The criminal penalties attached to South Dakota’s Open Meetings law are ineffective and unnecessary, and should be replaced by more effective means of ensuring compliance.

South Dakota is one of only 13 states with such criminal penalties. Absolutely no criminal actions have been filed against public officials in the 54-year history of the state’s open meetings laws. As a result, no standards of conduct or interpretations of the law were established.

The 2004 formation of the Open Meetings Commission (OMC) was a commendable effort to bring South Dakota out of the Dark Ages into open government. It enabled citizens to file complaints with local state’s attorneys, who can prosecute them, decide they have no merit, or forward them to the OMC for hearing and possible reprimand, after which violators cannot be prosecuted, thus making criminal penalties unnecessary.

A serious flaw in the OMC process is that state’s attorneys have prosecutorial discretion. They have nearly absolute and unreviewable power to choose whether or not to bring charges, what charges to bring and in what order cases are considered. Such discretion is essential to enable them to handle heavy workloads, arrange plea bargains and recommend sentencing.

However, prosecutorial discretion does not work well in open meetings matters. Prosecutorial discretion allowed a state’s attorney to delay action on an open meetings complaint for almost five years. It allowed state’s attorneys to find actual violations of the open meetings law and not refer them to the OMC. It allowed the 65 state’s attorneys in different counties to reach different conclusions about the same issue.

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The attorney general’s office makes abstracts and public education comments on all “no merit” cases filed with it in an attempt to explain why they have no merit. The most common comment is that “state’s attorneys are to exercise their prosecutorial discretion.”

Removing criminal penalties for violation of the open meetings law would eliminate the problem of inconsistent and questionable decisions by state’s attorneys, but what could replace it?

Other states have adopted various solutions to the question, 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 own OMC, are empowered to investigate and hear cases and issue reprimands or rulings. Education of the public and governmental bodies is often a high priority for such boards.

It’s time to take another step toward more open government by eliminating unnecessary and nonproductive criminal penalties for open meetings violations, and adopting a system that will establish and enforce uniform standards for conducting the public’s business in the sunshine.

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Betty Breck is a former Deadwood resident and a long-time advocate for open government.

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