New group forming: South Dakotans for open government by Mitchell Daily Republic Tim Waltner, publisher of the weekly newspaper at Freeman, knew something didn't seem right last year when the school board there came out of a closed-door session and voted � with very little discussion � to pursue a $250,000 opt-out.
State law, Waltner said, is clear on what can be discussed behind closed doors, and discussion about opting out of the state tax freeze would not meet that criteria.
Waltner said it's instances like this that show the need for more education of the general public, elected officials and even the media on the state's sunshine laws.
And a newly formed group � South Dakotans for Open Government � aims to do just that, he said.
"The key issue here is we have to just do a better job of letting everyone know and reminding everyone that the people's business should be done in the light of day," Waltner said.
South Dakotans for Open Government is being formed through the First Amendment Committee of the South Dakota Newspaper Association, which represents 140 weekly and daily newspapers across the state.
The coalition is seeking a $10,000 startup grant through the National Freedom of Information Coalition, which has similar coalitions in about 40 states.
The grassroots coalition would be open to any individual, organization and entity interested in promoting and furthering the cause of open government in the state, Waltner said.
"Our concern is looking after preserving the First Amendment," said Waltner, chairman of the First Amendment Committee. "?We believe that
this is an issue that affects and should be of interest to all people, not just folks in the media, and as part of that we are in the process of establishing a statewide organization that will focus on open government."
Waltner said that, historically, there have been areas of abuse of open meetings and open records laws in the state.
"We've taken the issue of open government for granted, both as a population and, in some cases, those of us in the press," he said.
In fact, after taking the Freeman School Board to task for apparently discussing aspects of the opt-out behind closed doors, Waltner's paper also assumed some of the blame for not being more diligent to monitor the use of executive � or closed to the public � sessions.
"We take responsibility for not being more demanding of our elected officials when they move their discussion behind closed doors," Waltner wrote in an editorial last summer.
"We offer a pledge to the public to be more diligent. And we will be asking the same of all our elected officials."
To this day, Waltner says he does not believe that the Freeman School Board was "out to manipulate the public or do something illegal or wrong."
"I think they just got involved in a discussion (about personnel) and one thing led to another, and pretty soon they were talking about (opting out)," he said.
Unfortunately, Waltner said similar situations are happening statewide more than most people ever realize.
The importance of
an open government
Dale Blegen, publisher of the De Smet and Lake Preston newspapers, recently attended a conference of the National Freedom of Information Coalition, which is helping the state organize its South Dakotans for Open Government coalition.
While South Dakota isn't the worst state when it comes to ensuring access to an open government, it could be better, said Blegen.
"I think it's absolutely essential that government be open, because there's no way for us to judge whether our elected officials are reaching good decisions if we don't have access to how those decisions are being reached," he said.
Blegen said he expects the coalition will focus largely on education.
"Going to one of these conferences is almost like going to a revival," he said. "These people are serious about this stuff, and they're fired up
about this stuff and excited about it. And it's contagious, it really is."
Jack Getz, an associate professor of journalism at South Dakota State University in Brookings and the state sunshine chairman for the Society of Professional Journalists, agrees there is "a lot of room for improvement" in open government issues in South Dakota.
Getz said the state for the most part does not have public officials who are deliberately trying to keep the public away from information they have a right to. "They just don't know," he said.
While South Dakota does have an open records and open meetings law, Getz said it is not considered to be a very strong law.
The open meetings law, he said, states that all meetings of public boards and agencies and bodies must be open to the public. However, there are five exceptions in which public officials may � but are not required to � close those meetings. "And those exceptions are big enough to drive a moving van through, so that's one of the weaknesses," he said.
SDCL 1-25-2 allows a majority of the governing body present to vote to close a meeting when discussion revolves around employee or student
performance, legal matters, employee contract negotiations or pricing strategies by publicly-owned competitive businesses.
Getz said a second shortcoming of South Dakota law is the statement that all records are open to the public, except for those that are closed.
"But if you've ever looked in the index to the South Dakota compiled laws under the heading confidentiality, you'll find a list of confidentiality
statutes that � just the listing of them � takes three and a half pages, so I see this as a problem," he said.
And a third problem area is that violation of the state's sunshine laws carries a criminal penalty rather than a civil penalty, he said.
"And the point here is there are very few state's attorneys across South Dakota and in our organized counties who are willing to file criminal charges against an elected official who conducted a meeting behind closed doors, and you can understand their reluctance," Getz said.
Waltner understands that reluctance.
After further discussion with school officials in the June 2001 opt-out situation, Waltner said it appeared that discussion about an opt-out had
taken place behind closed doors.
"We made it clear that we were concerned about this, that we felt that if we wanted to push the matter legally we would probably have a case that could actually challenge them with violation of the open meetings law," he said.
"(But) we made it clear our intent was not to fine them or have them go to jail, for Pete's sake. We made it clear to them that meetings need to fit the parameters of what fits the open meetings law," he said.
Both Getz and Waltner said decriminalization of violations of the open meetings law would be one way to help strengthen the law.
In the meantime, Waltner continues the push to educate the public about its right to know � a freedom that many have become apathetic about or have taken for granted, he said.
Waltner pointed to a recent poll by the national First Amendment Center and American Journalism Review which found that almost half of those surveyed think the First Amendment goes too far in the rights it guarantees. About 49 percent said it gives too much freedom, up from 39 percent last year and 22 percent in 2000.
"Based on that survey, there are a growing number of people who are questioning aspects of the First Amendment, and I find that a very troubling development," Waltner said.
"I'm not sure we can blame it on Sept. 11, but Sept. 11 has certainly reminded us of what is really important. And what is important is that all
citizens have the right to speak, and all citizens have a right to know what their elected officials are saying or doing in their behalf.
"And if ever there was a time in history we should be appreciating that freedom, it's now," he said.