PIERRE | The Associated School Boards of South Dakota can file a brief supporting the state Water Management Board against a complaint brought by Pennington County Commissioner George Ferebee, the South Dakota Open Meetings Commission unanimously decided Friday.
Chairman Kevin Krull directed the commission’s lawyer to distribute the brief to the five commissioners. Krull is Meade County state’s attorney.
Gerry Kaufman Jr. said he had previously provided copies to Matt Naasz, the lawyer for the water board, and Ferebee. Kaufman is director of policy and legal services for the school boards organization.
The commissioners set Feb. 2 for the re-hearing of Ferebee’s complaint. The commission tied 2-2 last summer and decided all five members should re-hear it.
Kaufman’s motion said the brief would present information the water board didn't commit a violation. He said it would show “the governing board of a political subdivision such as a school board or city commission, or a state board such as the Water Management Board or South Dakota Board of Education” could legally conduct deliberations in executive session.
State law 1-25-2 sets five situations when public meetings can be taken into executive session. The third exemption says: “Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters.”
The roots of the case reach back several years. Pennington County officials charged Ferebee with a zoning violation for his wastewater system. Ferebee, who lives in Hill City, filed the complaint against the water board as a private individual.
He alleges the water board members violated South Dakota’s open-meeting law in 2016. His complaint is they closed the meeting to the public and privately deliberated who should regulate wastewater treatment systems.
The state board publicly ruled they or other local governments could regulate wastewater systems.
Ferebee complained to the state commission that the water board members should have talked about the issue in public. That produced a split vote by the commission.
Voting for a violation at the Aug. 31 hearing were Aurora County state’s attorney John Steele and Bon Homme County state’s attorney Lisa Rothschadl. Voting to dismiss the complaint that day were Krull and Grant County state’s attorney Mark Reedstrom. The fifth member, Sully County state’s attorney Emily Sovell, didn’t attend the meeting.
Ferebee described the school boards filing Friday as 19 pages of “balderdash.”
Commission chairman Krull initially gave Ferebee and Naasz a deadline of Jan. 19 to file responses to the school boards filing. That matched a federal-courts rule regarding such briefs.
But Steele said he sensed Ferebee wanted more time. Steele suggested the commission accommodate Ferbee because he isn’t a lawyer. Ferebee said Steele was right.
Sovell in turn suggested the Jan. 29 deadline. She indicated the commission should decide the matter Feb. 2. “We all had a lot of time to think about it,” Sovell said.
Ferebee opposed allowing the school boards brief. He argued Friday the deadline should have been before the Aug. 31 hearing by the meeting commission.
He also said state law doesn’t give authority for the commission to accept outside briefs. “We need to draw the line on what’s allowed and not allowed,” Ferebee said.
School boards lawyer Kaufman said the case was still pending. “It was very timely,” he said.
As to authority, Kaufman said it was “implied.” Kaufman said the situation was “analogous” to the commission accepting oral arguments even though state law doesn’t specifically authorize it.
None of the commissioners disagreed with Krull’s initial observation that more information was better for deciding cases. None of them disagreed either with Steele’s later comment that authority was “implicitly left up to us.”
Ferebee said the case had already been heard on its merits. The South Dakota Supreme Court had ruled many times that local governments have only the powers given to them by the Legislature, Ferebee said.
“You’ve got to have something to imply from,” Ferebee said.