Lawsuit filed over 2-2 tie vote

By Gray Hughes


Editor’s note: This report delves into what the plaintiffs filed in court. Another report will be filed when the defense files its response in court.

A lawsuit has been filed against Hill City Mayor Julie Wickware-Klein, Hill City alderpersons Kathy Skorzewski and Jason Gillespie, Hill City city attorney Frank Bettmann and Hill City city administrator Brett McMacken regarding a 2-2 tie vote.

The lawsuit was filed on Feb. 20. Aldermen Jim Peterson and John Johnson are the two plaintiffs.

The suit stems from a Hill City Common Council meeting held July 9, 2018. In the meeting, the council voted on appointing several people to positions within Hill City, including McMacken as city administrator, and Bettmann as city attorney.

Votes for each of those two positions ended in a 2-2 tie with Skorzewski and Gillespie voting for the appointments and Peterman and Johnson voting against the appointments.

Wickware-Klein, serving as mayor, served as the tie-breaking vote in each of those instances. In the suit, it is said in the suit that she cast her vote over the objections of both Peterson and Johnson, who both said that, since the vote constituted dealing with an appropriation of money, Wickware-Klein could not serve as the tie-breaking vote since the mayor cannot vote on matters regarding the appropriation or expenditure of finance.

“Plaintiffs have at all times voiced their objection to these appointments contending that the hire of a city administrator or city attorney constitute both an appropriation and an expenditure, and for such reason defendant (Wickware-Klein) is not permitted to vote, and should not have voted,” the suit reads. “Defendants have at all times ignored or otherwise discounted said objections and have refused to rescind the unlawful actions taken by the city council July 9, 2018.”

On or about October 2018, the suit continues, Bettmann wrote a legal opinion outlining his opinion on these matters. Thus, the suit reads, Bettmann has performed legal services as city attorney, which means he is entitled to compensation.

That, the suit reads, is an expenditure.

McMacken, as city administrator, is paid and has a set salary and a regular pay schedule, the suit reads, which means his appointment effects an appropriation and expenditure by the city. That, the suit reads, means the mayor cannot vote on the matter.

Bettmann is not a salaried employee of Hill City, however, the suit reads that he is paid monthly, which makes it an appropriation of funds because the city attorney is authorized to handle the legal business of Hill City and is permitted to bill Hill City at a “reasonable rate” for his services performed.

“When construing ordinances or other legal documents, words must be given their normal and customary meaning unless otherwise defined,” the suit reads. “The customary use of the terms appropriation and expenditure include any time the city council is, has or is planning to expend money or disburse funds at some point in the foreseeable future.”

Because of the mayor’s vote, the plaintiffs are “entitled to a declaratory judgment” that the hiring of both Bettmann and McMacken is null and void.

Both Peterson and Johnson have been “damaged” because the council hired two employees that are being paid by the city that, the suit reads, was not “conducted in a duly authorized manner pursuant to (South Dakota Codified Law). Said appropriations are not properly authorized by the municipal process of the city.”

As a result, the suit reads, plaintiffs Peterson and Johnson are entitled to a declaratory judgment that hiring both Bettmann and McMacken “constitute an improperly authorized appropriation or an expenditure and therefore are null and void.”

In the suit, Peterson and Johnson are asking the court to enter a declaratory judgment that “any decision made by the city council of the City of Hill City which directly authorizes the expenditure of money by the Municipality of Hill City Constitutes an appropriation and or expenditure under SDCL 9-8-10.”

The plaintiffs are also asking that a declaratory judgment on whether or not the expenditure of money, at some future date, whether designated or not, constitutes an appropriation of money under SDCL 9-8-10, enter a declaratory judgment that the appointment of the city administrator and city attorney constitutes an appropriation of money under SDCL 9-8-10, which would mean the mayor is not able to vote on these matters, enter a declaratory judgment that the appointment of McMacken and Bettmann are null and void and award the plaintiff’s attorney fees and other further relief the court deems proper.

At the Hill City Common Council meeting Monday, Feb. 25, Peterman announced to the council and the public that the suit has been filed to resolve the matter.

No further discussion was had on the matter at the meeting.