Open Meetings Laws and Their Application to Business Managers

1. SCHOOL LAW AS IT APPLIES TO BUSINESS MANAGERS Gerry Kaufman ASBSD Director of Policy and Legal Services, Pierre, SD

2. ALTERNATIVE TITLES …..

3. IF SOMEONE IS GOING TO THROW A ROCK AT YOU, AT YOUR BOARD, OR THE DISTRICT ….. DON’T GIVE THEM THE ROCK !!!!!! or

4. YOU ARE THE GATEKEEPER

5. OPEN MEETINGS LAWS

6. SDCL 1-25-1 Official meetings of political subdivisions … are open to the public … unless a specific law is cited by the governing board in the motion to close the official meeting to the public (i.e., in the motion to go into executive session).

7. Executive Session SDCL 1-25-2 • SDCL 1-25-2(1) (employee matter) • SDCL 1-25-2(2) (student matter) • SDCL 1-25-2(3) (legal matter) • SDCL 1-25-2(4) (negotiations) • SDCL 1-25-2(5) (marketing/pricing) • SDCL 1-25-2 (6) (emergency response plans or protocols, safety/security audits, reviews)

8. The following are from actual school board minutes. “Motion by -, second by -, to move in to executive session at 8:01 p.m.” “Motion by – seconded by – to go into executive session for a personnel issue.”

9. SDCL 1-25-1 An official meeting is any meeting of a quorum of a public body at which official business of that public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.

10. For any event hosted by a nongovernmental entity to which a quorum of the public body invited and public policy may be discussed, but the public body does not control the agenda, the political subdivision may post a public notice of a quorum, in lieu of an agenda….

11. CURRENT LAW: The chair of the public body shall reserve at every official meeting by the public body a period for public comment, limited at the chair's discretion, but not so limited as to provide for no public comment.

12. NEW The public body shall reserve at every regularly scheduled official meeting a period for public comment, limited at the public body's discretion, but not so limited as to provide for no public comment. At a minimum, public comment shall be allowed at regularly scheduled official meetings which are designated as regular meetings by statute, rule, or ordinance.

13. teleconference • An official meeting (including a board hearing) may be held by teleconference. • A member is deemed present if the member answers present during the roll call conducted by teleconference for the purpose of determining a quorum. • Each vote at an official meeting held by teleconference shall be taken by roll call.

14. SDCL 1-27-1.16 If any printed material relating to an agenda item of the meeting is prepared or distributed by or at the direction of the school board or any of its employees and the printed material is distributed before the meeting to all members of the school board, the material shall be posted on the school website or made available at the business office at least 24 hours before the meeting or at the time the material is distributed to the board, whichever is later.

15. SDCL 1-27-1.16 If the material is not posted on the website, at least one copy of the printed material shall be available in the meeting room for inspection by any person while the governing body is considering the printed material.

16. SDCL 1-27-1.18  Any final recommendations, findings, or reports that result from a meeting of a committee, subcommittee, task force, shall be reported in open meeting to the school board. The school board shalldelay taking any official action on the recommendations, findings, or reports until the next meeting of the school board.

17. SDCL 1-25-1.1 The school board must provide public notice, with proposed agenda, that is visible, readable, and accessible for at least an entire, continuous 24 hours immediately preceding any meeting, by posting a copy of the notice, visible to the public, at the principal office of the school board.

18. SDCL 1-25-1.1 • The proposed agenda mustinclude the date, time, and location of the meeting. • If the school has a website, the notice must also be posted on the school's websitewhen the notice is posted in the building.

19. For any special or rescheduled meeting, the information in the notice shall be delivered in person, by mail, by email, or by telephone, to members of the local news media who have requested notice … and shall also comply with the public notice provisions for a regular meeting to the extent that circumstances permit.

20. AGENDA “The language of SDCL 1-25-1.1 contains no information as to how specific an agenda should be. In particular there is no requirement in SDCL 1-25-1.1 that the agenda is to indicate whether the listed items are for discussion only or whether the items require a vote at the meeting.”

21. AGENDA “Obviously the reason for requiring the posting of an agenda is to apprise the public of the time, place, and nature of the meetings. Accordingly, the agenda must contain sufficient information to advise the public as to each of the issues that will be addressed.”

22. RECORDING THE MEETING “No state, political subdivision, or public body may prevent a person from recording, through audio or video technology, a public meeting that is open to the public as long as the recording is reasonable, obvious, and not disruptive.” [SDCL 1-25-11] ASBSD SAMPLE POLICY: BD – SCHOOL BOARD MEETINGS

23. MINUTES “In general, the minutes of a school board need not be formal or technical in nature. The minutes should show what actions were taken by the board and should show that the board acted within the requirements of the statutes.” AGO 74-11

24. MINUTES SDCL 1-27-1.17….. The unapproved, draft minutes of any public meeting held pursuant to § 1-25-1 that are required to be kept by law shall be available for inspection by any person within ten business days after the meeting….

25. MINUTES • The “10 business day rule” does not apply if an audio or video recording of the meeting is available to the public on the governing body's website within five business days after the meeting.

26. MINUTES …. “Within twenty days after a meeting of the school board, the board shall cause to be published in the designated legal newspaper a full account of the unapproved proceedings of such meeting,….”.

27. MINUTES School boards shall publish with the minutes of the first meeting following the beginning of the fiscal year, or within 30 days thereafter, or in the minutes of the first meeting following the completion of salary negotiations with employees for that fiscal year, or within 30 days thereafter, a complete list of all the salaries of all officers and employees …

28. “and thereafter shall publish once any salary paid to any officer or employee who has been added or whose salary has been increased.” • “The governing board shall publish, in their minutes, at least monthly, a total of payroll by department.”

29. SDCL 13-8-43 All reports, books, records, contracts, and papers in the office of the business manager relating to school business in the district shall be retained in the office of the business manager and at all times open to the inspection of the president of the board, the secretary of the Department of Education and county auditor, and at reasonable hours to any voter or taxpayer.

30. SDCL 1-27-1.5.   Certain records not open to inspection and copying……… • SDCL 1-27-1.6.   Certain financial, commercial, and proprietary information exempt from disclosure. • SDCL 1-27-1.7.   Certain drafts, notes, and memoranda exempt from disclosure.

31. SDCL 1-27-42 The public record officer for a school district is the district superintendent or CEO.

32. SDCL 1-27-35.   Informal requests for disclosure of records--Costs of retrieval or reproduction.  • SDCL 1-27-36.   Estimate of retrieval and reproduction cost--Waiver or reduction of fee.  • SDCL 1-27-37.   Written request for disclosure of records.  • SDCL 1-27-1.4.   Denial letters to be kept on file.

33. SDCL 1-27-18 State law requires school boards to have a local records management program.

34. SdboA RECORDS MANAGEMENT Dana Hoffer, Manager [605-773-3589] POLITICAL SUBDIVISIONS RECORDS RETENTION MANUALS: https://boa.sd.gov/central-services/records-management-polSubRetentionManuals.aspx

35. SCL-33.1. AUDIO/VIDEO RECORDINGS OF SCHOOL BOARD MEETINGS: 15-017 This series may contain audio and/or video recordings of school board meetings. RETENTION: Retain 90 days in office after minutes have been approved, then destroy.

36. Bonds • The bonds of the business manager shall be approved by the school board and filed with the county auditor. SDCL 13-8-19. • New or additional bonds for school board members or employees may be required by the school board, and the county auditor may require new or additional bonds when deemed necessary. SDCL 13-8-20.

37. SDCL 3-5-14 If the governing board purchases a blanket bond, blanket crime coverage, or an insurance policy that is equal to or exceeds the individual bond requirements established in law, no officer, member, and employee of the political subdivision is required to furnish an individual bond to qualify for office.

38. SURPLUS PROPERTYSDCL6-13-1; SDCL  6-13-2 • The school district may, by appropriate motion, sell, trade, loan, destroy, or otherwise dispose of any land, structures, equipment, or other property no longer necessary, useful, or suitable for the purpose acquired.     • Afterthe board passes a motion to declare something surplus, the board mustappoint 3 real property owners of the district to appraise the property (and mustfile an appraisal report with the bus. mgr.).

39. SDCL 6-13-4 • Surplus property appraised at $500 or less: may be sold by the board at a private or public sale without notice. • Surplus property appraised at $500 or more: the board must give notice of sale of surplus property, by publishing a notice of the sale at least twice, with the first publication not less than 10 days prior to the date of the sale…The notice shall describe the property to be sold and the time when bids will be opened.

40. SDCL 6-13-5 Sealed bids received on surplus property mustbe filed with the business manager and must be opened at the board meeting at the time specified in the notice, or the board may designate the business manager and a witness to open all bids before the board meeting. The board may reject any and all bids. However, if the board accepts a bid, it must be the bid of the highest bidder.

41. SDCL 6-13-5.2; SDCL 6-13-6 • In lieu of receiving sealed bids, the board may sell surplus property at auction to the highest bidder. • The may also sell real property by listing the property with one or more licensed real estate brokers and may accept any offer for purchase of the real property.

42. SDCL 6-13-7 No school board member (and no real property owner acting as an appraiser) may purchase surplus property except at public auction.

43. SDCL 6-5-5 Every district may lease, sell, give and convey any personal property, real property, or money of such entity or perform any work or render any services, to the state or any public corporation thereof, to be used by such grantee for an authorized public purpose.   

44. SDCL 5-18A-3 Unless otherwise authorized by law, each contract for supplies, services, and construction shall be awarded by one of the following methods: (1) Competitive sealed bids; (2) Competitive sealed proposals; (3) Small purchases; (4) Sole source procurement; or (5) Emergency procurement.

45. SDCL 5-18A-37 is an “otherwise authorized by law” statute. “Any purchasing agency may enter into agreements with purchasing agents in this or any other state or the United States government under which any of the parties may agree to participate in, administer, sponsor, or conduct purchasing transactions under a joint agreement or contract for the purchase of supplies or contractual services.”

46. SDCL 13-7-30; 13-7-31 Within 60 days of the official canvass of the annual school election, the school board shall provide in board minutes the following information: (1) the number of registered voters in the district on the date voter registration closed; (2)the number and percentage of registered voters in the district who voted in the election; and (3) if the election was held in conjunction with a regular municipal election or with the regular June primary.

47. School Board Vacancies

48. SDCL 13-8-22 through -25 • Incumbent continues in office … • Events creating vacancy on school board:… • Resignation not effective until … • A board vacancy is filled by appointment…

49. The appointment is done by all school board members (including the vacating member), if the vacancy is created by: (1) failure to elect a person to succeed a board member whose term has expired; (2) an elected board member's failure to qualify; or (3) a board member's resignation. • All other vacancies are filled by the remaining board members.

50. SDCL 13-8-10 Board Meetings • The annual meeting – 2nd Monday of July unless otherwise designated by the board at the prior regular meeting; elect president and vice president; designate depository/depositories and custodians of all accounts; designate the legal newspaper. [ + ] • Regular meetings – 2nd Monday of month unless otherwise designated by board at the annual meeting.