Unfortunately, in an era when the public's interest in what their government is doing at all levels is growing, South Dakotans now find themselves short-changed, not by legislative action, but by a quasi-governmental group called the Open Meetings Commission.
The commission was established in 2004 to provide some mechanism for at least chastising city councils, county commissioners and school boards if they violate the state's open meetings law.
No public entity has ever been prosecuted under this law in South Dakota, not because there has never been a violation. But, probably, because the states attorneys are the official legal counsel for their county commissions, and have been reluctant to even consider prosecution. The Open Meetings Commission was formed so the states attorneys, faced with a complaint for violation of the open meetings law, could, instead of prosecution, forward the complaint to the commission, which can clear the governmental body or issue a reprimand.
In June, 2009, the OMC heard a complaint from Betty Breck of Brown County accusing the county commissioners of violating particular section of the law, which reads in part "all public bodies shall provide notice, with proposed agenda, at least twenty-four hours prior to any meeting, by posting a copy of the notice, visible to the public, at the principal office of the public body holding the meeting …”
Ms. Breck's complaint said the Brown County Commission failed to provide proper notice by posting an agenda, which was visible to the public for the 24-hour period before a 2008 meeting. The commission cleared them of the charge, opining in its "Conclusion of Law" that "the statute does not require that the agenda be posted for 24 continuous hours per day; it merely requires that the notice be posted. " That statement would, of course, be laughable, if taken to mean you could post it and then take it down.
But the commission went on to rely on SDCL 17-3.1 (which pertains only to county commissions, not all public bodies) which provides a single place within a county courthouse for posting a variety of notices, and thus led them to conclude since courthouses are not open 24 hours a day that the statute" persuasively demonstrate that the legislative intent, with regard to posting notices, does not contemplate 24 hours visibility, but rather visibility during reasonable business hours."
Basically that led, for all practical purposes, to amending state law to read "visible to the public during reasonable business hours." In doing so, the Open Meeting Commission members basically disregarded SDCL 17-3.2, which expanded 17-3.1 by providing the bulletin board posting was sufficient "unless the context of such statute or rule otherwise plainly requires" otherwise, which the open meetings law required in adopting SDCL 1-25 in 1990.
Breck subsequently filed four more complaints on meetings of the Aberdeen City Council and Planning Commission, in 2008 and 2009, which took most of three years to reach the OMC, because the Aberdeen city attorney ignored numerous attempts from the Brown County states attorney to provide a response to the complaints.
In researching the enactment of the current form of SDCL 25-1, Breck discovered that I was the lead proponent of House Bill (HB) 1172 when it was adopted by the legislature in 1990. She contacted me and I informed her that the bill, and the intent of the legislature, required that a notice and agenda be posted in a place where it could be viewed by the public for a 24-hour period in advance of the meeting. I was unaware of the 2008 Open Meeting Commission's decision, so I subsequently agreed to testify before the commission as to the clear intent of the bill when it was debated in 1990.
Breck also, subsequently, received signed sworn affidavits from five legislators who voted for the bill in 1990, which each stated "The intent of HB 1172 was that the notice and agenda would be visible to the public for the entire 24 hours they are required to be posted, so the public would have time to learn about and/or prepare to address issues which would be considered at public meetings."
The commission then met in Sioux Falls on Dec. 7, and in testimony provided by Breck and myself, we asked the Open Meetings Commission to revise their previous interpretation of SDCL 1-25-1.1. Only Reedstrom, Rothschadl and Steele were present in person, with Brenner and Sovell present by teleconference. Steele led off the discussion stating he believed the commission had misinterpreted the law in 2008 and should be willing to admit it and clarify the record. Brenner took the position the commission had not misinterpreted the law, and Reedstrom, who had stated during the discussion that they may have misunderstood the intent of the law, quickly agreed with Brenner. Rothschadl and Sovell, who had taken little part in the discussion, also agreed with them.
After denying the complaints, based on their conclusions in the 2009 case, Steele moved to reopen discussion on the commission's interpretation of the legislative intent in 1-25-1.1. None of the other members of the commission were willing to provide a second to the motion.
Several conclusions are apparent. The Open Meetings Commission has defacto changed the language in 1-25-1.1 to read that the notice and agenda should be "visible to the public only during reasonable business hours". Members of the public who are interested in the agendas, and who are required to work during "reasonable business hours", will have no opportunity to view the notice and agenda.
None of the commissioners had any personal knowledge of what HB 1172 envisioned, and a majority, despite the testimony and sworn legislative affidavits presented to them, refused to open up discussion on the issue.
Posting of notices where they are visible to the public does not require a public building to be open 24 hours. Visibility can be easily accomplished in most cases by taping the notice inside a glass door or window.
In their haste to get away from the subject, the chairman refused to allow Breck an opportunity to point out that the commission had not made a decision on one count of her complaints, where the notice and agenda were visible only to the public for an hour and 30 minutes, and she has now filed a written request for a ruling on that issue at the next commission meeting.
Thanks to John Steele for his willingness to put the public's interest ahead of a natural inclination to deny having made a mistake. Commissioners Reedstrom, Brenner, Rothschadl and Sovell get the credit for limiting the public's right to know.
Keith Jensen of Brookings was the general manager of the South Dakota Newspaper Association from 1981 to 1996.