County seeking security bond from City in jail lawsuit

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BROOKINGS – Brookings County is seeking a security bond of at least $1 million from the City of Brookings, payable if the City loses its appeal to the South Dakota Supreme Court over the county jail expansion project.

A hearing regarding the County’s motion to require the City to provide security in the form of a bond is set for Thursday.

The City of Brookings announced last month that it plans to appeal a circuit judge’s ruling on the Brookings County Detention Center expansion to the state Supreme Court. 

A judge ruled in Brookings County’s favor in March in the lawsuit between Brookings County and City of Brookings over the proposed Brookings County Detention Center expansion.

The expansion can proceed, Circuit Judge Kent Shelton said in March.

The earliest the Supreme Court would hear the City’s appeal is early 2021, County officials say.

According to court documents, the County is seeking the security bond because, should the City lose its appeal and the County gets the go-ahead to continue the jail expansion, the cost of the project will have increased between $1.1 million and $1.8 million due to the ongoing delay.

Signed affidavits from architect Bruce Schwartzman of BKV Group and construction manager Dave Derry of Henry Carlson Construction both say that they believe a price increase of more than $1 million is expected if the project is pushed back to 2021. 

Both documents claim that due to the COVID-19 pandemic, bidding rates for construction are now at an all-time low. 

“In combining the current competitive bidding climate potential savings of $800,000 to $1,200,000 with the anticipated inflation increase of $300,000 to $600,000, this would result in an estimate project cost increase to Brookings County in the range of $1.1 million to $1.8 million in delaying the start of construction from the current plan in 2020 to 2021,” wrote Schwartzman in his affidavit.

The County cites South Dakota Codified Laws 15-26A-38, 15-26A-39, and 15-26A-45 in its motion and memorandum requesting the court require the City to provide a security bond.

The County’s attorney argues that “statutory language is clear, and it grants courts with discretion to require a bond. Here, the County has shown that this additional delay from the City’s appeal will cause substantial financial harm. A bond should be required so that in the likely event this Court’s decision is affirmed, the County has funds available to compensate for its losses that can later be determined consistent with SDCL 15-26A-45.”

The City of Brookings declined to comment on the potential bond placement.

At the May 19 Brookings County Commission meeting, Commissioner Lee Ann Pierce said the bond is meant to “ensure entities are not filing a frivolous appeal and protection if we win the appeal.”

Sheriff Marty Stanwick said he’s disappointed that the County needed to take this action but is hopeful the bond will incentivize the City to drop the appeal.

“It’s disappointing that we have to do that and spend more of the taxpayers’ money that takes us to court, and the reason for bonds is so that there’s not frivolous lawsuits,” Stanwick said. “It doesn’t make sense that they would want to continue with this lawsuit, especially because they’re going to potentially have a shortfall with their budgeting due to the drop in sales tax revenue due to everything shutting down because of the pandemic, like the Arts Festival.”

Stanwick said the County plans to move ahead with the jail bidding process this summer, since nothing is currently preventing the commissioners from doing so.

Contact Matthew Rhodes at mrhodes@brookingsregister.com.