Finally !!!! A Response from Custer County State’s Attorney Kelley

It’s taken 10 months… and this response does a lot of chaff nd redirect, but in the end, we are correct and the Saddleback Road District Board is wrong and has acted unlawfully on numerous occasions. I am providing the unedited response and my comments. Because that’s what real transparency is.

As you may recall, we filed a complaint last June, with the Custer County State’s Attorney, regarding Open Meeting Violations. It was heavily documented. It was quite clear that this was not at all important to that office. It was handed off for “investigation” to a deputy who was working on it here and there.

It’s now 10 MONTHS LATER. Talk about justice delayed is justice denied.

The deputy handed it off to Ms. Tracy Kelley at the end of January. She then, with apparently a straight face stated:

Today is April 11, 2025. She emailed that to us on January 29, 2025. Almost 2 and 1/2 months ago.

Just to give you an idea of what we are dealing with here.

And the long awaited response? Are you on pins an needles? Or have you realized this is all a shell game? It means nothing. It took us a while to figure that out. I mean we really thought we were kind of important, as citizens of the state and the county, but we know better now.

If Open Meeting Laws were really important, people would be held accountable. I’ve been saying this for months now, so this “response” just supports our contention that the county and state really do not give a shit about Open Meetings or our rights… or protecting us from an abusive and tyrannical governmental entity.

And why would they? They don’t have to live with the constant threats to their properties. They probably roll their eyes, just like the auditors office employees do. They have no idea what is really happening here. They have no idea what is happening behind the scenes (and it’s ALL behind the scenes, that’s the point of the complaint) and the actions taken to drive us out or to have our properties lost to us. And ‘like minded’ people buy them and build McMansions… which would be more tax money for not just the rogue district, but the county and state.

Still, the Open Meeting Laws are the law, and still it’s our obligation to hold the government accountable to all laws.

But let’s get to her response.

There are 3 pages, and I just cannot wait till the end to comment. 🙂

“Various members of the road district, including the complainant, have served on the Board of Trustees over the years and during times of alleged violations.”

Seriously? Considering we pointed that out… several times, during the 10 months we were waiting for this response, I sure hope she is not patting herself on the back like she figured out some dark mystery. This was always a well-known fact. She says it like it was an ‘aha’ moment. And also, so what? As one of the other complaining members noted when they read this response,

Yeah. Yeah, it does. And she mentions it several times in this response. Now, this could almost make sense if the complaint were concerning the individuals of the board. But it doesn’t. It concerns the Board. The Board is who is investigated. And as someone who WAS on that board, who better to speak to the violations?

Currently, our opinion here is that since she has called out my involvement with the board and that I’m therefore not above reproach, that I will let this drop and feel lucky that I’m not being held accountable with the others or in court.

Bless her heart.

I’ve already come forward to the district with an apology for my part in this whole affair. And I can point to numerous communications where I tried to help the Board follow the laws. So, drawing attention to my involvement in order to silence me?

Moving on.

Yes… yes, they have been doing this wrong FROM THE BEGINNING… (right, wrong or otherwise)? You’re kidding, right? Are you actually saying that had this just happened once or twice, you’d be more concerned? But because it was NEVER done legally, we are just gonna brush it aside.

“..accepted practice of the district.” FFS, it still is not legal! I’m betting that if the majority of the members continue to be just fine with all this BS, this state’s attorney would say that it is fine… cuz, ya know, that’s apparently how the law works.

Lady, it ain’t that hard. I figured it out. I told them. I clearly pointed out all of this. We all did back here. They ignored us. It wasn’t until we finally had to sue them that they got off their collective ass and hired a lawyer. It’s too bad he turned out to be a shyster, just like them… as an honorable lawyer would have told them what they need to do to be following the law, and not just what they need to do to stay out of court.

Whether the law is hard to understand or not is not the point. They ran for office. This is their obligation. And again… I figured it out. Had somebody brought this to my attention while I was in office, I would have looked into, realized our collective mistakes, apologized publicly, and worked to bring the Board in alignment with the law. That’s what a typical, honorable person would do.

Oh, and Poor You for unfortunately having to deal with many road districts trying to obey the laws. Again, this is not rocket science. My suggestion to her AND the Attorney General to provide a yearly free class concerning these basics, would negate most of the issues all of us little people are trying to deal with. I even volunteered to help them put it together.

“… struggling to comply..” Utter nonsense. If the other boards are anything like the Saddleback Road District, they don’t give a rip that there are laws to follow. We know this because it’s been a year since telling them a litany of violations and they have only acknowledged 2 of them, and only then because they had no choice. They STILL have not acknowledged Open Meeting Laws… STILL.

Even having received this response, do you think they are going to suddenly say, “Oh my, we have been in error and need to fix this”?

They are not struggling, lady. They don’t give a shit.

Second page.

Let me get this straight. There is a law. It is WITHIN the SDCL 31-12A Road District chapter… they don’t have to go find it elsewhere. Let’s take a look-

It is pretty clear that you need a nominating petition if running beforehand… but golly, if you don’t want to do that, and ya wanna just follow your bylaws, which you can and have changed in secret meetings, sporadically and with NO notice to members, and then just get your shyster lawyer to tell you it’s ok, then you are golden.

And this is from an attorney. An attorney who represents the county. Clearly doesn’t represent its residents, but she actually advises county officers on the law. And this is her advice to the road district.

Gotcha.

Of course, this is the same attorney who told the county commissioners that we had filed a legal and verified petition to withdraw and start our own road district, but then told them they did not have an obligation to accept it. And this was after I pointed out the law to her, because I already had an inkling she didn’t really understand it. Rather than clarify that law with the AG BEFORE the vote, or advising them, she asked afterward, (I had to nag her until she did). The AG response supported our contention. We were right. … again.

“… right, wrong, or otherwise…”

“…including when complainant served…” Yes…again, I was pretty clear in ALL my communication that when I served, THAT board was not legal either.

But wait, there’s more!

Yeah, she is again stating that because they have broken the law so much and for so long, it would not be right to hold them accountable. Leaving aside that these ARE NOT routine matters.

Yes! By Jove you’ve said something accurate! That’s ONE thing. Golly I wish this could be a future pattern. Not holding my breath.

Well, let’s dive into this a bit further, shall we. The Board attended a public meeting NOT to provide information, but to urge the commissioners to not accept the petition. This is a different agenda than what would have been stated by the commissioners. Did you catch that part? The Board had an agenda. They stated it clearly when they started to speak. They even stated it quite clearly on the notes they sent to members AFTER the meeting.

Let’s look at SDCL 1-25, shall we?

It’s that #3 that concerns us, here.

However, to really bring the point home, let’s go to the publication of the Open Meeting Commission. They published a brochure so that complete morons (like shyster lawyers and rogue board members) could understand the basics. Go to page 3 of 4, first column. You’ve already put more effort into this than the rogue board or the state’s attorney. Congratulations. You do not belong in government.

Providing information would be just answering questions. Not having an agenda. Not trying to accomplish something. Do you see the difference?

The law is there to protect the people (that’s us) from a government acting in secret. We are to be made aware of the actions of the government. We should know what they are doing. We should know BEFORE they do something.

That’s the whole point of the law. To protect US!

Now, let’s break down what does not constitute a meeting and why. If the board were invited to a public meeting, that had the correct notices and agendas already published and they were there to simply provide information, and reading the notice or agenda would make it clear that they were going to be there for such and such a purpose, then yes… they do not have to provide FURTHER notice or agenda.

Did you get that part? Further?… meaning it was already provided.

However, the meeting in question did not include the board and the board was not listed on the agenda. Therefore the members of the district WOULD NOT KNOW that their board would be there or why.

What if some members did not agree with the board’s useless waste of money trying to keep some members hostage?

Maybe some members are not even aware that THEIR board is taking this stance? Maybe they would like to hear the facts in person. Maybe some people would find it interesting that the board doesn’t know when the road was built, or the district was formed, or that the road does not have to meet any standards, nor does the insurance company give a rip, or that making improvements is unlawful, or that the ‘levy’ is NOT a levy, nor is it legal, etc.

The reason this is important is because the “meeting notes” provided by the board after the meeting, were absolute horse shit. The notes lied about every single one of these matters. Now, I’m just spitballing here, but I think the whole point of the Open Meeting laws is to provide ACCESS to facts.

Of course, this is not something that comes naturally to a lawyer, who spends a great deal of her time doubling down on mistakes and deliberately misreading Attorney General Opinions. And then of course, suggesting we hire a lawyer.

So, in a nutshell, it WAS a violation of SDCL 1-25.

Now let me clarify. None of us EVER expected anybody to be prosecuted. That just doesn’t happen. Especially with people who don’t care about these laws. It’s not news. It’s not sexy. And we simply do not matter.

If you need another reason to not have faith in the Open Meeting Commission, other than them not EVER fining an entity or giving anybody a few days in jail, just look at who is on that commission.

The following is from the Attorney General site.

The South Dakota Open Meetings Commission was created in 2004. By Law (SDCL 1-25-8), the Commission consists of five attorneys appointed by the South Dakota Attorney General. The following attorneys are currently serving on the commission.

Yeah… just a bunch of attorneys. Kind of like the state bar taking any complaints seriously. It’s not gonna happen. These people are ‘investigating’ themselves… and surprise surprise, finding nothing wrong.

They don’t understand what ministerial means. Boy, that’s an understatement. I included a definition from some ‘law’ site some time ago that defined “ministerial.” This was one of many sites that had almost exactly the same definition. So, I’m providing a different site this time, so that you can see it really is the accepted legal definition.

What Are Ministerial Acts? A ministerial act has been defined as one that a public officer is
required to perform under a given state of facts, in a prescribed manner, in obedience to the
mandate of legal authority.4 Basically, if all discretionary precursors to an official act have been
completed, and all that remains to be done is the act itself, courts may compel a municipal official
to perform such action:

I’ve stated several times that since the Board does NOT have open meetings, it cannot legally/technically have any ministerial actions. And even if we assumed the meetings were legal, their actions STILL are not ministerial, because they don’t have any rules. They don’t have any “if this, then that.”

Making a decision on ANYTHING is not ministerial. It is the opposite. Discretionary. If they are talking to each other to determine if they want to have the road plowed, that’s discretionary. If they are discussing whether to hire a lawyer= discretionary. If they are discussing anything where their decisions or actions are not predetermined, that is discretionary.

If they had a rule that said- “if it snows X inches, the contractor will be notified and he will plow the road at such and such time… or whatever,” That would be ministerial. But they don’t have that rule. Of course, if they did have that rule, it would likely be changed by them at a secret meeting the second they didn’t want to deal with snow on their part of the road.

To compound this issue, the Office of Hearing Examiners, (Ms. Williamson) either assumed Bob Hummel knew what ministerial meant or, and I think more likely, just didn’t want to stand up for us. The job is an easy paycheck till you are asked to actually do something. Another office which sole purpose is to protect us, but at the first sign of pushback, walked away.

Moving on- Page 3.

Ultimately, all we ever wanted (reasonably) was for the Board to be told they are breaking the law. We had been telling them that for quite some time, but it fell on deaf ears. We are hopeful that this will inspire change.

We also expect that they will not be forthcoming about this information to the members, which is why we have to publish everything on our own. If members want the facts, they have to come to us.

While it took 10 months to finally be told we are right and that the Board is violating Open Meeting Laws, and they are derelict in their most basic duties of understanding the laws that govern their actions, we keep at it.

The ridiculous notion that the board can impose a special maintenance fee, and that is not a Special Assessment, even though the shyster lawyer literally referred to the Special Assessment chapter to state they had the authority, while still calling it a levy…

Seriously, you just cannot make this shit up, unless you are a shyster lawyer or a rogue board.

And just to clarify, that even though this rambles on and state’s attorney tries to quiet me because I had involvement, the end result is we were right and this matter is being turned over to the commission. We still have a handful of other formal complaints filed. We are right on those as well.

The fight continues. More vindication for us.