Q&A- Thinking of Running?

Question– Can you provide some advice for newly elected volunteer officers who are now on a board that has been acting unlawfully and your goal is to help bring it into compliance, but the other two officers are the same. They are not new officers. They constitute a quorum on the board of 3. How does an honest person handle this? How do they navigate this? Can you write about 1200 words of advice and suggestions for this person?

Answer-This is a serious and delicate situation that requires a strategic, ethical, and patient approach. Being the lone voice of compliance on a three-person board that has previously operated unlawfully puts you in a challenging minority position. The key is to protect yourself legally, attempt reform through established procedures, and be prepared for potential pushback.

Here is advice structured around immediate steps, communication strategies, and long-term navigation for an honest person in this predicament.

Part I: Immediate Actions and Personal Protection

Your primary objective in the short term is to shield yourself from any potential liability associated with past or future unlawful actions and to gather facts without making immediate accusations.

1. Seek Personal, Independent Legal Counsel (Discreetly)

This is the most critical first step. The board or city/county attorney represents the board as an entity, not you as an individual. If the board is acting unlawfully, the board’s attorney may be constrained by attorney-client privilege regarding the board’s past actions or may even be guiding them incorrectly.

• Do not use the board’s attorney for this initial advice. You need someone looking out solely for your interests. Consult a private attorney specializing in South Dakota administrative law, government ethics, or open meeting laws.
• Discuss your fiduciary duty and potential personal liability. Your attorney can clarify your responsibilities and the risks of participating in meetings where illegal activities might continue.
• Keep this consultation confidential initially. Informing the other two members immediately might trigger a defensive response before you have a clear plan.

2. Document Everything Meticulously

Assume every conversation and meeting is potentially reviewable later.

• Agendas and Minutes: Ensure you receive all meeting materials well in advance. Review past meeting minutes and flag any inconsistencies or omissions.
• Correspondence: Keep copies of all emails, memos, and letters related to board business. If conversations happen verbally, send a follow-up email summarizing the discussion: “Following up on our conversation today regarding [topic], my understanding is X, Y, Z…”
• Identify the Specific Unlawful Actions: Be precise. Is it consistent failure to post agendas 24 hours in advance? Are they conducting votes in executive session? Are they awarding contracts without proper bidding processes? General concerns are ignorable; specific violations with dates are actionable.

3. Request Training for the Entire Board

A non-confrontational way to introduce the topic of compliance is to frame it as education for everyone, including yourself as the new member.

• Use your “new member” status as cover. “As the newest member, I want to make sure I understand all procedures correctly. Can we ask the Municipal League/County Association/State’s Attorney to come provide a refresher training on open meeting laws and ethics for all of us?”
• This approach forces the issue onto the agenda without pointing fingers at the existing members’ past behavior.

Part II: The Strategic Confrontation and Influence

You need to address the issue within the board structure. Since you are in the minority, your power lies in process and public accountability, not in voting majority.

1. Choose Your Battles and Frame the Issue Ethically

Do not approach this as “You guys are breaking the law and are bad people.” Approach it as, “We need to protect this board and the community from legal risk.”

• Focus on the “Organization,” not the “Individuals”: “I’m concerned that our current practices regarding [specific issue] expose the board to potential lawsuits and fines, which ultimately costs the taxpayers money. We need to tighten up our procedures.”
• Appeal to their sense of fiscal responsibility and community trust, values that resonate strongly in South Dakota.

2. Master the Rules of Procedure and Use Them

Become an expert on the board’s bylaws and Robert’s Rules of Order (or whatever procedural guide is used). You can use parliamentary procedure to slow things down, ensure proper discussion, and formally register your dissent.

• Request an official legal opinion during a meeting: If they are about to take an unlawful vote, you can formally ask, “I request that this motion be tabled until we can get a formal, written opinion from our legal counsel on its compliance with SDCL 1-25.”
• Insist on Roll Call Votes: Force every vote to be recorded with names attached to the outcome in the minutes. This creates a clear public record of who voted for what, ensuring you are not lumped in with their non-compliant votes.

3. Use Formal Dissent and “No” Votes Strategically

If the other two members vote to proceed with an unlawful action, ensure your “No” vote is recorded in the minutes. You can also make a motion to have a brief statement of your reasons for dissent entered into the minutes, further insulating yourself from liability.

Part III: Escalation and External Options (The Last Resort)

If internal efforts fail and the board refuses to change its ways, you must consider external mechanisms. This is where your independent legal counsel becomes crucial.

1. Engage the Local Media (The “Sunshine” Option)

Transparency is the enemy of unlawful governance. Carefully consider speaking with a local journalist who covers government affairs.

• Be the Source of Truth, Not Slander: Provide documented facts about procedural failures (e.g., meeting notices not posted correctly), not speculation about motives.
• The Goal: Public pressure is a powerful tool in local politics. Voters who value good government may apply the pressure you cannot internally.

2. Contact the Appropriate Oversight Bodies

South Dakota has formal mechanisms for addressing government non-compliance.

• The State’s Attorney or Attorney General: For egregious violations of open meeting laws or criminal malfeasance, these offices have the authority to investigate and prosecute.
• The SD Government Accountability Board: This body handles ethics complaints against public officials.

3. The Ethics of Resignation vs. Stay-and-Fight

At some point, you may have to decide if you can be effective or if your presence is lending legitimacy to an illegitimate process.

• Staying: Allows you to continue dissenting on the record and perhaps slowly influence change over months or years. You are an internal whistleblower.
• Resigning Publicly: Can be a powerful statement that draws media attention and forces external bodies to investigate. You would frame your resignation around the inability to serve the public trust due to systemic non-compliance by the majority.

Summary of Navigation

Navigating this situation as an honest person requires integrity mixed with careful strategy. You must prioritize your own legal protection while using procedural tactics to force transparency. You will likely be ostracized by the existing majority, but your commitment to lawful governance is essential for the health of your local community. Patience and documentation are your greatest allies.

Question– As a road district trustee in South Dakota, would I need to take an oath?

Answer– Yes, as a road district trustee in South Dakota, you are required to take an oath of office. 

South Dakota law requires that essentially all persons elected or appointed to any civil or public office must take and subscribe to an oath or affirmation before they can legally assume their duties. 

Specific South Dakota Codified Laws (SDCL)

• General Requirement: SDCL 3-1-5 states, “Every person elected or appointed to any civil office shall, before entering upon the duties thereof, qualify by taking an oath or affirmation to support the Constitution of the United States and of this state, and faithfully to discharge the duties of his office, naming it”.
• Special Purpose Districts: Road districts are considered a form of special purpose district or a local governmental entity. Specific statutes governing various districts, such as watershed or mental health boards, explicitly require their directors/trustees to take an oath.
• Consequences of Not Taking the Oath: The law is strict on this requirement. Failure to file the required oath within the prescribed time (often within ten days of receiving notice of election or appointment, depending on specific local rules) is typically deemed a refusal to serve in that office, and the position may be declared vacant. Entering office without taking the oath can even result in a monetary forfeiture to the township or district. 

Action Required

You must take the oath before entering upon the duties of your office. The oath is typically filed with the county auditor or district clerk. The specific local official overseeing your road district’s administration can provide the correct form and inform you of the exact deadline for filing.

Just want to remind you that we are not lawyers (thank God), and we are not suggesting any legal action or advising anybody. This is just our interpretation concerning our personal circumstances.