Mitchell Daily Republic wins case against Huron schools
HURON — A copy of a secret agreement that directed nearly $175,000 to an ex-superintendent of the Huron School District must be provided to The Daily Republic, a judge ruled Wednesday.
As of Wednesday afternoon, however, the district had not provided a copy of the agreement to the newspaper.
In a four-page decision, Third Circuit Judge Jon Erickson said the district must release a copy of the settlement agreement between it and ex-superintendent Ross Opsal.
The agreement had the district making monthly payments to Opsal after his resignation in March 2011, according to public payment information already obtained by The Daily Republic. The reason for the payments, which is presumably spelled out in the agreement, has never been made public.
“Obviously, we’re pleased with Judge Erickson’s decision,” said Jon Arneson, of Sioux Falls, the newspaper’s attorney. “I think he has done precisely the right thing.”
Erickson’s ruling affirms an earlier decision in favor of the newspaper issued in March by the state Office of Hearing Examiners. The school district, despite the two rulings against it, could still choose to appeal to the state Supreme Court.
“I will be more than a little surprised if they appeal,” Arneson said.
The Daily Republic, acting on a tip, first asked for a copy of the agreement more than a year ago, hoping to learn why the school continued to pay Opsal after his employment ended and a new superintendent had been hired.
At the time of his resignation, Opsal and the school district released a public letter citing “personal health issues” as a reason for Opsal’s departure, but offered no other details.
Despite Erickson’s ruling and the earlier ruling from the Office of Hearing Examiners, the district had not provided The Daily Republic with a copy of the agreement as of Wednesday afternoon. The newspaper again requested the document earlier Wednesday in an email to Terry Nebelsick, the district’s current superintendent.
Nebelsick acknowledged the request in an email reply and asked for a copy of the judge’s decision.
The Daily Republic provided it, and Nebelsick said he would forward the judge’s decision to the school board and the district’s attorney, Rodney Freeman.
Nebelsick and Freeman did not immediately return calls for comment Wednesday.
Scott Swier, Opsal’s attorney, declined to comment on the judge’s decision because he hadn’t yet reviewed it when he was contacted Wednesday.
The South Dakota Newspaper Association assisted the newspaper with the cost of the lawsuit.
Dave Bordewyk, the association’s general manager, praised the judge’s decision.
“It’s a good thing,” Bordewyk said. “It’s a good decision for open government in South Dakota.”
Erickson ruled that the district’s agreement with Opsal is a public record and should be open to inspection because it was never declared closed or confidential as a result of civil or criminal court proceedings, and it is not classified as closed by any other law.
Additionally, Erickson found state law requires all reports, books, records, contracts and papers related to school business must be kept by the district and made available for inspection “at reasonable hours to any voter or taxpayer.”
“(The law) requires the district to keep open to reasonable inspection by the public all contracts relating to school business,” Erickson wrote in his decision. “There are no exceptions.”
The Daily Republic first sought a copy of the agreement in early 2012 after receiving a tip that the Huron School District was still paying an exsuperintendent, even as the district paid its new superintendent.
The tipster had seen ex-superintendent Opsal’s name in a list of payments in the district’s legal notices, in the classifieds of the Huron newspaper.
The district and its lawyer refused to provide a copy of the agreement, but did acknowledge payments to ex-superintendent Opsal of $10,916.51 per month since his March 2011 resignation.
According to monthly payment information obtained from the district and compiled by The Daily Republic, the payments stopped after 16 months and totaled $174,664.
The newspaper wrote a story in February 2012 detailing the payments and the district’s refusal to speak further about the issue or release a copy of the agreement.
Then, in July 2012, a new state law took effect clarifying that a superintendent contract is a public record.
That change was sparked partly by a controversy in Sioux Falls, where the superintendent refused to divulge her contract.
Citing the new law, The Daily Republic made a new request for the Huron agreement in September 2012 and was once again denied by the district and its lawyer.
The newspaper appealed that new denial to the state Office of Hearing Examiners, which is the office charged with settling open-records disputes in South Dakota.
The Office of Hearing Examiners ruled in favor of The Daily Republic in March of this year and found the agreement should be open to public inspection.
Shortly thereafter, the district appealed to circuit court, which ended in Wednesday’s ruling in favor of the newspaper.
“We just think the taxpayers of the Huron School District should know why an ex-superintendent was paid nearly $175,000 of public money,” said Daily Republic Editor Seth Tupper, who is named as the plaintiff in the lawsuit.
“We also want to avoid a precedent that would allow other school districts to keep that kind of information secret.”