There are a few different ways to approach getting bills approved by the South Dakota Legislature. One way is to take small, innocuous steps that aren’t likely to meet with much pushback from legislators.
Another, riskier, way is to propose big, maybe even controversial, changes.
It was apparent in this year’s legislative session that Attorney General Marty Jackley was trying to bunt his way on rather than swing for the fences with the bills he proposed to tighten the state’s open meetings laws.
Jackley’s bills sought to clarify agenda and executive session requirements and mandate when agendas have to be posted. They represented needed but not dramatic changes to the state’s open meetings laws. As such, they flew through the Legislature without a hint of opposition. Added together, the committee, House and Senate votes on the three bills totaled 365-0. Not one no vote. Not one hand raised in opposition.
Remember, those votes took place in the South Dakota Legislature where certain factions within the Republican super-majority have been known to go out of their way to be contrary. While needed, these bills were so light of weight that they veritably floated through the Legislature.
Significant changes to make the law tougher will need to risk angering the lobbyists who look out for the interests of cities, counties and school districts.
While more needs to be done to strengthen the open meetings law, to his credit, Jackley has been a champion for openness. He revived the Open Meetings Commission, which went dormant during the dark days when Jason Ravnsborg was the attorney general. He has also created the Advisory Task Force Committee on Open Meetings to offer changes that strengthen the open meetings laws.
The last meeting of the task force proposed a few changes, but hung up on one that’s particularly needed. Task force members couldn’t decide if the meetings of public entities should have audio recordings that are archived. The subject was left undecided as task force members debated which boards and commissions would record their meetings and how long the recordings must be kept on file.
A South Dakota Searchlight story noting the creation of the task force quoted Jackley as saying, “Government, funded by taxpayers, should be transparent.” According to the attorney general, his goal was “to increase government transparency within our state.”
That’s a tall order. It’s hard to be transparent when executive sessions — those times when councils and boards can meet behind closed doors — are built to be opaque. It’s hard to be transparent when the state’s attorneys who decide who gets prosecuted for open meetings violations work so closely with the county commissions that may be violating the law.
The best South Dakota has been able to do is the creation of the Open Meetings Commission. Made up of state’s attorneys, the commission hears about possible violations of the open meetings law and then offers a ruling about whether or not the law was broken. It has no enforcement power, other than pointing out the violations. Obviously, the threat of being spanked by the Open Meetings Commission isn’t enough to keep some boards and councils from playing fast and loose with the law. It seems public shaming isn’t what it used to be.
Instead of bunting when they come up to bat, members of the task force working for better open meetings laws should swing for the fences. Here are some ways to make the law stronger while running the risk of not pleasing everyone.
• The mandated recording of meetings should have been done years ago. Most boards and commissions got a quick lesson in how to make public meetings more accessible during the pandemic. Anyone offering excuses that recording meetings is just too tough makes it look as if their constituents have been electing Luddites to guide our communities and schools.
• A separate recording should be made of what’s happening in executive session. When elected officials close the door on the people who put them in office, there has to be a way to check their work if questions arise about what was discussed. A separate recording that can be heard privately by a judge would answer those questions.
• Give the Open Meetings Commission some real power. In South Dakota, no one has ever been prosecuted for an open meetings violation. Obviously, there’s no appetite for trying to put the offenders in jail. However, if the commission were able to impose fines on violators — paid for by the elected officials rather than councils and boards they serve on — that might ensure that the law is followed rather than flouted.
At the risk of overworking the baseball metaphor, there’s a chance that with big swings like this, the advisory committee may strike out. Another way to make change happen at the Legislature is by bringing important bills back again and again. That serves to show the need for change as well as educate lawmakers and the public about that need.
— This commentary was written by Dana Hess of South Dakota Searchlight, an online news organization.
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