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Let's Talk: Staying on the Right Side of the Open Meeting Law

JUL13LTTimKuntz
A discussion with Tim Kuntz, attorney with Levander, Gillen & Miller, P.A.

Cities often have questions about the Open Meeting Law (OML), which requires city councils and other governmental bodies to hold their meetings in public, with a few exceptions. Minnesota Cities talked with attorney Tim Kuntz about this topic.

Minnesota Cities: What do you see as the basic ideas or policies served by the OML? In other words, what is the purpose of the OML?
Tim Kuntz: The fundamental purpose of the Open Meeting Law is to promote openness in governmental proceedings. Courts have identified three primary purposes of the OML (see St. Cloud Newspaper, Inc. v. Dist. 742 Community Schools):

  1. To prohibit actions being taken at a secret meeting, where it is impossible for the interested public to become fully informed concerning board decisions or to detect improper influences.
  2. To assure the public’s right to be informed.
  3. To afford the public an opportunity to present its views to the board.

The Open Meeting Law was enacted for the public benefit and must be given a liberal construction in the public’s favor (see Claude v. Collins).

MC: For cities, when and to whom does the OML apply? Most of us understand it applies to the city council, but does it also apply to city committees and other groups formed by the city?
TK: In addition to the city council, the OML applies to all committees, subcommittees, boards, departments, or commissions of a public body (see Minnesota Statutes,section 13D.01, subdivision 1). There is no bright line rule for determining whether a “group” constitutes a committee or subcommittee of the public body for OML purposes, but if the group has been established by the council by a formal action, its members have been appointed by the council, and it has been assigned specific tasks or duties related to the city, the safest course of action is to assume that it is subject to the OML.

MC: If no decisions are made at a meeting, does the OML apply?
TK: Yes. Even if no decisions are made at a meeting, if a particular group is subject to the OML, a gathering of that body’s members is subject to the OML when the following circumstances exist (see Moberg v. Indep. Sch. Dist. No. 281):

  • A quorum or more of the members are present at the gathering.
  • The members, as a group, discuss, decide, or receive information that is related to the official business of the body.

MC: Are there any decisions that may be made or ways to come to consensus outside of a meeting that are legitimate under the OML?
TK:The simple answer is no. The objective of the OML is to prevent decisions being made or consensus being reached outside of public scrutiny. Final decisions always require votes. Voting has to occur in public.

MC: Are there circumstances when the Open Meeting Law requires or allows a government meeting to be closed?
JUL13LTMicsTK: The law requires a meeting to be closed in certain circumstances, namely when it is required by another law, or for preliminary consideration of allegations or charges against an individual subject to the group’s authority, or when certain types of data are discussed. This includes data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults; active investigative data; or education, health, or welfare data, which are not public.

Meetings may also be closed in certain circumstances, pursuant to the attorney-client privilege, to evaluate an employee’s performance, to discuss certain matters related to property, for security briefings, for labor negotiations under the Public Employment Labor Relations Act, and as expressly authorized by another statute (see Minnesota Statutes, section 13D.05,subdivisions 2 and 3).

Cities need to be aware that even when a meeting may be closed, certain steps must be followed before it can properly be closed, and must ensure compliance with any recording requirements.

MC: Are there other questions or situations that still boggle your mind, even being an OML expert? What are a couple?
TK: Three situations still cause a considerable amount of debate. The first deals with the proliferation of “working groups” appointed by city councils in smaller communities to study very specific issues. An issue will often get delegated to an advisory group because the city does not have staff resources to tackle it. Is the group appointed to, for example, study painting city hall a committee under OML?

The second situation deals with a councilmember sending his or her opinion on a pending subject to other councilmembers by email. Assume no attempt is being made to reach consensus and assume the sender requests that no one reply. Is the email message a violation of OML?

Notwithstanding a recent court decision, there have been conflicting answers among attorneys. The League of Minnesota Cities suggests that the issue be avoided by sending the email to the city administrator, and that the administrator in turn forward it to the other councilmembers.

The third problem area deals with social events. Are five councilmembers at a ribbon-cutting ceremony subject to the Open Meeting Law? What if a quorum is engaging in a political debate at a candidate forum?

MC: If a councilmember or city staff member wants or needs to hold an important meeting as soon as possible, what are the options?
TK: Depending on the reason for the meeting, the council may meet before its next regularly scheduled meeting for a “special” or “emergency” meeting.

A special meeting is a meeting that occurs at a time other than the times posted on the council’s schedule of regular meetings. Notice must be given at least three days before a special meeting may be held.

If time is of the essence and circumstances exist that, in the judgment of the council, require immediate consideration, an emergency meeting may be held. Posted or published notice of an emergency meeting is not required, but notice is required to be given to certain news media.

MC: Do you have any guidance for councils that want to discuss clearly private or sensitive matters and they can’t close a meeting to do so?
TK: Private and sensitive matters usually involve employees. The law allows employee evaluations to be done in a closed session. Preliminary consideration of disciplinary matters can also be done in a closed session. But if these opportunities are not available for whatever reason, the only practical way to balance privacy with fairness is to delegate the task of investigation and fact finding to the administrator. The council will ultimately make the final decision in public, but the bumpy road leading to the conclusion can be traveled outside of a formal meeting process.

MC: Since the meetings are open for the benefit of the public, must the meeting include a public comment period?
TK: A public meeting means the public can watch and listen. Unless the law requires a public hearing, the council can limit public speech at a meeting. If a public hearing is required, every member of the public has a right to speak, subject to reasonable timelines.

MC: If the city council has an agenda for a regular meeting, can the council deviate from it?
TK: If the meeting is a regular meeting and not a special meeting, the council can add to and subtract items from the agenda. A special meeting is limited to the items identified in the notice of the meeting. Many communities have local ordinances that require an extraordinary or unanimous vote to add agenda items at a regular meeting. This usually eliminates the surprise topic being introduced without prior notice, previous study, or background provided.

MC: What should a city do if a quorum of council wants to attend a city meeting for one of its advisory boards?
TK: If a quorum of a council wants to attend a city meeting for one of its advisory boards, that would be considered a special council meeting, and proper notice should be given. Further, an attorney general opinion has indicated that there may be limited circumstances where a quorum of a council could attend an advisory board meeting without noticing the gathering as a council meeting if the councilmembers do not participate, deliberate, or speak at the gathering and only observe what is happening.

MC: Is there anything else about the OML that you think is important for cities to understand?
TK: Think of the Open Meeting Law as a citizens’ bill of rights. It establishes a fundamental relationship between the people and their government.

Read the July-August 2013 issue of Minnesota Cities magazine

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