South Dakota Attorney General Marty Jackley listens to the governor’s budget address on Dec. 2, 2025, at the Capitol in Pierre. (Photo by Makenzie Huber/South Dakota Searchlight)
There are a few different tactics for passing legislation. One is to pick a change in the law that’s not likely to draw too many detractors. Another is to take a big swing at a change in the law that’s certain to be opposed and will likely need to be offered to legislators during a few sessions so they can learn more about the issue.
With open meetings laws, South Dakota Attorney General Marty Jackley has chosen the first course of action. He has offered three bills that will make slight, but needed, changes.
Those bills include a clarification that an agenda must include items to be considered during an official meeting; a revision for the requirements for executive session; and a requirement that a state open meeting agenda must be posted on the state website 72 hours before the meeting is scheduled to start.
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Those bills aren’t likely to elicit too much of a howl from lawmakers. No one can blame Jackley for reaching for some low-hanging fruit. However, while the attorney general is noted for being tough on crime, he has yet to try to put any teeth in the laws governing the punishment of open meetings violators. The problem is that as well-intentioned as Jackley’s bills are, they don’t approach what South Dakota really needs to fix its open meetings problems.
On one end, there will be an effort this year to bring light to the public, letting them know when meetings will be held and what will be on the agenda. Still dwelling in the dark is the fact that there is a lack of accountability whenever the boards of local governments — city council, school board, county commission — go into a closed or executive session. By law they are allowed to meet behind closed doors to discuss personnel matters or student expulsion, consult with an attorney or negotiate contracts.
The problem is that once the public has been sent away, there’s no way to know if the local board is following the rules. There have been cases of elected officials using that time away from the public to discuss locally controversial issues that don’t fit within the limits allowed by law. Some boards use the fact that their lawyer is in the room to claim that they are “consulting” on legal matters while they discuss how to handle volatile issues.
Other states have recognized this loophole and adopted specific rules for when the local commission can shut the door and consult with its attorney. The law in Arizona says such a consultation in a closed meeting is allowed for the “discussion or consultation with the attorneys of the public body in order to consider its position and instruct its attorneys regarding the public body’s position regarding contracts that are the subject of negotiations, in pending or contemplated litigation or in settlement discussions conducted in order to avoid or resolve litigation.”
Unless an elected official comes forward to say that she believes the executive session she just sat through broke the law, there’s no way of knowing what goes on behind closed doors. One idea that’s been floating around South Dakota open government circles is having each executive session recorded. When a question arises about whether or not the board followed the law, the recording would be reviewed privately by a judge to determine if there were any violations.
The problem is that once the public has been sent away, there’s no way to know if the local board is following the rules.
So far, no one in the Legislature or state government wants to take on those fights. Many see the Legislature, top-heavy with Republicans, as a roadblock to significant change. That’s odd, because Republicans should be the first ones calling for greater transparency in government.
These are the same lawmakers clamoring for more transparency in state credit card use after discovering the spendthrift ways of former Gov. Kristi Noem. It stands to reason that greater transparency in the workings of local governments would also be good for taxpayers.
Some lawmakers have said that cutting the budgets of counties and school districts would ease some of the complaints they’re hearing about high property taxes. They should welcome a means for keeping an eye on those tax dollars by ensuring that there’s a way to figure out what local officials are up to in executive session.
The state’s open meetings law has its share of violations. To his credit, Jackley resurrected the Open Meetings Commission that had gone dormant for four years. Last November, that commission found local boards had violated the open meetings law in 10 of 12 cases.
Some violations are just a misinterpretation of the law. Others are blatant attempts to keep public business out of public view. To strengthen that law, the state needs leaders who aren’t content to just reach for low-hanging fruit.
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