South Dakota has made great strides toward open government since the Open Meetings Commission (OMC) was established in 2004. However, criminal penalties for open meetings violations should be removed because they were attached in a questionable manner, they deter prosecutions, they result in inconsistency statewide, and they are not appropriate.
Criminal penalties were attached to open meetings violations in 1990 by Code officials not authorized to make substantive changes to the law when they prepare "clean-up bills" correcting minor errors and inconsistencies in the Code. There is no evidence the Legislature discussed this addition of criminal penalties when they approved the bill.
Criminal penalties deter prosecutions. In the 54 years since SD enacted its open meetings law, there were absolutely no prosecutions. Then in late 2019, the Walworth County Auditor was arrested for violating the open meetings law. This unusual event made headlines across the United States and even reached the London Times.
Lack of prosecutions does not mean no violations occurred. In the 16 years since the OMC was established, 105 complaints were filed. 54 were referred to the OMC, resulting in 35 public reprimands which led to new laws clarifying and refining the open meetings law.
The OMC process is good but flawed by criminal penalties. Citizens file complaints with their local State's Attorney, who can prosecute the case, decide it has no merit or forward it to the OMC for hearing and possible reprimand. With 55 State's Attorneys making these decisions, the results are inconsistent throughout the state and create unequal access to the OMC. The power intended to be exercised by the OMC is delegated to the State's Attorneys.
Criminal penalties are not appropriate. The goal of open meetings laws is to ensure access to government, not to make criminals out of upstanding public officials who give generously of their time and talents to keep our communities and schools functioning well.
Only 13 states have criminal penalties. The others have adopted solutions such as monetary fines; voiding action taken in violation; re-enacting disputed meetings; or removal from office. Some states have formed public information boards with representatives of the media, governmental bodies and the public, where citizens can ask questions, seek advisory opinions, and file informal and formal complaints. Such boards, like our OMC, are empowered to investigate and hear cases and issue reprimands or rulings. Education of the public and governmental bodies is a high priority for such boards.
Former Attorney General Larry Long, who opened the blinds by creating the OMC, reportedly said that he expected the law regarding penalties would be changed sooner or later when a particularly bad violation was revealed. The Walworth County arrest could be the catalyst for removing criminal penalties and replacing them with more appropriate civil penalties which would ensure consistency throughout the state and equal access to a civil review board, thus allowing the sun to shine even more brightly on government in South Dakota.
Groton, March 12