March 18, 2008

an OPED on Closed Door Sessions: Yankton SD

Point Of View Open Government, Closed Doors

By: Brian J. Hunhoff
Press & Dakotan

Democracy dies behind closed doors.

I need to get a T-shirt with that phrase emblazoned across the chest in bold letters, because it is one of my all-time favorite quotes.

Those five eloquent words were spoken a few years ago by a wise federal judge. He referred to secret deportation hearings held in the United States after the 9/11 attacks. However, his comment could also be applied to the thousands of secret government meetings (closed-door executive sessions, closed legislative caucuses, etc.) held throughout South Dakota and the United States every year.

As a journalist for 20 years and a county commissioner for 10 years, I observed, first-hand, both sides of the ongoing push-pull between the media and local government over closed-door "public" meetings.

All too often, elected officials look for loopholes or excuses to take a discussion behind closed doors. They might argue it's a sensitive personnel matter, or pending litigation, or a delicate contract negotiation. The law allows some of those issues to be discussed in closed session, but that does not mean it's always mandatory or necessary to shut the public out of such deliberations. They are generally over-used.

There are elected boards in South Dakota that have three or four executive sessions in a single meeting. Some schedule executive sessions as a regular agenda item. Many have executive sessions that last longer than the regular business agenda.

Is it possible many of our public officials do not trust themselves to discuss some issues appropriately? They should. If elected officials can choose their words carefully, there are very few things that cannot be discussed in open session.

Boards and commissions have the discretion to decide when an executive session is absolutely necessary, but they often opt for secrecy. In some cases, public officials preach the importance of open government on the campaign trail, but do not practice it consistently in office. As the old saying goes, there is often a canyon between a politician's words and actions. We know which echo louder over time.

Consistency also suffers when commissions and boards begin dealing with an issue in open meetings, and later take it behind closed doors if the topic becomes more controversial. During my 10 years on the county board, I voted against and sat out executive sessions I believed were improper, unnecessary or inconsistent. Not once did I ever have a constituent criticize me for doing this.

One commissioner refusing to enter a secret meeting is a statement. All five commissioners deciding not to hold a scheduled secret meeting is progress. I'll take progress any day, although the former will sometimes drive the latter.

Many communities have local legends about elected boards that get together outside of their chambers. That is illegal if there is a quorum and if there is any discussion of their city, county or school issues.

In the early 1980s, a majority of our nine-member Yankton City Commission would gather at a Main Street watering hole after meetings. Those sessions sometimes lasted longer than the actual commission meetings that preceded them.

Our five-member Yankton County Commission had a similar routine. After Tuesday morning meetings, three of them (that's a quorum) often lunched together at a local cafe.

We would be naive to believe city business was never discussed in that downtown bar on Monday nights, and county business was never discussed during Tuesday noon lunches at the cafes. Early in my time as a county commissioner, I went along on a couple of those lunch breaks. I quickly realized it was all too easy for our conversation to stray to that morning's meeting.

A few years ago, when moving items out of our old Courthouse, we came across notes from a joint meeting of Yankton's county commissioners and some of the city commissioners in the early 1970s at a popular steakhouse. It was not a public meeting, but it was soon announced in the Yankton newspaper that the two entities brokered an agreement that night to build a joint city/county law enforcement center and jail.

It was an innovative and worthy project, but the "meeting" and subsequent decision should have been conducted in a community setting where the general public could hear the discussion between members of those two elected bodies.

Deals made in the proverbial smoke-filled rooms surely occurred in many communities, but I am hopeful they happen less frequently in this day and age.

People are becoming more sophisticated about open government issues. More and more, I believe our neighbors understand that when reporters are denied access to a meeting, the public as a whole is being kept in the dark, as well.

Some will argue that a negotiating session between two government entities is likely to be more productive done in private. That cuts to the heart of the issue because it does not give our citizens enough credit. Officials need to have faith that a public wise enough to elect them is also wise enough to fairly judge their deliberations.

We have ample room for improvement on the national, state and local levels. I hear journalists from other states say "their" state has the worst open government law or the worst open government history, but South Dakota is no virgin on these fronts. This is the state that awarded hundreds of secret pardons. This is a state where cities, counties and schools hold thousands of secret meetings each year. This is a state where our Legislature holds secret meetings each day before the afternoon session is called to order.

Dark clouds remain in the skies of open government, but sunshine is seeping in. The Sioux Falls Argus Leader gave the 2007 State Legislature a "C" on open government issues. That grade won't get our state legislators on the honor roll, but there are worse marks to be had. Our state senators and representatives earned some of those in past sessions.

Open, transparent government is good government. Taxpayers and citizens deserve to know how their elected officials arrive at their decisions. The public's business should be conducted in public.

And Democracy dies behind closed doors.

This is Sunshine Week - a week when we are called to celebrate and support the Democratic concept of open government. It is not always easy or popular, but this is an honorable battle worth fighting. I'll end this essay with a quote from an editorial that appeared in the County Courier of Enosburg, Vermont:

"If we want sunshine on our government,

we must be willing to stand up in the dark and demand it."

Brian Hunhoff was a Yankton County commissioner for 10 years. He currently serves as the Yankton County Register of Deeds. He is the 2005 winner of the South Dakota Newspaper Association's Eagle Award, which recognizes extraordinary efforts in guaranteeing and promoting open government.

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