Plaintiffs file appeal in 2-2 tie case

Gray Hughes

An appeal seeking a declaratory judgment regarding the Hill City Council’s 2-2 tie voting issue has been filed by Hill City aldermen John Johnson and Jim Peterson, the plaintiffs in the case.

The appeal was dated Dec. 16 of last year and aims to send the case to South Dakota’s highest court.

“Plaintiffs sought declaratory judgment that the appointment of a City Attorney and City Administrator constituted appropriations or expenditures under the law and therefore the mayor is precluded from casting a vote on said appointments and further that the appointments of the existing City Attorney and City Administrator are null and void,” the appeal, filed by the plaintiff’s attorney Steven Sandven, said.

The appeal says that the plaintiffs are seeking review on “whether the trial court properly interpreted the statutes consistent with the law and whether the trial court made improper findings of fact without any basis of support in the record.”

The appeal comes after Seventh Judicial Circuit Court judge Heidi Linngren sent a letter to the attorneys in the case that then-mayor Julie Wickware-Klein acted within her rights to break the 2-2 tie, meaning that the appointments are valid.

“Having considered the record, briefs and arguments of council, for the reasons set forth below, The Court hereby finds the appointment of the City Administrator and City Attorney did no constitute an appropriation or expenditure under (South Dakota Codified Law) 9-8-10, and therefore the appointments are valid,” Linngren wrote in the letter last November. “Plantiffs’ request for rescission of the appointments is hereby denied.”

The lawsuit spans from a Hill City Common Council meeting in July 2018. At the meeting, then-mayor Wickware-Klein appointed Brett McMacken, city administrator for Hill City, and Frank Bettmann, city attorney for Hill City, to serve in those roles once again.

The motion was made by then-alderman Jason Gillaspie and seconded by then-alderwoman and now Hill City mayor Kathy Skorzewski to approve. The vote ended in a 2-2 tie with Gillaspie and Skorzewski voting for the appointments and aldermen John Johnson and Jim Peterson voting against the appointments.

Wickware-Klein broke the tie votes, meaning the city administrator and city attorney were appointed.

In February of last year, Johnson and Peterson filed a complaint seeking a declaratory judgment that the appointment of the city administrator and city attorney should be considered an appropriation of funds or an expenditure, meaning the mayor cannot serve as the tie-breaking vote under South Dakota Codified Law (SDCL) 9-8-10. Peterson and Johnson also asked the appointments be rescinded.

Johnson and Peterson argued the appointments constitutes an expenditure of money since they are paid positions.

However, in the defendant’s answer to the plaintiffs filed in court in March  2019, the defendants said they were seeking a declaration that the city administrator and city attorney were legally appointed, that the city attorney and city administrator are entitled to payment of salary (in the case of the city administrator) or services rendered (in the case of the city attorney) and “that a vote to expend or appropriate money occurs at the time the vote is taken to approve the city’s annual budget and not when payments for salaries or periodic payments for legal services — items which were included in the budget — are made.”

Meanwhile, the current suit names Skorzewski, alderman Bill Miner, former alderman and council vice president Jason Gillaspie, Bettmann and McMacken as defendants.

Since Linngren penned the letter in November, Bettmann has resigned as city attorney for Hill City effective Jan. 1. The law firm of Gunderson, Palmer, Nelson and Ashmore, LLP, has taken over as city attorneys on an interim basis, and Katelyn Cook, an attorney at the firm, is named as the attorney for the defendants.

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