South Dakotans for Open Government, represented by Sioux Falls lawyer Jon Arneson, alleged that the Science and Technology Authority held five executive sessions to discuss contracts and some personnel issues during its first official meeting Sept. 28-29, 2004.
Jody Moritz, a teacher in the Faulkton Area School District, filed a complaint stating that the Faulkton School Board failed to act in a public session April 11, 2005, on their decision not to offer contracts to four teachers. They voted to offer contracts to 30 of the school district's educators.
Local state's attorneys refer violations of the open meetings law to the commission. If the commission finds violations have occurred it will issue a public reprimand.
"The open meetings law guarantees the public's right to be informed about what it, through its representatives, are doing," Arneson said.
Arneson argued that the Science and Technology Authority went into executive session several times without listing a specific reason and then made decisions in the session that should have been done in an open meeting.
Two authority board members, Dave Bozied and David Snyder, said in sworn affidavits, that the board met in three executive sessions during the two days to discuss issues involved with trans-ferring the mine from Barrick Gold Corporation to the state. It also discussed personnel and a contract with the Black Hills Vision group that included possible future management of the mine by Bathelle Memorial Institute. The institute managed four labs at the time the complaint occurred.
The complaint filed by South Dakotans for Open Government alleged that the
authority met five times in executive session and only once stated the reason. The complaint stated decisions were made in closed session that should have been acted on in a public meeting. A reporter for the Black Hills Pioneer in Spearfish called the authority's office throughout the afternoon of Sept. 29 and was told an executive session that began at 11:50 a.m., was still ongoing.
The minutes from that meeting indicate the board came out of executive session at 4:50 p.m.; voted on several motions, and adjourned by 5:05 p.m.
A specific reason may not have been given for each executive session but it was clear why one was needed, Tim Engel, an attorney for the authority, said.
"That should not be a violation in our opinion," he said. "That's putting form over substance."
South Dakota law allows for a closed session to discuss employee and student performance, consulting with legal counsel about pending or proposed lawsuits or contracts, proprietary trade information and contract negotiations or negotiating employee contracts. State law never requires a closed meeting.
Engel said negotiating the original agreement between Barrick and the authority was a delicate process. Negotiating strategies needed to be kept private.
"This deal would not have worked if it was done in public," Engel said.
The 2004 South Dakota Legislature created the Science and Technology Authority to coordinate conversion of the Homestake Gold Mine in Lead into an underground science laboratory.
Arneson argued that too much was discussed under the guise of "contractual matters." Scientists discussed experiments and mine water levels were considered all in closed session, he said.
"We can't just throw it all in just by saying contract," he said. "A lot of the contractual discussion did not involve Tim at all. There is no
exception that says we can talk about contracts."
The Faulkton Area School Board should have acted on all the contracts it considered, whether they were offered or not, Moritz said.
"In South Dakota if you live in a small town small towns are a little fishbowl," Moritz said. "When the school board closes the meeting that's no exception."
The teachers that weren't given contracts had retired and then were re-hired � a common practice in South Dakota school districts. They then were receiving retirement pay plus a salary. They were re-hired for one year with no guarantee of being re-hired for a second, according to a letter written by Rory King, the school board's attorney.
By not offering the contracts the board didn't act, King said. The state's open meeting law requires official action to be taken in open session.
"It was clear that the four were not re-hired," he said. "Certain decisions by the board are just implemented with non action."
"I don't agree with that," Moritz said. "I think they did take action."
She also argued that the teachers not re-hired weren't notified properly.
"Some people downtown heard they did not have a contract before they did," Moritz said.
Dawn Redden, Faulkton Area School Board president, disagreed that board members discussed the contracts that weren't renewed outside of the executive session.
"I think a lot of people just assume things and that's what gossip does."
Joel Price, Faulkton Area School District superintendent, said the open meetings commission process was interesting.
"I'm glad to see an avenue for this type of discussion," he said. "It's in the hands of the committee, it's up to them."
The commission will consider the facts of the cases and make rulings at a later date.