Colman Still Looking for New Revenue Source

Better keep your speed down as you head for Sioux Falls on Highway 34: the City of Colman is still looking for easy cash. An eager reader points me toward this article from the Moody County Enterprise (as a Star trek fan, I really shold read that paper more often) that notes the defeat of a city tax opt-out earlier this month. The city asked for $40,000 to balance the budget. Remember, Colman lost a $21,000 annual revenue source last year when its new city cop decided to issue only legal speeding tickets on Highway 34. Evidently, charging for paper and labor on copies of city documents didn't fill the coffers. Maybe Colman just needs to set up a toll booth during Looney Days....

Schlueter Lands New Job in Lake County

Looks like we've got a new smokey on our tail: it's Matthew Schlueter, subject of much controversy for apparently blowing the lid off Colman's speeding ticket trickery. Beginning January 7, Schlueter will become a Lake County deputy, filling the vacancy left by Emily Bruns, who resigned in November after being charged with her second DUI.

Good to know Lake County will give an honest cop a break after he's gotten what sounds like unfair treatment elsewhere. And good to know we have one more cop on our beat who will uphold the law, even if the powers that be ask him to do otherwise. Welcome to the force, Officer Schlueter.

Madison Has Pull -- Retail Pull!

Hat tip to the Huron Plainsman for today's surprise dose of heavy-duty local statistical analysis:
The Plainsman's Roger Larsen does some heavy reading to report on the condition of Huron's retail sector [Roger Larsen, "Study: Much of Huron’s Out-of-Town Business Is Coming Here for Groceries," Huron Plainsman, 2007.10.11]. Data from a June 2007 USD report indicates that the Fair City has higher than average retail sales at its food stores but lower than average retail sales in the other measured sectors of building materials and garden supplies, general merchandise, automotive and service, apparel and accessories, furniture and home furnishings, eating and drinking places, and miscellaneous retail. Huron's overall "retail pull" is 82% of the average.

The USD report Larsen cites -- Ralph J. Brown and Bethany Sorenson, "A Study of Retail Trade Patterns in South Dakota," South Dakota Business Review 65(4), June 2007, pp. 1, 4-15 -- focuses on retail performance in South Dakota's 11 biggest cities (conspiracy theory -- I think they picked 11 deliberately just to leave #12 Madison out!). But the study calculated retail pull factors for 201 South Dakota municipalities and published the complete data separately. A look at that chart finds Madison performing better than average, with a pull factor of 1.17.

The finding surprised Mrs. Madville Times and me. We are not alone in our view that Madison sorely lacks retail stores and that too much business leaves town by choice and by necessity (you can't get a potty chair or new toddler shoes in Madison). Yet Madison still comes out doing better than average in terms of retail sales (and sales tax revenue, note our city fathers with gleams in their eyes) per capita.

Unfortunately, as the case with our touted agricultural success, Madison's relative prosperity comes at the expense of other towns. Brown and Sorenson find some of our neighbors have lower than average retail pull rates:

Town	Retail Pull Index (Brown and Sorenson)	Median Income (wikipedia!)
Canova	1.01	$24,500
Chester	not avail!	na
Colman	0.77	$32,143
Colton	0.60	$42,054
Howard	0.81	$26,544
Madison	1.17	$30,434
Oldham	na	na
Ramona	0.17	na
Rutland	na	na
Wentworth	1.49	$33,438

Notice the numbers aren't quite what one might expect. Howard and Colman have less retail pull, in part because of Madison, but also surely because of Mitchell and Sioux Falls (and maybe Brookings). Wentworth manages to clean up, producing 49% more retail activity per capita than the state average, perhaps because of the thriving Wentworth Bar, perhaps because of the ethanol plant. (Hey, do sales at Ricky Roy's, Pelican Landing, and the Hillside count toward Wentworth's tally?) Ramona is in the bottom ten for the state, yet Canova manages to hold its own on this measure. (And why Brown and Sorenson didn't get numbers for Oldham, Ramona, and Chester remains a mystery.)

Now I wondered if the differences might come simply from higher incomes in the towns with higher averages. If the residents have more money, they'll buy more stuff. But local incomes and retail pull don't appear to correlate. Canova's median income is way below average, but their retail pull is right on target. Colman's median income is higher than Madison's, but their retail pull is low. It appear that retail pull is more a matter of pulling out-of-town dollars, which means there will be winners and losers.

Obviously retail pull is just one statistic in the broader picture of business health. Prostrollo's may be selling enough cars to out-of-towners to make up for other lacking retail in the final dollar count, but that doesn't help out the moms and dads who just want some good baby clothes or affordable diapers.

Brown and Sorenson's data is worth reading and studying. An interesting project might be to create a map that represents the retail pull data as colors or isolines (maybe isobars, for retail pressure? please forward me a copy if you make this map!). It may hold some useful lessons for where to focus economic development efforts... or where to encourage folks to throw in the towel and move to Mitchell. But to come up with solutions, we need to see the retail pull data in context. Is it really an indication of economic health? Is that economic health based on building local knowledge and resources or on unsustainable imports?

One thing's for sure -- the Madville Times will be bookmarking USD's Business Research Bureau. Fascinating reading!

Colman Keeps Cost and Speed Down

No word yet on whether Colman has hired a new police chief (their online commission minutes are still stuck on August as of this writing). However, a trip through Colman last week revealed an apparent effort to save money without decreasing public safety. As the Madville Times cruised through Colman on Highway 34 last week, the staff spotted a city police car parked along the highway. We slowed from 30 to 25 and got ready to wave. Nearing the police car, though, we discovered something less than Smokey inside. The only occupant of the police car appeared to be
an empty police jacket hanging in the driver's seat.

No one ever said the Colman City Commission wasn't clever.

It Can't Cost to Look -- Colman Finds New Revenue Source

An alert reader notifies me that the Colman City Council has updated its webpage and now has minutes for its August 13 meeting online. However, unlike the Madison City Commission, the Madison Central School Board, and other, better adherents of the principle of open government, the Colman City Council appears disinclined to archive minutes from previous meetings.

Why on earth would Colman not offer this relatively simple online service? Is its server space really so limited that it can't store a few dozen kilobyte-sized text files? (Technical note: the Aug. 13 minutes form a text file of 6 KB. My 1-gigabyte thumb drive, which cost $12, could hold the minutes for 160,000 such meetings, or monthly regular meetings and maybe six special meetings a year from now until November of the year 11,266 A.D., by which time Sioux Falls will have long since absorbed Colman, Madison, and probably Aberdeen and Pierre.)

A more likely answer lies in the final line of the August 13 minutes, a new rule not credited to any council member, not moved and seconded, simply stated as a done deal:

If requests to make copies of reports or information at Colman City Hall, the City will charge $.25 per copy plus the time involved.

Why put the minutes online for free when you can charge citizens a quarter a page for copies, plus labor? Colman has, after all, just lost a $21,000-per-year revenue source. They're enjoying some savings at the moment by not having hired a replacement police chief (at least I haven't seen anything in the minutes about a new hire, and I'm not about to drive through Colman myself to find out -- anyone over Colman-way have an update?), they've got to make up that shortfall somehow.

Now before anyone dumps tea in Colman Harbor over this unfair taxation, check codified law, and you'll find this moneymaker is probably kosher. SDCL 9-18-2 tells us --

9-18-2. Records of acts and proceedings of municipal officers--Open to public. Every municipal officer shall keep a record of the official acts and proceedings of his office, and such record shall be open to public inspection during business hours under reasonable restrictions.

That statute doesn't authorize any charges for access to the document. Public office, public document, public can stand there and read it. But if you want to take a copy home, that's a different matter. The city already pays for copies for the public when it fulfills SDCL 9-18-1, which requires municipalities to submit their minutes for publication in the newspaper. Government agencies can charge you for extra copies after that. A quarter's still exorbitant
-- the Madison Public Library is in tougher financial shape, and it only charges a dime a copy -- but it's probably legit.

But if you're really cheap (like the Madville Times), you should be able to make your own copy for free! Just whip out your digital camera or your photo-enabled cell phone and take pictures! Don't think it will work? Click on this photo Mrs. Madville Times took with our cheap little camera:

Perfectly legible! There's one way to put technology to work for the people!

Now I would love to know just how Colman's city officials calculate the additional labor charge they add to that quarter for each copy. Do they start the clock from the time you walk in the office, the time the city official gets up from the chair to head for the copy machine, or what? And do they assess a surcharge if there's a paper jam? So next time you're at Colman City Hall, ask the friendly folks behind the desk to copy at least one page for you. Then take your own photos of the rest... and be sure to forward those copies to the Madville Times!

So Can Colman Arrest Itself?

The City of Colman could already be in trouble with the school districts in Moody County for not collecting and remitting full speeding ticket fines to the state for distribution to the schools. A casual reading of Colman city ordinances suggests that the city might even be in trouble with itself.

Colman City Ordinance 10.0201 (Traffic Code -- Speed Limitations) establishes the speed limits on Highway 34 through town (remember, kids: 35 mph!) and other streets, then concludes with this direction:

The City of Colman follows the South Dakota State fine and bond schedule for speeding violations. Unless otherwise stated, violations of traffic and parking ordinances within the City of Colman shall be considered petty offenses punishable by a $25.00 fine.

Hmm... Chief Schlueter's predecessor, Chief Kimball, was charging speeders $35, so he evidently wasn't treating speed violations on Highway 34 as one of these petty offenses. The city also wasn't collecting or remitting to the state the funds laid out in SDCL 23-3-52 -- that's part of the "State fine and bond schedule," isn't it?

So on top of shortchanging school districts and law enforcement training, might Colman's city officials have been breaking their very own ordinance? Of course, fire the police, and there's no one left to arrest you....

Colman City Council Minutes -- For What They're Worth

I was hoping I might get a little insight on the Colman City Council's actions in May and June regarding their newly hired and quickly fired police chief Matt Schlueter. Alas, the Colman City Council is a little slow on the Internet uptake. Their official city website offers a link to Council minutes, but as of this morning, the only minutes provided are from the Council's April 9, 2007, meeting.

As a public service (and in the spirit of open government that is sweeping the state), I am thus happy to post copies of the Colman City Council minutes from May through July. For those of you who prefer not to download a 7.3 MB pdf file, here are some highlights:

May 14: Council hires Schlueter for $29,000. (Wow! That's less than some teachers make!) Not exactly the sort of grand sum that could convince a decent man to continue illegal practices for the benefit of the city.

June 11: While folks appear to come and go during meetings, Police Chief Schlueter comes and stays for the whole meeting, through all the zoning, payroll, and other non-law-enforcement issues, waiting for the discussion of police department issues, which the Council appears to like leaving for the end of the meeting.

Schlueter suggests getting a video camera for the patrol vehicle. The council tells him to look into getting a camera and a bulletproof vest. They also approve purchasing ammunition for Schlueter's firearms certification. The council at this point apparently still feels Schlueter is doing a good enough job to keep him safe and trust him with bullets.

The only mention in the minutes of the speeding-tickets issue is this one sentence: "City fines on SD Hwy 34 through Colman was [sic] discussed." Schlueter himself in private communication indicates that at that June 11 meeting, the City Council decided to handle all tickets through
the Moody County Clerk of Courts, but only with dissent from 3 of 7 council members. Not exactly eager consensus among council members on following the advice of the attorney general or even its own city attorney on how to process speeding tickets legally.

June 21: The Colman City Council holds a special session following a public hearing of the Planning and Zoning Commission. They approve a rezoning amendment from Planning and Zoning, then duck into executive session with City Finance Officer Van Duyn and City Attorney Ellingson to discuss "employee issues" for an hour and forty minutes. Ellingson leaves right after the executive session. They approve a payment and three building permits, then adjourn.

Sheer curiosity: I'd love to see the agenda posted prior to this meeting, just to make sure the executive session was listed. Alas, the Colman City Council agenda webpage doesn't have anything but April 9, either.

June 25: Another special session -- the taxpayers are getting their money's worth out of their councillors this week! The stated purpose of the meeting: "to have the Police Chief employee review." Chief Schlueter is there for the review, but, according to the minutes, "Mayor Nelson indicated other business on the agenda will be taken care of prior to the employee review." Perhaps they were worried that amidst the fuss and fire, they might forget what they originally convened to do. The council spends 20 minutes changing an order, discussing "electrical issues," and tabling a purchase agreement before diving into the black waters of executive session for 52 minutes. Upon re-opening the doors to the public, the Council declares Chief Schlueter "not a good 'fit' for the Chief of Police position in Colman and terminates him immediately with two weeks severance pay.

The minutes do not indicate that City Attorney Ellingson was present for the discussion and approval of Schlueter's firing. Maybe he should have been. If the city really could terminate its police chief without stating any cause, then why did it bother to preface the firing by stating that Schlueter didn't "fit" the position? (And what do those quote marks mean?) The statement may not weigh in any appeal of the firing (lawyers are paid to figure that sort of thing out), but the council only seems to open itself to more questions by making even a vague reference to reasons for firing when it supposedly doesn't need to give any. Attorney Ellingson might well have advised the council to make no statement, but simply to fire the Chief, per its rights, and let the matter go.

July 30: A special session to hear Schlueter's grievance. Schlueter and his attorney Todd Epp appear, but get no satisfaction. The commissioners vote to uphold the termination (unanimously, as is exceptionally noted in the minutes).

The minutes don't offer much insight into the events or rationale behind Schlueter's firing. Again, that darned executive session gets in the way of understanding what's really happening in government. Looks like if we want to know, the matter will have to go to court.

By the way, while I'm thinking about it, I notice that SDCL 1-25-2, which authorizes closed sessions for public bodies, says "Executive or closed meetings may be held," not "must be held." I've wondered: does that mean that the Colman City Council could have held its discussions of Schlueter's "fitness" for the position in open session, for the record, if it wanted to? Does that mean that when boards at various levels say they have to conduct these personnel matters in secret, they are actually stretching the truth? Legal opinion, anyone?

Colman Speeding Tickets Not Kosher

More evidence that Colman's ex-police chief Matt Schlueter was right to refuse to continue previous ticketing practices on Highway 34: The City of Colman had created its own ticket form that deviated significantly from that prescribed by South Dakota Codified Law.

First, let's look at the power of attorney "authorization card" Colman was issuing when it hired Matt Schlueter in May:

Note that the form explicitly directs those pleading guilty to return the card and listed fine to the City of Colman, at Colman City Hall. The Moody County Clerk of Courts was only to be contacted by those pleading not guilty.

Now, let's take a look at the portion of the official state ticket that serves as a power of attorney form, as specified by SDCL 23-1A-2 and SD Administrative Rule 2:03:01:03:


This form directs the defendants and their money to the County Clerk of Courts, regardless of the intended plea. The state form makes no provision for directing the money to any other agency.

Now SDAR 02:01:03:03 says "The following form, or any other form that substantially complies with it, shall be used for offenses included on the schedule of offenses adopted pursuant to SDCL 16-2-21 and where a power of attorney option is provided." One may argue over the exact meaning of "substantially complies," but this writer bets that substantial compliance probably includes instructions on where defendants should send their money. City Assistant Attorney Jim Billion's reversal of opinion on the issue in June seems to support that bet.

Remember, the issue here isn't whether Colman runs a speed trap. Colman's city police have the right -- wait, their duty is to catch every lawbreaker in town. If they could catch every no-good leadfoot (you all know who you are) zooming through that peaceful burg, then more power to them. The important issues here are the following:

1. Was Colman violating state law by pocketing speeding fines and thus denying county schools and law enforcement training the funding they were due? The above documents strengthen the case that the city did.
   
2. Did Colman fire Officer Schlueter just because he wanted to follow the law?

If either or both of these questions is answered affirmatively, then how and when will the City of Colman be held accountable? School superintendents, police officers, and Highway 34 commuters eagerly await the answer.

AG Long: Colman Breaks Law, But Doesn't Commit Crime?

Evidently pre-occupied with a million-dollar libel suit, that Sioux Falls newspaper follows the Madville Times and Madison Daily Leader in covering the speedtrap scandal in Colman. Melanie Brandert does some good homework, speaking to Attorney General Long and crunching numbers on just how much money the City of Colman kept from kids and cops [Melanie Brandert, "Police Chief: I Was Unfairly Fired," that Sioux Falls newspaper, 2007.08.17].

From the Attorney General, we get a rather odd legal opinion:

Colman officials did not commit a crime, and it is uncertain whether the state could reprimand or penalize the city in some way, Long said.

"This is sort of unplowed ground, and we're trying to figure it out," he said. "This thing is kind of unusual."

We certainly hope city officials not following state law is unusual. But since when does not following state law not constitute committing a crime? AG Long may be playing definition games in his comments for the press. His private communications to the City of Colman must have included sterner stuff:

Assistant City Attorney Jim Billion gave the city an opinion on whether it was permissible to divert payment of fines for violating local ordinances to the city in a May 29 letter to Colman Finance Officer Gloria Van Duyn.

He wrote that the practice appears permissible but warned the city would be responsible for enforcement and collection of tickets and would have to file tickets with the court clerk when contested.

Then, after Attorney General Larry Long intervened, Billion reversed his advice in a June 11 letter to Van Duyn.

"In revising this issue in light of some additional authority, I now hold the opinion that violations of city ordinance should be filed with Clerk of Courts," he said. "It doesn't appear the state will seek to collect on tickets and fines retroactively, however, the practice of issuing city tickets on SD 34 should discontinue."

It sounds like Billion was willing to facilitate the city's game as long as nobody higher up the chain of command noticed or made a fuss. When "additional authority" did get wind of Colman's monkey business, Billion turned his yes to a no. How instructive it would be to hear that early June communication between Long and Billion....

Brandert gives us a good breakdown of the money involved in what AG Long considers a non-crime:

For example, former chief Brion Kimball would charge $35 out of a $79 speeding ticket from 6 to 10 mph over the limit to speeders on Highway 34 in Colman, Schlueter told Epp in an e-mail. The remaining $44 is for costs and surcharges for violating a state statute.

"Hence nothing went to the school districts or law enforcement training and various other funds," he told his lawyer.

Costs of $40 are designated for law enforcement and judicial expenses for personnel, training and facilities provided by the state, as well as special funds such as victim compensation. The state lost $46,640 in the 2004 and 2005 federal fiscal years, and part of 2006 until May - when Kimball left to become police chief in Centerville.

With Flandreau schools having 73.6 percent of students in the county, it lost as much as $30,040 in the 2004 to 2006 federal fiscal years through May. Colman-Egan lost about $9,117. Brookings, Chester Area, Dell Rapids, Elkton and Rutland also lost money.

Flandreau Superintendent Rick Weber said he would need to study the issue further before commenting.

Colman-Egan Superintendent Roger Fritz did not return calls for comment.

Seven school districts robbed of $46,640 over two fiscal years. Multiply that figure out over nine years, and Colman breaks the $200,000 mark in moneys not collected or remitted to the state.

Let's see: if a farmer doesn't pay his property tax to the county, that's a crime. If a South Dakota business fails to collect and remit sales tax to Pierre, that's a crime. If you fail to write a check to the IRS on April 15, that's a crime. In every one of those cases, the government knows exactly what to do: it sends the sheriff or the marshal or the lawyer to get the money (or you... or both!).

Yet the City of Colman shorts the state thousands of dollars, and the Attorney General of South Dakota stands there scratching his head trying to figure out what to do?

Readers, the floor is open for suggestions....

City of Colman Denies Wrongful Termination

MDL tonight gives us the City of Colman's response to the charges that it fired Police Chief Matthew Schlueter for refusing to continue an illegal ticketing practice that may have netted the city thousands of dollars in improper speeding fines while short-changing schools and law enforcement training. City Attorney William Ellingson has sent out a news release denying that Schlueter investigation of the improper ticketing had anything to do with his termination. "Any issue regarding collection of fines is entirely separate and apart from this personnel matter" [Chuck Clement, "Former Colman Police Chief to Appeal Termination," Madison Daily Leader, 2007.08.16, pp 1-2].

Colman officials aren't saying anything else, hiding behind the usual "it involves a personnel matter" line that lets public officials stonewall and buy time. They certainly haven't replied to a July 9 letter from Schlueter's attorney Todd Epp asking for a settlement including reinstatement and acceptance of a retroactive resignation, back pay, good recommendations, and $100,000 for defamation of character [Clement, p.2].

Even if Colman can prove it had the legal right to fire the new chief without giving any reason, the city has clearly been caught breaking the law on speeding tickets. Assistant City Attorney Jim Billion said exactly that in his June 11 letter to City Finance Officer Gloria Van Duyn, and nothing in Ellingson's statements denies this crime.

Note that Billion offers the opinion that "It doesn’t appear the state will seek to collect on tickets and fines retroactively." Why on earth not? The Moody County State's Attorney just needs to look at the books and the same statutes Billion cites, and thump! case closed, Colman pays up. Oh, but wait: the Moody County State's Attorney is (get ready for another great moment in small-town South Dakota government)... William Ellingson, Colman City Attorney.

Whether Officer Schlueter can prove the City of Colman wronged him specifically, it seems clear that the City of Colman has violated the public trust. At the very least, Colman's city government needs to pay -- quite literally -- to make up for the money it kept that rightfully belongs to the State of South Dakota's law enforcement training program and to the Flandreau and Colman-Egan school districts.

Colman Keeps Money from Kids, Cops?

...wherein the Madville Times blows its chance of being invited to live-blog next year's Looney Day...

The City of Colman hired a new police chief, Matthew Schlueter, back in May. He started on May 19 and was looking forward to hunting and fishing in the area. Alas, he didn't make it to hunting season. The city fired him June 25, without publicly citing a reason.

Hmm... you usually have to kick someone's dog to get treatment like that. So whose dog got kicked?

Well, as Schlueter and his attorney Todd Epp tell it, he kicked not a dog but a cow... the Colman cash cow. According to a news release from Schlueter's attorney, the City of Colman has been issuing speeding tickets on Highway 34 through town for years and collecting the fines. No big deal, right? We all know that 35-mile-per-hour stretch is a great revenue generator. Problem is, revenue from speeding tickets on state highways, even within city limits, is supposed to go to the state, which then divvies that money up among the school districts of the county where those tickets are issued and the state law enforcement training program. If folks didn't want to contest the ticket (simpler for everyone to keep it out of the court records, right?), Colman's previous police officer was simply having offenders write their check to the City of Colman.

According to the SD Department of Public Safety, the City of Colman issued 581 speeding tickets in FY2005. The state audit of the city for that year shows revenue from fines of $21,000 (see Table 2, page 8... and then, let's go out on a limb and compare that to the bigger town of Salem on busy Highways 81 and 38, which collected $326 in fines in FY2005). I don't have the data available to break down how many of those tickets were issued on Highway 34, and I'm not clear on how much the state should receive from such tickets. But let's say half of those tickets happened on Highway 34 (that's a conservative estimate: the rest of Colman isn't big enough to give a guy room to get a running start and break the speed limit). Suppose $30 per ticket for law enforcement training and a similar amount for the schools: that's over $17,000 for each program that was never collected. (Anyone with better-informed figures is enthusiastically encouraged to submit them here!)

New police chief Schlueter investigated previous ticketing practices and eventually got confirmation from Attorney General Larry Long that issuing city tickets and pocketing the fine without remitting the state is bad (i.e., out of compliance with SDCL 23-5-52 and SD Const. Article VII Section 3). Assistant City Attorney Jim Billion acknowledged this position in a letter to the city finance officer on June 11. Almost quicker than you can say "Rosco P. Coltrane!' the City Council terminated Chief Schlueter on June 25.

As stated above, the City Council gave no public reason for ousting its new chief, and since Schlueter was a probationary employee, it probably doesn't have to give a reason. However, if Schlueter was fired for refusing to violate state law and continue the earlier ticketing practices, he might stand a chance. It's on those grounds that Schlueter is appealing his quick termination.

Now this is just Schlueter's story. Barring other information, the Madville Times tends to give the underdog the benefit of the doubt, since underdogs generally have less to hide. However, we welcome further information from our neighbors in Colman who might be able to shed some light on what actually was going on.

In the meantime, while gas prices and Madville Times Jr. keep us from speeding much any more, the Madville Times will stick to the Hwy 19-38 route to Sioux Falls.