Council upholds fire hall decision; City attorney failed to inform aldermen there could be no refere

Council upholds fire hall decision; City attorney failed to inform aldermen there could be no referendum by David Lias Alderman Kevin Annis, who adamantly opposed the construction of a proposed $1.2 million fire hall/ambulance facility in Vermillion earlier this month, changed his mind during a budget workshop held Wednesday night.

The budget hearing's agenda included reconsideration of the fire/ambulance bid award, approved Aug. 7 by the council.

Annis voted no on the reconsideration, and Alderman Roger Kozak changed his vote to yes. The motion to reconsider the city council's awarding of the bids for the new building failed by a 5-4 vote, with council members Grause, Kozak, Leo Powell and Slagle voting in favor of reconsideration.

The reconsideration came about after a budget hearing on Monday, Aug. 14. At that meeting, Alderman Roger Kozak requested a parliamentary inquiry as to when would be the appropriate time to reconsider the action taken at the Aug. 7 meeting.

It was agreed that a motion to reconsider the action would be in order and could be added to Wednesday's budget workshop agenda.

On Aug. 14, Kozak also made a motion to reconsider the fire/ambulance facility bid award from the Aug. 7 council meeting. There was discussion at that time of the need to determine if the city would have any liability to the contractor if the action to award the contract was changed, or if the citizens could bring suit against the city. Aldermen also requested that City Attorney Martin Weeks provide an opinion Wednesday on whether or not citizens were able to refer the awarding of the contract to a public vote.

Weeks told aldermen Wednesday that his research indicates, without a doubt, that a contract was not in place yet for the fire hall/ambulance facility.

"A public contract is not a contract until it is signed by the proper party," Weeks said. "That is based on statute."

The city council had earlier directed that the contract with the low bidder for the building project not be signed by the mayor until aldermen's inquiries were answered.

"As to the liability of the council to the citizens of the city, I think there is not liability there," Weeks said.

He added that the issue couldn't be referred to a public vote because of a change in state law over a decade ago.

"In 1988, there was a change made by the Legislature, and they made a division over what is referable and what is not referable," Weeks said.

Legislative matters are normally accomplished by ordinances and administrative matters are accomplished by resolution, he added. A legislative matter can be referred to a public vote by the people; an administrative matter can not.

Weeks affirmed what was discussed at the Aug. 7 council meeting. The awarding of bids for the building is an administrative matter, he said, and is not subject to a public referendum.

"I think I can speak for a number of people on this group who, throughout this entire process, were under the impression that there were still opportunities for this action to be referred to the public," Kozak said. "My question then is at what point does the city attorney or the city staff have a responsibility to perhaps clarify that to the council members when they had that knowledge available to them, and it was apparent that council members were under the impression the item was still referable."

Weeks said he wasn't aware that aldermen were concerned about that question. "As a matter of fact, I was under the impression that it was referable until I did some research on it myself," he said.

City Finance Officer Mike Carlson made a call to a staff member of the Legislative Audit Office in Pierre. "Mike and I decided there should be some research on it, and I did the research," Weeks said.

Kozak said he believed it was safe to assume that all of the aldermen, collectively, were improperly informed and were doing business in a manner that was not directly communicated to the public.

Weeks was asked when his research determined that the building issue couldn't be referred to a public. Once again, aldermen found themselves stunned when they heard his response.

He said he made his determination on July 18.

"But the council wasn't told about that until Aug. 7," Alderman Leo Powell asked.

Weeks replied that he didn't feel he was withholding information. "I think that I usually have a request for an opinion before I volunteer one," he said.

"According to your own correspondence, Martin, you knew that fact almost a month before and you shared that with city staff," Kozak said, "and the council, knowing full well that this was a very sensitive issue, was never apprised of that same information, and I'm confused as to why it was held so guarded."

Weeks said he didn't share the information because he wasn't sure that the council held the assumption that the issue could be referred by voters.

"I'm not here to argue, because I think it's all over with," Alderman Joe Grause said. "But the night that Mr. Radigan quoted to me that we could bring this to a vote of the people, he said, 'Isn't that right, Martin,' and Martin said, 'Yes, that is right.' Now that kind of gives me a pretty good opinion that the city attorney told me that I could bring it to a vote of the people, and that's what I was led to believe right up to Aug. 7."

Weeks replied that he made that statement in June before he had done his research.

"Well then shouldn't it have been your duty to come to me and say, 'Joe, I told you that was true but I have researched it and it's not,' rather than letting nine people sit in the dark?"

City Manager Jeff Pederson also noted that at some point before Aug. 7, he too was informed of Week's findings, but failed to share them with the city council.

"The issue that's before us is that this got out of hand," Kozak said, adding that he was a source of false information to the public because he was not adequately informed of the status of what would occur.

"All of us took an oath that we were going to serve this community with honesty and integrity," Kozak said before the council voted reconsidering the Aug. 7 motion. "For whatever reason, we were put in a position where we could not perform in that matter."

Kozak said he would work hard to ensure that the community receives a new fire/ambulance facility. "But before that," he added, "I'm going to be certain that we do not exclude the citizens of this community who we represent from their honest opportunity to interject their thoughts if they so choose."

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