Judge pens decision on 2-2 tie issue

A judge has come to a decision on the City of Hill City mayor voting on appointments.

A letter by Seventh Judicial Circuit Judge Heidi Linngren sent to the attorneys representing the two sides in a lawsuit filed regarding the 2-2 issue says 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 not constitute an appropriation or expenditure under (South Dakota Codified Law) 9-8-10, and therefore the appointments are valid,” Linngren wrote in the letter. “Plantiffs’ request for rescission of the appointments is hereby denied.”

The lawsuit spans from a Hill City Common Council meeting in July 2018. At that meeting 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 vote, meaning the city administrator and city attorney were appointed.

In February 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 Peterson and Johnson also asked the appointments be rescinded.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.

In the letter, Linngren said there are two primary rules of “statutory construction: (1) ‘the language expressed in the statute is the paramount consideration;’ and (2) “if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to the statutory construction.”

The mayor, Linngren wrote, presides over the council meetings and only casts a vote if there is a tie vote, which is set forth in SDCL 9-8-10.

Johnson and Peterson argued because of SDCL 9-8-10, the mayor could not vote to break those ties.

However, Linngren wrote in her letter that argument does not hold water.

“Nowhere in the text does the statute prevent the Mayor from breaking a tie regarding an appointment,” she wrote. “If the Court were to approve this interpretation, the Court would be adding ‘appointment’ into the text of the statute.”

It was decided in City of Sioux Falls v. Ewoldt in 1997 that the court can add words to a statue if it is “imperative to make it a rational statute,” Linngren continued. She added the words “expenditure” and “appropriation” “are not synonymous with ‘appointment.’”

According to “Black’s Law Dictionary,” Lingrenn wrote that an appointment is the act of designating a person — included non-elected officials — for a job or duty.

“Both expenditure and appropriation both deal in some form of paying out or setting aside money, while appointment has no relation to money, it provides for the designation of a person,” she wrote.

The Hill City Common Council, she wrote, approved the expenditure or appropriation of funds for the salary of the city administrator and the funds used to pay the city attorney when it approved the budget.

At the Aug. 28, 2017 common council meeting, Lingrenn wrote the council approved the salary of the city administrator as part of the 2018 budget.

“There was no discussion of salary or pay of any form at the July 9, 2018, Council meeting, in which the appointments occurred,” she wrote. “The vote was solely for approving or denying the appointment, not for approving or denying the budgeted salary or pay of either the City Administrator or City Attorney.”

Because there was no discussion regarding expenditures or appropriations regarding the city attorney and the city administrator at the July 9, 2018, meeting, the mayor was allowed to break the tie vote.

The mayor, she wrote, legally appointed the city administrator and city attorney at that meeting, which the mayor does under Hill City Municipal Code 104.05(b).

Since the mayor is a member of the council, the tie-breaking votes were permitted under Hill City Municipal Code, which makes the appointments valid.

“Based on the aforementioned reasons, the Court hereby finds that the appointment of the City Administrator and City Attorney did not constitute an appropriation or expenditure under SDCL 9-8-10, and therefore making the appointments valid,” Lingrenn concludes in the letter. “The Plaintiffs’ request for rescission of the appointments is hereby denied. Counsel for the Defendants should prepare an Order consistent with this decision.”