Aldermen file responses to circuit court summons

Aldermen file responses to circuit court summons by David Lias Ask Frank Slagle, Roger Kozak and Barbara Yelverton if their roles as University of South Dakota employees and Vermillion City Council aldermen create a conflict of interest, and you'll likely hear a quick answer: No.

In fact, the three aldermen have said as much in legal documents filed with the First Judicial Circuit of South Dakota Circuit Court on Jan. 13.

At least two members of the city council have raised questions of impropriety whenever Slagle, Kozak, and Yelverton vote on issues that involve or benefit the university, or involve a partnership between the two entities.

Those questions have led to court action. The state of South Dakota served a summons to Kozak, Slagle, and Yelverton on Nov. 5. They originally had until Dec. 5 to contact Clay County State's Attorney Tami Bern to respond to the legal complaint.

Bern, however, granted an extension to the three aldermen, placing the deadline for their responses at Jan. 15.

"We were provided an extension by the state's attorney," Kozak said, in part because of time limitations caused by the usually hectic holiday season. Another reason for the extension may be that the three aldermen weren't served their documents on the same date.

"She (Bern) was kind enough to give us some additional time to prepare our responses," Kozak said.

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 a declaratory judgement from Circuit Court Judge Arthur Rusch.

The city council unanimously voted Nov. 17 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 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 three aldermen's answers to the summons read exactly the same, word for word. But Slagle, Yelverton and Kozak each signed the bottom of their documents with the term "pro se" following their names, meaning they are responding individually.

"Certainly, we're talking to each other," Kozak said, "mainly for the sake of having consistency in our responses."

Back in November, Weeks said the three aldermen may have to seek personal legal representation to deal with all aspects of this issue.

So far, that hasn't occurred. "That's a decision that's open to the three of us," Kozak said, adding that he hasn't sought the help of an attorney, because, so far, he hasn't needed it.

"At this point, everything has been relatively straightforward," Kozak said. "There may be a point in time when legal representation will be needed, and I think we'll know that when we come to it."

Kozak, Slagle and Yelverton each state six allegations in their answers to the summons:

* They deny each and every allegation of the complaint except in two instances.

* They admit they each are a duly elected member of the Vermillion City Council.

* They also admit that each are employed at The University of South Dakota.

For their defenses, the three defendants allege that:

* The plaintiff (the state of South Dakota) has failed to join as parties the city of Vermillion and the state of South Dakota, both of whose interests would be impaired and impeded by any judgement entered by the circuit court, contrary to the provision of SDCL 15-6-19(a) and SDCL 21-24-7.

* That the plaintiff, State's Attorney Tami Bern, has no standing to be a party to this action.

* That the complaint fails to state a claim upon which declaratory relief can be granted.

The three responses conclude with this statement: "Wherefore this defendant prays that the complaint be dismissed with prejudice, for his (her) costs and disbursements herein, and for such other relief as the court may seem equitable in the premises."

The summons served to Slagle, Kozak and Yelverton notes that the three individuals "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 the Vermillion City Council for consideration.

Bern said now that Slagle, Yelverton and Kozak have filed their responses, her next step will be to study the minutes of city council meetings

"I'm making requests for admissions, to go through the city council meetings records," she said Tuesday. The three defendants would then be presented with questions that they can either admit or deny.

She said she then would likely file another legal brief with Rusch, and "give the other side an opportunity to also file briefs with the judge. Then, the judge should issue a ruling."

Bern said she is hoping to have the admissions phase completed by the end of this month. After filing her brief with Rusch, she said she would give Yelverton, Kozak and Slagle a month to respond.

"I'm hoping to have a decision from the court by the end of March," Bern said.

The resolution approved by the council back in November 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 declaratory judgement to be decided by Rusch, Bern said, involves questions on an issue of law.

"Mainly, the question is does someone have a conflict of interest when they vote on issues involving their employer," Bern said.

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