South Dakota Office of the Attorney General Bethanna Feist Assistant Attorney General Consumer Protection Division.

OPEN MEETINGS

South Dakota Office of the Attorney GeneralBethanna Feist

Assistant Attorney GeneralConsumer Protection Division

Employer: "In this job we need someone who is responsible."

Applicant: "I'm the one you want. On my last job, every time anything went wrong, they said I was responsible."

Basic Rule: SDCL 1-25-1

All official meetings of public bodies SHALL be open to the public.

Purpose of this Law

“…to prohibit actions being taken at secret meetings where it is impossible for the interested public to become fully informed and to detect improper influences.”

Olson v. Cass, 349 N.W.2d 435 (S.D. 1984)

What is an OFFICIAL meeting?

“When a majority or quorum of the body is present and official business…of the board…is discussed.”

Attorney General Opinion 89-09 Not defined by statute or case law

Regular Meetings Lunches? Smoking breaks? Sporting events? Social events? Others?

PUBLIC NOTICE

Post: Proposed agenda

Including date, time and location of meeting Notice of meeting

In visible, readable, and accessible location

24 hours before meeting At the principal office of the public body Posted on website upon dissemination of

the notice (if have website) SDCL 1-25-1.1

Printed Materials

Must be made public when provided to the members prior to meeting Posted on website OR Available at PPOB at least 24 hours prior to meeting OR When provided to the members

Whichever is later If not posted on website:

At least ONE copy in the meeting room Not required for material exempt under SDCL 1-

25 Attorney-client confidential material Executive/closed meeting

Meeting Minutes

Must keep detailed minutes of regular or special meetings

Must be available for inspection of public at all times at principal place of business

Made available within 10 business days after meetingDoes not apply if audio/video

recording is available on website within 5 business days after meeting

Special/Rescheduled Meetings

Posting and Agenda Requirements are SAME

Notice SHALL be delivered:In person-by mail, email or

telephone Must make honest effort

To local news media Those who have requested notice

SDCL 1-25-1.1

Teleconferences

Teleconference: information exchanged by audio or video medium

May be used to conduct a hearing or take final disposition on an administrative rule

Member is present if answers present during roll call

Every vote SHALL be taken by roll call

Teleconference Notice

Posting and Agenda Requirements are SAME

Allow AT LEAST ONE place for the public to listen and participate

If less than quorum of members present, must provide public the opportunity to listen via telephone or internet

Doesn’t apply to executive or closed meetings

Committees/Task Forces

If appointed by governing body:Final recommendation, finding, or

report SHALL be reported in open meeting

Governing body MUST DELAY final action until next meeting

If not created by statute, ordinance or proclamation, or are advisory:May not be subject to open meetings

rulesAsk legal advice if unsure

Executive Session

May only be held for the sole purpose of:Employee/Personnel MattersStudent IssuesCommunications with attorney

regarding proposed or pending litigation, or contracts

Labor NegotiationsMarketing Strategies Economic Development (SDCL 9-

34-19)

Executive Session Limitations

NO official actionOfficial action must be taken at

open meeting Majority of the members of body

must be present and voting NO discussions of any other matters

State’s Attorney Enforcement

Charge Class 2 Misdemeanor Dismiss (“no merits” letter)

Send copy of complaint and investigation to AG

Refer to Open Meeting Commission Refer to another SA or AG for prosecution

ONLY if complaint against Board of County Commissioners

Open Meeting Commission

Comprised of: 5 State’s Attorneys appointed by Attorney

General Chair chosen annually from commission by

majority vote Issues written determination of whether

conduct violates SDCL 1-25 Includes:

Statement of reasons Findings of fact on each issue Conclusions of Law

Used to make final decision

Open Meeting Commission

Final Decision: Made by majority of commission members

Each vote set forth in written decision Filed with Attorney General Provided to public entity involved, State’s

Attorney, and anyone requesting the final decision If find violation:

Issue public reprimand Cannot send back to State’s Attorney or to

Attorney General for criminal prosecution All findings/public censures shall be public

record

Open Meeting Commission

Began in 2004 No jurisdiction over complaints prior to 2004

37 decisions Various open meeting issues Found on Attorney General’s

website: http://atg.sd.gov/OpenGovernment.aspx

2013 Legislation

Failed Expand teleconference definition to

include email, text messages, chat services or other similar media if official business is discussed

Expand open meeting provisions to apply to any committee or subcommittee of a public body

Require minutes to be kept of executive or closed sessions and define how they will be viewed

2013 Legislation

Signed by Governor “If a quorum of township supervisors, road

district trustees, or trustees for a municipality of the third class meet solely for purposes of implementing previously publicly-adopted policy, carrying out ministerial functions of that township, district, or municipality, or undertaking a factual investigation of conditions related to public safety, the meeting is not subject to the provisions of this chapter.”

Amended SDCL 1-25-1

2013 Legislature

Signed by GovernorProposed agenda shall include

date, time and location of the meeting

Amended SDCL 1-25-1.1

Married?

Smith goes to see his supervisor in the front office.

"Boss," he says, "we're doing some heavy house-cleaning at home tomorrow, and my wife needs me to help with the attic and the garage, moving and hauling stuff."

"We're short-handed, Smith," the boss replies. "I can't give you the day off."

"Thanks, boss," says Smith, "I knew I could count on you!"

Questions?

Phone: 605-773-3215 Email:

[email protected] Website:

http://atg.sd.gov/OpenGovernment.aspx