December 21, 1979

Mr. John J. Delaney 
Spearfish City Attorney 
Post Office Box 898 
Lead, South Dakota 57754

Official Opinion No. 79-48

Attorney-client consultations for public agencies exempted from SDCL 1-25 and 1-27

Dear Mr. Delaney:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Issue One.  As City Attorney I represent the municipality in many legal capacities.  Among these, I am counsel for the City in a number of lawsuits. Pursuant to SDCL 1-25-1, official meetings of the Mayor and City Council except as otherwise provided by law, primarily under 1-25-2, are required to be open to the public.  In the course of litigation on many subjects, it is necessary for me to meet with the city officials in order to advise them of the pros and cons of any given position or particular course of action and to receive their direction as to how they wish to proceed.  Naturally, the content of these discussions could be harmful to the City's legal position if it was made public or furnished to opposing counsel. 

Issue Two.  The facts assumed are essentially the same as above except the communication takes place by letter from me to the Council members.  SDCL 1-27-1 requires that public records be open to inspection.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Is a meeting between the Mayor and City Council of a municipality and their counsel for the purposes of discussing and determining legal strategy on pending or probable litigation an official meeting subject to the provisions of SDCL 1-25-1? 

2.  If not, are there any procedural steps which must be taken to close the meeting to the public? 

3.  Are letters from the City's legal counsel relative to pending or probable litigation public records subject to inspection?

IN RE QUESTION NO. 1:

It is my opinion that the answer to your first question is no. SDCL 19-13 provides for an attorney-client privilege which includes public bodies such as city councils and public officials such as mayors.  In professional consultations between an attorney and client in these circumstances, it is my opinion that the provisions of SDCL 1-25, relating to open meetings, are not applicable.

IN RE QUESTION NO. 2:

Insofar as the procedural steps to incur this confidential meeting are concerned, it is my opinion that the meeting should be “closed” much as in the same manner as a meeting would be closed for purposes of executive session under SDCL 1-25.  I do not believe the mayor or city council need express or explain in detail the nature of the pending legal problems to members of the public who would wish to remain at the meeting.  Public officers must, however, exercise good faith in utilizing this attorney-client privilege to close meetings.  This procedure cannot be lawfully used as a subterfuge for indirectly closing meetings that are by law directly required to be open to the public.

IN RE QUESTION NO. 3:

In my opinion the answer to your third question is no for all of the reasons discussed above.  Written communications between the city's legal counsel and city officials, in a bona fide lawyer-client relationship are not in my opinion open to public inspection under SDCL 1-27.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

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