TUPPER: Proud to push an agendaExecutive sessions likely target of task force.
By: Seth Tupper, The Daily Republic
As a reporter, I interviewed a lot of political candidates. One of the first questions I always asked was, “Why are you running?”
Among candidates for city, county and legislative offices, the answer was often something like this: “Well, I don’t really have an agenda. I just want to serve.”
When a candidate said that, I always had the urge to stop the interview and say, “Then I’m not going to waste my time talking to you. Have a nice day.”
Of course, I didn’t ever do that, because it would have been quite a challenge to fill 20 or so column-inches of newsprint with so little material.
Still, I think an agenda is among the first things a leader — political or otherwise — should have. If you have no agenda (defined in this context as “things to be done” or “underlying motivation”), why on earth would you want to be in a position of leadership? To pad your resumé? To pass the time?
That’s why, when I accepted an invitation to serve on the governor’s newly created Open Government Task Force, I immediately began thinking about the agenda I would bring to the appointment.
After some thought, reading and discussion with other journalists on the task force, the focus that emerged for me was the need to reform our state’s executive session law. In case you’re unfamiliar with the term, “executive session” is just a euphemism for “closed meeting.”
Wednesday, at the first gathering of the task force in Pierre, I was pleased to learn that some people in very high places are already focused on the same thing.
At the beginning of the meeting, Attorney General Marty Jackley spoke to the task force members. He said if there’s one thing he would encourage us to tackle, it would be executive sessions, partly because his office receives so many questions about the topic.
Later during the meeting, Diane Best, a state lawyer who handles openness issues for Jackley’s office, gave a presentation on the many improvements to the state’s open-meetings and open-records laws in recent years. The one area that hasn’t been touched, she noted, is executive sessions.
Then, during a discussion among the task force members about the topics we want to focus on, I brought up executive sessions and the need to further define and clarify the purposes for which a government body can close a meeting. Tony Venhuizen, an Armour native, director of policy and communications for the governor and the chairman of the task force, expressed his agreement.
“In fact,” he said, “I think several parts of that law are so expansive that, if you’re creative enough, you can get almost anything into an executive session.”
After the meeting, I examined the list of all the opinions issued by the state’s eight-year-old Open Meetings Commission. Among the 33 opinions, 15 of the originating complaints had something to do with an executive session. That’s yet another signal of the issue’s need for attention.
So, I think it’s safe to predict our task force will seek some changes to the executive session law. If you’re worried about a bunch of media types “pushing their agenda,” take a deep breath. The task force has 33 members, and only nine of them are working journalists or official representatives of the news industry. Whatever reforms are proposed, they’ll be the product of consensus among people from journalism, government and the private sector.
Currently, the open-meetings law provides five reasons for which state and local government bodies may close a meeting. I won’t bore you with all of them here (they’re listed in South Dakota Codified Law 1-25-2, if you want to bore yourself), but I will highlight what I consider to be the most problematic one. That’s the section allowing executive sessions for “consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters.”
I see two main problems with that language:
1) If “consulting with legal counsel” is read as a standalone phrase, it could be construed to mean government bodies can discuss anything in executive session as long as their lawyer is in the room.
2) What is “proposed” litigation? There is no definition in the law. Is it something that has been filed in court, or just a lawsuit that has been threatened or dreamed up in a lawyer’s mind? The answer is important, because if the broadest interpretation is allowed to stand, anything and everything could be “proposed” litigation, and no topic would be offlimits in a closed meeting. In other words, township boards, city councils, school boards and county commissions could discuss anything they want behind closed doors, simply by identifying the topic as something that could potentially spark a lawsuit. And as we all know, anything can spark a lawsuit.
I therefore hope our task force will add some clarifying and defining language to close these and other loopholes. I’m not proposing the elimination of executive sessions; sometimes, they’re needed. I’m just trying to limit executive sessions to only those that are absolutely appropriate, because it’s no trivial thing to close a public meeting. It should be done with care and concern, and the law should be explicitly clear about the kinds of topics government officials are allowed to discuss behind closed doors.
The public’s right to know demands nothing less, and I’m proud to have that as my agenda.