MINUTES September 19, 2011


Enforcement Panel Members in attendance: Erin Hayes; Gene Solseth; Todd Chambers; Terry Larson; Legal Counsel, Kara Semmler; Executive Director, Larry Janes.  Also in attendance: Dr. Nathan Kadlec, Active Care Chiropractic; Bruce Brekke, Montana-Dakota Utilities Co. (MDU);Mike Schoepp, MDU.

Larry Janes provided a brief description of the Enforcement Panel process, including that this is a legal proceeding.  No comments will be taken by either party during the call.  The determination of probable cause will only be made after consideration of the written documentation provided in the complaint and by the rebuttal information received from the defendant.  Both parties will be provided the Panel’s recommendation in writing and will be given the opportunity to request a hearing before the full South Dakota One Call Notification Board, if either party disagrees with the recommendation of the Panel.

OC11-006 – In the Matter of the Complaint Filed by Active Care Chiropractic, Ipswich, South Dakota, Against Montana-Dakota Utilities Co., Bismarck, North Dakota

Dr. Nathan Kadlec, Active Care Chiropractic filed a complaint on August 18, 2011 alleging that MDU failed to mark lines in a timely fashion, as required by SDCL 49-7A-8, and as a result another contractor struck the line rupturing it with a boring tool and caused loss of business, closure of the healthcare office, and loss of future revenue.

Mr. Mike Schoepp, MDU, responded on August 29, 2011 that it had located its facilities on the other side of the road, and that their insurance provider will be contacting Dr. Nathan Kadlec.

Larry Janes stated there have been no previous complaints brought before the South Dakota One Call Notification Board Enforcement Panel against MDU.

Order of Business

The parties were told that the Enforcement Panel would discuss the written documentation provided by both parties and make a determination if probable cause exists that MDU violated SD One Call Law.  If so, was the violation intentional or unintentional?  What penalty, if any, will be recommended by the Enforcement Panel?

Enforcement Panel discussion:

Erin Hayes mentioned that a copy of the locate request was not provided by either party.  Todd Chambers concurred, although there was a ticket number on the complaint form.  He also mentioned that MDU did not deny that a violation occurred.

Gene Solseth asked if we could request additional evidence from either party.  Kara Semmler stated that Dr. Kadlec could request a hearing to provide additional evidence and witnesses.  MDU would then be given an opportunity to defend itself.

Gene Solseth made a motion that the Enforcement Panel recommend a hearing be called to request additional information from both parties.  Erin Hayes seconded.   Further discussion was held regarding the best way to call for a hearing.  Upon a Roll Call vote Gene Solseth and Erin Hayes voted in favor.  Todd Chambers and Terry Larson voted against.  Motion failed.

Todd Chambers made a motion that the Enforcement Panel does not find probable cause that a violation occurred and that the complaint should be dismissed.  Terry Larson seconded.  Motion carried unanimously on a Roll Call vote.

Larry Janes asked if there was any further discussion.  Upon being none, he asked for a motion to adjourn.  Todd Chambers so moved.  Erin Hayes seconded.   Motion carried unanimously on a Roll Call vote.

Meeting Adjourned.