The South Dakota Open Meetings Commission ruled that the Lead City Commission inappropriately used a closed session to discuss the city's reorganization plan. The closed session should have involved evaluations of specific employees' eligibility for the new positions, Commission Chairman Vince Foley wrote in the decision.
The commission also ruled that Lead should have placed discussion of a special permit for its Opera House on the meeting agenda before acting upon it. The third complaint focused on whether the commission correctly discussed a fire department equipment purchase in closed session. The commission ruled there was no violation in that instance.
The open meetings commission now has issued five reprimands on open meetings violations. It will meet at noon on Nov. 17 at the Ramkota Hotel in Sioux Falls to consider complaints against the South Dakota Science and Technology Authority and the Faulk Area School District.
South Dakota's open meetings law allows local government commissions and boards to meet in executive session to discuss things like personnel performance, student records, proposed or pending lawsuits and proprietary trade information. It does not mandate that a board or commission ever go into executive session.
Lead citizen Paul Holtsclaw filed all three complaints against the city commission. He said he was pleased with the rulings but wishes the commission had acted faster. Testimony was first heard in the Lead cases a year ago and then was considered again at an April 2005 meeting. Open meeting commission members requested additional information at the meeting last November.
"It would have helped the situation in Lead had they acted faster," Holtsclaw said.
Foley, who is the Codington County state's attorney, said the order in which cases were considered determined how long it took for the commission to make its ruling.
"It was just a matter of the order that we took them combined with the busy schedules of the five commission members in order to circulate the drafts and obtain input," Foley said. "We are a volunteer board."
The five-member commission is made up of state's attorneys from the four corners of the state, which can make the process somewhat cumbersome, Foley said.
"But we're making it work and I think that we're achieving the goal that the Attorney General had when he created the entities that our local officials can operate in an informed environment," Foley said.
Foley quoted from prior rulings when writing the commission's opinion in the Lead cases. One of the goals of the commission was to create a body of case law to which local governments could refer when in doubt about how to act. In the more than 40 years the open meetings law has existed it was never criminally prosecuted so local governments had no past examples of violations to consider.
Lead Mayor Tom Nelson said he wasn't surprised with the commission's decisions, but the ruling likely won't change how his commission operates, he said.
"Ours was not a lack of information," Nelson said. "We did what we thought was right. We were called on it by a local citizen."
Nelson said he doesn't think his commission acted any differently than other local government boards across the state.
"We make no decisions in executive sessions," he said.
In the future Nelson said he and fellow commissioners will consult with their city attorney to make sure actions are "above board."
The open meetings commission was formed by the 2004 Legislature at the request of Attorney General Larry Long and his Government Openness Task Force. It was intended to be an additional option for local state's attorneys faced with addressing open meetings violations by local governments. In the past state's attorneys could criminally prosecute the alleged violation � putting them in an uncomfortable political position � or do nothing.
State's attorneys now can forward complaints to the commission, which considers the cases, and then issues public reprimands if violations occurred. The local governments then are immune from any further prosecution.
Holtsclaw originally began attending city commission meetings when he moved to Lead in 2000. He said that seemed the easiest way to learn about his new community. He questioned some city actions and researched the law to determine whether it was right.
He said what he discovered led him to file his complaints. Since the issue has been before the open meetings commission interest in city government has increased, Holtsclaw said.
"When I started going to these commissions there would be maybe two or three people in the audience," Holtsclaw said. "Since this came up there have been lots of people going and asking questions."