Mitchell City Council OKs settling suit with paper

Talk about it

A lawsuit brought in 2009 by The Daily Republic and the South Dakota Newspaper Association appears to be settled following the Mitchell City Council’s acceptance Tuesday night of an order called a “stipulation.”

The council voted unanimously during a regularly scheduled meeting at City Hall to accept the agreement. It contains several promises from the council, in light of violations the newspaper and the SDNA claimed the council committed during and after a closed meeting in 2008.

Councilman Mel Olson asked City Attorney Carl Koch if the agreement amounts to an acknowledgement of wrongdoing by the City Council. Koch described the agreement as forward-looking.

“We’re saying what we will not do,” Koch said.

According to the stipulation, the council promises to:

• Specify, every time it goes into a closed-door meeting known as an “executive session,” which provision of the state’s open-meetings law it is using to justify the executive session.

• Record and reflect in the minutes the state law used to justify each executive session.

• Forgo the invoking of attorney-client privilege as a justification for an executive session unless the subject matter of the attorney-client discussion is strictly limited to “proposed or pending litigation or contractual matters.”

“Attorney-client privilege” is a legal concept that protects certain communications between a client and an attorney and keeps those communications confidential.

South Dakota’s open-meetings law contains five reasons a public body may choose to enter an executive session. The law does not contain a blanket provision for carrying out a privileged discussion with an attorney. It does say a public body may enter an executive session to consult with an attorney or review communications from an attorney, but it adds that the subject must be limited to “proposed or pending litigation or contractual matters.”

During a July 2011 deposition at the Davison County Courthouse, then-City Attorney Randy Stiles was questioned by the attorney for The Daily Republic and the SDNA, Jon Arneson, of Sioux Falls. Stiles claimed during the deposition that all discussions covered by attorney-client privilege are permissible in an executive session, even if those discussions fall outside the parameters of what state law defines as acceptable executive-session topics.

The new stipulation forbids the Mitchell City Council from using such a claim in the future to justify an executive session.

Stiles, meanwhile, was passed over for reappointment to his city attorney post earlier this year by Mayor Ken Tracy. Koch is the new city attorney.

The genesis of the lawsuit was a June 2, 2008, executive session conducted by the Mitchell City Council at the request of Stiles. After the executive session, The Daily Republic learned from two council members — including Tracy, who was then a councilman — that the topic of the executive session was a 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 said 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 illegal. The newspaper alleged that while the executive session had been conducted for the express purpose of “consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters,” there had not been any “proposed or pending litigation” or “contractual matters” discussed. Instead, the newspaper claimed, the council had wrongly gone behind closed doors to discuss a matter of public interest — namely, the removal of a park designation from public land and the requirement of an election to do so.

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. That lawsuit lingered in the court system until Tuesday’s action by the council members, most of whom were not on the council when the complaint originated.

Other business

In other agenda items, the council:

• Held the first reading of Ordinance 2409, the 2013 annual appropriation ordinance. Finance Officer Marilyn Wilson said the 2013 budget is $29.1 million and the general fund portion is $16.8 million. The cash balance is $2.7 million.

• Held an executive session to discuss buying land for a new City Hall. The closed-door session, held under South Dakota Codified Law 1-25-2 (3), was at the end of the meeting. The council took no action when it came out of the executive session. Wilson said it will be addressed on Sept. 17.

• Adopted Resolution 3020, the annexation of Starlite Estates. Carol DuBois, who is the only person who lives in the area, requested the annexation.

• Tabled Resolution 3003, the purchase of the old Longhorn Bar property for $1, until Sept. 17.

It also had been tabled at the Aug. 20 meeting. The city has been planning to buy the building, which has been closed since November, and tear down the two buildings on the site.

Koch said there were some unresolved issues that “may or may not” impact the city’s actions. He said the next step is to determine if the city will seek to recover its costs from the property’s owner through a civil suit or by other means.

Olson said he recently was told by Public Works Director Tim McGannon the next step is to remove asbestos, which would cost around $20,000. But the city may be eligible for some financial assistance to remove it, he said.

• Tabled, for the second time, the second reading of Ordinance 2408, which would repeal the city zoning regulations and replace them with revised zoning regulations.

Koch met with the Mitchell Planning and Zoning Commission last week to attempt to resolve some questions he had over the ordinance, which has been in the works for two years. The commission asked him to come back in a month with a report.

“We’re not ready to proceed at this point,” Koch said.

Council President Jeff Smith and City Planner Neil Putnam both noted if major changes are made, the hearing process, complete with public notice, may have to be redone.

• Approved 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. The property is outside the city limits but within the three-mile zone that requires council approval.

• Approved 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.

• Approved a work order for an engineering agreement for a historic bridge on Phase III of the city bike trail project with the state Department of Transportation. A bridge located near Geddes in Charles Mix County will be brought to Mitchell and placed on a new bike path in northwestern Mitchell leading from Cemetery Road to the west end of Lake Mitchell. The bridge will be relocated next summer.

• Approved a funding agreement with SDDOT for a project on Spruce Street from Rowley to Ohlman.

• Approved an automatic supplement of $780 to the General Fund, Library, for books from a refund due to overpayment.

• Approved 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.

• Approved an automatic supplement of $12,690 to the Enterprise Fund, Corn Palace, for vehicle repair from an insurance claim reimbursement for hail damage.

• Approved 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.

• Approved three raffle requests: CASA with the drawings to be held Sept. 28-29; L.B. Williams Elementary School PTO with the drawing to be held Oct. 27; and Mitchell Skating & Hockey Association with the drawing to be held in February 2013.

• Sat 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 and approve 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 and approve 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.

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