May 18, 2023 at 2:06 p.m.
Lakeland Times asks for probe of Fifield town board, supervisor's actions
What did the town board know? Did supervisor have conflict of interest?
Ten buoys were already legally placed on the chain by town ordinance and Department of Natural Resources (DNR) approval. However, the town board approved the placement of the additional buoys without a required amendment to the town's boating regulation ordinance and without applying to the DNR for permission, as required.
In addition, the Price County sheriff's department was enforcing violations of the slow-no-wake regulation - though the buoys did not bear "slow-no-wake' language - issuing a $232 citation last August to Troy Tabbert for violating an unenforceable and indeed nonexistent slow-no-wake ordinance for those water coordinates. Tabbert's case has been re-opened and is pending.
Specifically, the newspaper is asking for an investigation into whether town board members knowingly failed to update the town's ordinance to evade public notice (a new town ordinance or amendment exacting a fine must be published in the local newspaper), and whether the board knowingly failed to notify the public of buoy placement before enforcement of the nonexistent ordinance provisions.
The Times is also asking for an inquiry into any actions that may have been taken by town of Fifield supervisor Ann Sloane, who has been an officer of the Pike Lake Chain Lakes Association, who allegedly lives near one of the illegally placed buoys, and who both participated in discussion about the buoys' placement and voted on a matter related to them.
In a letter to special prosecutor Coaty, Lakeland Times publisher Gregg Walker stressed that he was not making any accusations against the town board or Sloane or anyone else, but, he wrote, too many questions remain unanswered and, for the most part, Sloane and the Fifield town chairman have been uncooperative.
"Both myself and Times reporter Trevor Greene have made multiple calls to town chairman William Felch and supervisor Sloane but we have not been able to speak to them or have our calls returned," Walker wrote.
Walker wrote that town clerk/treasurer Kelly Kleinschmidt has been cooperative but that existing records appear to show a failure by the town board to follow the law, as even the DNR has asserted.
"As we have reported, a Lakeland Times analysis of town board, county law enforcement, and lake association meeting minutes shows that public officials failed to update their ordinance to allow for the additional buoys, and also failed to submit an application for DNR approval," Walker wrote. "As we also reported, DNR recreational officer Robin Miller told the board the six additional buoys placed on the Pike Lake chain were illegal, according to the town of Fifield's March 21, 2023, initial draft meeting minutes."
Walker said two concerns are paramount.
"First, as far as we can tell, the town board never seems to have updated its ordinance to allow for the additional buoy placements," Walker wrote. "However, official records show that town officials likely knew they had to update the ordinance and get DNR permission to place the buoys."
Walker said an investigation is necessary to determine if the board failed to act when it knew it should have.
"As such, the town board could be guilty of misconduct in public office by placing the buoys and having the sheriff's department enforce the ordinance without following statutory procedures they knew they were bound by," Walker wrote. "At its worst, it could be misconduct in public office, or negligence."
Because the town has not cooperated with the newspaper's investigation, Walker added, the special prosecutor should follow up to determine why proper procedures were not followed.
The timeline
Walker observed that a 2015 ordinance passed by the town allowed for the placement of 10 buoys in certain controlled areas of the chain: two at the end points of a narrow channel at Thorofare Bridge between Pike Lake and Round Lake; three at a narrow channel which exists between Pike Lake Club and Turner Lake (two at the channel end points and one for sight purposes); three at a narrow channel which exists in Rice Creek (two at the channel end points and one for sight purposes); and two at the end points of a narrow channel at the entrance of Squaw Creek.
Not long after that ordinance was enacted, Walker wrote, town officials were well aware they needed more buoys. For example, Walker continued, the town board's meeting minutes for August 17, 2021, showed that the town board discussed the need for two additional buoys based on a 2019 DNR erosion study.
A handout developed for that meeting, "A Brief Report/Questions For The Town Board," was made available for supervisors. The Pike Lake Chain Lakes Association was requesting two additional buoys based on the DNR study, and lake association board member Mike Ida gave the presentation.
One question by the association was whether the town board would authorize the placing of two more buoys.
"Lake traffic has dramatically increased on our chain in the last two years," the handout stated. "There are a number of wake boats and jet skis that now pound the water. Pontoon boats are now bigger and powered by 150/200 horse power engines. Sometimes water safety rules are violated by those operating these power boats."
Other questions involved whether the town board would support paying for a deputy sheriff to patrol the four lakes periodically throughout the summer, and whether the town would expand signage language to regulate allowable times not only for skiing but for jet skiing, wake boarding, and towable inflatables, Walker wrote.
"The copy of the handout given to the newspaper by the town clerk included the then clerk's notes," Walker wrote. "The handwritten notes included 'presentation hand-out w/ clerks extra notes for minutes and future agendas' and 'update ordinance to include on agenda for September meeting.'"
The meeting minutes reflected those notes, as well as the town's plan to have the lake association pay for the additional buoys, Walker wrote, quoting the minutes: "M. Ida presented the information from the DNR study and recommendations regarding erosion and additional buoys. The board agreed to have the Lake Association place 2 additional buoys at the DNR recommended location. Items of updating Skiing Hours Ordinance #28 to add additional wording for other motorized water sports was considered and will be on the next agenda to approve. Consideration will also be given, at the next board meeting, to having the Lake Association assume placement & removal of buoys if the Association agrees to accept it."
The ordinance item was indeed placed on the town board's September agenda, Walker wrote in the letter, but the board tabled it "until the next meeting." At that September meeting, two citizens spoke about buoys on the chain and about a 5 mph speed limit versus slow/no wake on the chain.
A month later the item was back on the agenda.
"In October, the town held a special wage and benefit meeting and regular meeting, and at least one resident spoke about a Thorofare Bridge 5 mph speed limit and no wake buoys, and the minutes of the September 21 were approved," Walker wrote. "In addition, as promised, the skiing hours ordinance was on the agenda for discussion. However - and this is important - the minutes indicate that the town board contacted the DNR 'regarding 'reviewing authority' of boating ordinances.'"
Those minutes suggest that the town board was aware of the need to get the DNR's sign off on any ordinance changes, not only for hours for motorized use of the chain but for "boating ordinances" in general, Walker wrote, and that would include buoy placement: "We will need a written letter to approve or deny our changes," the meeting minutes state. "This item will be brought back to a future meeting."
The DNR had also apparently responded to an inquiry regarding miles per hour versus No Wake signage, and it was mentioned that the two buoys requested by the lake association had been placed, Walker wrote and quoted the minutes: "The Town Chairman will be contacting the Sheriff for further instruction on how to best resolve if the town can do anything further."
Fast forward some seven months to the town's May 17, 2022, meeting - the next time the buoy issue was discussed, Walker wrote, observing that the minutes merely state that "buoys have been put out." It was at this meeting that Sloane was appointed as an interim town supervisor.
According to a May 20 memo from lake association board member Mike Ida to the town of Fifield, those were the six buoys now in question, Walker pointed out: "... here are the coordinates for the 6 buoys that I recently put into our lake for Ted's crew," Ida wrote.
Walker wrote that the buoy issue did not surface again until the March 21 meeting this year, when "two residents inquired about the buoys placed on the Pike Lake Chain of Lakes."
At the March 21 meeting, too, Walker wrote, according to an initial draft set of minutes, DNR recreational officer Robin Miller attended the meeting "to inform the town of the proper way to go about placing additional buoys."
"There was 16 buoys placed and only 10 are legal," the minutes state. "There has to be a request to the town to update the ordinance, then a permit would have to be applied for through the DNR for a waterway marker. This process was not done for the additional 6 buoys, therefore these are illegal."
After Miller's report, the town made a motion - seconded by Sloane - to place the original 10 buoys with consideration for another by the dam, which was apparently under federal direction, the draft minutes state.
Those minute were prepared on April 12, Walker observed. However, he wrote, those draft minutes were significantly altered on April 26, and were pending board approval at this week's May 16 meeting.
This time, Walker wrote, the minutes state: "There was 16 buoys placed and only 10 are on the current ordinance dated March, 2015. The process should be to request the Town Board to approve an update to the existing ordinance, then a permit would have to be applied for through the DNR for a waterway marker. Then the Town Board would actually approve a revised ordinance to be posted and sent to Price County for enforcement. This process was not done for the additional buoys, that were recommended from the DNR erosion study presented to the Town Board in August 2021 by the Pike Lake Association, as well as previous buoy approvals."
The revised minutes state that "there was additional discussion regarding exactly how many buoys have been approved since 2015 as well as discussion regarding if residents have been potentially moving the buoys throughout the season. The Board will look further into this situation, working with the DNR representative."
In the revised draft minutes, Walker wrote, supervisor John Smith made a motion and Ann Sloane seconded it to place the original 10 buoys "at this time, with consideration for the above additional buoys at a later date."
"The most significant difference is that, in the first draft, there is only approval for the 10 legal buoys and the buoy under federal direction," he wrote. "In the revised minutes, there is approval for the 10 legal buoys and approval for later consideration of the six buoys illegally placed last year and in 2021. Interestingly, the actual DNR assertion that those six buoys were illegal was removed from the revised minutes language."
The question is, Walker wrote, how could the factual content of a motion be so erroneously reported in the initial draft? Which one was the actual motion made at the meeting? Who ordered the revision of the minutes?
A host of questions
The timeline presents a host of questions, Walker wrote.
The first is whether all relevant documents pertaining to The Times' open records requests have been turned over, Walker wrote.
"To be clear, the town clerk had been very forthcoming in sending documents," he wrote. "However, at the same time, the town chairman and supervisor Sloane have not been cooperative, and there is an unexplained and significant revision of draft minutes pertaining to the controversial and illegal buoy placements."
That revision raises red flags and needs explaining, Walker said.
Second, Walker asked, were town board members guilty of misconduct in office and/or negligence when they failed to update their ordinance, failed to ask for DNR approval of buoy placement, and failed to publish the ordinance in the local newspaper?
At the August 2021 town board meeting, Walker wrote, supervisors discussed the need to update the water ski hours ordinance and scheduled an agenda item for the next meeting. At that September meeting, it was tabled. In October, the language suggests that the town board had asked the DNR for clarification about its reviewing authority for boating ordinances in general, and the minutes further reveal that the DNR had answered the town board on signing issues, Walker wrote.
"The question is, did the DNR also clarify its reviewing authority on boating ordinances, as requested by the town, which would include buoy placement, and, if so, when did they do so?" Walker wrote. "Do emails exist between the town and the agency to answer this question? It is critical to know whether the DNR answered the town - and whether the town followed up - and what was included in that clarification if it did."
To be sure, Walker wrote, an ordinance revision never made it back to the town board, at least not according to the documents the newspaper has received, and in a May 9 email to Times reporter Trevor Greene, Kleinschmidt said the town only recently learned that the ordinance needed to be updated: "[W]e are aware now that our ordinance should have been updated, however this was just clarified at the recent 3/21/23 board meeting with the DNR. ... As you will see from the minutes, the board is working with the DNR to complete the proper permitting, and has only approved the town crew to place the original 10 buoys per ORD#99 until further meetings, completion of the paper work and the ordinance can be updated and posted."
But, Walker wrote, at the October 2021 town board meeting, the minutes state that the town "will need a written letter to approve or deny our changes," and "this item will be brought back to a future meeting."
"This suggests that the DNR had clarified what the town needed to do regarding boating ordinances - approval for buoy placement and ordinance revision - long before it placed the six additional buoys and long before the March 21, 2023, board meeting," Walker wrote. "What's more, the sheriff's department was enforcing slow-no-wake rules in the buoy areas, presuming the ordinance to be in place."
And that leads to another question, Walker wrote.
In that same October 2021 meeting, Walker wrote, the minutes state that "the Town Chairman will be contacting the Sheriff for further instruction on how to best resolve if the town can do anything further."
"It is absolutely essential to know the nature of any such conversations," Walker wrote. "Did the town chairman tell the sheriff to issue citations and that it was OK to do so? We need to know exactly what the town chairman knew about the legality of the situation, and when he knew it. That goes for the town board, too."
Finally and even more important, Walker wrote, the role of town supervisor and Pike Lake Chain Lakes Association officer Ann Sloane must be investigated.
"It would seem that, as an officer of the lake association and, even more, as a resident of the chain whose house is apparently near one of the buoys, Ms. Sloane should have recused herself not only from voting on any matter concerning the buoy placements but from even discussing the matter," Walker wrote. "By the location of her residence and by her position in the lake association, Ms. Sloane stood to benefit in two ways - personally and for the organization she serves - from the placement of the buoys."
Recusal was the only ethical course, Walker concluded.
And yet, Walker wrote, Sloan seconded the motion made by John Smith "to place the original 10 buoys at this time, with consideration for the above additional buoys at a later date."
"The documents we have suggest that the town board could have simply flouted the law in its own interests, and those documents also suggest Ms. Sloane was mired in a conflict of interest on two levels," Walker wrote. "Again, these are perceptions, not accusations, and we readily admit that our documents may not be complete or provide complete context. As such, it would serve not only the public interest but the private interests of the Fifield town board and of Ms. Sloane to have those questions answered and the matter resolved once and for all. An investigation by your office is the way to do that."
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