Volume 26 – Number 3 An information publication of the South Dakota Newspaper Association, Brookings, SD November/December 2012

Reprinted with permission from the Dec. 8, 2012, edition of the Watertown Public Opinion.

by Wayne HammondPublic Opinion News Editor

Members of SDNA and area lawmakers met Dec. 7 to discuss the upcoming legislative session.

The newspaper association, including General Manager David Bordewyk and Board Third Vice President John Suhr of Webster, along with members Ken Reiste of Clear Lake and Mark Roby of Watertown, hosted the annual gathering. It laid out a number of legislative priorities, focusing on open government, specifi cally on recommendations coming from the task force reviewing the state’s open records and open meetings laws.

Earl ier this fal l , the task force

recommended eight draft bills sent on to the governor and attorney general, which were reviewed Friday.

The fi rst to spur discussion was an act to clarify the applicability of the open meetings statue in certain three-member boards.

The distinction drawn is how the boards are defined, specifically the difference between local three-member township boards and the like and three-member state boards, specifically the Public Utilities Commission.

Rep. Roger Solum (Dist. 5) pointed out that by the letter of the law today, PUC members operate under constraints.

“They are to the point that they need to put a staff member in the middle of their conversation in order to even meet at the coffee pot,” the Watertown Republican said.

Bordewyk summed up the general consensus of the intent of the propose

change to the law, which is to treat boards on the PUC level differently than boards like township boards.

“I think it’s going to be important to have a distinction between the township boards and the PUC, which deals with much bigger, statewide issues,” he said.

Also prompting discussion was a proposal that did not make it out of the task force: taping executive sessions.

T h e t a s k f o r c e h a d d i s c u s s e d recommending bill that would require the taping of executive sessions of government bodies. Though, it was ultimately not moved forward, the feeling is, as Bordewyk explained, that it may be heard in one form or another this year in Pierre. The most likely form, however, is not a measure requiring the taping of sessions, but rather a permissive statute which allows boards to tape when they wish to do so.

Survey tracks readership both in print and digital

Besides the printed version, newspaper readers also rely heavily on a newspaper’s website for news and advertising information. That is according to recently released results of a newspaper readership and consumer shopping survey conducted by Pulse Research of Portland, Ore.

Almost 5,000 newspaper readers from all 50 states responded to the survey.

Among the survey’s key fi ndings:1) In addition to the printed version, readers

also get news and information via: newspaper website - 60 percent, iPhone - 12 percent, iPad - 10 percent, Kindle & Fire - 7 percent, other tablet - 4 percent. Twenty-six percent read the printed version only.

2) 62 percent of respondents prefer government public notices such as board minutes in the newspaper compared to only 6 percent who prefer them on a government website. Thirty-two percent have no preference.

3) Social media misses the newspaper audience: In the last 30 days, 47 percent have visited a business Facebook page and 17 percent have responded to a business Facebook offer. Thirty-three percent have clicked on a Google search results sponsor.

4) Classifi ed effectiveness: Of those who ran a newspaper classified ad, 73 percent stated they got results from their ad. Thirty-four percent sold what they advertised and another 40 percent stated they got “many calls.” Craigslist is softening. In the last 30 days, 77 percent have not responded to a Craigslist ad and 82 percent have not placed an ad on Craigslist.

For a complete copy of the Pulse of America survey with more 120 readership and consumer shopping questions go to www.pulsresearch.com/results. National and regional area statistics are available. Quarterly trending is also available.

Pulse of America is an ongoing, quarterly publication readership and website user consumer shopping survey fi rst launched in early 2008. Pulse Research, founded in 1985, is the host and sponsor of the Pulse of America Survey. For more information about Pulse, go to www.pulseresearch.com.

Lawmakers, newsmen meet to discuss open government policies

Reprinted with permission from the Nov. 10, 2012, edition of The Daily Republic, Mitchell, S.D.

by Seth TupperThe Daily Republic

A judge has ordered the Mitchell City Council to refrain from using attorney-client privilege as a blanket justifi cation for closed meetings, thereby resolving a lawsuit fi led three years ago by The Daily Republic.

Circuit Judge Cheryle Gering’s judgment adopted the newspaper’s interpretation of state law. The newspaper successfully

claimed that the open-meetings law does not allow a public body to close a public meeting for the sole purpose of conducting a private discussion — known as an “executive session” — with an attorney.

The judgment says the Mitchell City Council may only invoke attorney-client privilege as justifi cation for an executive session if the discussion is “strictly limited to ‘proposed or pending litigation or contractual matters.’”

Korrie Wenzel, publisher of The Daily Republic, said he considers the judgment a victory.

“We’re happy with this decision. We

felt the process, for whatever reason, was being needlessly delayed, so we are very appreciative that things finally moved forward,” Wenzel said.

The genesis of the lawsuit was a June 2, 2008, executive session conducted by the Mitchell City Council at the request of then-city attorney Randy Stiles.

After the executive session, The Daily Republic learned from two council members that the topic of the executive session was a state law requiring a public election to remove a park designation from public property.

Council members had been considering

— against the wishes of some vocal opponents — removing the park designation from undeveloped public property near Mitchell Middle School. Council members had thought they could repeal the park designation themselves, but according to what two council members told The Daily Republic, Stiles said during the executive session that a public election on the matter appeared to be necessary.

In other words, The Daily Republic contends that Stiles took council members into a closed meeting to tell them the public was owed an election on the issue, rather

Daily Republic wins judgment against cityJudge adopts newspaper’s interpretation of open meetings law

John Suhr of the Webster Reporter & Farmer, right, spoke to northeastern South Dakota legislators Jim Peterson, Dennis Feickert, Melissa Magstadt and Kathleen Tyler.

(Continued to page 4)

(Continued to page 3)

Every day and every week, newspapers package and publish news, information and advertisements in a product that is made available to the public.

A common piece in all of it is the name of the newspaper. The newspaper name almost always dominates the top of the front page of the printed newspaper or the top of the newspaper’s website. In the newspaper business, we call it the “fl ag” or the “nameplate.” But it is much more than just a newspaper name.

A n e w s p a p e r ’s f l a g i s a representation of a newspaper’s credibility and brand. It is a newspaper’s trademark. It tells those who read the newspaper that the publisher stands behind the information found in the newspaper.

In short, a newspaper fl ag conveys instant familiarity and connection for those who read it. A newspaper’s fl ag is a powerful thing.

So it is no wonder some southeastern South Dakota residents were confused when they received a political campaign piece in the mail just before the Nov. 6 election that looked very similar to a local weekly newspaper. The campaign mailer included a fl ag that was similar in design and type style to the local weekly newspaper, the Dakota Dunes North Sioux City Times.

The campaign mailer, called the “Lincoln Union County Times,” was paid for by the Union County Republican Party, whose chairman is state Sen. Dan Lederman, as a promotional piece for GOP candidates.

Shortly after the campaign mailer showed up in mailboxes, Times Publisher Bruce Odson began receiving calls from local

residents confused by it. Was his newspaper responsible for this campaign literature? Odson assured them he was not.

Nevertheless, the confusion was out there. A few days later, Odson published a front-page story in his newspaper, telling readers that the real Times was not responsible for the political campaign “Times” and that he did not appreciate confusion by it or the apparent deception intended by those responsible for it.

Newspaper publishers take seriously their job of publishing accurate, fair information and building trust with their readers.

Businesses big and small invest millions of dollars to build and promote their image and brand. Ford’s blue oval. McDonald’s golden arches. Apple’s little apple. All designed to instantly connect with their customers.

Newspapers do the same thing with their fl ag. Most South Dakota newspapers have

b e e n c o n v e y i n g a connection with their readers and a sense of public trust via their newspaper fl ag for more than a century.

Any unauthorized use of that newspaper’s brand and trademark undermines that connection and trust. Apple would not like it if someone misused its iconic logo. South Dakota newspaper publishers don’t like it either when someone abuses the trust and connection they have worked hard to build with their readers and community.

It’s been said that imitation is the sincerest form of fl attery. And perhaps we should be fl attered that a political campaign would emulate one of our newspapers to further its agenda. But the risk of confusing our readers and potentially weakening our credibility as an independent source of information is simply too steep a price to pay.

Merry Christmas and Happy Holidays from everyone at our house to everyone in your house.

This has been an unbelievably fast year. I just have to stop and pause periodically and ask myself where does the time go. I guess if we are busy, the time just seems to fl y by.

Just think. Next month the annual session of the S.D. Legislature kicks off once again, so it is time for all of us in the newspaper industry (and everyone else) to be vigilant.

There are some who don’t value our businesses and industry. They believe we are an endangered species that is disappearing from the communications stage and are willing to sponsor or support legislation that is potentially harmful to our newspapers.

Your association has scheduled a number of regional luncheon meetings with legislators this month prior to the opening of the session.

Please squeeze one of these meetings into your busy schedules as we plan to lay some groundwork for issues we believe may come up during the session.

The role of our association’s general manager switches to head SDNA lobbyist

during the session. Dave Bordewyk will do all he can to keep us informed of potential or pending legislation deemed harmful to our association members. But he can’t do it alone. If need be, he will call on us to assist in the battle.

This rallying call for troop support could come in the form of making phone calls to your respective legislators or making the trek to Pierre to make our physical presence known.

One of these scheduled annual rallying calls happens every year in the form of Newspaper Day at the Legislature. This year’s event is set for Thursday, Jan. 24. I’ve been there and witnessed a gradual thinning of our ranks at the noon luncheon where we host our respective legislators

and the following press conference with the governor. It is somewhat embarrassing when legislators out-number newspaper publishers and editors. Let’s not let this happen next month.

If we expect legislators to pay any attention to us and our association issues, we need to have a heavy turnout at Newspaper Day this year. There is strength in numbers and we need to show our elected offi cials that our organization and industry are strong, indeed.

It’s a great opportunity to rub elbows with our respective district legislators and discuss pending issues in a more relaxed, casual atmosphere. The program is short and sweet and then it is on to the Capitol and a news conference with the governor. See you there.

Your association board of directors met in Chamberlain Nov. 9 and covered a lot of ground. We heard an impassioned plea for fi nancial support for the annual Native American Newspaper Conference at Crazy Horse from Jack Marsh. He is the president of the Freedom Forum Diversity Institute and Al Neuharth Media Center, both in Vermillion.

We have offered mostly technical support to the conference in years past, but not much fi nancially. It costs about $40,000 to put on annually, or about $1,000 per student, and Marsh said the event was facing a “structural defi cit.”

He asked for a “deeper commitment” from the association of $10,000 annually. The board agreed to a one-time donation of $5,000 to defray costs of this past April’s conference and left the door open to further fi nancial assistance, if possible.

Questions were raised about broadening the student population from just Native Americans to all minority groups. That is something that needs further discussion because it would tend to alter the program and change its emphasis, said Marsh.

The committee appointed to look at circulation categories for daily and weekly newspapers in the Better Newspapers Contest recommended they stay the same for this next time around.

Your board meets again at Newspaper Day, so if there is something you would like to see on our agenda, just let us know.

Thanks for your support.

2 • November/December 2012 South Dakota Newspapers

Manager’s MessageDavid BordewykSDNA General Manager

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© Copyright 2012

By South Dakota Newspaper Association

David C. Bordewyk ....... Publisher/Editor Sandy DeBeer .............. Pagination

Published bi-monthly by South Dakota Newspa-per Association, 1125 32nd Ave., Brookings, SD 57006, and at additional offi ceTelephone: 800-658-3697Periodicals Class Postage paid at Brookings, SD 57006

Subscription price: $15 per year.

SDNA Offi cers

PresidentCharley Najacht / Custer County Chronicle

First Vice PresidentSteve Baker / Capital Journal, Pierre

Second Vice PresidentPaul Buum / Alcester Union & Hudsonite

Third Vice PresidentJohn Suhr / Reporter & Farmer, Webster

At-large DirectorRandell Beck / Argus Leader Media, Sioux Falls

At-large DirectorJanet Kittelson / Miller Press

Past PresidentLucy Halverson / Lyman County Herald, Presho

SDNA Staff

David C. Bordewyk / General ManagerCherie Jensen / Assistant ManagerJohn Brooks / Advertising Sales ManagerSandy DeBeer Advertising AssistantDarla McCullough / Advertising AssistantPat Leary / Tearsheeting

SOUTH DAKOTA NEWSPAPERS is the offi cial trade publication for the South Dakota Newspaper Association, representing daily and weekly newspapers in the state.

Postmaster: Send change of address to South Dakota Newspaper Association, 1125 32nd Ave., Brookings, SD 57006

Presidential PerspectivesCharley NajachtPresident / SDNACuster County Chronicle

Political campaign mailer confuses readers, threatens newspaper’s independent credibility

Promote newspapers, free press, open government

er h

residentsf d b it W

WEDNESDAY, NOVEMBER 7, 2012

Volume 17, Number 45

New postmaster, pg. 2

Jessen honored, pg. 12

HS Honor Rolls, pg. 4

75¢

Many District 16 resi-dents received a mailer on Monday with a familiar look, but it did not come from the Dakota Dunes/North Sioux City Times. The Union County Re-publican Party borrowed parts of the Times mast-head, including its name, to produce a campaign piece supporting candidates. The Times’ offices have received a number of calls from sub-scribers wondering whether this is an endorsement. The answer is an em-phatic ‘No!’ The Times does not as a rule endorse indi-vidual candidates and this mailer should not be con-strued as such. It raises the question whether the local Republi-can Party and its chairman believe in basic business principles like copyright

This is NOT our publication.

and brand protection. Former District 16 State Senator Mike Broderick (R)

told the Times he initially thought the publication was the newspaper.

“The party should have known better than to do this,” said Broderick.

A call to Union County Republican chairman Dan Lederman requesting an ex-

planation was not returned. The Times awaits his apology.by Kim Fickett A good sense of humor has been vital these past couple of months for Bob and Nikki Nich l

Community rallies behind Nichols familyby Kim Fickett With only six weeks left until Christmas it is

time to get into the holiday i ito d h

Holiday time at Adams Homestead

Eight of 10 open government proposals for possible 2013 legislation were agreed to by members of a statewide task force this fall.

The e ight proposals have been forwarded to Gov. Dennis Daugaard and Attorney General Marty Jackley for their consideration. They will decide which proposals to endorse for legislation in the upcoming session.

The eight proposals include:• An act to clarify the deliberative process

exception in the open records statute.• An act to repeal the confi dentiality of

derogatory information, and to provide for the confidentiality of anonymously-submitted information in some cases.

• An act to clarify the applicability of the open meetings statute in certain three-member boards.

• An act to apply the open meetings statute to certain committees.

• An act to clarify the definition of “teleconference” to include meetings held by electronic text colloquy, and to provide for public access to the records of these meetings.

• An act to provide for public access to criminal booking photographs and certain criminal history information.

• An act to repeal the sealing of a pardon after fi ve years.

• An act to provide for public access to electronic public records databases.

Daugaard and Jackley in July appointed a 33-member task force to review South Dakota’s open records and open meetings laws and make suggestions for possible changes in those laws. The task force included representatives of state and local governments, law enforcement, news media, businesses, judicial branch and others.

The group held three meetings, concluding

its work in October.The task force discussed several other

open government ideas, some of which may be introduced as legislation in 2013 by various legislators. One idea discussed by the task force that did not get unanimous support was a proposal to require the tape recording of executive sessions of public boards.

SDNA believes that requiring the recording of executive sessions would be an effective enforcement measure to ensure compliance with the open meetings law. Some states such as Iowa do require that

executive sessions be recorded and sealed only for a judge to review in disputed cases.

Another measure that did not gain unanimous support of the task force would require that financial settlements entered into by public entities be made public. Currently, any civil or out-of-court settlements involving public entities are not required to be made public under the law and almost always kept confi dential, leaving the public in doubt as to the terms of the settlement.

“The work of the task force resulted

in a package of some very good open government proposals,” SDNA General Manager David Bordewyk said. “Plus, the debates by the task force on various issues were excellent. I think everyone benefi ted from participating in the discussions of the task force.”

Bordewyk added his gratitude to the governor and attorney general for appointing the task force.

“On behalf of all SDNA members, we want to thank Gov. Daugaard and Attorney General Jackley for initiating the task force and supporting it.”

November/December 2012 • 3South Dakota Newspapers

PUBLIC NOTICESPublic Notice Advertising • Protects Your Right to Know

SDNA members who served on the open government task force were, from left: SDNA General Manager David Bordewyk, Jonathan Ellis of the Sioux Falls Argus Leader, Tim Waltner of the Freeman Courier, Tena Haraldson (former AP bureau chief), Mark Roby of the Watertown Public Opinion, Dale Blegen of the De Smet News, Jack Marsh of the Freedom Forum and Seth Tupper of The Daily Republic, Mitchell. Not pictured: Maricarrol Kueter of the Argus Leader and Patrick Butler of the Rapid City Journal.

Open government task force agrees to 8 draft bills

than relating that information during the public portion of the meeting. There had been a group of people at the public meeting expecting to discuss the issue openly.

“We always have felt that what happened that night was wrong and we vowed to fi ght it — not necessarily for the newspaper, but for the Mitchell residents who were wronged at that meeting,” Wenzel said.

South Dakota’s open-meetings law contains fi ve reasons a public body may choose to enter an executive session. The newspaper claimed the law does not contain a blanket provision for carrying out a privileged discussion with an attorney. The law does say a public body may enter an executive session to consult with an attorney or review communications from an attorney, but it adds that the subject must be limited to “proposed or pending litigation or contractual matters.”

The newspaper alleged that the Mitchell City Council’s executive session discussion had not included any “proposed or pending litigation” or “contractual matters.” Instead, the newspaper claimed, the council had wrongly gone behind closed doors to discuss

a matter of public interest.The newspaper fi rst fi led a complaint

with the local state’s attorney, which is standard practice with open-meetings issues. The state’s attorney found enough merit to forward the complaint to the Open Meetings Commission, a panel consisting entirely of state’s attorneys.

The OMC found that no violation had occurred. The Daily Republic thought the OMC decision was wrong and fi led a lawsuit in 2009 seeking an opinion from a judge.

“We felt the decision by the Open Meetings Commission was flawed and we didn’t want that decision to become precedent,” Wenzel said.

The lawsuit lingered in the court system until earlier this year, when newly elected Mitchell Mayor Ken Tracy declined to renew Stiles’ city attorney contract and the judge originally assigned to the lawsuit retired.

Talks of resolving the lawsuit began, and the city and newspaper agreed to a stipulation that not only forbade the City Council from invoking attorney-client privilege as a blanket justifi cation for future

executive sessions but also said the council must specify and record in its minutes the particular provision of state law under which every motion to enter an executive session is made.

The stipulation was forwarded to the new judge assigned to the case, who entered a judgment earlier this month that exactly refl ects the stipulation.

Neither the stipulation nor the judgment includes an acknowledgment of wrongdoing by Mitchell’s city government. The documents only clarify what city government may not do at “future proceedings.”

Mayor Tracy, in an interview this week with The Daily Republic, declined to acknowledge wrongdoing.

He said the council thought when it entered the executive session that it had a legitimate reason for doing so, but he admitted there was reason to question the legality of the executive session and said it may never be offi cially determined whether the session was legal or illegal.

He expressed satisfaction with the resolution of the lawsuit and said he wants to limit city government to a stricter

interpretation of the open-meetings law. It had been claimed by the city in earlier lawsuit proceedings, for example, that the phrase “proposed or pending litigation” could mean a lawsuit that had not been fi led or threatened but was thought possible by the city attorney.

“I would like to avoid executive sessions if at all possible,” Tracy said. “To try to stretch that term of ‘pending litigation,’ I wouldn’t want to go there unless there’s something more certain than some ambiguous thing that you’re stretching to try to include.”

Wenzel, the newspaper’s publisher, said he still feels the city was in the wrong, but added that Tracy deserves praise for immediately helping to resolve the lawsuit after he took offi ce this summer.

“It’s ridiculous that it took three years,” Wenzel said. “The mayor is on the ball, and we appreciate that.”

The park designation has never been removed from the public property over which the controversy bloomed, and there is now a dog park on part of the land.

Judgment took three years (Continued from page 1)

4 • November/December 2012 South Dakota Newspapers

Attending the Watertown Public Opinion/SDNA legislative meeting Dec. 7 were, from left: Rep.-elect Jim Peterson, Clear Lake Courier Publisher Ken Reiste, Rep.-elect Kathy Tyler, Rep. Dennis Feickert, Sen. Ried Holien, Ben Ready of Sen. John Thune’s staff, Sen. Jason Frerichs, Rep. Melissa Magstadt, Sen. Tim Begalka, Webster Reporter & Farmer Publisher John Suhr and Watertown Public Opinion Publisher Mark Roby. Not pictured: Rep. Roger Solum.

The consensus among the group was that executive sessions are too prevalent.

Rep. Dennis Feickert (Dist. 3) recalled his time serving on local boards.

“A lot of times when we went into executive session … it was just ridiculous,” the Aberdeen Democrat said.

Bordewyk said one of the obstacles that would have to be dealt with is the absence of precedent for how to deal with tape as a record.

Newly elected Dist. 4 Rep. Kathy Tyler, who served as a school board member for more than a decade, said she understands the trepidation, especially of schools.

“So much of the time is spent talking about student issues, that can be a real concern,” the Milbank Democrat said. “If

we’re looking at allowing, but not requiring, I could see being on that side.”

Tyler’s colleague, Dist. 4 Democrat Rep. Jim Peterson of Revillo, also saw that as being possible.

“I think it would be benefi cial if it were permissive,” he said.

The fi nal issue of discussion at the hour-plus gathering was local press access at high school athletic events.

“A problem we’re seeing cropping up is where the local press is being restricted from being able to cover local high school games, because, for instance, a contract is in place between a school and a media outlet,” Bordewyk explained.

He continued by saying in various communities, media are being restricted in

terms of what they can and can’t photograph, even what they can disseminate through social media.

“It’s becoming more and more frustrating, and more and more like the NCAA or professional sports and that shouldn’t be the case in local high school sports in South Dakota,” he added, while providing an outline of a bill the SDNA will put forward ensuring that local media have the ability to cover local high school events.

“We’ve seen it pop up and be addressed in other states and we’re just trying to be proactive in South Dakota,” he said.

Bordewyk said he understands that schools may see such a move as restricting them from their ability to raise non-taxpayer revenue through contracts through local

media.“My answer to that is that we are

talking about events held in public venues, supported totally by taxpayers,” he said.

District 5 Sen. Ried Holien said the precedent set in restricting access is concerning.

“If this is what’s happening now, then what’s the next step? Preventing parents from bring cameras in,” he wondered.

Other representatives in attendance included Dist. 4 Sen. Tim Begalka, Dist. 5 Rep. Melissa Magstadt, Dist. 1 Sen. Jason Frerichs and Ben Ready from Sen. John Thune’s offi ce.

Group discusses executive sessions, sports coverage (Continued from page 1)