Democracy demands less time behind closed doors for local governments

Hear about something called “Democracy Day” and it’s easy to imagine it refers to the U.S. Capitol in Washington, D.C., the White House and the federal government. But democracy isn’t limited to the halls of Congress. Democracy plays just as big a role in the county courthouse and city hall.

The most common display of democracy at the local level can be found in the public meetings of school boards, city councils and county commissions. Those meetings, and public access to them, are an important part of the democratic process.

In the recent past there have been some favorable changes to the laws governing open meetings in South Dakota. One change determined that meeting times and agendas be posted far enough ahead of the meeting so that members of the public and the media could make plans to attend.

In the last legislative session, a provision that calls for a time for comment from the public was mandated for the agendas of almost all public meetings. Assuring that the public knows when their local boards will meet and that they’re assured of a chance to speak at that meeting are fine symbols of democracy in action. It’s when the door closes on the public that the threat to democracy grows.

The state’s laws governing executive sessions — those times when local boards and commissions can discuss issues behind closed doors — is an area of frequent complaint by reporters and editors. Often it’s left to journalists to raise the issue of open meetings violations because they are likely to be the only members of the public in attendance.

A local elected board can meet in executive session to consult with its attorney about a lawsuit or pending litigation or discuss personnel issues. There are some provisions in the law for discussing security matters and union negotiations. Schools can deal with student issues in closed session.

In too many cases the board will allow itself the luxury of closing out the prying eyes of the public simply by virtue of having their attorney in the room. Personnel issues discussed behind closed doors should be restricted to hiring and firing. Yet elected officials may take that broad category to mean that they can shut out the public while they discuss with the highway superintendent the awful job his crew did filling potholes — an item in which the public has a keen interest.

The often unspoken quality of the open meetings law is that it is written with permissive language. Boards and councils may go into executive session to discuss certain subjects, but there’s nothing in the law that says they have to close out the public.

One subject that’s routinely closed to the public but could be held in open session is school board negotiations with teachers. Traditionally, those talks are held away from public view. When successfully completed, the school offers a two or three line news release to say that all is well. The single largest line item in a school budget is teacher pay, yet when negotiations on a new salary package are finished, the public is left with no context as to how or why an agreement was reached. Clueless as to what just happened, the public’s only role is to pay.

A solution to executive session violations — which hasn’t gained any traction in the Legislature — is having local boards and commissions record and archive their closed meetings. Should a complaint be filed about the misuse of executive session, a judge could review the recording to determine if a violation took place.

While this seems like a common sense solution, it was beaten back by lobbyists for cities, counties and schools. They claimed such a provision would place a too big a burden on small local governmental bodies who wouldn’t have the funds or the technical know-how for such a system. That argument doesn’t hold much weight after the pandemic when local meetings were often available on Zoom. In today’s technological age, it’s not that great a leap from broadcasting on the internet to making and saving digital recordings.

One idea floating around about how to enhance the open meetings law wouldn’t cost local governments a cent. All it calls for is a small investment of time. In a perfect world the open meetings law would include a provision that whenever a new member joins a local board or commission, that group’s lawyer must take some time to review with all the elected officials the open meetings law and the provisions governing the proper use of executive session.

A provision like that could help keep violations from happening, and it would be an important step toward enhancing democracy at the local level.