MOUNT RUSHMORE NATIONAL MEMORIAL - Despite improvements in state open-meeting laws, some boards and commissions in South Dakota still handle public business in secret, a state newspaper association official said here Thursday.

"The use of executive sessions in government meetings represents a culture in South Dakota - a culture of closed doors," David Bordewyk said during a panel discussion on open government sponsored by the Mount Rushmore Institute.

Bordewyk, general manager of the South Dakota Newspaper Association in Brookings, said state law must be strengthened to provide better public access to government meetings and records.

"We need more specific language in the law regarding exactly when a government body can go behind closed doors," he said.

But other members of the nine-member panel said the law as written already hamstrings public boards by exposing them to reprimands for technical violations that don't impede public access to government records or proceedings or damage public policy.

In an edgy and lengthy response, Rapid City Mayor Jim Shaw said Bordewyk was declaring "all public bodies guilty until proven innocent," an insinuation that Shaw called "ludicrous" and "outrageous."

Shaw, a former TV news anchor, said he believed strongly in open government but not in heavy handed enforcement of the law in ways that could hurt government and discourage involvement by good candidates for public office or appointed boards.

"How do you get them to serve, if their every nuance, their every utterance is going to be subjected to a headline?" Shaw said.

Pierre lawyer Tom Adam, a member of the South Dakota Science and Technology Authority, agreed that good candidates for public service are being discouraged by an open-meeting law that needs revision to provide more guidance and protection for public bodies and volunteer public servants.

Adam said a 1989 state attorney general's opinion leaves members of public bodies in jeopardy of an inadvertent violation for simply getting together for a meal after an official meeting.

"You have to take into account the quality of the people," Adam said. "A couple of toddies and a piece of beef are dinner, not a public meeting."

Adam also urged clarification of what can be discussed in closed session. He said the science authority was reprimanded for a contractual discussion that members and their lawyer thought was allowed under the law. Since the reprimand, members of the authority and their lawyer have worried about the possibility of another unintentional violation, Adam said.

"I don't think I should be continually nervous about not breaking the law," he said.

The panel was part of the Mount Rushmore Institute's two-day program on First Amendment rights.

The panel included South Dakota Attorney General Larry Long, who said members of public boards can still share a meal as long as they studiously avoid discussing board business.

"Don't talk about whether you guys are going to buy a new road grader or not," he said. "Don't talk shop."

In 2003, Long led a group that studied the 40-year-old open-meetings law and presented an update to the 2004 Legislature. That legislation created the current South Dakota Open Meetings Commission, which has the authority to reprimand public bodies it finds in violation of the open-meeting law.

The commission does not have subpoena power, nor can it bring criminal charges. Since it became effective in July of 2004, the commission has decided "10 or 12" charges of open-meeting violations, with all but two being issued reprimands, Long said.

The creation of the open meetings commission has made public bodies across the state more aware of the open-meeting laws, Long said. Those officials call his office more often for advice and seem intent on following it, he said.

Although extreme violations of the open-meeting laws could be charged as a criminal misdemeanor, that would take action by local prosecutors. And public bodies don't need the threat of criminal charges to follow the law, Long said.

"When the commission says, 'You folks have violated the law,' and says it publicly, I think it's a sanction that works, and a sanction that bites," Long said.

Bordewyk said more needs to be done, however. He said he never intended to imply, as Shaw suggested, that all boards and commissions were violating the law. But there have been violations, some of which have been cited by the open-meetings commission, Bordewyk said.

A computer check of the minutes from boards and commissions across the state showed the use of executive sessions 752 times in the past three months alone, Bordewyk said.

"To be sure, some of those executive sessions were proper," he said. "Others, perhaps, were not."

Beyond open meetings, Bordewyk said South Dakota has one of the weakest open-records laws in the nation. The Better Government Association of Chicago, which promotes open-government and grades states, gave South Dakota an "F," Bordewyk said.

The state should enact a "sunshine law" to provide more access to public documents, he said.

Another panelist, Rapid City Journal local news editor Steve Miller, said more openness prevents the spread of inaccurate information and rumors.

News reporters push for more access to meetings and information to provide better, more accurate coverage of issues important to the public, Miller said.

"If there's a gray area, we think the public body needs to make a decision that's on the side of being more open," he said.

Contact Kevin Woster at 394-8413 or kevin.woster@rapidcityjournal.com