Mr. Kurtz usefully notes former newspaperman turned Yankton city commissioner Nathan Johnson’s effort to open up city government. At Monday’s city commission meeting, Johnson suggested that the city look into keeping minutes of closed sessions. In a detailed letter in the June 8 agenda packet, Johnson notes that in 2014, the Yankton commissioners spent 22 out of their 52 meeting hours (42%!) in closed session.
In other words, we spend a lot of time in closed meetings. This can create perceptions among our constituents that we are being secretive or have something to hide.
I want to create more accountability for the time we spend in executive sessions. This is not to suggest we have been/are doing anything wrong. It is simply an effort to improve transparency.
One way I believe we can do this is by recording executive sessions and, in some cases, possibly releasing those recordings to the public at an appropriate point in time [Nathan Johnson, letter to commissioners, agenda packet, Yankton City Commission, 2015.06.08].
Akland advised that Johnson, who has sat through two executive sessions since May 11, should approach the subject when he’s had more experience.
“I would give it six months,” Akland said. “If you think after six months on the commission that you want to bring this back to the commission for discussion, then by all means do it. But I think you need to get through several sessions — you’ve only been through two.”
She added that he also needs to make the transition to being a commissioner.
“Have you taken your reporter hat off and are you fully a commissioner?” she asked. “You have to make that change. I know, myself, when you first get on the commission, you want to make all these changes and you want to let the public know things, but you really have to guard yourself and step back” [Rob Nielsen, “City Mulls Possibilities Making Closed Sessions Public Record,” Yankton Press & Dakotan, 2015.06.08].
Yankton should hope Johnson keeps his journalist hat handy. Before bringing this open-government proposal to the commission, Johnson did his homework, looking for examples of other states that do something similar:
According to the Reporters Committee for Freedom of the Press, here are the states that require recordings of executive sessions: Colorado, Nevada, Iowa and North Dakota.
Either a recording or minutes are required in Oregon and Texas.
Recordings are not required but are permitted in California, Kentucky, Maryland and Ohio.
Some states require a recording only under particular circumstances. In Minnesota, an executive session for labor negotiations must be recorded. In Utah, a closed session must be recorded if it is convened for reasons not laid out in Utah law [Johnson, 2015.06.08].
Johnson also noted examples of states allowing such closed-session records to be made public:
…in Anchorage, Alaska, “if the session concerns labor negotiations, the release date shall be six months following expiration of the labor contract.”
…In Iowa, if a session is closed to discuss the purchase or sale of particular real estate, the records of that closed meeting must be made available for public examination when the transaction is completed or canceled [Johnson, 2015.06.08].
Commissioners David Knoff and Charlie Gross expressed concern that recording and potentially releasing executive session information could run afoul of state law. Their concern stems from a perhaps mistaken understanding of South Dakota’s law on executive or closed meetings, captured in one little word in Nielsen’s opening paragraph:
Like all governing entities in the state, the Yankton City Commission is bound by SDCL 1-25-2 which allows for executive, or closed, meetings should the content fall under certain parameters [Nielsen, 2015.06.08].
Bound? Governing entities aren’t bound by the executive/closed meetings law; they are given freedom to do something they otherwise could not. Let’s read SDCL 1-25-2 for another magic word:
Executive or closed meetings–Purposes–Authorization–Violation as misdemeanor. Executive or closed meetings may be held for the sole purposes of:
- Discussing the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee. The term “employee” does not include any independent contractor;
- Discussing the expulsion, suspension, discipline, assignment of or the educational program of a student or the eligibility of a student to participate in interscholastic activities provided by the South Dakota High School Activities Association;
- Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters;
- Preparing for contract negotiations or negotiating with employees or employee representatives;
- Discussing marketing or pricing strategies by a board or commission of a business owned by the state or any of its political subdivisions, when public discussion may be harmful to the competitive position of the business.
However, any official action concerning such matters shall be made at an open official meeting. An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion. Nothing in § 1-25-1 or this section may be construed to prevent an executive or closed meeting if the federal or state Constitution or the federal or state statutes require or permit it. A violation of this section is a Class 2 misdemeanor [SDCL 1-25-2].
“Executive or closed sessions may be held….” May. Without this statute, every minute of every meeting of elected bodies in South Dakota would be public. Your city council, school board, and county commission could never clear the room and close the doors.
SDCL 1-25-2 frees boards of the bonds of public scrutiny for certain discussions. But even this exception does not bind boards to go into executive session. SDCL 1-25-2 says may, not shall. The Yankton City Commission could choose to discuss contracts or marketing plans in public session and not violate SDCL 1-25-2. The commission could keep minutes or otherwise record their executive sessions under existing statute. The misdemeanor penalty for violating SDCL 1-25-2 comes not from being more open but from being too closed—i.e., closing a meeting to discuss matters not covered in the statute, or closing a meeting without proper procedure.
The Yankton City Commission took no action on Johnson’s proposal Monday night, saying they’d have to check whether keeping records of executive session. But SDCL 1-25-2 makes no prohibition on keeping such records or, more radically, keeping every meeting open.