Advisory group suggests adding member of the public to South Dakota Open Meetings Commission

A member of the public could have a vote on South Dakota’s Open Meetings Commission if the state’s incoming attorney general, legislators and governor back a proposal recommended Thursday by an open meetings task force.

The commission is a five-member board established in 2004 to hear complaints about alleged violations of open meetings laws and issue censures to public bodies that have broken them.

Per state law, its five members have always been state’s attorneys or deputy state’s attorneys, all appointed by the attorney general. 

The South Dakota Advisory Task Force on Open Meetings Laws, a 15-member group, was created by Attorney General Marty Jackley last year to consider updates to the state’s transparency statutes that apply to public meetings.

Every member of the group present for Thursday’s virtual meeting voted in favor of a proposed change that would expand the Open Meetings Commission to seven members and adjust its makeup to represent a wider range of voices.

If the proposal is adopted, the group would have four state’s attorneys or deputy state’s attorneys, two attorneys representing public bodies other than counties, and one member of the public. The attorney general would maintain the sole discretion to appoint members.

‘Defensibility’ with a public member

The idea of adding a member of the public to the commission came from Dave Bordewyk, the director of the South Dakota NewsMedia Association, which includes South Dakota Searchlight as a member. He was absent for Thursday’s meeting, but his proposal was backed by Steve Willard, president of the South Dakota Broadcasters Association.

Given that members of the public or media representatives arguing on their behalf are typically the ones who file complaints, Willard said, a layperson’s voice would add credibility.

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“For their purposes, I think there’s some comfort, and some defensibility on this particular group that it’s not so insular, that it includes a member of the public,” Willard said.

The proposal was one of four up for consideration on Thursday, including the one that was endorsed, which was modified to include seven members. 

Two other proposals would have added lawyers for public bodies other than counties, whose voices are represented by state’s attorneys, but not a member of the public. As written, all four kept the commission’s membership at five.

An informal survey of advisory group members found that most supported the idea of including at least one member of the public, but with reservations. Several expressed concerns about appointing a non-lawyer to a quasi-judicial role.

“I’m of the opinion that an attorney representing something other than a public body would be a good thing,” said Geoffrey Gray-Lobe, a Clay County commissioner.

Majority would remain prosecutors

Michael Smith is the state’s attorney for Clay County and a member of the Open Meetings Commission. Smith said he understands the value of a public voice, but also said the work of determining whether a public body broke the law is akin to prosecution. 

“There is a deep need to understand the law,” Smith said.

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Austin Hoffman, who’s the McPherson County state’s attorney and also serves on the Open Meetings Commission, said he’d be comfortable with the idea of a layperson serving alongside him if the group’s makeup remained a majority of prosecutors.

Kellen Willert, the city attorney for Belle Fourche, agreed that a prosecutor-led group is ideal, but said the commission’s authority is limited. 

“The worst thing they can do is issue a censure,” Willert said. “I think it makes sense to have a member of the public on it. Nobody’s right to life or property is endangered.” 

Hoffman and the others who’d expressed reticence at the idea of a layperson interpreting the law coalesced around the seven-member, majority prosecutor proposal, in part because two extra people would make it easier to have a quorum and hold hearings if some members are absent.

Idea would need legislative, governor support

To take effect, the change would need to take the form of a bill in the next legislative session, which begins in January. That bill could be presented at the request of the attorney general or introduced by a lawmaker.

Jackley formed the advisory group, but won’t be around to pitch its proposal. He’s a candidate for South Dakota’s seat in the U.S. House of Representatives.

Fall River and Oglala Lakota County State’s Attorney Lance Russell is running unopposed for attorney general in the Nov. 3 election after securing the Republican Party’s nomination for the post. He will take over the job in January. 

He’s also currently a member of the Open Meetings Commission. In an email to South Dakota Searchlight, he said he’s a supporter of the group’s mission and its current five-member makeup, but has yet to talk to the task force members about their decision on Thursday.

“I am keeping an open mind on its recommendation and look forward to hearing the rationale for the proposal,” Russell said.