Frequently Asked Questions: Open Meetings Commission Procedure
How are complaints filed when the Open Meetings Law is violated?
Complaints filed with the Open Meetings Commission pursuant to
SDCL 1-25-6 are to be made as follows:
- Complaints alleging violations of the state open meetings laws must be filed with the States Attorney where the alleged violation occurred. The States Attorney must review the complaint and determine whether to prosecute the complaint as a criminal violation or refer the complaint to the Open Meetings Commission under SDCL 1-25-6. Citizen open meetings complaints cannot be filed directly with the Commission.
- The referral by the States Attorney must include a written notarized complaint as required by SDCL 1-25-6 and SDCL 23A-2-1. The complainant must sign the complaint under oath. State's attorneys are to use the same format for filing complaints under this process as that used in filing criminal matters.
- States Attorney referrals, including investigatory materials, are to be sent by the States Attorney to the Attorney General’s Office marked “Open Meetings Commission.” The Commission has designated an Assistant Attorney General to assist in processing the complaints and responses. The referral should include pertinent minutes and agendas for the meetings involved.
- If the complaint alleges that an executive session was conducted improperly, investigatory materials should disclose the identity of the persons in attendance at the executive session and include statements of persons in attendance. The Commission is aware that privileged information may be involved or that confidential statements may have been made that fall within the clear protection of SDCL 1-25-2.Accordingly, investigatory materials are to be tailored to address that concern and, at the same time, disclose the nature of the discussions to the extent permissible for review by the Open Meetings Commission.
What is the procedure once a complaint has been filed?
- A response will be sent to the state's attorney (and the person that signed the complaint) acknowledging the referral.
- Another letter will be sent to the attorney for the public agency involved. The letter will request a response in 30 days. If the public agency seeks additional time beyond the 30 days, an extension will freely be granted by the Commission Chair if such time is appropriate in order to allow for an adequate response.
In working for a public agency, how do I respond to these complaints?
- If the complaint or referral does not provide all pertinent minutes or agendas, this information should be provided in the response.
- If the response refutes factual information regarding executive sessions, signed statements from persons attending the executive sessions are encouraged. As stated above, the Commission recognizes that confidential information may be involved. To the extent possible, however, the agency should provide sufficient information for the Commission to make an informed decision.
- The original response should be sent to the Attorney General's office marked "Open Meetings Commission." Copies should be sent by the respondent to the pertinent state's attorney and the person that signed the complaint. The response should indicate that copies have been provided to those entities.
What does the commission do once it receives all the filed documents?
- Once the complaint and response have both been received, the package will be forwarded to the Commission for review and further action.
- The Commission will consider the complaint at its next regularly scheduled meeting. Time at this meeting will be allowed to both parties for oral presentations regarding a complaint. The Commission has the option of returning the complaint to the pertinent state's attorney for more investigation.
- After final review of the Complaint and response, and consideration of any oral argument, the Commission will issue Findings of Fact and Conclusions of Law. The Findings of Fact and Conclusions of Law will be public. They will be posted on the Attorney General's website and also forwarded (free of charge) to anyone who requests them.