School personnel incidents expose loophole excluding public comment
Wed, 03/16/2022 - 10:57am admin
Stu Whitney South Dakota News Watch
Two seemingly harmless words added to a state open meetings law in 2019 have sparked a debate over the rights of citizens to publicly comment at official government meetings in South Dakota, with several school boards at the center of the conflict.
The state open meetings law, enacted in 1965, was amended in 2018 by House Bill 1172, which required every official meeting to offer a period for public comment under the discretion of the chair. One year later came Senate Bill 91, which clarified language and put public comment at the discretion of the entire body rather than just the chair.
As part of that process, the words “regularly scheduled” were added in front of “official meetings,” which bore little scrutiny at the time but has launched a legal tug-of-war between public officials and advocates of community input. Some government bodies have used the language to create a legal loophole in which they have denied the public the right to speak at official meetings.
Different interpretations of the wording stirred controversy last month in the case of a Garretson High School principal and football coach, whose contract was terminated by the school board after more than five hours of closed-door deliberations. Some community members felt stifled by an inability to address the board.
Across the state, an unsuccessful lawsuit against the Rapid City Area Schools Board of Education over the infringement of public comment has been appealed to the South Dakota Supreme Court, fueled by a group of parents who claim they were denied a voice as the board weighed disciplinary action last year against a high school wrestling coach and his staff.
House Bill 1255 was introduced in the 2022 South Dakota legislative session to clarify the principle that public comment must be permitted at all official meetings of public boards. The bill was killed in committee, though opponents acknowledged that clarification in the language of the existing statute is needed to avoid open meetings violations.
“In the municipal world that I operate in, I would be very hesitant to not allow public comment at an official meeting,” Sam Nelson, a lawyer and lobbyist for the South Dakota Municipal League, said at a House hearing on the proposed bill. “I think it’s almost a blanket statement that I would never recommend that.”
Critics of the existing law say that public bodies such as school boards, city councils and county commissions are being allowed to exclude public input because of a semantic loophole cited as justification for doing public business without taxpayer input, and it comes down to those two words.
Garretson schools Superintendent Guy Johnson, in an interview with South Dakota News Watch, cited the “regularly scheduled” wording when asked why supporters of principal and football coach Chris Long were not allowed to address the board at a special meeting held Feb. 23 to determine Long’s fate.
“I would refer people to the law, which deals with public comment at regularly scheduled official meetings,” said Johnson. “This was a special meeting for a specific purpose, and the language does matter. People in the community are going to be upset either way, because they believe they’re entitled to know all the details in these types of situations, and that’s simply not the case.”
The lawsuit in Rapid City stems from a group of parents upset over the termination of Rapid City Central High School wrestling coach Lance Pearson over alleged violations of COVID-19 protocols involving an assistant coach, though Pearson was later reinstated. Joined by South Dakota Citizens for Liberty, a nonprofit group, the parents claimed that the school board stopped allowing for public comment at all meetings beyond the twice-monthly sessions that were “regularly scheduled” each year in July.
“This is a hill I’m willing to die on,” said Tonchi Weaver, a lobbyist and organizer for South Dakota Citizens for Liberty.
Kenneth “Chuck" Jasper, a Rapid City attorney representing the group, will ask the state Supreme Court to consider whether school boards should be able to use study sessions, work groups, retreats, and other types of meetings to avoid public dialogue on critical matters.
“If we don’t force public bodies to follow the law, they’re not going to do it,” said Jasper.
Wade Pogany, executive director of the Associated School Boards of South Dakota, said that open dialogue can help defuse the tension on controversial topics. He noted that the Mitchell School Board held meetings at the Corn Palace last August to accommodate those who wanted to address the district’s proposed mask mandate. Testimony was heated, sometimes even hostile, but the input was heard before a vote took place.
“Every community has topics that are emotional,” said Pogany. “But it’s wise for a school board to have those open discussions so that the frustrations and emotions have an outlet and don’t manifest themselves in some other way.”
On Feb. 23, a Garretson school board meeting focused on potential action against Long, the high school and middle school principal and head football coach, who had stopped showing up for work due to suspension in early January.
As frustration with his absence mounted, students wore T-shirts with pro-Long slogans to basketball games and used social media to criticize the administration’s actions. A small group of students also staged a “sit-in” protest during school hours and were punished with weekend detention.
The focus of Long’s suspension was on the aftermath of an altercation, and ultimately an assault, between Garretson student-athletes while attending a track meet in Baltic the previous spring.
The boys were throwing an apple back and forth when one of the students hit then-senior Dominic Abraham with an apple in the face. According to an arrest affidavit filed by the Minnehaha County Sheriff’s Department last July, Abraham (the only student who was 18) and three other boys chased the eventual victim, who was knocked to the ground. The victim claimed that Abraham then took a stick and stuck it into the victim’s rectum while he was still wearing sweatpants, later claiming that “he could not move at all during the assault due to the amount of force used by the boys holding him down,” according to the affidavit.
The detective recommended charges of simple assault and second-degree rape with an object, but Abraham was charged with simple assault and pleaded guilty to the misdemeanor in early January. He graduated from high school last spring. Other students involved in the incident were minors and returned to school in the fall. Their names are redacted in the affidavit.
Johnson didn’t find out about the incident until late August, and a legal review scrutinized the actions of those who knew about it earlier. Under Title IX and state law, school officials are mandatory reporters required to report to proper authorities “instances where they have reasonable cause to suspect that a child under the age of 18 has been abused or neglected.” Students other than Dominic Abraham ended up disciplined by the school for their actions.
State law allows public bodies to hold closed meetings in executive session when discussing personnel matters – “discussing the qualifications, competence, performance, character of any public officer or employee” – as well as consulting with legal counsel, contract negotiations, marketing or pricing strategies and certain deliberations involving high school students.
But not all nearby states treat personnel issues as a complete blackout of information from public and media. In Minnesota, closed meetings are permitted for “preliminary consideration of allegations or charges against an individual subject to its authority.” But if members determine that discipline might be warranted, “further meetings or hearings relating to the charges must be open.” Most states require that closed meetings be electronically recorded in case a legal challenge arises, but South Dakota’s statute has no such provision.
Too often, according to David Bordewyk of the South Dakota Newspaper Association, officials use the privacy provision reserved for personnel as an excuse to shield themselves from public scrutiny.
“That’s a weakness in the law,” said Bordewyk, who lobbies for free speech issues in Pierre. “Schools are quick to clam up and say nothing if it involves personnel, which frustrates not just the press but the public. They sit there for hours on end waiting for smoke to come out of the chimney or doors to open to find out what the hell is going on.”