The Open Meetings Law Reduxconvention.asbsd.org/...Open-Meetings-Law-Redux.pdf · The Open Meetings Law Redux It is the Law! (revised again) Gerry Kaufman, ASBSD Director of Policy

ASBSD/SASD Annual

Convention 2018

The Open Meetings Law

ReduxIt is the Law! (revised again)

Gerry Kaufman, ASBSD Director of Policy & Legal Services, and Randall Royer, ASBSD Leadership Development Director

Reduxre·duxrēˈdəks,ˈrēˈdəks/ "re-DUCKS,"adjective: reduxbrought back; revived."the 1980s were far more than just the '50s redux"

SDCL 1-25-1

“The official meetings of the state, its political subdivisions, and any public body of the state or its political subdivisions are open to the public unless a specific law is cited by the state, the political subdivision, or the public body to close the official meeting to the public.” *emphasis added

SDCL 1-25-1

• School board meetings are held in the public – they are NOT public meetings.

• The public may participate in open forum or only upon invitation by the board president.

• OPEN/PUBLIC FORUM NOW REQUIRED.

New in 2018

SDCL 1-25-1. “The chair of the public body shall reserve at every official meeting by the public body a period for public comment, limited at the chair's discretion, but not so limited as to provide for no public comment.”

Board Policy?

Descriptor Code: BDDH

Title:PUBLIC PARTICIPATION AT BOARD MEETINGS

The School Board recognizes and respects the input which may be provided by the public on school district matters. The Board also recognizes and respects the distinction between a school board meeting and a public meeting.

Questions?

?????son Open Forum/

Public to be Heard?

What’s an official meeting?

Quorum of the Board meets:

✓Same place

✓Same time

✓Official business of school board/district is discussed or decided,

✓or public policy is formulated.

SDCL 1-25-1

“ . . . For the purposes of this section, an official meeting is any meeting of a quorum of a public body at which official business of that public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.” *emphasis added

What’s an official meeting?

Quorum of the Board meets:

• in person or by means of teleconference

–Teleconference defined.• a teleconference is information

exchanged by any audio, video, (1990)

• or electronic medium, including the internet (2016).

Teleconference

1-25-1.2 “Teleconference defined. For the purposes of this chapter, a teleconference is information exchanged by any audio, video, or electronic medium, including the internet.” (emphasis added)

Teleconference

• Meeting may be held by teleconference;

• Hearing may be held by teleconference;

• Executive Session may be held by teleconference.

• Member is deemed present if the member answers “present” to the roll call;

• Each vote during a meeting held by teleconference shall be taken by roll call.

Teleconference

SDCL 1-25-1. “Each vote at an official meeting held by teleconference shall be taken by roll call.” (emphasis added)

Teleconference

For a public meeting held by teleconference, the Board mustprovide at least one place where public may listen to and participate in the teleconference meeting. (Except Executive Sessions)

Teleconference

1-25-1 “For any official meeting held by teleconference, which has less than a quorum of the members of the public body participating in the meeting who are present at the location open to the public, arrangements shall be provided for the public to listen to the meeting via telephone or internet.” (emphasis added)

SDCL 1-25-1

• A violation of SDCL 1-25-1 is a Class 2 misdemeanor, punishable by up to a $500 fine and/or 30 days in jail,

OR

• could result in a public reprimand from the Open Meetings Commission (OMC).

What’s an official meeting?

Recent Open Meetings Commission (OMC) decisions:

- Canton City Commission

- Potter County Commissioners

Questions?

?????son Meetings or Teleconference?

SDCL 1-25-1.1

“All public bodies, . . , shall provide public notice, with proposed agenda, that is visible, readable, and accessible for at least an entire, continuous twenty-four hours immediately preceding any meeting, by posting a copy of the notice, visible to the public, at the principal office of the public body

holding the meeting.” (emphasis added)

SDCL 1-25-1.1

“The proposed agenda shall include the date, time, and location of the meeting. The notice shall also be posted on the public body's website upon dissemination of the notice, if such a website exists.” (emphasis added)

SDCL 1-25-1.1

“For any special or rescheduled meeting, the information in the notice shall be delivered in person, by mail, by email, or by telephone, to members of the local news media who have requested notice. For any special or rescheduled meeting, each public body shall also comply with the public notice provisions of this section for a regular meeting to the extent that circumstances permit.” (emphasis added)

Who can call special meetings?

SDCL 13-8-10 “Special meetings may be held upon call of the president or in the president's absence by the vice-president, or a majority of the board members. Notice of such meeting shall be given by the business manager to the board members either orally or in writing in sufficient time to permit their presence.”

SDCL 1-25-1

• A violation of SDCL 1-25-1 is a Class 2 misdemeanor, punishable by up to a $500 fine and/or 30 days in jail,

OR

• could result in a public reprimand from the Open Meetings Commission (OMC).

Posting an agenda?

Recent Open Meetings Commission decisions:

- SD Board of Regents (not yet, but . )

Posting an agenda?

From the AG’s brochure on Open Meetings law: “Typically the public body adopts the final agenda upon convening the meeting. At this time, the governing body may add or delete agenda items and may also change the order of business.” . . . “New items cannot be added after the agenda has been adopted by the governing body.”

Questions?

?????sOn agendas or

special meetings?

SDCL 1-25-1

“The official meetings of the state, its political subdivisions, and any public body of the state or its political subdivisions are open to the public unless a specific law is cited by the state, the political subdivision, or the public body to close the official meeting to the public.” *emphasis added

SDCL 1-25-2

“An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion.”

(emphasis added)

SDCL 1-25-2(1)

1. Discussing the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee. The term "employee" does not include any independent contractor;

Open Meetings Commission (OMC)

Recent Open Meetings Commission decisions:

–Hot Springs School Board

– South Dakota Water Management Board

SDCL 1-25-2(2)

2. Discussing the expulsion, suspension, discipline, assignment of the educational program of a student.

SDCL 1-25-2(3)

3. Consulting with legal counsel or reviewing communication from legal counsel about proposed or pending litigation or contractual matters.

SDCL 1-25-2(4)

4. Preparing for contract negotiations or negotiating with employees or employee representatives.

SDCL 1-25-2(5)

5. Discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, when public discussion may be harmful to the competitive position of the business.

SDCL 1-25-2

• A vote is required to go into executive session. (Motion, second, majority vote)

• The specific statue must be referenced in the motion (i.e., “motion to go into executive session pursuant to SDCL 1-25-2 (1)” or “for personnel, pursuant to SDCL 1-25-2 (1)”. (It’s the law.)

SDCL 1-25-2

• Discussion in executive session is limited to the purpose stated in the motion.

• No vote is required to come out of executive session. (Can’t be done)

• The confidentiality of executive sessions MUST be maintained.

SDCL 1-25-2

Action Item #2: Motion by Kaufman, second by Royer to enter executive session pursuant to SDCL 1-25-2 to discuss personnel (SDCL 1-25-2(1), consult with legal consul (SDCL 1-25-2(3), and negotiations (SDCL 1-25-2(4) at 6:13 p.m. Motion carried. President Pogany declared the board out of executive session at 9:39.

Questions?

?????sOn Executive

Sessions?

1-25-11

“Recording of open public meeting to be permitted. No state, political subdivision, or public body may prevent a person from recording, through audio or video technology, a public meeting that is open to the public as long as the recording is reasonable, obvious, and not disruptive.”

(emphasis added)

Questions?