April 3, 1989
E. Steeves Smith, President
South Dakota Board of Regents
700 Governors Drive
Pierre, South Dakota 5750l-5090
OFFICIAL OPINION NO. 89-08
Open Meeting Law
Dear President Smith:
You have requested my opinion concerning the application of South Dakota's public meeting law, SDCL ch. 1-26, to various activities of the Board of Regents. You present the following facts:
FACTS:
In conducting some Regents' business it is necessary to appoint committees. These committees, such as the Search and Screen Committee for the President of the University of South Dakota, Search and Screen Committees for a new Executive Director for the Board, joint meetings between members of the Board of Regents and the college presidents, involve members of the Board, but would not be official decision making meetings of the Board of Regents.
In other words, these would be meetings in which not all members of the Board would be invited or involved, and meetings in which no official action would be taken.
As a peripheral question, particularly during the process of our various Search and Screen meetings, reports are submitted to the members of the Board, as well as members of the Search and Screen Committee, providing them with a status report as to the progress which such Search and Screen committees are making. Those reports must of necessity, be kept confidential.
Based upon the foregoing facts, you have asked the following questions.
QUESTION NO. 1:
If more than five members of the Board of Regents (a quorum) would be present at any time during such committee meetings, would that constitute a violation of our State's open meeting law?
QUESTION NO. 2:
Are confidential reports transmitted among the members of the Search and Screen Committee in violation of our State's sunshine laws or open meeting laws?
DISCUSSION:
SDCL 1-25-1 provides:
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 nontaxpaying and derive a source of revenue directly from public funds, shall be open to the public, except as provided in this chapter. Meetings, including executive or closed meetings may be conducted by telephone conference call. Members shall be deemed present if they answer present to the roll call taken over the phone. Except for executive or closed meetings in which a conference call is held, there shall be provided a place at which the public may listen to and participate in the proceeding. Except as provided in title 15, no telephone conference call may be used in conducting hearings pursuant to 1-26-4 or hearings subject to 1-26-18. Telephone conference call meetings are subject to the notice provisions of chapter 1-25.
Initially, it appears clear that the South Dakota Board of Regents, as a "state board," is subject to our open meeting law. The statute, on its face, applies to all "official meetings" of the Board. The phrase, "official meetings" is not further defined in the statute nor have I been able to find binding judicial precedent on the subject. In the absence of additional legislative or judicial guidance on the matter, I am of the opinion that an "official meeting" of a public entity, subject to the provisions of this statute, occurs when a majority or quorum of the body is present and official business within the jurisdiction of the board, commission, or agency is discussed.
The Board of Regents, unlike most state level boards and commissions, has a specific statute addressing this subject in addition to the general provisions of SDCL ch. 1-25. SDCL 13-49-7 provides:
Meetings may be held on the call of the president or by joint request of a majority of the members, due and reasonable notice always being given.
The affirmative vote of a majority of the members of the board of regents shall be required to take official action. The board of regents shall record their minutes which shall be open to the public. All such meetings of the board of regents shall be open to the public except when personnel matters and privileged matters between the board and its attorney are being discussed and when such meetings are held the board shall limit the topics discussed or acted upon to such matters only.
This statute touches upon the nature of Regents' meetings. It specifically identifies exceptions to the open meeting requirements as "personnel matters and privileged matters between the board and its attorney." Prior to the 1987 amendment to SDCL 1-25-2 these exceptions were critically important because the exceptions in SDCL ch. 1-25 did not allow for closed meetings when discussing privileged matters with attorneys. My predecessor in Official Opinion 79-48 found an implied exception to the open meeting requirement through construction of the lawyer-client privilege statutes. In 1987 SDCL 1-25-2 was amended to specifically provide for this exception, thus essentially eliminating the difference between the general open meeting statute and the specific provisions of SDCL 13-49-7.
IN RE QUESTION NO. 1:
Having concluded that the open meeting requirements attach to the Board of Regents and attach at any time a quorum is present and business within the jurisdiction of the board is discussed, the basis for closing meetings then becomes important. SDCL 1-25-2 provides:
Executive or closed meetings may be held for the sole purposes of:
(1) Discussing the qualifications, competence, performance, character of 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 purposes 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.
Subdivision (1) of the foregoing statute specifically allows a meeting to be closed in order to discuss the qualifications of a prospective employee. Accordingly, it would be my opinion that meetings of search committees designed to screen applicants for positions announced by the Board of Regents may legally be closed to the press and public through the procedure established in the statute set out above.
I stress that it is the intent of the statute that the public's business be conducted in the public. Accordingly, exceptions from the open meeting requirement should be strictly applied and not used as a subterfuge to avoid public scrutiny of agency activities.
IN RE QUESTION NO. 2:
In order for the provisions for closed or executive sessions to be efficacious, it is my opinion that communications or reports associated with such executive or closed sessions are likewise unavailable to the public. An exception to this would be found where such a communication might involve documents subject to SDCL ch. 1-27. My answer to Question 2 is "no."
By way of conclusion, I stress that this opinion is limited to the situation where a quorum of the Board of Regents is present as a subcommittee of the Board, either in person or by conference call, and the object of the committee is one that falls within the provisions for executive or closed meetings set out in the statute. In the absence of an appropriate basis for closing the meeting, any meeting, subcommittee or full board must be conducted in the public and of course the notice provisions of both SDCL 13-49-7 and SDCL 1-25-1.1 must be met.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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