SETH TUPPER: We raise hell because it’s our duty
“It is a newspaper’s duty to print the news and RAISE HELL!”
So says a calligraphed and framed sign given to a former Daily Republic publisher years ago by a loyal reader. The quote is from 1861 and is attributed to Wilbur F. Storey, who that year purchased the Chicago Times.
The sign hangs on a wall in what we call our newsroom lounge. It’s there partly for comic relief, but it’s also a reminder of our duty as journalists to fight the good fight on behalf of readers.
In that spirit, we’ve been raising hell with the Huron Board of Education for the past couple of years.
It all began in late 2011 or early 2012, when I received an unsolicited phone call from a person who wished to remain anonymous. The person had browsed the Huron School District legal announcements printed in the Classifieds section of The Daily Plainsman, a newspaper published in Huron. The tipster said the legals contained a long list of recent bills paid by the district. Buried within that list was a payment of nearly $11,000 to an ex-superintendent. The tipster had never seen or heard an explanation for the payment and wondered why the school district was still paying a former superintendent. Would The Daily Republic, the tipster wondered, be willing to investigate?
I assigned a reporter to do just that. District officials acknowledged to the reporter that the district had indeed been paying former superintendent Ross Opsal -- they couldn’t deny it, since they had been required by law to publish the payment amounts in their legal announcements -- but they declined to divulge anything else. Based on the scant information available to us, we reported in February 2012 that former superintendent Opsal had been receiving payments of $10,916.51 per month since what was called his “resignation” in March 2011, and that as far as we could tell, the payments through January 2012 had totaled $120,082. Meanwhile, new superintendent Terry Nebelsick had been paid $64,166 since ascending to the job in July 2011.
District officials refused to tell us why Opsal was still being paid or how long the payments would continue. They said the terms of the payment were part of a sealed agreement. I was not satisfied with that answer but sensed help was on the way in the form of state legislation.
That legislation was not directly connected to our fight but was signed by the governor only seven days after our story on the Huron situation published. The legislation clarified that “any current or prior contract with any public employee and any related document that specifies the consideration to be paid to the employee” is a public record. The legislation grew from the outcry over Sioux Falls School District Superintendent Pam Homan’s refusal to give a copy of her contract to the Argus Leader, a daily newspaper published in Sioux Falls. Separately, the Yankton Press and Dakotan daily newspaper had asked for copies of eight South Dakota school superintendent contracts, and all but one obliged.
The two newspapers’ efforts bloomed into a topic of statewide consternation. Most people had always considered superintendent contracts to be public records. Gov. Dennis Daugaard, to his credit, eased the path for clarifying legislation when he said he would sign it because “every public employee contract should be an open record.” The law sailed through the Legislature with only two no votes from the 105-member body.
I saw the new law as highly relevant to our dispute with the Huron School District. The district called its agreement with Opsal a “Release of All Claims and Settlements Agreement,” but I figured when all the fancy words were stripped away, it was just an agreement between a district and a superintendent. In other words, it was a superintendent contract. And like all superintendent contracts, it should be an open record.
The new law didn’t give us an immediate impetus to make a new request for the secret Huron agreement, because like most laws adopted by the Legislature, it did not take effect until July 1.
After the law took effect, I made a new request to the Huron School District for a copy of the secret agreement. With the new refusal in hand, I filed a formal appeal with the South Dakota Office of Hearing Examiners. That office is designated by state law as the arbiter of open-records disputes (that designation and the appeals process, by the way, exist largely because of past media-influenced efforts to improve government transparency).
The appeal process amounted to nothing more than my written appeal, followed by a written response from the Huron School District’s lawyer, and then a couple of additional emails back and forth and a lot of polite inquiries by me about when a decision might finally be issued. It took six months to get the decision, which I thought exposed a hole in our state’s open-records appeal process. There are deadlines throughout the process for the appellant and the holder of the record, but none for the Office of Hearing Examiners to issue its decision. Nevertheless, the hearing examiner who studied the appeal sided with The Daily Republic and, in March, determined that the secret Huron agreement was a public record.
Instead of surrendering the record, the Huron School District and its attorney appealed to circuit court, which the open-records appeals process allows. They didn’t have any better luck in that setting, where we were joined in our defense of the hearing examiner’s ruling by the South Dakota Newspaper Association and its attorney. Last month, the judge in the case affirmed the hearing examiner’s earlier decision and ruled that the Huron document is an open record. The district could have appealed to the South Dakota Supreme Court, but did not.
Monday night brought the first Huron Board of Education meeting since the judge’s ruling. Curiously, the board felt it necessary to conduct a vote to unseal the document, as though the board still had a say in whether the document was open or closed.
To be clear, the document was an open record from day one. It didn’t suddenly become an open record when deemed so by the hearing examiner and the judge. Those decisions merely affirmed the document’s inherently open status. In fact, state law says The Daily Republic could now pursue reimbursement and penalties up to $50 per day for all the days the record was withheld, now that it’s been proven the record always should have been open. But we don’t see a benefit in penalizing the taxpayers of the Huron School District for their elected board’s and their attorney’s folly, so we won’t pursue it.
When the document was finally opened Monday, it revealed … cue the drum roll … not much of anything. It basically confirmed that money was paid to Opsal as part of an agreement that ended his employment. And there were a few interesting nuggets. Opsal, for example, pledged to commit himself seriously to looking for another job as a school administrator, and if he’d secured such a job (we’re told he never did), the district could have ended or reduced the payments to him. The district, in turn, pledged to give Opsal a “neutral” recommendation if his potential employers sought a reference.
The document did not contain the only thing we really want, which is a clear explanation of why Opsal’s employment ended so abruptly before he was halfway through a three-year contract, and why the school board felt compelled -- in exchange for Opsal’s departure -- to make monthly payments to him that we now know stretched for about 15 months and totaled about $175,000.
I wonder why the board and its attorney were so committed to concealing a document that didn’t really contain any major secrets. The only thing I can guess is that the school board members wanted to part ways with Opsal, but the only way they could do it -- perhaps because of resistance from Opsal, who was under contract -- was to pay Opsal to go away.
Paying $175,000 of taxpayers’ money to somebody who no longer works for them is not something taxpayers look upon fondly. It’s no wonder, then, that the Huron Board of Education went behind closed doors to concoct the Opsal agreement in an “executive session” -- a euphemism for a closed-door, non-public meeting -- and then proclaimed it forever sealed. The board members and their attorney didn’t want the public to know what they did. And they would have gotten away with it, too, if it hadn’t been for those darn newspaper legals they had to publish, and that pesky tipster, and that annoyingly persistent newspaper.
That’s my theory, anyway. We may never know the truth, because the Huron Board of Education has never come forth with all of it. In that respect, we at The Daily Republic have failed.
But at least we’ve shown one government board that it can’t go behind closed doors, arrange a secret deal, and never answer for it. We exposed the secret deal and held those responsible to account. The account they gave was only partial, but we’ve done everything we could.
We raised hell and we’d gladly do it all over again. You, dear readers and taxpayers, deserve nothing less.