Bob Mercer knows how to strike when the iron is hot. The South Dakota journalist asked Attorney General Marty Jackley to release the records of his investigation of Richard Benda's suspicious death last December. AG Jackley rebuffed Mercer on extra-legal pretense and got a state hearing examiner to back him up last May.

Now, just as the EB-5 scandal, which was torn open by Benda's death, begins to rain real fire on Jackley's political pals, Mercer shovels more coals into the furnace with a lawsuit to get the Benda death investigation records.

How a court will rule is up in the air. But for those of you keeping score at home, Mercer's lawsuit has already caused Jackley to commit two unforced errors in the form of two unnecessary and absurd statements.

First, Jackley claims to be a champion of openness:

"I would have been operating within my statutory authority to just flat-out deny access, and I did not do that," Jackley said. "I chose the route of openness and have been nothing but criticized for that" [David Montgomery, "Lawsuit Seeks Access to Benda Death Reports," that Sioux Falls paper, 2014.08.22].

Openness? Openness?!Please, Marty, don't hurt yourself. And the rest of you, don't hurt yourself laughing.

Second, while Independent gubernatorial candidate Mike Myers engages in a macabre re-enactment of Benda's death based on an allegation that Myers himself admits is "an undocumented, unsupported assertion," AG Jackley responds with an incredibly injudicious walk-back of his conclusion on Benda's death:

Jackley said he is confident in the suicide ruling but declined to expand on any evidence that supports that ruling except to site the number of entities involved in investigating Benda's death. The suicide ruling itself was made by a forensic pathologist, not by him or his investigators, Jackley said.

"I never said specifically it was a suicide. I said our findings are consistent with the cause and manner of death determined by the forensic pathologist," Jackley said [Denise Ross, "Gov. Candidate Doubts Benda's Death a Suicide," Mitchell Daily Republic, 2014.08.20].

Jackley's statement is factually, technically true. I noted the absence of an explicit declaration of suicide in Jackley's own words last November when he released the state's report on Benda's death. But why give the doubters and blog sensationalists who so grate his cheese with their speculation and misinformation a line like "I never said... it was a suicide"? The Attorney General has gone from saying "there are absolutely no credible facts or evidence calling into question" the suicide ruling to opening the door for Sam Kephart to come back and talk about the Chinese mafia.

Doubts linger, but the press has mostly adopted without caveat the interpretation that Benda committed suicide. Governor Daugaard has said Benda committed suicide. Why say any little thing to back away from that mostly accepted fact?

People say stupid things for a variety of reasons. Stupid people say stupid things, but I think we all agree Marty ain't stupid people. People may be tired from an exhausting statewide blog tour, but Marty is no blogger.

People also say stupid things when they are scared, under assault, and stressed out. And you know, with a political scandal dominating the news and the debates, with his pals and his own office getting bad press, with the ACLU and his buddy U.S. Attorney Brendan Johnson challenging South Dakota's Indian Child Welfare Act violations, Attorney General Marty Jackley just might feel a little harried.

128 comments

With the Nuclear Regulatory Commission coming to the Black Hills next week to hear public comment and consider evidence in the challenge to Powertech/Azarga's application for in-situ leach uranium mining in Fall River and Custer counties, Powertech watchdog Jim Woodward comes up with a couple of curious new developments:

  1. Back in May, Powertech bought some Tennessee Valley Authority data on over 4,000 boreholes and three aquifer pump tests that the TVA conducted in the Dewey-Burdock mining area in the 1970s and 1980s. Boreholes—i.e., paths through which water and pollution from in-situ leach mining could leak.
  2. That data could have some bearing on the contention of the Oglala Sioux Tribe and other official intervenors in the mining permit process that the final environmental impact statement on Powertech's proposal (completed before Powertech got that TVA data) lacks sufficient hydrogeological data on the impact ISL mining could have on the area. The data may also offer more perspective on more serious natural leakage at the site.
  3. The NRC told Powertech to show the tribe that data; Powertech is resisting that order, saying the TVA data is (in Woodward's words) "irrelevant to the evidentiary hearing."
  4. Even if the data is irrelevant, by balking at releasing the data up to this point, Powertech makes it difficult for opponents to see for themselves and study the data in time to effectively comment on it at the August 18 NRC hearing.
  5. And in business new that John Tsitrian will find interesting, Azarga was supposed to complete its reverse-takeover of Powertech by July 31. Azarga and Powertech have not completed that maneuver; instead they have extended the acquisition deadline to September 15.

Powertech uranium mining proposal, as well as its business arrangements with Azarga, are complicated. The public deserves as much data as possible to understand the risks and benefits. Powertech, help us out: let us see the TVA data.

4 comments

Hey, New Yorkers! Want a reason to be a bit miffed at South Dakota? Try reporter Joe O'Sullivan's list of the states that got the most Homeland Security dollars per resident in 2011. New York, where al-Qaeda terrorists killed 2,977 Americans and ushered in the police-state era, ranks tenth, at $4.70 per person. South Dakota, where terrorists haven't killed anyone since, well, ever (AIM debate, anyone?), ranks sixth, at $6.20 per person.

O'Sullivan notes that we'd have a hard time proving to our New York neighbors that South Dakota is really combatting terrorism with all that anti-terrorism money:

All that spending came in a state that arguably has very little threat of terrorism. According to a 2010 Washington Post report, South Dakota is one of 15 states that federal intelligence agencies ruled has "no specific foreign or domestic terrorism threat."

...a federal government report released in May has questioned South Dakota's ability to even measure whether the homeland security money is being put to good use.

"We were unable to determine the extent to which the [federal homeland security] grants enhanced the state's ability to prepare for and respond to disasters and acts of terrorism," according to the Department of Homeland Security Office of Inspector General Report. "The state does not have a system to measure preparedness" [Joe O'Sullivan, "State Gets Millions in Homeland Security Grants, But Where Does It Go?" Rapid City Journal, 2014.06.08].

We have a state government demanding more tests and more accountability before they'll deign to give schools any more money. But scare us with terrorism, and we'll throw all sorts of money at the police and never ask for proof that that money is addressing real threats and making us safer.

43 comments

Last December, reporter Bob Mercer asked Attorney General Marty Jackley to release records from the investigation of Richard Benda's unusual death. Mercer wanted the public to see those records to address widely circulating doubts about the validity of AG Jackley's conclusion that Benda committed suicide. AG Jackley refused, on the seemingly extra-legal pretense of the family's desire to keep said records secret.

Yesterday the Office of Hearing Examiners upheld AG Jackley's secrecy on the Benda investigation. Chief Hearing Examiner Hillary Brady said AG Jackley's extra-legal conditions on releasing the information are legal. Brady's ruling cites statute exempting criminal investigation records from public view... which remains highly suspicious, since Mercer is requesting information about Richard Benda's death, which the Attorney General has said was not a crime, but just a suicide.

As the state thus continues to keep secrets, Gordon Howie releases his conversation with me about Richard Benda's death and other matters related to the GOED/EB-5/Benda scandal:

Note that I'm trying hard to accept the Attorney General's conclusion. It would be a lot easier if the AG would share the solid evidence that led him to that conclusion.

10 comments

John Hult tries to write a detailed report on investigations of abuse in South Dakota's foster care system. Writing such a report is hard, Hult notes, because South Dakota keeps such investigations secret.

But it's children! you say. We can't subject those children or their families to public scrutiny and shame. It might deter people from coming forward with reports of neglect and abuse.

Funny: Minnesota doesn't have that problem:

In Minnesota, that information would be available. In 2001, the state opened all abuse and neglect hearings and records after a two-year pilot project. The response has been positive, said Judy Nord, a lawyer with that state's Judicial Branch.

"We still have arguments in Minnesota about whether a child should have been placed in one home or the other. That hasn't stopped," she said. "The difference is that now, if something happens, you can go back through and find out what happened throughout the process."

Before the pilot project, opponents argued that opening records would lead to disclosure of the names of the children and families involved, that people would be less willing to report abuse for fear of the spotlight, and that parents would contest the allegations and press for a trial instead of admitting them in public.

Those concerns were unfounded, Nord said.

"The hearings are open, the records are open, and we haven't seen any problems," she said. "We still have people reporting abuse, we still have as many admissions as we did before opening the hearings."

Now, Nord said, relatives, teachers and others close to a child have started appearing at the hearings to offer help [John Hult, "Secrecy Cloaks Foster Care Investigations by S.D. Social Services," that Sioux Falls paper, 2014.05.04].

I suppose that saying we should learn from Minnesota's example is a sure way to get Pierre not to take the desired action.

Among the information Hult can find are the data on investigations and substantiated case of abuse and neglect in foster homes and other homes in South Dakota. The foster care numbers are small and thus statistically less reliable, but Hult's numbers show that the percentage of investigations revealing substantiated cases of abuse and neglect in foster homes over the last five fiscal years is about 7%, compared to 22% for other homes. From these numbers, one could draw a number of logical guesses:

  1. Foster homes are subject to more scrutiny and thus more reports of possible abuse, which subsequently turn out to be unsubstantiated.
  2. The state's vetting process for foster parents works, producing a subset of caregivers who commit less abuse than the general population of parents and guardians.
  3. Foster homes' substiantiation-to-investigation ratio is depressed by the fact that the state has an interest in protecting itself from liability that colors its initial investigations in a way that does not happen in investigations of non-foster homes.

As long as South Dakota keeps its investigations of foster homes secret, citizens will have a hard time determining which of those three interpretations is the most accurate.

14 comments

Attorney General Marty Jackley makes the following statement in favor of allowing the public to see documents related to an investigation in which the public has questioned the conclusions and actions of state law enforcement:

"I think the public should see what law enforcement had," Jackley said, referring to why the farm was searched [Carson Walker, "South Dakota's Jackley Wants 1971 Evidence Issued," AP via USD Volante, 2014.04.25].

AG Jackley is referring to the evidence that led to searches ten years ago of the Lykken farm near Alcester, searches that led to wrongful charges of murder. AG Jackley is not referring to the evidence and documents in his investigation of the death last October of Richard Benda, former state economic development chief and primary player in the GOED/EB-5/NBP/Keystone XL scandal. Funny how AG Jackley's commitment to open records comes and goes.

13 comments

“[W]e might hope to see the finances of the Union as clear and intelligible as a merchant’s books, so that every member of Congress, and every man of any mind in the Union, should be able to comprehend them, to investigate abuses, and consequently to control them” [Thomas Jefferson to Secretary of the Treasury Albert Gallatin, 1802.04.01].

We're not that great at running elections (how'd your great-idea voting centers do on poll wait times in Sioux Falls yesterday, Secretary Gant?), but South Dakota gets good marks for online budget transparency. The U.S. Public Interest Research Group has scored states on offering online access to government spending data. South Dakota gets a B+, tying with North Carolina in the "Advancing" category, and just missing joining eight "Leading" states. Our only neighbor in the Leading category is Iowa, scoring 90 compared to our 89.5 (so close!). Minnesota and North Dakota both get D's.

South Dakota was among the top ten improvers, boosting its public finance website score from 70 to 89.5 in just one year. The big improvement was adding searchable datat on "Tax Expenditures," the tax revenue that South Dakota could collect under uniform application of existing laws but which it gives up in the form of sales tax exemptions, preferential rates, and other special favors. (The total listed this morning for all tax expenditures: $632,450,622.00. That's enough money to raise our teachers' pay to the highest in the nation and still have $304 million left. Or we could pay the $510 million it would cost to send all 36,000+ plus students in our Regental universities for free.)

Of course, since our EB-5 program went private, I can't find the checks Joop Bollen, Richard Benda, and friends were able to cash under his contract with the state. Open.SD.Gov allows us to follow the money... just not all of it.

 

We also get special mention for auditing our state checkbook each year. The online checkbook is fun: it allows to discover fun information like the fact that so far in the current fiscal year, the state of South Dakota has paid Lawrence & Schiller, the ad firm founded by state GOP chair Craig Lawrence, $3,039,006.20. It also lets us itemize state payouts to Northern Beef Packers over its unproductive five years for a total of $2,327,815.47. What fun!

 

4 comments

Madison City Commission candidate Ashley Allen bristles at backrooms deals in local government. In a Facebook post this week, Allen cites a blog post by Madison Daily Leader correspondent Chuck Clement (wait: did I just use blog post and Chuck Clement in the same sentence?) pointing out the oddity of state open meeting laws that allows local governments to shut out the public when they discuss economic development.

Clement knows his open meeting law; he knows that SDCL 1-25 doesn't mention economic development as a topic our local leaders can keep secret. But he discovers cities and counties are granted secret-keeping authority over economic development schemes by SDCL 9-34-19, an open meeting exemption tucked away under municiapl trade regulations:

Right among the state laws -- for pool rooms and bowling alleys, junk stores, scalpers, employment agencies, public dances, skating rinks, and tattooing and body piercing -- were the rules for closing public meetings to discuss economic development.

Either our lawmakers have a really bizarre sense of humor or they really must not want South Dakotans or anyone else to know much about government involvement in economic development. I will continue to wonder why anyone wanted to hide 9-34-19 among the rules for "Municipal regulation of food sales."

Oh, but there is one set of rules in the same chapter that fits with hiding the regulations for executive sessions - it's 9-34-16, the state's rules for "Mindreaders and fortunetellers" [Chuck Clement, "Tattooing, Junk Stores... and Economic Development?" Madison Daily Leader, 2014.03.20].

Dang: unleash Clement from the formal reporter's beat, and he brandishes a singular statutory wit.

Allen says he would like to repeal SDCL 9-34-19. Repealing state law is a bit tough from City Hall, but opening economic development discussions could happen without a legislative change. Notice that SDCL 9-34-19 says, "Any discussion or consideration of such trade secrets or commercial or financial information by a municipal corporation or county may be done in executive session closed to the public." May. We find the same non-mandatory permission in SDCL 1-25-2: "Executive or closed meetings may be held...."

State law does not order city commissions to go into executive sessions. It gives them the option, upon a majority vote. If you want an open discussion of economic development issues on a five member board, you need to get two other people to agree with you, and that discussion remains open.

So does anyone among Allen's candidates and among the commissioners they will join in City Hall share Allen's zeal for openness on economic development?

9 comments

Recent Comments

  • Jane Smith on "Perp Walk for Bollen...": You are correct Shirley they are trying to make a ...
  • Roger Cornelius on "Wismer Seeks Proxy t...": This election cycle has already become a three rin...
  • Donald Pay on "No More Janklows: Ro...": I don't understand folks who compare and contrast ...
  • jerry on "Wismer Seeks Proxy t...": Ronald Reagan was an actor that knew the one line ...
  • Deb Geelsdottir on "Wismer Seeks Proxy t...": Jim, this is brilliant! "Grudz, you should run a...
  • Deb Geelsdottir on "EcoSun Prairie Farm:...": This is a great sentence Cory! "Making fuel fro...
  • JeniW on "Wismer Seeks Proxy t...": Jerry, Rounds was like that during his first campa...
  • Deb Geelsdottir on "No More Janklows: Ro...": Daily Kos has some excellent information on corrup...
  • Mike Armstrong on "No More Janklows: Ro...": I see you didn't mention Janklow's propensity to r...
  • tara volesky on "Wismer Seeks Proxy t...": Gruds, consider yourself hired, all the free food ...

Support Your Local Blogger!

  • Click the Tip Jar to send your donation to the Madville Times via PayPal, and support local alternative news and commentary!

Hot off the Press

Subscribe

Enter your email to subscribe to future updates

South Dakota Political Blogs

Greater SD Blogosphere

Visit These Sponsors

Join Stan Adelstein's conversation about South Dakota's past and future
Mike Myers, Independent Candidate for South Dakota Governor
Support Howard inventor John Albert
Conversation and Lunch with Democrats!

SD Mostly Political Blogroll

South Dakota Media

Madville Monthly

Meta