Author Archives: Bob Mercer

About Bob Mercer

Bob Mercer is a newspaper reporter in Pierre where I cover state government, issues and politics for the Aberdeen American News and four other separately owned newspapers: the Black Hills Pioneer, the Pierre Capital Journal, the Mitchell Daily Republic and the Watertown Public Opinion. I began covering the Legislature in 1985 and have lived in Pierre since December 1986. I grew up in Wisconsin, worked my way through college, took my first full-time newspapers jobs in Wyoming, and have lived in South Dakota since the summer of 1984 when I moved to Aberdeen to join the American News. I worked for the Rapid City Journal as its state government reporter in Pierre from late 1992 through late 1998. I spent four years as press secretary and a senior aide to Gov. Bill Janklow during his fourth and final term from late 1998 through 2002. I returned to journalism in January 2003 as a self-employed reporter, providing state government coverage to the Mitchell, Watertown, Spearfish, Pierre and, depending on the year, Aberdeen newspapers. In 2008, the Aberdeen American News offered to hire me as full-time member of the AAN staff, with my reports continuing to be available to the Mitchell, Watertown, Spearfish and Pierre papers. The new arrangement has been in effect since January 2009 as the five papers continue their remarkable dedication to their readers and the general public, as the only South Dakota news outlets with a full-time reporter covering state government in Pierre throughout the year. In addition to focusing on the Legislature during the annual winter session and its various activities during the interim periods between sessions, I spend many days throughout the year -- traveling as often necessary -- to cover state government boards and commissions which oversee the state universities, technical institutes, outdoors, water, environment, business, public schools, banking, agriculture, utilities, health care and various other areas of public interest. I purposely don't register to vote because of my profession; the last time I recall voting in a presidential election was the first time, 1976, when I had just turned 18. I think I voted for Jimmy Carter over Gerald Ford. Make of that what you want, just don't make much of it.

A point yet murky in Benda case

The revelations to a legislative panel yesterday by state Attorney General Marty Jackley that he was ready to pursue felony theft charges against Richard Benda for the misdirection of $550,000 of state grant funds raises a point that hasn’t been answered. For Benda to have accomplished this, it seems he would have needed to plot with others, such as officials at Northern Beef and with SDRC president Joop Bollen, to ensure that portion of the grant money flowed from Northern Beef to SDRC in early 2011 to pay his salary in his new job at SDRC. No one on the Legislature’s Government Operations and Audit Committee asked Jackley who else was involved and Jackley didn’t offer a direct statement. Jackley noted that he didn’t proceed with the state grand jury scheduled to meet Oct. 28, however, after Benda’s body was found Oct. 22. Jackley said Bollen was questioned by investigators. Jackley’s position is that Northern Beef and SDRC didn’t do anything wrong with the state funds that Benda allegedly arranged to pay himself for a private job at a company that held a state contract that Benda signed. To support his position Jackley cites state Auditor General Marty Guindon’s report on the matter. We don’t know the conditions on the private escrow account to which Northern Beef transferred the $550,000. It’s possible that only Benda had control of that account. But with Jackley stating he won’t release further information without a court order, and with both the attorney general and the auditor general taking a hands-off approach to inspecting the business practices of Northern Beef and SDRC, we likely won’t know unless this somehow reaches a federal courtroom in the future. Maybe Joop Bollen wouldn’t have answered questions if he had been subpoenaed by the legislative committee, but the committee’s refusal to accept Rep. Susan Wismer’s motion Tuesday that Bollen be subpoenaed means we won’t be able to see any legislator ask Bollen whether he worked with Benda to arrange the $550,000 diversion. We only know that Jackley was ready to bring criminal charges against Benda and the death of Benda likely meant no witnesses would ever face questions in a state courtroom in connection with the $550,000. The puzzle continues.

AG releases new key details on Benda probe w/updates

State Attorney General Marty Jackley revealed in his public testimony this morning (Tuesday) that his office had prepared a criminal complaint and arrest warrant for Richard Benda in October last year. The documents were drawn on Oct. 8, prior to Benda’s death Oct. 20 from a shotgun wound to his abdomen. Jackley told members of the Legislature’s Government Operations and Audit Committee that he hadn’t signed the warrant yet. He also revealed he had arranged on Oct. 11 for a state grand jury to meet Oct. 28. He said there wasn’t any reason to meet with the grand jury after Benda’s body was found on a relative’s farm near Lake Andes. Benda’s death was ruled a suicide.

Benda was under investigation for increasing a state grant by $550,000 while he was state secretary of tourism and economic development during the final month of the Rounds administration in December 2010. The extra grant money was diverted by the grant recipient, Northern Beef Packers, to SDRC Inc. Benda had signed a state contract in 2009 making SDRC the administrator for the EB-5 immigrant investor program in South Dakota. Benda went to work for SDRC to monitor Northern Beef Packers’ financing package from the EB-5 program after he wasn’t retained by the Daugaard administration in January 2011. The diverted portion of the grant money was intended in part to pay Benda’s salary with SDRC.

The probe began after a federal grand jury issued a subpoena to state government in spring 2013 and Gov. Daugaard asked the attorney general to investigate regarding Benda’s travel while a member of the Rounds cabinet. Eventually Daugaard’s commissioner of economic development, Pat Costello, terminated the SDRC contract in September and began in early October what became a series of independent reviews and audits of programs in his office.

The legislative committee this morning refused an attempt by Rep. Susan Wismer, D-Britton, to subpoena the president of SDRC, Joop Bollen. Her motion died for lack of a second. Wismer’s motion came after an executive session involving the GOAC members, the attorney general, state auditor general Marty Guindon and Jackley’s chief deputy, Charles McGuigan.

Jackley also revealed today that Bollen was interviewed as part of the Benda investigation.

The criminal complaint drawn against Benda covered three alternative counts of aggravated grand theft by embezzlement or deception or intimidation in connection with converting the $550,000; and a second count of grand theft for accepting three travel reimbursements from state government for which he had double-billed. The intimidation count alleged that he threatened to withhold the $1 million grant if Northern Beef didn’t divert the $550,000 to SDRC. Jackley said he met with Benda’s lawyer before Benda’s death.

Costello told the committee today that 967 foreign investors were approved for South Dakota projects but some might have chosen to not place their money with them. He said approximately $650 million was raised through EB-5 for South Dakota projects. He said the federal government reports that 5,658 jobs were connected to the investments but he said those numbers appear to him to be overstated because the federal definition includes indirect employment.

 

GOAC will take limited look at Future Fund grants

While attention today is focused on state Attorney General Marty Jackley’s appearance tomorrow (Tuesday) before the Legislature’s Government Operations and Audit Committee (he reportedly will make some comments in the public portion of the meeting as well as going into executive session with the committee shortly after its 9 a.m. CDT start), the meaty part of the meeting might be commissioner Pat Costello talking about how the Governor’s Office of Economic Development used Future Fund grants awarded by Gov. Dennis Daugaard during the 2012 and 2013 calendar years. It would be worth knowing the results from the 2011 Future Fund grants awarded by Gov. Daugaard and the 2009 and 2010 Future Fund grants awarded by then-Gov. Mike Rounds. Those aren’t on the agenda.

We’re headed into the months that mark the one-year anniversary of the results from the attorney general’s investigation into Richard Benda’s activities while he was secretary of tourism and state development during the Rounds administration, and the actions taken by commissioner Costello, such as terminating in September 2013 the state contract that Benda signed with Joop Bollen of Aberdeen that made SDRC Inc. the administrator of EB-5 immigrant investor activities in South Dakota, and Costello then arranging for an independent auditing firm to look at Future Fund grant activities under Benda. Come Oct. 20 will be the one-year anniversary of the death of Richard Benda by a shotgun wound to his abdomen. The public statements by Gov. Daugaard and former Gov. Rounds after Benda’s body was found Oct. 22 are what lifted the lid publicly on this morasse.

The GOAC meeting comes one week before the Tuesday, August 5, deadline for candidates to withdraw from South Dakota’s general elections; Friday, September 19, is the first day for absentee voting in those elections. Tuesday, November 4, is election day. Unless the Libertarian Party sends forth a nominee, Jackley is unopposed for re-election as attorney general. Rounds is the Republican candidate for U.S. Senate and faces Democrat Rick Weiland and former Republicans turned independents Gordon Howie and Larry Pressler. Daugaard is running for re-election against Democratic Rep. Susan Wismer and independent Michael Myers. The GOAC chairman, Sen. Larry Tidemann, R-Brookings, faces a re-election challenge from Democrat Jay Vanduch of Brookings.

It would be a public benefit if legislators from both major political parties decided they want to know results of the Future Fund grants made in 2009 through 2011. As chairman, Sen. Tidemann is in the position to make that happen. The money spent on Future Fund grants comes from every business owner in South Dakota who pays unemployment taxes.

PUC hosts important air-quality seminar

On Thursday, the state Public Utilities Commission hosts a major public briefing regarding the federal Environmental Protection Agency’s proposed regulations for reducing carbon emissions. The meeting runs 8 a.m. to 5 p.m. in Sioux Falls at the Ramkota Conference Center (amphitheater 2) at 3200 W. Maple Street.

Scheduled speakers in the morning session include Callie Videtich from the EPA at 8:15; a panel discussion on power plants with officials from Otter Tail Power and Basin Electric at 9; a panel discussion on renewable energy and efficiencies with officials from Otter Tail, Missouri River Energy Services and a wind power coalition at 10:15; and a state Department of Environment and Natural Resources official to discuss the state’s implementation plan at 11 a.m.

Scheduled speakers in the afternoon session include a panel discussion with officials from nine companies and cooperatives about ratepayer impacts at 1:15; a panel discussion of regional compliance at 3:15; and a perspective discussion from the three congressional offices at 4 p.m.

The event is free and open to the public.

Births and deaths in South Dakota

According to the statistics reported by the state Department of Health, South Dakota has seen more births than deaths in recent years. Here are snapshots for South Dakota residents in 2012 and 2011.

2012: Births 12,092. Deaths 7,283.

2011: Births 11,834. Deaths 7,271.

The next level of data shows births and deaths by race.

Whites 2012: Births 9,111. Deaths 6,590.

Whites 2011: Births 8,921. Deaths 6,662.

American Indians 2012: Births 1,936. Deaths 585.

American Indians 2012: Births 1,953. Deaths 527.

Using the standard rates of births and deaths per 1,000 population, South Dakota’s American Indian people had babies at more than double the rate of South Dakota’s white people during those two years, and South Dakota’s white people were dying at a somewhat faster rate than South Dakota’s American Indian people.

These aren’t short-term trends. These trends aren’t being addressed to any deep degree within state government, tribal governments or county governments in South Dakota. While there is some ado of late about 21 immigrant children being placed secretly in South Dakota by the federal government, there is very little focus on the changing population dynamics of South Dakota as a whole and there is very little looking ahead at what the changes mean for education, workforce and public services.

State Supreme Court won’t reopen warrantless DUI cases

This seems like a major and far-reaching decision by the South Dakota Supreme Court issued this week. It is about South Dakota’s practice of drawing blood from drunk-driving suspects without their consent and without a warrant. The practice was founded on the principle in South Dakota case law that blood-alcohol content naturally dissipates and therefore evidence would be lost without taking the blood samples. However, the U.S. Supreme Court decided in 2013 in a case known as Missouri v. McNeely that the dissipation of blood-alcohol content doesn’t automatically mean law enforcement can draw blood without consent and without a warrant in all cases of suspected driving under the influence. This matter came to the South Dakota Supreme Court in an appeal filed by Donavan Craig Siers, who was arrested on suspicion of DUI in Minnehaha County in 2008. He refused to consent to a blood draw and he subsequently was placed in restraints so that his blood could be taken. The draw was performed without a warrant. He was found to have a BAC of .22 percent, more than double the DUI threshold in state law, and the BAC became the primary evidence against him. The state Supreme Court looked at two issues in his appeal.

The state’s five justices found that the McNeely decision “broke new ground” for South Dakota regarding warrantless drawing of blood in suspected drunk-driving cases. The justices stated that law enforcement can’t rely solely on the dissipation argument any longer.

The second issue considered by the justices was whether McNeely required South Dakota to apply the new rule retroactively. In considering that issue, the justices determined they need to apply a new test so they are consistent with the U.S. Supreme Court in another case known as Teague v. Lane. The South Dakota justices had been using what’s known as the Linkletter test on retroactivity; the U.S. Supreme Court replaced Linletter with Teague. In a previous decision the South Dakota justices declined to accept Teague. Now they have reversed that position and accept Teague because Linkletter was too subjective. Said the South Dakota court in its decision in the current case, “Teague stated that normally a new rule would not be retroactively applied once a defendant’s case had become final.” The justices added, “By applying the Teague test for retroactivity, this Court can better address concerns for finality, consistency, and uniformity—all by way of a simpler, more straightforward test. Moving forward, we therefore adopt the Teague rule.”

All of which led the state justices to decide the new McNeely standard regarding warrantless blood draws shouldn’t have retroactive application in South Dakota. Chief Justice David Gilbertson wrote the court’s opinion which was unanimous. “The new rule announced in McNeely did not place any form of individual conduct beyond the power of the State to proscribe. Nor was it a new watershed rule of criminal procedure. Thus, we answer the retroactivity question the same under the new standard as we would have under the old and determine that McNeely should not be given retroactive effect,” the chief justice stated.

Go here if you want to read the South Dakota Supreme Court’s full opinion.

SDAHO hires interim director during search

The South Dakota Association of Healthcare Organizations, whose members include 53 hospitals and 33 long-term care facilities, is proceeding on a national search for a new chief executive to succeed Dave Hewett. For the meantime SDAHO hired an interim president and CEO. She is Gretchen Dahlen of Verona, Wisconsin. She is a member of the national board of directors AARP and has served in a variety of executive and consultant roles for healthcare institutions. She most recently was with Mayo Clinic Health System as Chief Administrative Officer for Winneshiek Medical Center in Decorah, Iowa, according to the announcement from SDAHO; she will serve under a professional services contract through December or until a permanent CEO is recruited for SDAHO.

Two teacher-prep programs win re-approval

The state Board of Education gave approval Monday morning for continuation of the teaching programs and units at Augustana College in Sioux Falls and South Dakota State University at Brookings. The teaching programs undergo reviews every seven years. Both programs met the six sets of standards for initial teacher preparation and advanced preparation.

The Augustana review noted teaching candidates have limited opportunities to interact with higher education and P-12 school faculty from diverse populations. SDSU received a similar comment regarding limited diversity opportunities.

Two other areas for improvement were noted at SDSU. In the advanced preparation programs, SDSU didn’t demonstrate sufficient evidence that teaching candidates in the curriculum and instruction program demonstrate in-depth knowledge and expertise within their area of specialization. SDSU also was described as inconsistently applying field placement policies and teaching candidates have limited experiences with diverse P-12 students; this was for both initial and advanced preparation programs. SDSU will receive a second visit in 2019

Gaming Commission plans special meeting

The South Dakota Commission on Gaming has scheduled a special meeting for Wednesday, July 23, by telephone conference call to further consider matters involving Platinum Ventures LLC regarding the sale of the Four Aces Casino and Hampton Inn Hotel in Deadwood. Last month the commission called for an agreement that would dismiss the 15-day suspension of gambling licenses for Platinum Ventures in exchange for the company dismissing its appeal and paying a $25,000 penalty. This matter dates back to a decision by the commission in November to impose the 15-day suspension. The meeting will begin at 9 a.m. CDT and the public can hear the proceedings at the commission’s offices in Pierre and Deadwood.