March 2024

SCOTUS rules that elected officials cannot designate their FB pages as personal

l3wis March 25, 2024 4Comments

Seems Mayor TenHaken may have to change his FB page;

The US Supreme Court ruled on Friday public officials with ability to make policy cannot claim a Facebook page is private. Public officials can be sued for blocking or deleting critical commentary, the opinion said, if a public employee has the “actual authority to speak on the state’s behalf” and “purported to exercise that authority” in the social media post at issue. A personal page status cannot be claimed if the public official is not personally moderating the content.

And Paul is paying someone to monitor the page. You know, the guy who moderated the council candidate forum. Basically the RULING says that as an elected official, you cannot have a personal page, and cannot censor commentary or users. Facebook is a public forum and when posting on there as an elected official, that would make it official.

James Freed, like countless other Americans, created a private Facebook profile sometime before 2008. He eventually converted his profile to a public “page,” meaning that anyone could see and comment on his posts. In 2014, Freed updated his Facebook page to reflect that he was appointed city manager of Port Huron, Michigan, describing himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed continued to operate his Facebook page himself and continued to post prolifically (and primarily) about his personal life. Freed also posted information related to his job, such as highlighting communications from other city officials and soliciting feedback from the public on issues of concern. Freed often responded to comments on his posts, including those left by city residents with inquiries about community matters. He occasionally deleted comments that he considered “derogatory” or “stupid.”

After the COVID–19 pandemic began, Freed posted about it. Some posts were personal, and some contained information related to his job. Facebook user Kevin Lindke commented on some of Freed’s posts, unequivocally expressing his displeasure with the city’s approach to the pandemic. Initially, Freed deleted Lindke’s comments; ultimately, he blocked him from commenting at all. Lindke sued Freed under 42 U. S. C. §1983, alleging that Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page because it was a public forum. The District Court determined that because Freed managed his Facebook page in his private capacity, and because only state action can give rise to liability under §1983, Lindke’s claim failed. The Sixth Circuit affirmed.

Held: A public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if he official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts. Pp. 5–15.

One last point: The nature of the technology matters to the state-action analysis. Freed performed two actions to which Lindke objected: He deleted Lindke’s comments and  blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a Court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.³ A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.

* * *

The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.

——————

³ On some platforms, a blocked user might be unable even to see the blocker’s posts. See, e.g., Garnier v. O’Connor-Ratcliff, 41 F. 4th, 1158, 1164 (CA9 2022) (noting that “on Twitter, once a user has been ‘blocked,’ the individual can neither interact with nor view the blocker’s Twitter feed”); Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F. 3d 226, 231 (CA2 2019) (noting that a blocked user is unable to see, reply to, retweet, or like the blocker’s tweets).

Why are the details of the Sioux Falls Aquatics bonds still a secret?

l3wis March 25, 2024 9Comments

We have officially known for weeks the city intends to withdraw a $70 million dollar bond, we have known this amount since October unofficially. So if you know what you are going to spend for months and months, that tells me you know exactly what is being purchased with that amount. There of course is talk of an indoor facility and an outdoor facility. There is also some rumors floating around about some ‘ideas’ thrown into the mix.

So what is the city hiding?

The current city council, in which 4 of them are leaving in May, have requested to vote on the bonds before the May 21st meeting where the new councilors are installed.

• The city has known since last Fall the price tag of the bonds (a number that was likely concocted by the bonding company, and not the city or engineers.)

• They haven’t released details of what we are getting for the money yet.

• Parks Board plans to review the bonds and approve them around April 15 or later. The council won’t get a PUBLIC presentation of the details of the bonds until April 30 (even though they already know what’s in them) and then will have to do a first and second reading before the last meeting of this council on May 14th. Essentially giving citizens only a few weeks to digest $70 million in bonds that there will be NO public vote on (we really should have voted on the bonds since there is already an election, such a missed opportunity . . . but when you are a closed government militant, this is how things are done.)

As for the rumors, I won’t comment because some of the things being said are so ludicrous, I doubt the administration is exploring them, but you never know.

So like the Delbridge Animals secret, the administration is sitting on the details of the bonds. Why? Because the are likely trying to hide something, and even if a couple of the rumors are true, something is going to hit the fan, and it won’t be dead monkey crap.

*I was also told last night that the city subsidizes the Midco to the tune of $1.2 million a year (it costs $2.2 to operate and they collect $1 million in fees.) And that is just an indoor pool. Can you imagine what it will cost to operate one or two more of these facilities that also include a fitness area and pools? The mayor also intends to purchase the Riverline District property from Lloyd in the 2025 budget ($8 or $9 million) and plans to push for a $300 million dollar bond in 2029 for a new Convention Center. Not sure where the city is going to get the tax revenue to pay off all this stuff, but it is starting to become ridiculous. There is ZERO economic benefit to the bottom line of the average taxpayer. A better way to spend that money is to build a modern public transit system that hooks into the Airport and Passenger rail service. The impact of people from rural towns in the midwest coming to Sioux Falls for shopping and recreation would be a much greater impact then 4-5 conventions a year.

UPDATE: Special Deals for Special People?

l3wis March 24, 2024 7Comments

Last summer I was told about a building sale downtown Sioux Falls. The seller, Mayor Paul TenHaken, the buyer, Lloyd Companies.

The building to the left is the Rock Island building Mayor TenHaken used to own and sold to Lloyd Companies, the tall apartment building, I coined the ‘Good Times Building’ because it reminds me of the buildings in the intro of the classic TV show, is owned also by Lloyd Companies, and they own the building to the far right, the street in the middle is the 7th Street Cul-de-sac slated for improvements by the city.

It is no secret that elected officials in all capacities in our community either have business ventures or real estate investments, not all of them, but some. Serving as an elected official YOU can LEGALLY and ETHICALLY have real estate investments in our community, where it gets real sticky is using your position of power to sweeten those deals. Not only is that ethically and morally wrong, there are Federal rules when it comes to how Federal subsidies, like ARPA, work, and in no way shape of form can an elected official benefit from those monies.

This is what we know.

Lloyd purchased the property on December 31, 2020 (I know, odd day to complete a closing) thru one of their multiple LLC’s, Cheney Lake, LLC. I was told developers setup multiple LLC’s so they can get different tax breaks and rebates on housing and other rental property. I also know that Cheney Lake, LLC is registered to Lloyd, because like all of their LLC registrations, they are registered at Lloyd’s main corporate offices.

The mayor’s Chief of Staff was a former executive staffer of Lloyd companies. Did she have any hands in brokering this deal?

Paul also owned the building under an LLC, called Phillips to the Falls LLC, which was dissolved because of inactivity (the state will dissolve your account after a period of inactivity, but why didn’t Paul just dissolve it in advance?)

Also, how did Paul acquire the building? If you look up the LLC on the SOS website (type in ‘Phillips to the Falls LLC) you will see it was created in 1998, Paul would have still been in high school, so did Paul acquire the building, other assets and liabilities of the previous owner? In other words did he purchase the building in a straight up property purchase or was there some kind of bank closing on the property? Ted Thoms was the person who originally created the LLC.

Shortly after the purchase at the end of 2020, in August of 2021 (item #49) the council provided supplemental appropriations from ARPA funds. $1.25 million was going towards the reconstruction of the 7th street cul-de-sac that Lloyd now owns three adjoining properties.

The suspicious purchase price has many people scratching their heads. Notice on graphic below how much the assessment jumped in just 2 years. Is it because Lloyd paid above and beyond for the property knowing improvements to the area were coming from the city?

I was told that Lloyd paid $1 million above and beyond appraisal. I certainly don’t have the appraisal, but you can make some assumptions from looking at the tax valuations.

The building was assessed a year later for $2.9 million, taxes are $53K, but if you look at what it was assessed before shortly after the purchase, $33K in taxes, and you extrapolate that from the current taxes, it would have been valued at $1.8 million or less at the time of purchase. So did Lloyd pay a million above and beyond for the property with a promise of ARPA money making improvements to the streetscape around the properties they own?

Well isn’t that the million dollar question?

UPDATE: Also, since the property in question went up so much in assessed value, that means the properties around this building will all be re-assessed and likely go up in value also.

In conclusion, this is troublesome for several reasons, including that probably very few, if any, councilors were in on the back deal. There is also the question of getting paid a million over appraisal while you are a sitting mayor, and of course the ARPA federal dollars being funneled into the project. I also am pretty astonished that you can basically pay double for a property and the county doesn’t even blink an eye and just puts down the new assessment and value like it is no big deal (the valuation jumped around 90%).

This needs to be investigated by the city council and the ethics commission. It’s ethically and morally wrong and possibly criminal.

*I would like to thank several people who helped me with this post, including three sources that were invaluable.

A Touch of the tiny desk weird

l3wis March 24, 2024 1Comments

I love tiny desk, probably one of the few corners in my life that always makes me smile, laugh and cry all at the same time. While some of the performer’s music isn’t my cup of tea, I do like the performances. When Ms. Roan texts on her flip phone, I lost it.

Another one for the record books PBS

The owner of Tzadik Properties needs to be held accountable

l3wis March 23, 2024 4Comments

Do you know what the Hebrew word ‘Tzadik’ means?

Tzadik (Hebrew: ??????? ?add?q[tsa?dik], “righteous [one]”; also zadik or sadiq; pl. tzadikim[tsadi?kim] ??????? ?ad?q?m) is a title in Judaism given to people considered righteous, such as biblical figures and later spiritual masters. 

Interesting that a slumlord would name his properties righteous.

As you can see from the pictures below of just a couple of their properties, they have serious code violations.

Instead of the city coddling this person and trying to protect his investment, the city’s job, and it’s city manager, the mayor, need to have code enforcement rain hail on these properties. Most should be condemned and the conditions his PAYING renters are forced to live in are criminal.

This isn’t FREE housing, they are paying for it, and residents of this city have the right to safe, clean and affordable housing. I actually think criminal charges could be filed against this person.

Would you pay $700 a month to live in these places? Heck, if you BUY a condo at the Steel District, the monthly HOA fee is around $800 a month (which I would assume is for security and building maintenance?)

My point is that most of the people who live in these places are paying rent and working and they needed to be treated better by the city’s code enforcement office.

I heard they are changing the name of this particular complex to ‘Plywood and Needles Estates’ 🙁

The audio may not work on the video below, but basically this is an apartment that was supposedly move in ready.