PIERRE, S.D. (KELO) — The Lincoln County Commission has been found to have violated a portion of South Dakota’s open-meetings law.
The South Dakota Open Meetings Commission on Monday decided the Lincoln County Commission didn’t comply with a requirement to notify the public that a quorum of its members might attend an event that NuGen Energy held for Summit Carbon Solutions’ proposed carbon-dioxide pipeline last year.
The state panel found that the Lincoln County Commission specifically violated the portion of South Dakota’s meeting-notice law pertaining to “any event hosted by a nongovernmental entity to which a quorum of the public body is invited and public policy may be discussed, but the public body does not control the agenda.”
The Lincoln County Commission has five members. Three of them — Joel Arends, James Jibben and Michael Poppens — attended an open house that NuGen Energy of Marion hosted for Summit Carbon Solutions on November 28, 2023.
Sully County State’s Attorney Emily Sovell chairs the state open-meetings panel. She asked Drew De Groot, who serves as Lincoln County’s chief civil deputy state’s attorney, whether the three county commissioners anticipated discussing public policy. De Groot said that wasn’t clear.
Turner County State’s Attorney Kate Hoffman, another member of the state panel, asked whether the county commissioners knew that a majority would be attending. “They were not sure whether there would be a quorum or not,” De Groot replied.
De Groot said they received invitations “a day or two” before the event. “They did not discuss noticing it with myself or anybody with the commission office,” he said.
According to De Groot, the Lincoln County Commission is now providing public notice whenever a quorum might be present at an event, such as a recent bridge dedication. “They have been pro-active since that point,” he said, referring to the NuGen event for Summit.
Wendi Hogan, a Lincoln County resident, filed the complaint against the Lincoln County Commission. She previously served as chair of the Lincoln County Planning Commission. She said she wasn’t invited to the NuGen/Summit event because, in her words, “I was opposed to the pipeline.”
Hogan told the state panel there was a reason that invitations went to the three commissioners: “They were invited to push this through.” She added, “They went against their ethics, against what they swore to do for our county…They knew what they did was wrong, and they thought they could get away with it.”
Another state panel member, McPherson County State’s Attorney Austin Hoffman, said the advice he is now giving his county’s commissioners is that they formally notify the public any time one of them is invited to an outside event that might be attended by another of the county’s commissioners.
“Is it an unfortunate circumstance?” Hoffman said about the Lincoln County situation. “Of course it is. But the reality of it, I think there was a quorum of the public body that was invited and there was a high likelihood that public policy was going to be discussed.”
Sovell said the CO2 pipeline issue is well-known at the state and county levels. “Could there have been public issues that arose when a quorum was present? Could be, but again they did not know that the rest were invited, and I don’t know how we remedy all those with an admonition from our board to say, ‘No, no, we can’t do this,'” she said.
“But,” Sovell added a short time later, “you’re right, when it is a topic that has been presented before the commission in the past, the safest way is to make sure the public is aware that they’re gathering.” She paused. “I don’t know. I could go either way on this one.”
McPherson County’s Hoffman weighed in with another point.
“I also see it as a commissioner’s responsibility to see if a quorum is invited or not, especially when you have something that is such a hot-button topic like this,” he said. “There is a little bit of a responsibility on the commissioners to see if other commissioners have or have not been invited. That’s not in statute, but I think when the statute says if a quorum of the public body is invited, there is some responsibility on that public body to see if a quorum has or has not been invited.”
State panel member Lance Russell, the state’s attorney for Fall River and Oglala Lakota counties, called for the Lincoln County Commission to be found in violation of South Dakota’s open-meeting notice law.
“I think it’s an unfortunate situation because this is probably the trickiest area for commissions and other boards to navigate,” Russell said. “However, I do believe that the interpretation of it, where there may be discussion of public policy, this clearly was, and that’s why I asked the question of Lincoln County about, Had this been essentially on their radar, had it been on their agendas? It has been.”
South Dakota voters earlier this month refused to let SB201 take effect, with 59% saying no, after the Legislature had approved it and Governor Kristi Noem signed it. Before it could take effect on July 1, however, opponents referred the pending law to a statewide vote.
The legislation attempted to provide protections to landowners, but opponents said the final version would have substantially changed a key state law so that linear transmission facilities such as pipelines could more easily get a permit from the state Public Utilities Commission.
The commission relied on that law a year ago to deny permit applications from Summit and another CO2 pipeline.
Summit announced this month that it would file a new application with the PUC on November 19.
