Lake Byron Sanitary District Refuses to Provide Public Documents

The Lake Byron Sanitary District continues to have trouble operating according to Hoyle. They have a $3.475-million loan and a $2-million grant approved by the state in March 2018 waiting to build a central sewer system, but their court-appointed interim board can’t even comply with a simple open records request.

According to a complaint filed in the Third Judicial Circuit last week, Larry Cooper and Brad Tschetter, two gentlemen who ran for the Lake Byron Sanitary District Board in an election last July that the board trustees ran so poorly the court had to step in and appoint the current members, asked on February 19 to “examine, on or before February 28, 2019, all public records at the Lake Byron Sanitary District’s business office.” Cooper and Tschetter wanted to look at meeting minutes, income and expense statements and supporting documentation, the mailing list used for “billing” purpose, a report on payments, and copies of engineer estimates, plans, and correspondence pertaining to the sewer system for which the district has $5.475 million burning a hole in its pocket.

The Lake Byron Sanitary District dispatched its attorney, Jerome Lammers of Madison, to send Cooper and Tschetter’s attorney, R. Shawn Tornow of Sioux Falls, this message rejecting the open records request:

I am scratching my head to understand why and from where this demand for production of documents may come. We certainly did not stipulate to settle the lawsuit to encourage requests like this. The only thing that the interim trustees are to do deal with is the election on May 21, 2019, to elect three trustees and to determine whether to increase the number of trustees from three to five, and absolutely nothing more. This kind of thing may eventually be warranted, but only after the election of three new trustees.

Consequently, I am requesting that you contact your clients and tell them exactly what I have said. They will be getting no documents whatsoever at this time. I do not recall whether in the course of the lawsuit certain documents were presented by the District to your clients, but it seems as though you or they had asked for some minutes, etc. But that is particularly a non-event with the settlement of the lawsuit.

Your clients will have to go to court if they want to do anything else other than concern themselves at this time with the forthcoming election [Jerome Lammers to R. Shawn Tornow, e-mail, 2019.02.21, included as Exhibit D in Cooper and Tschetter complaint, filed 2019.04.17].

Hmm… the plaintiffs and the board did indeed settle their lawsuit last fall over the botched July election. The court did appoint interim board members to conduct the upcoming May election and restrict them from advancing the sewer project or continuing their collection of voluntary payments to the sewer fund until after that election. But nothing in the settlement (included in the complaint exhibits) indicates that the judge suspended state open records law. Nowhere does statute say that a public body can deny the public access to all of its records just because its board members are appointed or because there is an election coming. To the best of my knowledge, no settlement can render public documents non-public.

Cooper and Tschetter aren’t asking for much. They just want to see the minutes and other public documents of a body that presumes to govern them… and see the court fine that body the $50 authorized by SDCL 1-27-40.2 for each day that the body unreasonably denies them access to those public documents. And when Jerry Lammers says you get “no documents whatsoever” without citing any statutory justification for that denial (and there are many exemptions to the public records law, if Jerry cares to search for one to save his clients’ hides), that qualifies as “unreasonable.”