Turner County hit with open meetings complaint

An alleged open meetings violation during the approval of a controversial chicken farm in Turner County is being investigated by a neighboring prosecutor.

Clay County State’s Attorney Teddi Gertsma confirmed on March 9 that she’d received a complaint from Mike Schaffer, a Turner County resident and lawyer who represented opponents of egg-seller Sonstegard Foods in a 2015 lawsuit.

A substantiated open meetings violation would not overturn last month’s decision to permit the company's 500,000-bird egg laying operation, although it could bring low-level criminal charges or a reprimand from the open meetings commission.

Schaffer’s complaint alleges the county's Board of Adjustment improperly entered into executive session on Feb. 9 to discuss the terms of the egg farm's conditional use permit.

State law allows – but does not require - public bodies to enter into private sessions to discuss pending legal matters, contract negotiations or personnel issues. Before the closed session, Sonstegard lawyer Brian Donahoe challenged the validity of a set of petition signatures asking the Board to reject the permit, but there was no threat of a lawsuit mentioned.

“There was no proposed or pending litigation concerning the subject of the hearing and the subject of the hearing did not involve any contractual matters,” Schaffer wrote.

A half hour after the executive session began, the board members returned to the public meeting room and moved immediately to grant Sonstegard Foods a permit. The Board attached three conditions to the permit, none of which had been discussed during the public portion of the hearing.

“It was quite apparent that the Board of Adjustment simply used the executive session to conduct its own deliberations which should have been held in public,” Schaffer wrote in his Feb. 12 affidavit.

Gertsma said she received the complaint Tuesday from Turner County State’s Attorney Katelynn Hoffman, who represents the Board of Adjustment and the Turner County Commission.

Hoffman declined to comment on the complaint, aside from confirming she’d received it and forwarded it on to Gertsma for an independent evaluation.

The Clay County prosecutor said she hadn’t begun investigating the matter yet. She could determine that no violation took place, charge the members of the board with class 2 misdemeanors or forward the complaint to the state’s Open Meetings Commission, which is run out of the Attorney General.

That body has the authority to determine that a violation took place, but its rulings don’t carry any weight on their own.

A decision made during an executive session could be challenged, according to Attorney General spokeswoman Sara Rabern, but the open meetings commission does not have the authority to nullify decisions on its own.

“It would have to be hammered out in circuit court,” Rabern said.

The decision to grant the permit was made in public. Prior to the executive session, residents on both sides of the issue spoke about their concerns for the future of the county.

Some expressed opposition, based on concerns for the environment, property values and quality of life. Others expressed frustration with the opposition, saying the future of the county depends on the expansion of animal agriculture, which can push grain prices higher and help sustain businesses that service the facilities.

Some opponents returned to the Board of Adjustment on Tuesday, a meeting at which the board reviewed the Sonstegard plans for biosecurity and deemed them acceptable.

Katie Overvaag, one of the plaintiffs who sued Sonstegard Foods and the county over the original 6 million bird proposal in 2015, told commissioners she expects to use any remedies available to recoup any property value loss that might occur after the facility is built.

No legal challenges have appeared since the new permit was approved, however. Overvaag’s original lawsuit overturned a 2014 zoning ordinance rewrite, but a Turner County judge ruled against her and her co-plaintiffs in a motion to collect attorney fees from either the county or company.

The next open meetings commission is set to take place on May 5 in Deadwood.