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Daily Republic battles South Dakota school district for records about payment to ex-employee
In late 2011 or early 2012, I received a phone call that set off a nearly two-year fight over a government record.
The caller, who wished to remain anonymous, had browsed the Huron School District legal announcements printed in the Classifieds section of The Daily Plainsman, a newspaper published in Huron, S.D. The tipster said the legals contained a long list of recent bills paid by the district. Buried within that list was a payment of nearly $11,000 to an ex-superintendent. Would The Daily Republic, the tipster wondered, be willing to investigate why the district was still paying an ex-employee?
I assigned a reporter to look into it. District officials acknowledged they had been paying former superintendent Ross Opsal but declined to divulge anything beyond the amounts published in the legals. They said the terms of the payments were part of a sealed agreement. I was not satisfied with that answer but sensed help was on the way in the form of state legislation.
The legislation was not directly connected to our fight but was signed by the governor only seven days after our first story on the Huron situation published. The legislation clarified that “any current or prior contract with any public employee and any related document that specifies the consideration to be paid to the employee” is a public record.
After the new law took effect, I made a new request to the Huron School District for a copy of the secret agreement. With a new refusal in hand, I filed an appeal with the South Dakota Office of Hearing Examiners. That office is designated by state law as the arbiter of open-records disputes.
The process amounted to nothing more than my written appeal, using forms and procedures spelled out in state law, followed by a written response from the Huron School District’s lawyer, and then a couple of additional emails back and forth and a lot of inquiries by me about when a decision might finally be issued. It took six months to get the decision; nevertheless, the hearing examiner who studied the appeal sided with The Daily Republic and, in March, determined that the secret Huron agreement was a public record.
Instead of surrendering the record, the school district and its attorney appealed to circuit court. They didn’t have any better luck in that setting, where we were joined in our defense of the hearing examiner’s ruling by the South Dakota Newspaper Association and its attorney. In August, the judge in the case affirmed the hearing examiner’s earlier decision and ruled that the Huron document is an open record. The district could have appealed to the South Dakota Supreme Court, but did not.
The evening of Sept. 9 brought the first Huron Board of Education meeting since the judge’s ruling, and the board voted to open the document and read it aloud. It revealed -- cue the drum roll -- not much of anything. It basically confirmed that money was paid to Opsal as part of an agreement that ended his employment.
The document did not contain the only information we really want, which is a clear explanation of why Opsal’s employment ended so abruptly before he was halfway through a three-year contract, and why the school board felt compelled -- in exchange for Opsal’s departure -- to make monthly payments to him that we now know stretched for about 15 months and totaled about $175,000.
My guess is that the school board members wanted to part ways with Opsal, but the only way they could do it -- perhaps because of resistance from Opsal, who was under contract -- was to pay Opsal to go away.
Such an arrangement is likely to invite scrutiny from taxpayers. It’s no wonder, then, that the Huron Board of Education went behind closed doors to concoct the Opsal agreement in an “executive session” -- a euphemism for a closed-door, non-public meeting -- and then proclaimed it forever sealed. The board members and their attorney didn’t want the public to know what they did. And they would have gotten away with it, too, if it hadn’t been for those darn newspaper legals they had to publish, and that pesky tipster, and that annoyingly persistent newspaper.
That’s my theory, anyway. We may never know the whole truth, because the Huron Board of Education has never come forth with all of it.
But at least we’ve shown one government board that it can’t go behind closed doors, arrange a secret deal, and never have to reveal the resulting contract. We showed our readers, with the efforts of our small newspaper in our small town, that they deserve to know what their government is doing and that they should fight for that knowledge.
Seth Tupper is the editor of The Daily Republic, an 11,500-circulation, six-day daily newspaper in Mitchell, S.D. He is the president of the South Dakota Newspaper Association’s First Amendment Committee and in 2012 was a member of Gov. Dennis Daugaard’s Open Government Task Force.