STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 15, 1970

Newell E. Krause
State's Attorney, Walworth County
100-102 Morrison Building
Mobridge, South Dakota 57601

OFFICIAL OPINION NO. 70-16A

Executive sessions of Board of Education does not extend to negotiation with representatives of education association

Dear Mr. Krause:

I have your request for an official opinion on the following statement of facts:

"The school board of the Mobridge Independent School District has adopted a written policy relating to Teacher-Administration-Board of Education relationship (8.0 through 8.9). The policy adopted provides for a joint-Negotiating Committee and provides for members of the Board of Education to serve on this Committee with representatives of the Education Association and the Superintendent of Schools or his representative for the express purpose of considering "salary and related economic aspects of employment through the stages of Conciliation and Mediation.

Article II, Section 5 of the policy and procedure manual states:

"It shall be a breach of ethics and a breach in the nature of the negotiating process to divulge the progress of any items in the negotiating agenda until a substantive agreement is reached or until negotiations have reached an impasse."

On the basis of these facts you have presented the following question:

"The question is whether holding these meetings in secret and requiring the members of the JOINT NEGOTIATING COMMITTEE to keep the proceedings of these meetings secret violates Chapter 269 of the 1965 Session Laws."

SDCL 1-25-1 provides as follows:

"MEETINGS OF PUBLIC AGENCIES TO BE OPEN. Except as otherwise provided by law, the official meetings of the state and the political subdivisions thereof, including all related boards, commissions and other agencies, and the official meetings of boards, commissions and agencies created by statute or which are non taxpaying and derive a source of revenue directly from public funds, shall be open to the public, except as herein provided."

SDCL 1-25-2 provides as follows:

"EXECUTIVE OR CLOSED MEETINGS-PURPOSES AND AUTHORIZATION. Executive or closed meetings may be held for the sole purpose of considering student, employee and personnel matters, 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. Nothing in §1-25-1 or this section shall be construed to prevent an executive or closed meeting, when the federal or state Constitution or the federal or state statutes require or permit it."

SDCL 3-18-2 provides as to pertinent parts as follows:

". . . Public employees shall have the right to designate representatives for the purpose of meeting and conferring with the governmental agency or representatives designated by it with respect to grievances and conditions of employment.

SDCL 3-18-3 provides in part as follows:

". . . Formal recognition shall give an organization the right to meet with, confer and otherwise communicate with the governmental agency or its designated representatives with the object of reaching a settlement applicable to all employees of the unit."

SDCL 1-25-2, supra, clearly gives the Board itself the right to hold a secret meeting when considering employee and personnel matters. Salary and related economic aspects of employment are personnel matters. The statute does not give the Board the right to require any secrecy on the part of representatives of the education association or hold a secret meeting with the joint negotiating meeting as such. On the other hand, SDCL 3-18-3, supra, gives the right to any member of the educational association, or the entire association to meet with and confer with the Board. This section is definitely not contemplating any closed or secret meeting and the same construction would necessarily have to apply to the representatives of the association.

While it would not be unreasonable for the Board itself to hold closed meetings and require of the board members that no discussion thereof be made with others between sessions. This would not be practical insofar as the negotiating committee is concerned, as the representatives of the association would necessarily have to confer with the members thereof.

In answer to your specific question, I am of the opinion that 1-25-2 does not authorize any executive or closed meeting in which the joint negotiating committee is involved. I am further of the opinion that the meeting contemplated by 3-18-3, supra, contemplates a public meeting.

Respectfully submitted,

Gordon Mydland
Attorney General