Anyone who cares about open government in South Dakota was cheered by the recent news of the reemergence of the Open Meetings Commission.
The commission, established by the Legislature in 2004, considers complaints against local governmental bodies that have allegedly run afoul of the states open meetings law. The commission is made up of five states attorneys appointed by the attorney general. At its recent meeting, commissioners issued unanimous rulings in five of the six cases brought against local governments.
Attorney General Marty Jackley was instrumental in resurrecting the commission. Any praise for getting the commission going again has to be tempered by the fact that no one faces much punishment for breaking the law. The commission will issue written reprimands for the offenders, a punishment that is something akin to being stoned with popcorn. The best the commissioners can do is offer a public shaming of the offending elected officials, though no one will be forced to wear a scarlet letter.
The irony of having states attorneys serve on the commission is that there has never been, in the history of the states open meetings law, a states attorney who filed charges against an offending board or council. Not once. This traditional lack of law enforcement led to the creation of the commission, figuring that some public exposure of wrongdoing is better than nothing at all. Given the overall weakness of South Dakotas open meetings law, it only seems natural that the punishment for breaking that law be a delicate slap on the wrist.
The Open Meetings Commission has been out of action since the last day of December, 2020. It shut down during the dark days of Jason Ravnsborgs tenure as attorney general. Initially Jackley had trouble restarting the commission because he couldnt find enough states attorneys to serve. In the last legislative session, Jackley convinced lawmakers to broaden the commissions membership to include deputy states attorneys.
Given Jackleys difficulty in finding enough states attorneys to serve on the commission, theres something to be said for broadening its membership. Open meetings law isnt that complicated. Its neatly explained in a brochure available on the attorney generals website at atg.sd.gov. Under the Legal Resources tab click on Open Government and then on Open Meetings Commission.
There are any number of people without law degrees who might be qualified to serve on the commission. Out of necessity, many journalists in this state are well-schooled in the open meetings law. The ranks of the commission could also be filled by former elected officials who know the law and value open government.
Certainly an attorney would need to be on hand to advise the commission, but theres no need for each meeting to look like a law school alumni event. Specific expertise is not required in other state boards and commissions. Board of Regents members need not be educators. Theres no requirement to know anything about hunting, fishing or camping to serve on the Game, Fish and Parks Commission. The Board of Water and Natural Resources isnt limited to hydrologists.
The next time Jackley has a tough time finding enough states attorneys to fill out the commission, he should consider offering legislation that broadens its membership beyond members of the bar. As it turns out, there may be an open meetings bill introduced in the next session of the Legislature. The South Dakota NewsMedia Association has crafted a bill that would require local governments to have their lawyer review with them the attorney generals open meetings brochure each year.
The people who serve in local government get elected for a variety of reasons. Chances are, before their election, they dont give much thought to the open meetings law. Consequently, when they run afoul of the law, its an inadvertent misstep rather than an attempt at graft and corruption. Getting a refresher each year can only serve to ensure that elected officials adhere to the law and provide transparency in the way that they govern.
Originally intended to meet twice a year, the Open Meetings Commission will be meeting twice in November to deal with the backlog of cases that have accrued since 2020. The six cases the commission heard at its first meeting and the seven still on the docket show that theres a need for the people who serve in local governments to be schooled in the open meetings law so they can avoid unintended violations.
With more education, there may come a time when the commission goes dark again not out of neglect or because theres no one to serve, but because there are so few violations.
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