A divided city council? Conflict of interest charges spark a growing rift by David Lias People who observed the final portion of Monday's Vermillion City Council meeting could easily detect that a rift is growing among the members of the governing body.
At least two members of the council have raised questions over whether three of their colleagues: Frank Slagle, Roger Kozak and Barbara Yelverton, who are associated with The University of South Dakota, are involved in a conflict of interest whenever they vote on an issue that involves or benefits the university.
Those questions have led to court action. The state of South Dakota served a summons to Kozak, Slagle, and Yelverton on Nov. 5. They have until Dec. 5 to contact Clay County State's Attorney Tami Bern to respond to the legal complaint.
The City Council unanimously voted Monday to direct City Attorney Martin Weeks to intervene on behalf of the city and to assert the rights of Kozak, Slagle, and Yelverton.
To make sure there were no signs of impropriety, however, the three aldermen mentioned above left the city meeting chambers when the vote was taken on this resolution.
Weeks had earlier told the council that, according to his research, city council members who felt that their votes on issues could be defined as conflict of interest couldn't simply abstain from voting because they don't have the right to abstain.
A council person must vote either yes or no, he said. If they abstain, their votes are simply tallied to be counted with the majority vote.
The summons notes that Slagle, Kozak and Yelverton, "have actively participated in discussions and voted on matters involving contracts by and between the city of Vermillion and The University of South Dakota . . . All defendants have also actively participated in discussions and voted on matters involving gifts made to The University of South Dakota from public funds."
The summons states that this is also an ongoing issue as contracts involving The University of South Dakota are routinely presented to Vermillion City Council for consideration.
The resolution approved by the council Monday reads: "Whereas three alderman of the City of Vermillion have been named as defendants in an action for declaratory judgement in circuit court in and for Clay County, questioning their rights to vote on certain resolutions authorizing contractual relationships between the City of Vermillion and The University of South Dakota on the grounds of alleged conflict of interest;
"Whereas ongoing contractual relationships between the City and University are now, and nearly always are in progress, and a judicial determination that the aldermen were disqualified from voting would result in an avoidance of its contracts, and whereas cooperative relationships between the City and the University which are likely to take place in the future require answers to the questions raised by the pleadings in said legal action and it is necessary in the interest of the City to appear in the action to defend the propriety of its contracts;
"Now therefore it is resolved that the city attorney is authorized and directed to apply on behalf of the city to the Court for leave to intervene on behalf of the city and assert the rights of defendants to vote on relevant issues and consequently the enforceability of its contracts."
Weeks told the council earlier in the meeting that it was difficult for him to advise him on some aspects of this issue. "Our (state) Supreme Court hasn't yet made a decision on some of the issues involved in this situation," he said, "and I think they are of vital importance to the city, both with respect to our past and with respect to our future."
Weeks said the complaint is an action for declaratory judgement, "and the only thing to be decided in this particular action is whether Kozak, Slagle and Yelverton were disqualified from voting as a result of their employment with the university."
The conflict of interest issue was raised earlier this year by Councilman Leo Powell an employee of Clay-Union Electric, who was elected in May. He told the Plain Talk in July that he and Councilman Dick Burbach, who also is employed by Clay-Union Electric, were told that there may be a conflict of interest if they voted on issues involving the electric cooperative. Powell said he and Burbach then abstained from voting on such matters. "At that time, I wondered why university employees could vote on city matters relating to USD, but Clay-Union employees couldn't," Powell said in July. He eventually took his concerns to Bern, who requested the declaratory judgement from Circuit Court Judge Arthur Rusch.
Bern confirmed this week that Yelverton, Slagle and Kozak have until Dec. 5 to answer the court summons. It was noted at Monday's meeting that even though the council had passed a resolution directing the city attorney to intervene on their behalf, they also would likely to have to acquire their own attorneys.
Bern said this week that after a discovery period during which time information can be gathered on the various issues that the three aldermen voted on, a hearing date will be scheduled before Rusch.
That hearing, she said, likely may not be scheduled until January. By then, a new session of the state Legislature will have begun, she said, and lawmakers in Pierre may also address this issue.