A Rapid City developer is questioning whether the city council is doing too much business behind closed doors and making decisions without giving residents the ability to defend themselves.
The nonpublic discussions that take place between the mayor, city staff and a few council members prior to meetings of the full council appear to be legal, but they open the door to questions about whether the council is acting fairly and making decisions in private that should be made in public.
In July, Rapid City developer Bill Freytag went to a city committee meeting asking for a waiver so he would not have to build a sidewalk on land he wanted to develop on the city’s far northeast side.
At the meeting, he argued that very few buildings near his site on Seger Drive have sidewalks, that there isn't much foot traffic and that the city had not built sidewalks on its property in the same area.
The public works committee, a recommending body to the city council made up of five council members, voted unanimously to allow the exemption with the condition that he sign a waiver of a right to protest. That allows the city to order in sidewalks at a later time.
This unanimous vote put the measure on the consent agenda where items are approved in bulk and typically without debate.
But later, Freytag was shocked to find out they had inexplicably taken his item off of the consent agenda, debated it and narrowly voted in favor of his waiver, 5-3.
Darla Drew and Steve Laurenti were absent from that council meeting.
"So what happened in between the public works meeting on Tuesday and the city council meeting on Monday?" wondered Freytag, a well-known local gadfly who is a watchdog over city government.
He did some digging and soon learned that the suggestion to take the matter off the consent agenda and bring it up for debate was made at the so-called agenda review meeting, a pre-agenda meeting led by city staff.
Those pre-meeting meetings, held in an office at the City/School Administration Center, are usually attended by city council leadership, the mayor and relevant city department heads.
There is no public notice, and members of the public do not attend.
They take place the Monday before the public works and legal and finance committee meetings and on the Thursday before the city council meetings, according to city spokesman Darrell Shoemaker.
Council leadership is made up of the president (Brad Estes), vice-president (Amanda Scott), and the two committee chairmen, Charity Doyle for public works and John Roberts for legal and finance.
The pre-agenda meetings for each committee are also sometimes attended by the vice-chairmen, Darla Drew for public works and Jerry Wright for legal and finance.
Shoemaker said the meetings serve as an opportunity for the city council members to clarify and detail any agenda items with the city staff that has knowledge of the matter.
They can ask questions and gain a better understanding of what is on the agenda and what they will be voting for.
Scott said last week the meetings are simply to prepare for the public meetings. She said they do things such as ensuring all of the attachments to the agenda items are correct.
Wright said they will sometimes discuss their thoughts and opinions on matters. But he said that there is nothing wrong with that because no votes are taken.
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"We don't vote until we vote on Monday night," Wright said.
David Bordewyk, head of the South Dakota Newspaper Association, which advocates for government openness, said as long as there is no "quorum," or a majority of the 10 elected members present, the agenda review meetings do not appear to violate the law.
In order to be considered a public meeting, a couple of conditions have to be met, according to the South Dakota Attorney General's Office.
There has to be a legal quorum of the public body at the same place and at the same time, and official business, meaning any matter relating to the activities of the entity, must be discussed.
At least one of those conditions for a public meeting is being met.
Shoemaker said there are rarely more than three members of the council at any of the meetings and at the most, there are four.
Regardless of whether there is an actual law violation, the pre-meeting to get clarification on items and discuss things outside of public view violates one condition and thus violates the spirit of the open meetings law, Bordewyk said.
"I would agree that at the very least some members of the council and mayor are violating the spirit of the open meetings law with a 'pre-meeting meeting'," Bordewyk said. "It’s one thing to be discussing attachments and administrative stuff, but it’s a whole other ballgame if they are actually discussing the agenda items at length."
Freytag agrees and said he believes they discussed his item at length during one of the pre-agenda meetings and without him there to defend himself.
He said he believes a member of the city staff made a case for denying his waiver and convinced a member of the city council to pull it off the consent agenda.
Freytag argues that this is actually a violation of his due process rights under state law because the decision the council was making affected his property rights.
To counteract what had been done in secret, Freytag has offered a proposed ordinance called the Appearance of Fairness Doctrine for Quasi-Judicial Proceedings.
The quasi-judicial proceedings before the city council are where city council members hear facts and make a ruling that affects a citizen's property rights.
The ordinance would require that anytime decision-makers get together to discuss a citizen's case, the citizen must be notified ahead of time and given the chance to defend themselves.
If the citizen is not notified, the decision-makers have to then disclose that at a public meeting.
Freytag argues that they then must recuse themselves from the vote, citing case law.
City Attorney Joel Landeen disagrees and said they do not have to recuse themselves from the vote.
Landeen and Freytag have worked on the ordinance together for months, but because they could not agree on that one aspect, Landeen has proposed a similar ordinance without that requirement.
The proposed ordinances are set to be discussed at Monday night's city council meeting at 6:30 p.m.