By Dana Hess
For the S.D. NewMedia Association
PIERRE — Legislation concerning open records and open meetings was a recurring topic this past week in the South Dakota Legislature. A rundown of that activity includes:
Senate Bill 9—Opening officials’ calendars
to the public
On Wednesday, legislators on the Senate State Affairs Committee claimed to be all for more public transparency as they sent SB 9 to the 41st day of the session, a method of disposing of legislation.
The bill, sponsored by Sen. Michael Rohl, R-Aberdeen, sought to open to public view the calendars and appointment logs of officials holding statewide office. That includes the governor, lieutenant governor and constitutional officers.
Rohl noted that states across the country offer public access to elected officials’ calendars. Under South Dakota’s current law, those items can be held from public view.
“Currently statewide elected officials are collecting six-figure salaries with very little accountability to the public,” Rohl said. SB 9 is “providing accountability for public officials to the citizens they represent.”
Testifying in opposition to the bill was Jason Ketterling, assistant superintendent of the South Dakota Highway Patrol, who raised a number of concerns.
“Releasing an official’s schedule could lead to misinterpretation and unfounded claims of favoritism, conflicts of interest and misuse of time,” Ketterling said. Citing the bill as creating a “significant administrative burden,” he also said it could compromise the safety of the elected official.
Also speaking against the bill was one of the elected officials it would affect, Brock Greenfield, commissioner of school and public lands. Greenfield asked if he would have to log the times he has been flagged down in the hall by constituents or the times he has been stopped in the restroom to discuss leasing rights.
“My time can be a lot better spent actually working for the people of South Dakota than trying to recap on my Outlook calendar every meeting I have,” Greenfield said.
Elected officials should not be afraid of public scrutiny, Rohl said. “How can you be accountable to somebody if they don’t even know if you’re showing up for work?” Rohl asked.
“I love transparency,” said Sen. Chris Karr, after making a motion to send SB 9 to the 41st day. Karr said the legislation would incentivize elected officials not to keep a calendar or appointment log.
The motion to kill the legislation was approved by the committee on a 7-2 vote.
On Thursday in the Senate, Rohl was supported by enough senators to bring his failed legislation to the Senate floor. The procedure, which calls for support by one-third of the Senate, is called a “smoke out.” SB 9 will be considered by the Senate next week.
Senate Bill 10 — Opening a governor’s
records sooner
Rohl had better luck in committee with SB 10, a bill that could open the records of a governor or lieutenant governor after five years. Currently those records are opened after 10 years or upon the death of the official, whichever transpires last.
Rohl said that passage of the bill would be a faster way to get information to the public about a governor’s time in office. No one spoke in opposition to the bill. It was approved unanimously by the committee.
Thursday the full Senate unanimously approved of SB 10.
Senate Bill 74 — Requiring a review of open meetings laws
At the same time the Senate State Affairs Committee was deciding the fate of open records laws, the Senate Local Government Committee was endorsing SB 74. That legislation would require state and local government boards to review the open meetings laws once a year.
Sen. Tim Reed, R-Brookings, said most violations of the open meetings laws are inadvertent. “This bill promotes transparency and helps protect public officials by requiring annual review of open meetings guidelines provided by the attorney general,” Reed said.
The attorney general’s office publishes a brochure outlining the opening meetings laws. The brochure is also available on the attorney general’s website.
David Bordewyk, executive director of the South Dakota NewsMedia Association, noted that in the past 20 years the South Dakota Open Meetings Commission has heard more than 70 complaints alleging violations of the law. In many of the cases where a violation was determined, it was because of a lack of understanding of the laws, Bordewyk said.
A yearly review would help keep those violations from happening, Bordewyk said. “This would be especially helpful given the natural turnover of boards due to elections or other means.”
In addition to reviewing the laws once each year, SB 74 also requires boards and commissions to make note of that review in their meeting minutes.
Also speaking in favor of the bill were representatives from the South Dakota Municipal League, South Dakota Association of County Commissioners and the attorney general’s office. No one spoke in opposition to the bill.
SB 74 was approved by the Senate on Friday afternoon and it now goes to the House of Representatives for consideration.
HB 1059 — Clarifying how teleconferences are used in open meetings
On Thursday, the House Local Government Committee approved HB 1059 which clarifies the role of electronic communications in the open meetings laws. Those laws generally forbid a quorum of an elected board from meeting away from public scrutiny.
HB 1059 states that electronic communications like e-mail or text messaging are subject to the open meetings laws if all members of a publicly elected board or commission are included on the message and respond to carry on a discussion.
Rep. Matt Roby, R-Watertown, a former city attorney, asked if an email sent to all council members constituted a public meeting. According to Bordewyk, from the NewsMedia Association, an electronic communication that includes an entire board or council is allowed as long as it doesn’t lead to a discussion among the members. That discussion would constitute a violation of the open meetings law.
Speaking in favor of the legislation was Sara Rankin, executive director of the Municipal League. “This could clarify a really murky area of our open meetings law,” Rankin said.
Also speaking in favor of the bill was Kellen Willert, a Belle Fourche attorney familiar with the open meetings laws. Willert characterized HB 1059 as a clean-up bill clarifying that the use of electronic messaging by elected officials can have implications for the open meetings laws.
The committee approved the bill on a 12-1 vote. It now goes to the House floor.