Michael Card

I appreciate the effort that the Plain Talk has put forth to keep the citizenry informed about the Vermillion Council’s proposed Home Rule charter. It is a challenge to ensure the public is informed of the opportunities and challenges a city government faces, especially when the major concern for the public is the increasing infection rate of COVID-19, and the potential challenge to our health care system, the operation of our schools, and the ability of our business community to be financially viable during the time when people are responding to the threat to COVID-19. Still, we must plan for a life after COVID-19.

I was honored when Mayor Jack Powell appointed a study committee to examine whether Vermillion should adopt a home rule charter. Members Matt Fairholm, Julia Hellwege, Travis Letellier, Stacey Larson, and me. We divided up the work so that three individuals read each of the ten city home rule charters, and in cities similar to Vermillion, committee members interviewed elected officials, city staff, and in some communities, their legal counsel, to determine what advantages they found from a home rule charter, whether they consulted it often, and whether the charter helped them provide a citizen-responsive government. Some of these communities changed their manner of selecting city council members to include members elected at-large in addition to the system selecting members from wards. Others changed their form from a city council who developed policy for the city in addition to managing the city staff to having the council hire a city manager manage the day-to-day operations and execute the will of the council as Vermillion did in 1966. Brookings and Beresford wanted to be able to operate a telephone exchange after US West determined they did not want to continue operations of the telephone exchange. Pierre could not get authorization to accept credit card payments for citizens paying utility fees and utility bills and adopted a home rule charter to be able to accept a more convenient manner of payment for residents – a purely local activity.

We also studied one city where a home rule charter was rejected and studied others to see how hard this would be. A legislatively created local government study commission in 1974 noted how challenging it was to adopt a home rule charter. The challenge they identified is we tend to say “no” when there isn’t a specific reason to say “yes.” Part of what the study committee found was that cities were able to act without obtaining specific permission from the legislature to accomplish the serious and the mundane acts of city government. With home rule, if a council is enacting an ordinance or resolution that has local matter and not a concern of the state (which has codified its concerns in law), then the city may proceed. Many of the elected officials noted that they saw no downside to home rule. They noted, “Why wouldn’t we want the authority to make policy that was a local concern?” and, "There is no downside."

The Plain Talk covered the Jan. 20 City Council meeting where the report of the study committee was accepted and the Feb. 7 meeting where the city authorized the appointment of a citizen committee to draft a home rule charter. Mayor Powell charged the committee to draft a charter for Council consideration, as follows:

A home rule charter should be developed that does not change the form of government from the City Council/City Manager form. The Committee will host multiple public meetings to receive input and educate the public on the home rule charter. The City Council desires to place the question of adopting a home rule charter before the voters of the City of Vermillion at the November 3, 2020, general election.

Mayor Powell appointed Matt Fairholm, AJ Franken, Travis Letellier, Stacey Larson, and Mike Card with Steve Ward as the Council liaison to the committee to develop a charter meeting those criteria, and the committee presented its report to the council on July 6, and the council accepted the report and acted to place the charter on the general election ballot on July 20.

As a city appointed committee, we cannot act in a manner which would be seen as lobbying for the charter. Instead, we have met with several community service organizations, civic groups, and Vermillion NEXT. With COVID-19 increasing in spread, I thought it impossible to provide a safe opportunity for people to meet to ask questions. That has not stopped the community from asking questions, and we have provided responses as we receive them. Some that were not available in the Q&A document that the Plain Talk published in the Oct. 23 issue might be of interest to Vermillion voters.

Q: Will people lose their jobs?

Q: I have a contract with the city, will that change?

• The charter keeps in effect - officers, employees, ordinances, resolutions, policies, regulations, and pending matters, and prohibits conflicts of interest and discrimination.

• If approved, charter takes effect after election canvas.

Q: Does home rule allow the city to circumvent state law?

• The grant of authority to regulate local affairs does not limit the state’s authority to address issues that are state concerns. The state claiming authority is called "preemption," and can result from a statute, or an executive order under emergency conditions.

• Generally, a home rule charter prohibits the city from performing an activity that is in conflict with state or federal Constitutions or laws, or the Home Rule Charter itself.

Q: If the city can only do what is authorized, why doesn't the city ask the legislature for permission to act?

• SD Legislature meets for a maximum of 40 legislative days each year. Fewer than 25% of proposed legislation is enacted, suggesting that it might take years to be able to obtain permission to act.

• The best decisions are often made by people closely impacted by them. The idea is to give the City Council the ability to act to deliver the services desired by the residents of Vermillion, are within the budget, and not a state concern (prohibited by state law).

Q: What are activities that are prohibited by state law and by the charter?

Among other activities,

• prohibiting enactment of laws governing civil relationships;

• prohibiting defining a crimes with a punishment of more than $500 or six months jail time;

• prohibiting changing assessment practices related to ad valorem taxation of property;

• prohibiting the denial of initiative or referenda on ordinances or by-laws;

• prohibiting enactment of new taxes without a vote of the citizens;

• prohibiting enacting or increasing any tax, fee or charge that is related to the state lottery, or is similar to a tax which provides revenue to the state if enacted by the city before March 1, 1996

• prohibiting a reduction of service standards below those required by state law.

Q: Can the charter be amended after adoption?

• Yes. The voters have the final say on whether to adopt the home rule charter to put it into effect. If voters approve its adoption, changes can be put to a vote of the people through

• a resolution of the City Council,

• a voter initiative, or

• the city can create a review commission to review the charter and propose changes to the Home Rule Charter.

Q: Was Brookings able to pass a mask ordinance because of a home rule charter?

• No, that authority exists under Governor Noem’s public health emergency. If Governor Noem’s executive orders had prohibited Councils from requiring masks, a city Council could not go against a state interest. A state or local government has broad authority to protect the community against individual actions. The Vermillion Council chose not to require face coverings based on citizen input.

Q: Is this a forever thing?

• No – citizens can petition, or the city council can refer the issue, and the people can vote to have a different form of government.

Q: I’ve heard something about changing bidding requirements under home rule.

• Much of competitive bidding rules and regulations are established in state law as a state concern. A home rule city cannot violate minimum standards.

Q: Will the charter protect us from waste, fraud and abuse?

Democracy is hard to maintain. As Winston Churchill is attributed to have said, "No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…" A functioning democracy requires citizens and the media to be attentive and informed of what our governments are doing -- federal, state, county, city, and schools.

Michael Card is a professor at the University of South Dakota and member of a citizen committee appointed by Mayor Jack Powell to study whether Vermillion should adopt a home rule charter.

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