City of Mitchell may settle old lawsuit with newspaperCase involved alleged misuse of closed-door meeting by council.
By: Tom Lawrence, The Daily Republic
The Mitchell City Council will consider settling a lawsuit with The Daily Republic and the South Dakota Newspaper Association during its meeting tonight.
City Attorney Carl Koch has recommended settling the 2009 lawsuit brought by The Daily Republic and the SDNA versus the city of Mitchell. The newspaper and the SDNA allege the city wrongfully went into a closed-door executive session in 2008.
Mayor Ken Tracy said he is in favor of a resolution to the matter. Tracy met with Koch to discuss the proposal, but he said he’s not sure exactly what will be proposed.
“He thinks he can get it all resolved and I do not know what all constitutes or if (the newspaper) would accept it,” he said. “He thinks it’s time to get it resolved and I don’t have an argument with that. It’s drug on long enough.”
Koch was not available for comment.
The city has been represented by the Public Assurance Pool, which hired Sioux Falls lawyer Doug Diebert. Koch, who took over as city attorney in July after Randy Stiles was not retained, will make an explanation to the City Council at tonight’s meeting.
Jon Arneson, the Sioux Falls lawyer representing The Daily Republic and the SDNA, said he is unaware of what the city is proposing but hopes to see the matter resolved.
The genesis of the lawsuit was a June 2, 2008, executive session conducted by the Mitchell City Council at the request of Stiles, who was then the city attorney. After the executive session, The Daily Republic learned from two council members — including Tracy, who was then on the council — that the topic of the executive session was a little-known state law requiring a public election to remove a park designation from public property.
Council members had been considering — against the wishes of some vocal opponents — removing the park designation from some undeveloped public property near Mitchell Middle School. Council members had thought they could repeal the park designation themselves, but according to what two council members told The Daily Republic, Stiles told them during the executive session that a public election on the matter appeared to be necessary.
The Daily Republic filed a complaint with the local state’s attorney alleging that the executive session was improper. There are five justifications in state law for executive sessions, and the relevant one in this case allows executive sessions for “consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters.” The Daily Republic alleged there had been a violation of that language in state law, because the executive session had not involved “proposed or pending litigation” or “contractual matters.”
The state’s attorney forwarded the complaint to the Open Meetings Commission, a panel consisting entirely of lawyers from around the state. The OMC found that no violation had occurred. The Daily Republic felt the OMC decision was wrong and filed a lawsuit seeking an opinion from a judge, and that lawsuit is still pending.
Tonight’s meeting will be held at 7:30 at City Hall Council Chambers, 612 N. Main St. The meeting is being held today instead of the regular Monday because of the Labor Day holiday.
In other agenda items, the council:
• Hold the first reading of Ordinance 2409, the 2013 annual appropriation ordinance.
The council held three nights of budget hearings to prepare for the upcoming new fiscal year. It must finalize the process this month and submit its proposal to the state.
• Consider adopting Resolution 3020, the annexation of Starlite Estates.
Carol DuBois, who is the only person who lives in the area, has requested the annexation.
• Will hold an executive session under South Dakota Codified Law 1-25-2 (3). Tracy said a land acquisition is under discussion.
• Reconsider Resolution 3003, the purchase of the old Longhorn Bar property for $1.
It was tabled at the Aug. 20 meeting.
The council plans to buy the building, which has been closed since part of the ceiling and a wall collapsed in November, and tear the structure down. It is believed to be the oldest building in Mitchell. The Longhorn Bar moved across the street and reopened for business earlier this year.
• Hold the second reading of and consider adopting Ordinance 2408, which would repeal the city zoning regulations, and replace it with revised zoning regulations.
It has been under review by the city for two years. The council had considered giving it final approval Aug. 20 but Koch had questions and objections.
The council directed the city attorney to meet with the Planning and Zoning Commission to discuss his concerns. He did so on Monday, and the commission asked him to come back in a month.
• Consider Resolution 3021, the plat of Tract 1 of Rezac’s Addition, a subdivision of Lot A in the south half of the south half of Section 5, T 102 N, R 60W, of the fifth prime meridian in Davison County.
• Consider Resolution 3022, the plat of Lot SC-4-3, a portion of Lot SC-4 in the northwest quarter of Section 15, T 103 N, R 60 W of the fifth prime meridian in the city of Mitchell.
• Consider approving a work order for an engineering agreement for a historic bridge on Phase III of the city bike trail with the state Department of Transportation.
The city is planning to relocate a bridge from an area county and place it on the bike trail.
• Consider a funding agreement with SDDOT for a project on Spruce Street from Rowley to Ohlman.
• Consider an automatic supplement of $780 to the General Fund, Library, for books from a refund due to overpayment.
• Consider an automatic supplement of $798 to the Special Revenue Fund, Parks and Recreation, for the purchase of a park bench from a donation of funds.
• Consider an automatic supplement of $12,690 to the Enterprise Fund, Corn Palace, for vehicle repair from an insurance claim reimbursement for hail damage.
• Review the application of the ParTee Bar for a Special Event Liquor License at the Corn Palace and City Hall on Oct. 19 for the Pheasant Forever banquet.
• Approve these raffle requests: CASA with the drawings to be held on Sept. 28-29; L.B. Williams Elementary School PTO with the drawing to be held on Oct. 27, and Mitchell Skating & Hockey Association with the drawing to be held in February 2013.
• Will hear a report from the Public Health & Safety Committee, which will meet at 7:25 p.m.
The committee is considering a fireworks permit for All Star Shows for a 10-minute show on Sept. 28 after the Mitchell High School homecoming football game.
• Will sit as the Board of Adjustment to:
Set a Sept. 17 date for a hearing on the application of Jordan and Masondra Metzger for two variances to construct an accessory building at 901 E. Fourth Ave. The request is being made because the side yard corner setback is planned at five feet rather than 20 feet and the backyard setback of 3 feet rather than 5 feet.
Hold a hearing on the application of Bonnie J. Scott for a variance for a corner side yard setback of 6 feet instead of the required 20 feet at 620 East Hanson Ave.
Hold a hearing on the application of JoAnn and Travis Hohrman for a variance to request the distance between their principal and accessory building be 3 feet instead of the required 10 feet at 1505 E. Hanson Ave.
• Set a Sept. 17 date for a hearing on the application to transfer a retail (on-off sale) malt beverage license from VV Inc., doing business as SUDZ at 508 E. Havens St., to VV Inc., dba SUDZ at 508 and 510 E. Havens St.
• Approve these pay estimates:
Bike path, Phase II project 2010-2, contracted to Robert Johnson Construction. Pay estimate 1 in the amount of $61,489.98.
Gamble/Eighth/Mentzer/Foster project 2012-4B, contracted to Big “O” Concrete. Pay estimate 3 in the amount of $25,572.71.
Water meters and transmitters project 2012-11, contracted to HD Supply. Pay estimate 3 in the amount of $60,201.75.
Curb and gutter project 2012-14A and B, contracted to Rexwinkle Concrete. Pay estimate 3 in the amount of $39,887.44.
Front end loader project 2012-17, contracted to Nuss Truck & Equipment. Pay estimate 1, final, in the amount of $150,745.
Seventh Street from Sanborn to Montana project 2012-21, contracted to Schoenfelder Construction. Pay estimate 1 in the amount of $75,188.82.
Old landfill leachate monitoring project 2012-28, contracted to Leggette, Brashears & Graham. Pay estimate 5 in the amount of $279.64.
New landfill monitoring project 2012-29, contracted to Leggette, Brashears & Graham. Pay estimate 4 in the amount of $630.48.
Airport snow removal equipment building, project AIP ’25, contracted to the Mueller Lumber Company. Pay estimate 1 in the amount of $5,477.
• Will hear the invocation from New Home Lutheran Church representative.