Special City Council Meeting

MINUTES Special City Council Meeting Monday, September 28, 2020 at 6:00 PM Carnegie Town Hall, 235 West 10th St., Sioux Falls, South Dakota 57104 CALL TO ORDER 1. MEETING ROLL CALL Present: Council Member Marshall Selberg (Via telecom), Council Member Curt Soehl, Council Member Pat Starr, Council Member Janet Brekke (Via telecom), Council Member Christine M. Erickson (Via telecom), Council Member Alex Jensen, Council Member Rick Kiley, Council Member Greg Neitzert Absent: Mayor Paul TenHaken Council Member Greg Neitzert noted his presence in the Council Chambers and recused himself as he is not an Eligible Council Member. 2. PLEDGE OF ALLEGIANCE REGULAR AGENDA 3. Approval of the Regular Agenda A motion was made by Council Member Kiley and seconded by Council Member Jensen to approve the Regular Agenda. Roll call vote to approve. 7 Yes: Selberg, Soehl, Starr, Brekke, Erickson, Jensen, Kiley; 0 No: (None). Motion Passed. HEARINGS AND RESOLUTIONS 4. A RESOLUTION ADOPTING FINDINGS OF FACT, CONCLUSIONS OF LAW AND A FINAL ORDER BY THE ELIGIBLE CITY COUNCIL MEMBERS RESULTANT FROM THE PUBLIC HEARING AND DECISION RENDERED REGARDING THE REPORT OF BOARD OF ETHICS. A motion was made by Council Member Brekke and seconded by Council Member Starr to approve the alternative resolution. Roll call vote to approve. 3 Yes: Selberg, Starr, Brekke; 4 No: Soehl, Erickson, Jensen, Kiley. Motion Failed. A motion was made by Council Member Kiley and seconded by Council Member Erickson to adopt Resolution No. 112-20. Roll call vote to adopt. 5 Yes: Selberg, Soehl, Erickson, Jensen, Kiley; 2 No: Starr, Brekke. Motion Passed. RESOLUTION NO. 112-20 A RESOLUTION ADOPTING FINDINGS OF FACT, CONCLUSIONS OF LAW AND A FINAL ORDER BY THE ELIGIBLE CITY COUNCIL MEMBERS RESULTANT FROM THE PUBLIC HEARING AND DECISION RENDERED REGARDING THE REPORT OF BOARD OF ETHICS. WHEREAS, Ethics Complaint 20B came before the Sioux Falls City Council for a public hearing on September 10, 2020 at 6 p.m.; and WHEREAS, the public hearing was completed as required by Sioux Falls City Ordinance 35.058(f); and WHEREAS, the City Council has determined by the adoption of Resolution No. 107-20 that there is not clear and convincing evidence that Council Member Greg Neitzert violated Sioux Falls City Ordinance 35.053(e) and that the complaint be dismissed; and WHEREAS, Sioux Falls City Ordinance 35.058(f)(8) requires that the City attorney prepare Findings of Fact, Conclusions of Law and a final order for the Council’s consideration and approval; NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF SIOUX FALLS, SD: That the recitals above are adopted as findings, and in addition, the following findings are adopted: BACKGROUND FINDINGS: 1. On March 12, 2020 John Cunningham filed a complaint with the Sioux Falls Board of Ethics alleging that Council Member Greg Neitzert had improperly accepted a gift in the form of travel to a conference. This complaint will hereinafter be referred to as Complaint 20A. 2. The Board of Ethics dismissed Complaint 20A indicating that it did not have jurisdiction to proceed as the Complaint alleged a violation of Sioux Falls City Ordinances relating to the conduct of city officials and employees, not council members. 3. The Board of Ethics did not advise Cunningham of the process for completing the complaint to bring it within the jurisdiction of the Board of Ethics. 4. After Complaint 20A was dismissed, Cunningham turned over his records about Complaint 20A to the media despite his obligation to keep the information confidential. 5. On May 18, 2020, Cunningham filed a second complaint with the Board of Ethics which will hereinafter be referred to as Complaint 20B. 6. Complaint 20B alleged the same ethical violation against Council Member Neitzert as did Complaint 20A but cited the portion of Sioux Falls Ordinances applicable to conduct of council members. 7. Council Member Neitzert did not initially waive confidentiality in Complaint 20B. 8. The Board of Ethics investigated and received submissions from Cunningham and Neitzert with respect to the allegations contained in Complaint 20B. 9. On August 11, 2020, the Board of Ethics delivered to the Sioux Falls City Council its report finding that probable cause existed that a violation of the Sioux Falls City Ordinances had occurred. The report did not name the council member who was the subject of the complaint. 10. After it had completed its investigation and before the August 11, 2020 report was completed, Council Member Neitzert waived confidentiality and acknowledged that he was the Council Member who was the subject of Complaint 20B. 11. At its August 18, 2020 meeting, the Sioux Falls City Council determined that clarification of the report of the Board of Ethics was necessary and “remanded” the matter to the Board of Ethics asking for clarification of its report and confirmation of the Council Member who was the subject of Complaint 20B. 12. By letter dated August 26, 2020, the Board of Ethics responded to the City Council indicating that it stood by its original report and that the Council should review the report and city ordinances. 13. The City Council held a public hearing on September 10, 2020 as required by Ordinance 35.098. FACTUAL FINDINGS 14. On October 16-18, 2019, Council Member Greg Neitzert, hereinafter “Neitzert” attended a Community Leaders of America conference in Frisco, Texas. 15. Neitzert’s trip was paid for by Community Leaders of America. 16. Neitzert notified the City Council by email dated October 17, 2019, that he was attending the conference at no expense to the City. 17. The conference participants were limited to Mayors and Council Members who were registered Republicans. 18. The conference was educational in nature and provided attendees an opportunity to learn from and interact with other elected officials from around the country. 19. No Council Members questioned or complained about Neitzert’s attendance at the conference. 20. Neitzert was not expected to implement policies or vote on issues in a manner consistent with the ideologies of the conference’s sponsoring organization or the conference corporate sponsors. 21. Neitzert was not asked to vote on a particular issue in a particular manner as a “quid pro quo” for attending the conference. 22. Neitzert’s attendance at the conference was not intended to influence any issue or matter before the Sioux Falls City Council. 23. Neitzert has not been contacted by the conference’s sponsoring organization in an attempt to influence him on any issues before the City Council.  Based upon the above Findings of Fact, the Sioux Falls City Council hereby makes the following Conclusions of Law: 1. City Ordinance 35.053(e) provides that a city council member shall not “directly or indirectly solicit any gift, or accept any gift whether in the form of money, services, loan, travel, entertainment, hospitality, thing or promise, or any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence, or could reasonably be expected to influence the officer, in the performance of their official duties, or was intended as a reward for any official action…” 2. City Ordinance 35.053(e) is overly broad and vague and needs to be amended to provide clarification and guidance for future conduct. 3. The Board of Ethics did not prove by clear and convincing evidence that Neitzert violated Ordinance 35.053(e) and the Complaint 20B should accordingly be dismissed. 4. The recorded minutes, video, supporting materials, transcript, testimony, public comments and exhibits from the public hearing conducted at the September 10, 2020, Sioux Falls City Council Meeting are incorporated herein in support of any and all findings made herein. 5. Any Finding of Fact herein which is more appropriately deemed a Conclusion of Law shall be deemed a Conclusion of Law and any Conclusion of Law herein which is more appropriately deemed a Finding of Fact shall be deemed a Finding of Fact. ORDER OF DISMISSAL Based upon the foregoing Findings of Fact and Conclusions of Law and all matters of record herein, IT IS ORDERED THAT ETHICS COMPLAINT 20-B IS HEREBY DISMISSED. Date adopted: 09/28/20 . Erica Beck, Chief of Staff For Paul TenHaken, Mayor ATTEST: Thomas Greco, City Clerk ADJOURNMENT A motion was made by Council Member Kiley and seconded by Council Member Jensen to adjourn at 6:23 p.m. Voice vote to adjourn. 7 Yes: Selberg, Soehl, Starr, Brekke, Erickson, Jensen, Kiley; 0 No: (None). Motion Passed. Thomas M. Greco, City Clerk