Likely Open Meeting Law Violations

Here is where I hand this off to the media. It sure looks like the Superintendent and the School Board admitted to a number of violations of the Minnesota Open Meeting Law. The Office of Administration has also laid out the path for any member of the media to make public the full recording(s). In short, pretty soon we all get to listen in on the “Room where it happened.”

The letter Deb Seelinger sent to me was silly. She decided that is was worth their time to submit an official response to a critical comment I made from a personal account. However the content of that letter was just jaw dropping. The letter indicated a number of likely violations of Minnesota’s Open Meeting Law. The Superintendent hiding the potential land donation from the School Board, City and Public would have been wrong. I believe this is what happened. The explanation that Deb Seelinger gave in the letter indicates the Superintendent and School Board may have violated the requirements of the Minnesota Open Meeting law a number of times including the creation of the letter, noticing of closed meetings, refusal to limit closed meetings to a single topic, and even having closed meetings for a topics for which that is not permissible.

Here is what I wrote to the Office of Administration:

To the appropriate person;

I had referred this item to the Attorney General’s Office. They referred me to you. The note below was sent to me from a school district email, and is signed by the entire elected body which constitutes a quorum. This was not a personal communication, but a public document in response to my personal comment.

This letter is in response to a political tweet that I posted about a school board action from a personal account. I believe all 5 of the following items may represent violations of the Minnesota Open Meetings Law.

Questions:

1) There were no public meetings between the time I made the social media post and the time that I received this email from the 7 school board members and the Superintendent. This means that all discussion on the topic including drafting, approval, and sending was done by a quorum of elected officials outside of a public meeting. Are actions using public resources conducted by a quorum of elected officials outside a public meeting a violation of the Minnesota Open Meeting Law?

2) The district wrote “The Superintendent did provide the School Board with this information in a timely fashion. It was discussed in closed session, as policy stipulates, a number of times before the Board determined that the cost to modify this property to make it suitable for a school building was prohibitive.” It does not appear that there is a legally qualified justification to close a meeting or meetings on the topic of a private donation or the work required to make a site suitable for a school. Is the act of having closed meetings on a topic not covered under permissible justifications for having a closed meeting a violation of the Minnesota Open Meeting Law?

3) The district wrote “The Superintendent did provide the School Board with this information in a timely fashion. It was discussed in closed session, as policy stipulates, a number of times before the Board determined that the cost to modify this property to make it suitable for a school building was prohibitive.” If this meeting or meetings occurred there should have been a notice for each meeting. That notice would have to list a parcel number, legal description, or address topic. If no notice was provided listing property information being discussed is that a violation of the Minnesota Open Meeting Law?

4) The district wrote “The Superintendent did provide the School Board with this information in a timely fashion. It was discussed in closed session, as policy stipulates, a number of times before the Board determined that the cost to modify this property to make it suitable for a school building was prohibitive.” Only the topic articulated on a notice may be discussed at a closed meeting. If a topic is discussed at a closed meeting noticed for a different parcel of land or different purpose does this violate the Minnesota Open Meeting Law?

5) The district wrote “The Superintendent did provide the School Board with this information in a timely fashion. It was discussed in closed session, as policy stipulates, a number of times before the Board determined that the cost to modify this property to make it suitable for a school building was prohibitive.” It appears that state law requires closed meetings to be recorded and the audio would become available after the property was purchased, sold, or the sale was abandoned. Is the failure to maintain audio recordings or make them public after a decision was final a violation of the Minnesota Open Meetings Law?

I am available to answer any questions if needed. I am certainly NOT an attorney or a good writer so I wanted to make these concerns as clear as I could. While I ask about the Minnesota Open Meetings Law, I certainly would extend that to include any related statutes.

-Michael

Here are the detailed responses and the path one can take to get all the records to hear what really happened. I for one plan on listening to the recordings of these secret, and it appears inappropriate closed meetings.

Dear Michael,

Thank you for reaching out to our office with these questions about the Open Meeting Law. I’ll answer your questions in the order you’ve posed them using the same numbers you’ve used.

However, I just want to clarify up front that issues involving the OML are usually dependent on the facts and context of the situations. I’ll give the best answers I can based on the information I have, but please note that the analysis could change pretty quickly if additional context is added.

Also, the Data Practices Office doesn’t have authority to enforce the OML, so all of this information is simply informal guidance. I’ll explain the enforcement mechanisms toward the end of this email.

Anyway, here are the answers:

1.) It’s possible that the city council members may have violated the OML in sending you the letter, but I think it depends on the extent the council members discussed and collaborated on the message prior to sending it to you. The situation you are describing seems somewhat analogous to an issue that the Commissioner of Administration addressed in Adv. Op. 17-005, where the Commissioner opined that a school board did not comply with the OML when a quorum of members sent a letter on official letterhead to another public body. However, there is some case law (the unpublished opinion cited in the advisory opinion) that complicates the issue because it held that written communications are not subject to the OML. I think Adv. Op. 17-005 sidesteps that court’s opinion by pointing out that it is unpublished and not precedential, but I’m not sure how another court might view this written communications aspect.

From a practical standpoint, I suggest submitting a data request to the school district for all board member communications related to this letter to see whether you can learn more about how the letter was developed and written. If it’s clear that the board members held a telephone conversation to discuss the letter, then I think it’s more likely that an OML violation may have occurred. If the letter came together through email communications, it’s still possible that an OML violation may have occurred, but that would be up to the decision of a court.

2.) Again, I think this issue really depends a lot on context. Minn. Stat. 13D.05 describes the limited reasons when a public body must or may close a meeting to the public. More specifically, Minn. Stat. 13D.05, subd. 3(c) describes several reasons that a meeting may be disclosed when a public body is discussing issues related to certain property transactions, typically related to the purchase or sale of property. I’m skeptical that a public body’s discussion that was about receiving a donation of property and any related costs to improving such a property would fall within these provisions as a justification to close a meeting because receiving a donation is not the same type of transaction as a purchase.

However, it’s possible that the school board’s discussions may have included proposing a counteroffer to actually purchase the property rather than receive it as a donation. I’m not sure that would happen, but, if so, then the board may have had justification to close the meeting. In short, I think there would need to be some additional information about the nature of the closed meeting discussions to determine whether it fell within the provisions of 13D.05, subd. 3(c).

One other thought: It’s possible that there are other statutes related to a school board’s authority and the acquisition of acquisition that may permit or require the closure of a meeting. I’m not aware of such a statute, but I’m also not an expert on all of the governing statutes under which school boards are subject. If there is such a statute, then the board may have been able to hold a closed meeting without an OML violation. My suggestion is to ask the board what statutory authority it used to hold the closed meeting to discuss the property.

3.) Minn. Stat. 13D.01, subd. 3 requires a public body to state on the record the specific grounds for which it can close a meeting and describe the specific topic to be discussed. Additionally, Minn. Stat. 13D.05, subd. 3(c) requires that the public body identify the particular real property that is the subject of the closed meeting. The Data Practices Office website has guidance about how to format such a notice in order to comply with the OML.

Our online guidance, as well as previous Advisory Opinions (e.g.Adv. Op. 14-014), indicates that a public body must be specific about the property to be discussed in its statement when closing a meeting under Minn. Stat. 13D.05, subd. 3. If no such statement was given, then it seems likely that the board did not fully comply with the OML.

4.) A closed meeting would be limited to discussions on topics as provided in its statement on the record, as required by Minn. Stat. 13D.01, subd. 3. If other topics were discussed in a closed meeting that went beyond the topics given in its statement, then it seems likely that the board did not fully comply with the OML.

5.) Minn. Stat. 13D.05, subd. 3(c) makes clear that a public body must make and preserve recordings of closed meetings that discuss certain property transactions. Additionally, the recording must be made public after the property discussed at the meeting “has been purchased or sold or the governing body has abandoned the purchase or sale.” If no such recording was created nor made public after the final decision related to the property, then it seems likely that the board did not fully comply with the OML.

Again, all of these answers are contingent on the facts and context you’ve described. Certainly, my responses could change if additional context or information was provided by you or the school board.

I presume that you may also be interested in possible enforcement functions of the OML. As I mentioned above, the Data Practices Office doesn’t have authority to enforce the OML, so I’ll lay out potential considerations you may have.

First, the Commissioner of Administration does accept requests for advisory opinions related to the OML. She doesn’t accept all opinion requests, and her opinions are non-binding, meaning that the opinion isn’t an enforcement mechanism either. Rather, the opinions provide guidance to the public and public bodies about how to appropriately comply with the OML. The cost for an OML opinion is $200, and you can find more information about requesting an opinion on the Data Practices Office website. This may be an option to publicly clarify the school board’s responsibilities regarding the OML.

Just a quick note about the process: If you do choose to submit an opinion request, you would need to provide a statement of your position and provide analysis and arguments supporting that position. In other words, you’d need to provide additional information supporting an argument that the OML was violated beyond asking whether or not there was a violation. Additionally, the school board would have an opportunity to respond by providing any additional facts and a statement of its position with supporting arguments..

Minn. Stat. 13D.06 provides the enforcement mechanisms and penalties for violations of the OML. This process would involve filing a complaint in district court, and I recommend contacting an attorney if you consider pursuing this route. My office doesn’t provide legal advice or referrals.

Please feel free to contact me with any additional questions. I’m certainly happy to help however I can.

Thanks,
Casey

This provides a blueprint to get all relevant information on what the School Board knew and when. In particular, it does not appear that the property meetings were properly noticed and even if they were they did not stick to a single named property. Most importantly, the audio recordings of the 1 or 2 meetings where this topic might have been discussed are now public data and anyone can listen to these meetings as all closed meetings must be audio recorded.

I believe the Superintendent Michael Munoz hit the offer of a donation from the School Board, but in very short order we will all know if that is the case or if the Superintended and the School Board hid it from the City & Public. We will also get to hear the discussion between School Board members and the Superintendent in terms of what questions were asked about the transportation and racial equity issues.

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