Declaratory judgement hearing scheduled for circuit court Friday

Declaratory judgement hearing scheduled for circuit court Friday by David Lias If all goes as planned, a process that may eventually settle a dispute that arose last year among members of the Vermillion City Council will get under way Friday.

Circuit Court Judge Arthur Rusch is scheduled to hold a hearing on a motion of summary judgement Aug. 13.

His conclusions from that hearing may eventually determine whether a conflict of interest exists among members of the Vermillion City Council.

The conflict of interest questions were raised in the summer of 1998, after City Aldermen Roger Kozak, Barbara Yelverton and Frank Slagle participated in discussions and votes on issues relating to joint projects with Vermillion and The University of South Dakota.

The three aldermen are employed by the university.

Last summer, Aldermen Leo Powell and Richard Burbach, who both are employed by Clay-Union Electric Cooperative, questioned whether it was proper for Kozak, Yelverton and Slagle to participate in discussions and vote on issues relating to joint projects with Vermillion and the university.

Powell and Burbach had been advised earlier by City Attorney Martin Weeks that they had to abstain from voting on matters relating to the electric cooperative to avoid a conflict of interest.

Burbach�s and Powell�s queries led to court action. The state of South Dakota served a summons to Kozak, Slagle and Yelverton in late 1998. All three responded by filing legal documents with Clay County State�s Attorney Tami Bern.

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.

Kozak, Slagle and Yelverton each stated 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 concludes 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.

In early 1999, it appeared that this issue was about to be settled by the South Dakota Legislature. District 17 Rep. Judy Clark helped introduce HB 1254, a measure that would have more carefully defined conflict of interest situations on local governing boards.

The bill was approved by both bodies of the Legislature in February and delivered to Gov. William Janklow March 1.

Janklow vetoed the bill, and the House failed to override the veto.

Bern said she doubts that Rusch will issue a decision from the bench.

�He will probably issue a written opinion,� she said, �and he is very busy. His schedule is terrible, and this may take a while.�

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