CASS COUNTY
GOVERNMENT
ence
State’s Attorney
Birch P. Burdick
Assistant State's
Attorneys:
‘Tray. Peters
Leah J Viste
Reid A. Brady
Kara Schmitz Olson
Kimberlee J. Hegvik
Ryan J. Younggren
Renata J Seer
Tanya Johnson Martinez
Katherine M, Naumann
Joshua J. Triser
‘Tracy E. Hines
SheraLynn Ternes
Derek K. Steiner
Robert C, Valle
Victim/ Witness
Coordinators:
Brenda Olson Wray
Debbie Tibiatowski
Lori Lawson
Check Division/
Restitution:
Charlotte Bversviek
Casidy Heilman
Box 2806
211 Ninth Street South,
Fargo, North Dakota 58108
PH: 701-241-5850
Fax: 7012415838
October 29, 2019
RE: NDSCS Performance Audit
Report No, NP-017-18
‘To Whom it May Concern:
‘A referral was made by the North Dakota State Auditor to the Cass County
State’s Attorney inguiring whether NDSCS President John Richman and/or Vice
Presidents Tony Grindberg and Dennis Gladen committed the erimes of
Obstructing or misleading auditor in violation of NDCC § 54-10-23 and/or
violated NDCC § 12.1-13-03, Public servant’s interest in public contracts,
NDSCS was audited in late 2018 and early 2019. One area of concem was the
TrainND marketing contract negotiations between NDSCS and Flint Group, a
Fargo marketing company. The Auditor asked NDSCS Vice President of
‘Administrative Affairs, Dennis Gladen, for any emails between NDSCS and
Flint Group. Mr, Gladen told the auditor no emails existed and asserted NDSCS
President John Richman personally handled the negotiations with Flint Group.
Mr. Richman buffered NDSCS Vice President of Workforce Affairs, Tony
Grindberg from any actual or perceived conflict of interest with Flint Group as
Mr. Grindberg’s wife is Flint Group’s CFO. Both Mr, Richman and Mr.
Grindberg were ce’d in this reply to the auditor’s offi
NDSCS" emails were obtained from the North Dakota University System
showing Mr. Grindberg had in fact corresponded with Flint Group regarding the
marketing contract. Mr, Gladen later stated through his lawyer that his
misrepresentations to the auditor were unintentional. Mr. Gladen asserted that he
didn’t find out that Mr. Grindberg had emailed employees at Flint Group until
the audit was released, NDSCS" emails further show President Richman was
aware of Mr. Grindberg’s correspondence with Flint Group.
North Dakota Bureau of Criminal Investigations (BCI) Special Agent Kelly
Wimer investigated this matter. Agent Wimer requested individual interviews
with Mr. Richman, Mr. Grindberg and Mr. Gladen regarding the Flint Group
negotiations, All parties refused individual interviews. Their attorneys
suggested an unconventional group interview, with everyone in the room at the
same time, Ultimately however, the parties rescinded this request and refused
any interviews.At the close of the investigation, the Cass County State’s Attomey’s Office reviewed the emails,
attomeys’ correspondence, public responses and Agent Wimer’s reports.
‘The essential elements are:
NDCC § 54-10-23 Obstructing or misleading auditor
1, Willfully,
2. Obstructs or misleads the auditor or
3. Hinders a thorough examination by the auditor.
NDCC § 12.1-13-03 Public servant's interest in public contracts
1 ‘A public servant,
2. Who is officially authorized to contract,
3. Voluntarily becomes individually interested,
4, Directly or indirectly in a contract.
The State’s Attorney applies the criminal standard of beyond a reasonable doubt to the weight
of the evidence. Others reviewing this matter such as the Auditor, the legislature and civil
courts use different standards or policies and weight them with lesser burdens of proof. The
State’s Attomey expresses no opinion as to those reviews.
In 2018, NDSCS paid Flint Group $39,500 in consulting fees. ‘The fees paid to Flint were not a
direct benefit to Mr. Grindberg, Mr, Gladen nor Mr. Richman, One could argue that Mr.
Grindberg was interested in seeing his wife's company succeed and her interest is indirectly his.
But, to the State’s knowledge, the discussions with Flint weren’t conditioned on a commission
or bonus to his wife. Flint Group is a company NDSCS has done business with in the past. It is
common in a community such as Fargo to cross paths with entities that have some connection,
however tenuous, to people we know. In the case of public entities, the important consideration
is disclosure of such relationships. The parties have expressed publicly and through their
attorneys that they were aware Mr. Grindberg’s wife was Flint Group’s CFO, This relationship
in and of itself doesn’t bar NDSCS from doing business with Flint. While NDSCS disclosure
policies and/or those of the State Board of Higher Education may have required a written notice,
NDCC 12.1-13-03 was not violated, The North Dakota University System Chancellor Dr. Mark
Hagerott and President Richman acknowledged the audit’s value in highlighting the need for
clear disclosure. An important function of an audit is to bring needed improvements to the
attention of decision makers and leaders. In this instance, however, Mr. Grindberg did not
personally benefit from NDSCS" business relationship with Flint Group. Any appearance of
indirect interest to him via the contract’s unsubstantiated benefit to his wife is not a violation of
criminal law.‘We next turn to obstructing or misleading the auditor. Here we examined the responses to the
auditor's request for emails between NDSCS and Flint Group.
First, Mr. Gladen claims his mistepresentations were not intentional. His attomey stated that
Mr, Gladen did not become aware of the existence of any email correspondence until after the
audit, Mr, Richman and Mr. Grindberg were both co’d in Mr. Gladen’s original response to the
auditor. Assuming Mr. Grindberg and Mr. Richman read their emails, they should’ve seen Mr.
Gladen’s inaccurate response. One can imagine that conversations might have occurred
between Gladen, Grindberg and Richman to ensure the accuracy or, in the alternative, to issue a
correction, ‘The emails show there were communications between Mr. Grindberg and Flint
Group and Mr, Richman had direct knowledge of these conversations. Mr. Gladen’s statement
that he did not inform himself about the existence the emails before he responded to the auditor
may be of concem. But in and of itself, it does not prove willful obstruction or willful
misleading of the auditor beyond a reasonable doubt.
‘As to Mr. Richman and Mr. Grindberg, we review their inaction in regards to the
misinformation distributed to the auditor. The emails show communications between Mr.
Grindberg and Flint Group with Mr. Richman acknowledging these discussions. To the
auditor's simple inquiry if any emails existed between NDSCS and Flint Group, Mr. Gladen
responded in the negative and ce’d both Mr. Richman and Mr. Grindberg. Neither Mr. Richman
nor Mr. Grindberg took any steps to correct this error before the audit was finalized. To prove a
crime, however, one must show a willful act, Inaction under these circumstances does not
violate the criminal statute. Therefore, the State cannot prove beyond a reasonable doubt that
Mr. Richman or Mr. Grindberg willfully obstructed or mislead the auditor.
Furthermore, even if one can read into the statute an affirmative duty to act, neither Mr.
Richman nor Mr. Grindberg directly or indirectly benefitted from the marketing services
provided by Flint Group. Any appearance of an indirect interest to Mr. Grindberg via his wife,
Flint Group's CFO, is not proof of a crime beyond a reasonable doubt.
No criminal charges will be filed.
Sincerely,
Bireh P. Burtiick
State's Attorney
BPB/alk