.09.04].

I'm still looking for more information on this new litigation. Stay tuned!

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Ah, high school debate, that joyous season when ninth graders stand and deliver more public debates in one weekend than Mike Rounds will during the entire general election season.

Looking at contemporary public political discourse through my high school debate judging paradigm is generally a bad idea, since it insults high school debate. But let's imagine South Dakota's Democrats and Republicans are high school debaters and see who won this week.

When I judge a high school debate, I take notes called a flow. First the Affirmative team speaks and puts points on the flow to prove some point. Then the Negative team speaks to put responses on the flow. Usually, after two speeches by decent debaters, my flow looks like this:
Sample FlowAff lays out arguments, and Neg responds to each one, point by point. Even if Point III is bogus, Neg takes a moment to explain why Point III is bogus before moving on to IV, V, etc. (And Neg does this in eight minutes or less—smart kids!) That's good clash (and good fun!).

South Dakota Democrats are on Affirmative, arguing that Mike Rounds is corrupt andunfit for U.S. Senate. This week, Democrats put a lot of arguments on the flow. And how did Team Rounds and the SDGOP—the Negative team—respond?Bollen-Rounds corruption flow Clash? What clash?

Against seven well-evidenced Aff points that show Mike Rounds rewarding the corrupt double-dealing and deceit of state employee Joop Bollen, Neg launches two ad hominem attacks at the bottom of the flow, tacks one diversionary non-response to one point, and leaves the rest of the flow blank. Mike Rounds, Dick Wadhams, and the rest of the GOP team have not challenged...

  1. the existence of Joop Bollen's contract with himself;
  2. the illegal conflict of interest created by such a contract;
  3. Bollen's violation of Board of Regents policy;
  4. Bollen's concealment of his unauthorized legal pleading on behalf of the state;
  5. Bollen's subjection of the state to legal liability;
  6. Kathy Tyler's specific math or her general charge that Bollen diverted money from state coffers;
  7. Rounds's rewarding of this rogue state employee with a no-bid contract.

In a high school debate round, I can just glance at the flow, see all that white space in Neg's column, and know that Aff is winning the debate. The SDGOP's inability to come up with direct responses to these questions about Mike Rounds's management of economic development shows they weren't ready for this corruption to be exposed and don't know how to spin pretty black-and-white evidence that Mike Rounds should not be our next Senator.

Of course, Republicans have more than eight minutes to respond. But every day they leave the flow blank is a day when Democrats can shout "Drop! Pull!", and tell voters to draw the arrows and vote Aff. Keep piling on, Dems!

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While the GOP leadership treats Joop Bollen with kid gloves, accepting without complaint his refusal to testify in person before the Government Operations and Audit Committee, I am reminded of a somewhat testier Legislative committee that responded to balky witnesses with somewhat more intensity.

In December 2011, Rep. Stace Nelson and five other Republican legislators complained that the GOP House leadership was violating ethics rules. Leadership threw together an ad hoc committee, chaired by Sen. Joni Cutler, that declined to exercise subpoena powers or take testimony under oath. Dissatisfied with that lack of rigor, complainant Reps. Nelson, Lance Russell, and Lora Hubbel decided the hearing was not worth attending.

Chairwoman Cutler implored Rep. Russell to play nicely and said his attending the hearing in person would be much better than discussing the matter in writing:

There are both procedural and legal reasons for addressing those issues in this manner. My hope is that you would refrain from drawing conclusions about what you think I intend to do in the hearing as you risk inaccuracy in so doing. That is one of the huge drawbacks in trying to assess this through email and letters and why it is preferable, in fairness to everyone, to handle all of this in an open meeting and on the record with witnesses personally present.

We really need your cooperation and presence so that we can have the type of dialog that will help us work toward a proper resolution. We would be happy to meet into the evening if that would help you come to Pierre [Senator Joni Cutler, letter to Rep. Lance Russell, 2012.01.02].

When the hearing convened the next day and certain legislators remained absent Chairwoman Cutler got out the stick:

Emphasizing the seriousness of the hearing, Cutler reviewed statutes outlining the consequences of a legislator neglecting or refusing to testify when summoned. The penalties include a Class 2 misdemeanor, the forfeiture of public office and disqualification of running for public office again in the state.

It was the chairwoman’s review that prompted Rep. Lora Hubbel, R-Sioux Falls, one of the three missing legislators, to hop into her car and make the 225-mile drive to Pierre.

“They said we had to or we are breaking the law. If they want to beat me up there, I will let them beat me up,” Hubbel said while getting into her car to leave [Megan Luther, "Legislative Probe Hears Conflicting Testimony," that Sioux Falls paper, 2012.01.04].

Cutler's January 2 letter to Rep. Russell doesn't appear to be a subpoena; she's simply inviting him to come speak in person to the committee. But when Rep. Russell refused to attend in person, she broke out statute:

SDCL 2-6-5: Disobedience of legislative summons as misdemeanor. Any person who is summoned to attend as a witness before either house of the Legislature or any committee thereof authorized to summon or subpoena witnesses, and who refuses or neglects without lawful excuse to attend pursuant to the summons or subpoena, is guilty of a Class 2 misdemeanor.

SDCL 2-6-6: Refusal to testify or produce evidence before Legislature as misdemeanor. Any person who, being present before either house of the Legislature or any committee thereof authorized to summon witnesses, willfully refuses to be sworn or affirmed, or to answer any material and proper question, or to produce upon reasonable notice any material or proper books, papers, or documents in his possession or under his control, is guilty of a Class 2 misdemeanor.

SDCL 2-6-7: Forfeiture of office by legislator in violation--Disqualification from public office. The conviction of a member of the Legislature of any crime defined in § 2-6-5 or 2-6-6 involves as a consequence, in addition to the punishment prescribed therein, a forfeiture of his office and disqualifies him from ever thereafter holding any public office under this state.

Chairwoman Cutler wielded this statutory threat on an ad hoc committee, in the absence of any formal summons.

Fast forward to today. Senator Larry Tidemann chairs the Government Operations and Audit Committee, which is specifically empowered by SDCL 2-6-4 to summon witnesses in its thorough examination of every state department's management and expenditures. He asks former state employee Joop Bollen to testify before the committee. Bollen refuses, with no apparent lawful excuse, and Tidemann shrugs.

The moral of the story: make millions of dollars while promoting a prominent Republican's pet project, and the Legislature will go easy on you. Question the Republican leadership, and the Legislature will discover its teeth and its statutory authority to bite.

59 comments

The Government Operations and Audit Committee should be receiving some interesting reading in the coming several days. GOAC chair Senator Larry Tidemann (R-7/Brookings) says that SDRC Inc. exec Joop Bollen has declined to appear before the committee in person but has offered to write answers to questions.

Senator Tidemann says that if Bollen is "willing to provide the answers in writing, that is as good as in person." False:

  1. Taking answers in writing allows Tidemann and Bollen to filter and stall. Tidemann is requiring legislators to submit questions by Friday, September 19. The committee will then "discuss" (i.e., weed out the questions the Republican majority doesn't want asked) those questions at its September 24 and forward the surviving questions to Bollen. We don't know when GOAC will receive or discuss Bollen's responses, since GOAC does not have another meeting on the calendar.
  2. Answers in writing don't allow for immediate follow-up. Bring Bollen in person to Pierre, and an attentive legislator or counsel for the committee could ask for clarification of unclear points, delve deeper into new information, and immediately redirect Bollen if he evades certain points.
  3. We cannot know if written responses are coming from Bollen himself, from his lawyer (Jeff Sveen? Rory King? Harvey Jewett himself?), or from the Rounds for Senate campaign. Only in-person testimony allows truly curious and nimble legislators to get Bollen off whatever script his minders prepare for him and hear directly from the witness.

Committee members composing questions will have written responses from Governor Dennis Daugaard and former governor Mike Rounds in hand to inform their questions:

Tidemann said Gov. Dennis Daugaard and former Gov. Mike Rounds, the GOP candidate for U.S. Senate, both indicated that by Wednesday they will provide written responses to the committee's questions so its members have a week to review the information before the Sept. 24 meeting [Carson Walker, "Joop Bollen Vows to Give Written Answers on EB-5," AP via that Sioux Falls paper, 2014.09.12].

To further inform their questions, committee members should turn to documents from GOAC's 2008 inquiry into Bollen's activities as director of the South Dakota International Business Institute at Northern State University:

  1. NSU President Patrick Schloss's June 16, 2008, letter to GOAC explaining what SDIBI was doing and where Joop Bollen sat in the chain of command.
  2. NSU interim president Laurie Stenberg Nichols's September 8, 2008, letter telling GOAC that SDIBI activities were creating lots of jobs and economic activities (with attachments listing EB-5 projects and showing growth in exports).
  3. NSU Nichols's October 14, 2008, letter explaining SDIBI's activities and itemizing expenses for the 2006, 2007, and 2008 International Business Conference hosted by SDIBI at Mount Rushmore.
  4. Minutes of December 1, 2008 GOAC meeting (Bollen and Nichols testified the same day as Richard Benda, who assured GOAC there was nothing funny going on with his department's $6.9-million contract with Lawrence & Schiller).

Reviewing these documents may allow committee members to focus on plowing new ground.

Inquiring legislators will also want to review my July 30 list of unanswered issues involving Bollen, Richard Benda, Northern Beef Packers, and the state's exploitation of the EB-5 visa investment program. That information and subsequent revelations should lead to the following crucial questions:

  1. Did you seek a lending license for the loan operations of SDRC Inc. and/or its subsidiary loan funds?
  2. Did you or any of your incorporated entities pay bank franchise tax?
  3. Who authorized the 2008 contract/"memorandum of understanding" between SDIBI (which you directed) and SDRC Inc. (which you owned)?
  4. Explain the genesis of the SDIBI–SDRC Inc. contract:
    1. Who participated in the conception, development, and drafting of that contract?
    2. When did that conception, development, and drafting take place?
    3. Who in state government authorized the conception, development, and drafting, and signing of that contract?
  5. Was the 2008 SDIBI–SDRC Inc. contract essentially a contract between you and yourself?
  6. How much money did privatizing your EB-5 recruitment and management functions divert from the public coffers to SDRC Inc.'s private profit?
  7. When you created SDRC Inc., did any member or employee of the Board of Regents, the Governor's Office of Economic Development, or other state government entity advise you as to whether your creation, ownership, and activities in SDRC Inc. violated Board of Regents policy, state statute, or any other rules or regulations?
  8. When Darley International filed suit to force SDIBI into arbitration in 2008, whom in state government did you notify, and when?
  9. Who in state government authorized you to submit the brief you filed in U.S. District Court, Central District of California, Western Division, on behalf of SDIBI on August 22, 2008?
  10. Who helped you draft that August 22, 2008, brief?

That's just me getting going over breakfast. Numerous follow-up questions would suggest themselves in a face-to-face interview. But since Senator Tidemann insists on shielding one former state employee from hard questions about his on-the-job activities, we'll have to trust in our legislators (well, at least in the two Democrats on the committee) to think through these questions, anticipate the possible answers, and compose an exhaustive list of follow-ups to submit on Friday for Chairman Tidemann's approval.

33 comments

Perhaps it was destined to happen: I can finally link Joop Bollen and Chad Haber.

Both men think they can practice law on behalf of the state of South Dakota without a law license.

Fake Attorney General candidate Haber will never get the chance to test his belief. He'll skip the country with the remains of his Base Connect money before he wins any public office.

But Joop—oh, Joop!—has already tried it, with awful results.

Kathy Tyler and I have discussed Darley International's ongoing litigation against South Dakota. Back in October, 2007, California-based Darley signed a contract with the Hanul Law Firm of California and Korea to help recruit Chinese investors for EB-5 visa investment projects in South Dakota. Hanul was working with the South Dakota International Business Institute, which Joop Bollen, a South Dakota Board of Regents employee, directed for the purpose of promoting economic development in South Dakota. Within three months, Hanul and Darley stopped playing nicely. Bollen wrote Darley boss Robert D. Stratmore a hilarious buzz-off letter and formed his own private corporation, SDRC Inc., to do Darley's job and claim Darley's fees.

Darley sued in federal court in California to force SDIBI to enter arbitration. On August 22, 2008, Joop Bollen, figuring he had a grip on the situation and not wanting to trouble his superiors, submitted his own response to the court.

Read that again. Somebody files a suit against a state agency. Somebody wants to hold that agency, and hence, the people of South Dakota, liable for some alleged naughtiness. The guy running the state agency incurring this legal wrath doesn't say, "Holy crap! I'd better call the state's lawyers and tell them what's up!" The guy at the state agency, who is not a lawyer, decides to take it upon himself to write a legal brief to keep the state out of hot water... and doesn't tell anyone else in the agency about it.

This goes poorly. The California court takes Darley's word over Bollen's and on October 7, 2008, orders SDIBI (the state... us) to submit to arbitration.

The state, of course, finds out. (I tell all of my kids, all the time: if you rationalize doing something under the assumption that nobody will find out, don't do it! Someone will find out!)

In January, 2009, Bollen calls Northern State University attorney John Meyer and asks an innocent question about arbitration. Meyer asks for documents. Bollen sends a few. Meyer hears alarm bells. Meyer asks Bollen for more information. Bollen tries to pawn the matter off on Hanul, but Meyer's like, No, Joop, send me everything you have, now! Bollen sheepishly complies, and Meyer realizes, Holy crap! We've been sued!

Meyer tells Board of Regents attorney James Shekelton, Shekelton tells BOR exec Tad Perry, and pretty soon Pierre's on fire. The Regents retain counsel (real counsel, Joop, bar-certified counsel). They get Bollen to file a declaration saying Never mind me, I'm not a lawyer. Meyer, Shekelton, Perry, Attorney General Larry Long, and even Joop's secretary Cherri Brick (I kid you not, and oh my stars, I can't wait for the casting call for that role!) all file declarations supporting the Board of Regents motion to vacate and hefty supporting argument asking the court for mercy. We didn't know our flunky was practicing law without a license and exposing the Board of Regents and State of South Dakota to this legal liability! Cut us some slack!

The federal court did cut us that slack, though Darley then dragged us into new litigation that continues today. And now that Bollen no longer works for the state, he's been working hard to shield his private company SDRC Inc. from any liability in the Darley case and leave the state holding the bag.

But again, the remarkable point here is that the state continued to cut Bollen any slack. In 2008 he practiced law without a license, represented South Dakota in court without authorization from the Attorney General, and exposed the state to serious legal liability that our real lawyers had to run in to clean up. Yet the state kept him on the job through 2009. The state sent him on fancy trips overseas to recruit more EB-5 investors. The state gave him a lucrative no-bid contract to continue his same EB-5 work as a fully private citizen.

With a Haberian enthusiasm, Joop Bollen broke rules left and right. People in Pierre knew he was breaking these rules. And people in Pierre (I'm looking at you, Mike Rounds) kept doing him favors and keep doing him favors.

It boggles my mind that Bollen keeps getting these favors. It should boggle every voter's mind that Bollen-favor-doer-#1 is now asking for our trust on the November ballot.

Joop Bollen Likes Mike Rounds

31 comments

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