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Open meetings panel rules on two complaints: One board reprimanded, a second one cleared at Huron hearing

Posted: Monday, Jul 1st, 2013

HURON — For failing to give public notice of two meetings in October 2012, the Mathews Township Board of Supervisors in Kingsbury County has been reprimanded by the South Dakota Open Meetings Commission.

In a second case heard in Huron Friday, the five-member panel voted 4-1 that the Leola School District had not violated the state’s open meetings law by amending its agenda at the start of the first of two Dec. 10, 2012 meetings.

Five state’s attorneys, appointed by the attorney general, are members of the commission, which was established in 2004.

Mathews Township supervisors were reprimanded for failing to inform the public ahead of time of meetings on Oct. 24 and 30. In the ruling, the commissioners said it was based on the admission of the principal parties.

The board treasurer acknowledged during the hearing that throughout his 30 years of service the board had not only never posted notices of its regular meetings, it had never been an issue.

Mary Lee brought the complaint. Her attorney, Don McCarty of Brookings, said the case stemmed from actions taken by the board in the aftermath of a road washout.

The township’s application for Federal Emergency Management Agency funds to install two nine-foot culverts was approved. The board later decided to only install one culvert and use the rest of the $32,000 in grant funds for other purposes.

The project scope changed a couple more times, but it is unclear when and exactly who made the decisions. The township did refund FEMA a portion of the grant.

McCarty said there are no minutes of meetings between July and October and decisions were made at the project site without notice or minutes.

Lee, as the board’s clerk at the time, was not notified, he said.

Bill Albrecht, treasurer since the early 1980s, said the board never posted notices of its meetings over the years. That practice continued until the complaint was filed and the board became versed in the law, he said.

He said he believes the issue is the Lees were upset that the township didn’t install the size of culverts they wanted.

The road was washed out for two years and doesn’t lead to anyone’s home, he said.

FEMA funds only cover a portion of the costs and the township didn’t have the money to install nine-foot culverts. The township operates on limited funds and has to address other needs. He also said FEMA is happy with how the project turned out.

But the only issue as far as the commission was concerned was procedural and whether there were violations of the open meetings law, not the scope of the project.

Albrecht said many of the decisions were not made in meetings but in phone calls. Decisions were made on a sound fiscal basis, he said.

The commission restricted its decision to the fact the board failed to give public notice beforehand of its Oct. 24 and Oct. 30 meetings. It is clear no notices were posted, but it is unclear how many of the supervisors were making the decisions.

Meanwhile, in the Leola School District case, Jerome Mack filed a complaint that the school board had acted on a board member’s resignation after adding it to the agenda at the last minute.

On Dec. 10, the board had two scheduled meetings – one at 4:30 p.m. for an executive session to evaluate the superintendent, and its regular meeting at 6 p.m.

Hours before the first meeting, the board chairman received an e-mail from a board member submitting her resignation. When the board convened, it voted to amend the agenda and then accepted her resignation.

Huron attorney Rodney Freeman, representing the board, said case law and a Supreme Court ruling allow for the agenda to be amended.

No members of the public were at the 4:30 p.m. meeting, but it was originally scheduled as an executive session only.

At 6 p.m., the board announced the procedures the board would take in seeking applications to fill the position.

Freeman said there was no board discussion of the resignation during the executive session.

Mack said it was his understanding that the board couldn’t amend its agenda unless it was to deal with an emergency.

He said the acceptance of the resignation was rushed through and there was no reason why she couldn’t have participated in the evaluation of the superintendent. She did not attend the meeting.

Commission member and Bon Homme State’s Attorney Lisa Rothschadl questioned why the resignation wasn’t considered during the 6 p.m. meeting when the public was in attendance.

The only issue for the 4:30 p.m. meeting was for the executive session on the superintendent’s evaluation so there was no reason the public would attend.

Grant County State’s Attorney Mark Reedstrom said the situation was concerning, but the Supreme Court’s ruling provides another interpretation of the law.

He said he couldn’t in good faith reprimand a school board for following case law and a Supreme Court decision.

Members supporting a motion that there was no violation of the open meetings law were Meade County State’s Attorney Kevin Krull, Sully County State’s Attorney Emily Sovell, Reedstrom and Rothschadl. Aurora County State’s Attorney John Steele, the commission chairman, disagreed.

For the complete article see the 06-29-2013 issue.

Click here to purchase an electronic version of the 06-29-2013 paper.

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