Madison City Commission Considers Resolution Urging Yes Vote on Lake County Opt-Out Referendum

Lake County voters are voting through September 19 on an opt-out referendum to increase property taxes by $2.8 million. At tonight’s Madison City Commission meeting, city commissioners will consider urging voters to say yes to higher county taxes. Here’s proposed municipal resolution #2023-25:

RESOLUTION NO. 2023-25

A RESOLUTION PROVIDING SUPPORT FOR LAKE COUNTY PROPERTY TAX OPT-OUT

WHEREAS, Lake County employs 71 employees throughout 17 departments, and

WHEREAS, the departments of Lake County provide necessary public services and infrastructure including highways and bridges, public safety, County jail, emergency management, 911 Communications, judicial services, vehicle licensing, elections, keeping of records, financial welfare assistance, veterans benefits and services assistance, property assessments, and more; and

WHEREAS, statewide, approximately 80% of county expenditures are for statutorily required functions; and

WHEREAS, Lake County maintains over 200 miles of paved roads, 85 miles of gravel roads, and 51 bridges; and

WHEREAS, Lake County experienced a budget deficit in 2022 resulting in usage of the majority of its reserve funds, and the deficit is expected to continue; and

WHEREAS, Lake County has decreased certain expenditures in its budget in an attempt to balance the budget; and

WHEREAS, Lake County explored options for increasing revenue to balance the budget and identified an opt-out of the property tax formula as the preferred method to increase the necessary revenues to sustain services at the current level to Lake County residents; and

WHEREAS, a special election for an opt-out in the amount of $2.8 million will be held on Tuesday, September 19th, 2023;

NOW, THEREFORE, BE IT RESOLVED that the Madison City Commission expresses support for the County property tax opt-out and encourages its citizens to support it as well [Madison City Commission, proposed resolution #2023.25, agenda packet, 2023.09.05].

Before passing this resolution, the Madison City Commission may want to review SDCL 12-27-30, which prohibits the state and its political subdivisions from expending public resources to urge people to vote yea or nay on ballot measures:

The state, an agency of the state, and the governing body of any county, municipality, or other political subdivision of the state may not expend or permit the expenditure of public funds for the purpose of influencing the nomination or election of any candidate, or for the petitioning of a ballot question on the ballot or the adoption or defeat of any ballot question. This section may not be construed to limit the freedom of speech of any officer or employee of the state or any political subdivision who is speaking in the officer’s or employee’s personal capacity. This section does not prohibit the state, its agencies, or the governing body of any political subdivision of the state from presenting factual information solely for the purpose of educating the voters on a ballot question.

It is a Class 1 misdemeanor if the state, an agency of the state, or the governing body of any county, municipality, or other political subdivision expends one thousand dollars or more in public funds in violation of this section. It is a Class 6 felony if ten thousand dollars or more in public funds is expended in violation of this section [SDCL 12-27-20, amended 2023].

Sioux Falls Mayor Paul TenHaken caught a little heck last fall when he spoke out against Initiated Measure 27, the failed marijuana initiative. TenHaken, like No-on-27/Yes-on-D Rapid City Mayor Steve Allender, was covered by the freedom-of-speech exception for elected officials speaking as private citizens and not from their official podia.

But the Madison City Commission is acting in its official capacity, placing a resolution on its official agenda, and considering an official vote to tell voters what to do on a local ballot question. The Madison City Commission will spend public dollars to publish that resolution along with the meeting minutes in the local paper.

The Madison City Commission could probably get by with publishing all of this resolution’s Whereas clauses, which all may be read as factual information presented solely for the purpose of educating the voters on the opt-out ballot question. But the resolution itself—the City Commission supports the opt-out, and so should you! Vote Yes!—appears to run afoul of state campaign finance law.