Where the sun doesn’t shine in local government

Across the country, March 12 through March 18 is Sunshine Week, a time for shedding a light on open government. In South Dakota, the sun doesn’t shine through too clearly. Here it’s, at best, partly cloudy.

Sunshine Week was started in 2005 by the American Society of News Editors. According to its website, the purpose of Sunshine week is to “promote open government and shine light into the dark recesses of government secrecy.”

That bit about “government secrecy” might conjure a picture of smoke-filled rooms where federal deals are cut. There’s plenty of government secrecy to go around, however, at your city government building or county courthouse.

 

Sunshine Week

Launched in 2005 by the American Society of News Editors, Sunshine Week aims to promote open government and shine light into the dark recesses of government secrecy.

Learn more at SunshineWeek.org.

It’s fitting that it was a group of news editors that created Sunshine Week, since it’s usually reporters who make the most noise about being cut out of government information. Often that noise comes from local government meetings like the city council, the school board and the county commission where reporters may think that local elected officials are playing fast and loose with the laws governing executive session.

To measure the openness of a local government board or commission, check a few month’s worth of its agendas. At the end of the agenda is the place where most boards schedule their executive session. If those agendas don’t have any or just a few executive sessions, that board is doing the people’s business in public. Boards that habitually schedule an executive session — a more fitting term would be “secret” or “closed” session — are likely conducting some of the people’s business behind closed doors.

The South Dakota law on executive sessions, one of the flimsiest in the country, says that local government boards and commissions can go into closed session for consulting with a lawyer, discussing personnel matters and contract negotiations. School boards may discuss student discipline in a closed session. There are also recently added public safety provisions for closed sessions.

A violation of the executive session law is a Class 2 misdemeanor. No one in this state has ever been prosecuted for misusing executive session. There is no honor among thieves and, likewise, no appetite among elected officials to prosecute each other. If a county commission misuses executive session, it would be incumbent on the state’s attorney, who works with that commission regularly, to prosecute the case. That’s never happened here.

The best we can do in South Dakota is a panel of state’s attorneys who handle allegations of mismanagement of executive sessions. They decide if a violation has been made and the best that can happen from that decision is that the elected officials may feel ashamed. There are no charges filed, only an acknowledgment by the panel of state’s attorneys that mistakes were made. The offending officials don’t even have to say they’re sorry or take a timeout.

The vast majority of school boards, city councils and county commissions are likely playing by the rules and using executive session in the right way. Of course, that’s just an educated guess, because there is no way to know once the door closes. They may be, as they claim, consulting with their attorney about pending litigation. Or they may be handing out contracts to relatives or comparing their kickbacks. We just don’t know.

The solution for this is to have executive sessions recorded. Local governments could keep an archive of the recordings and, when a board’s use of executive session is questioned, the recording could be played for a judge who would rule on the legality of the meeting.

This solution has been proposed before, to the howls of local government lobbyists who said it was too expensive or too onerous or too difficult for small town officials who might not be all that technically savvy. Many local governments already broadcast their meetings, and the pandemic made many of them familiar with Zoom. In this day and age, keeping a file of recorded executive sessions should not be a problem, even for the most technically challenged of our elected officials.

In South Dakota, it’s too easy for elected officials to close the door on the public, it’s nearly impossible to find out what they did in that meeting, and there’s no chance that violators will face any sort of consequences. Executive sessions are one place the sun doesn’t shine.