February 13, 1990

The Honorable Mary K. Wagner
State Senator
929 Harvey Dunn Street
Brookings, SD 57006

OFFICIAL OPINION NO. 90-10

Executive session for salary discussions

Dear Senator Wagner:

On behalf of a constituent newspaper in your district, you have requested my official opinion concerning the application of SDCL 1-25-2(4) where a meeting of a county commission was closed to the public in order to negotiate salaries with department heads and elected officials, including the sheriff, treasurer, auditor, and register of deeds. You have asked the following question:

QUESTION:

Does SDCL 1-25-2(4) allow a county commission to declare an executive session for the purpose of negotiating salaries with elected public officials.

IN RESPONSE TO QUESTION:

SDCL 1-25-2 provides:

Executive or closed meetings may be held for the sole purposes of:

(1) 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;
(2) Discussing the expulsion, suspension, discipline, assignment of or the educational program of a student;
(3) Consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation or contractual matters;
(4) Preparing for contract negotiations or negotiating with employees or employee representatives;
(5) 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.

Based upon the plain words of the statute, a distinction might be drawn between subdivisions (1) and (4) since the former specifically refers to "public officer or employee" while the latter refers only to employees. It should, however, be noted that subsection (1) impliedly treats "public officers" as "employees" with regard to the independent contractor question. Therefore, an ambiguity exists in the statute, and it is necessary to look elsewhere to determine the meaning of the term in question.

SDCL 3-21-1 defines employee as follows:

"Employee," all current and former employees and elected and appointed officers of any public entity whether classified, unclassified, licensed or certified, permanent or temporary whether compensated or not. The term includes employees of all branches of government including the judicial and legislative branches and employees of constitutional boards and offices. The term does not include independent contractors.

While it is true that SDCL ch. 3-21 applies to notice requirements for liability actions against public entities and officials, the definition has application to other portions of the Code pursuant to SDCL 2-14-4, which provides:

Whenever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears.

Based upon the foregoing references, it is my opinion that the word "employee" as found in the Opening Meeting Law referring to negotiation of salaries with public employees includes all public employees whether elected or appointed.

My answer to your question is that a county commission may call an executive session to negotiate salaries with the county's elected officials.

Sincerely yours,

ROGER A. TELLINGHUISEN ATTORNEY GENERAL

RAT:bn