PIERRE | The South Dakota Open Meetings Commission set a precedent with its recent decision to accept a "friend of the court" brief from an outside party in a complaint alleging a government body violated a state law, according to an official.

In the case, George Ferebee of rural Hill City claims the South Dakota Water Management Board illegally closed a public meeting so its members could privately discuss his situation.

Ferebee is a member of the Pennington County Commission. The county government sought to fine Ferebee for a wastewater system violation.

The state commission scheduled a re-hearing Feb. 2 for Ferebee’s open-meeting complaint.

The state commission’s five members decided Jan. 5 to accept a brief from the Associated School Boards of South Dakota regarding legal uses of executive sessions.

This is the first time the state commission accepted an outside brief, Wade Pogany said last week. He is executive director for the school boards association. Pogany provided a copy.

Known as an amici curiae brief, the school group’s argument supports the water management board’s action. It covers 19 pages Ferebee described as “balderdash.”

The core argument is on page five. It states:

“To deliberate on a matter in executive session should not be construed as or interpreted to be the same as making a final decision.

“SDCL 1-25-2 states in part ‘[h]owever, any official action concerning such matters shall be made at an open official meeting.’

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“The Guide to South Dakota’s Open Meeting Law also states ‘[n]o official votes may be taken on any matter during an executive session … The public body must return to open session before any official action can be taken.’

“While both SDCL 1-25-2 and the Guide to South Dakota’s Open Meeting state that no official action may be taken in executive session, neither say the governmental entity cannot deliberate while in executive session.”

Neither the South Dakota Newspaper Association nor the South Dakota Broadcasters Association was represented at the Jan. 5 teleconference held by the meetings commission.

Nothing on state government’s boards and commissions website indicates the newspaper group or the broadcasters group has requested an opportunity to file in the case.

The brief is posted on the state website at http://bit.ly/2r0zihv.

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