Between the Lines

Between the Lines By David Lias As the time for the World Series nears, we find ourselves in a moment that would best be described by the immortal words of Yogi Berra: D�j� vu all over again.

Rep. Carol Pitts, R-Brookings, was before the South Dakota Supreme Court this week, arguing that she should be able to serve in the state Legislature and keep her job on the SDSU faculty with the Extension Service.

There's an eery familiarity to all of this. Back in 1998, the Vermillion City Council found itself hoisted upon the prongs of a similar dilemma when two aldermen questioned whether Roger Kozak, Frank Slagle, and Barbara Yelverton, all employees of The University of South Dakota, were involved in a conflict of interest whenever they voted on an issue that involved or benefitted the university.

In July 1999, Kozak, Yelverton and Slagle filed a motion to dismiss, claiming that the state was a necessary party defendant to the action but had not been joined as a defendant.

Subsequently, the state attorney general's office became involved. His office joined in the litigation and filed an amended complaint for declaratory judgement.

In October 2000, Circuit Court Judge Arthur Rusch ruled that no such conflict exists. He noted that the state brought this legal action under the theory that there was a conflict of interest on the part of Kozak, Yelverton and Slagle, and that voting on issues violated state law.

"There is no evidence to support the state's claim of conflict of interest," Rusch wrote. "Yelverton and Slagle are instructors or professors. They have no administrative or governing duties at USD. Their duties at USD have nothing to do with the city."

Kozak, USD's associate vice president, was in a different position due to his past negotiations with the city. Rusch noted that in Kozak's case, there is an appearance of impropriety "when he wears two hats, i.e. represents USD in negotiations and votes on the same issues with the city council."

Rush stated a year ago that passage of HB 1215 by the state Legislature resolved this issue. A provision of the statute states that any contract or agreement between a government entity and a public postsecondary educational institution poses no conflict of interest when an employee of the Board of Regents serves as an elected or appointed officer for the governmental entity, provided that the employee does not receive direct compensation or payment as a result of the contracts or agreements.

Rusch noted that Vermillion City Council members who are employees of the Board of Regents didn't receive any direct compensation or payment as a result of the contracts or agreements made between the city and USD. And despite any appearance of impropriety by Kozak, he added, the Legislature has specifically allowed precisely this sort of conflict of interest.

What does any of this have to do with Pitts? She's before the state's highest court because she was told it's unconstitutional for her to serve in the Legislature because she works for the Extension Service.

Attorney General Mark Barnett argues that Pitts has a contract with the state because she votes on the appropriations bill that supplies her income � a clear conflict with the constitution.

Pitt's attorney, Richard Helsper, said the type of contract the constitutional framers intended to prevent was when a lawmaker personally benefitted directly from a legislative vote. An example would be a business owner in the Legislature voting on a specific new project that his business could bid for and win, he said.

At first glance, one would think that a much easier remedy to this situation would be for Pitts to simply recuse herself during votes that might appear inappropriate.

But over two years ago, as the Vermillion City Council wrestled with this issue, research by City Attorney Martin Weeks revealed that abstaining from a vote was, in effect, the same as an affirmative vote.

Let's hope the state Supreme Court realizes the detrimental impact a ruling against Pitts could have across South Dakota. Helsper said if a university employee can't serve in the Legislature, then neither should any county or school district employee or anyone getting money from the state retirement fund.

That argument reasonably could be carried further. If a university employee, county employee, or school district employee can't serve in the Legislature, there likely would be a ruling eventually that they also couldn't serve in their home communities' local governments.

Yelverton is still serving as a city alderman here. Slagle has left the council, but Jack Powell, a university employee, is now a part of that governing body. Today, Kozak is the city's mayor. Floyd Boschee, a USD professor, has been a member of the Vermillion School Board for several years.

Before Rusch made his decision a year ago, he did his research. His memorandum, over 30 pages long, explored doctrines of incompatibility and several other court cases as his basis for coming to his final conclusion that no conflict of interest exists on the Vermillion City Council.

Let's hope the state Supreme Court recognizes Rusch's work and comes to a decision in Pitts' case that recognizes that university, county or school district employees, by the mere nature of their work, haven't lost the ability to fairly and impartially become involved in civic affairs.

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