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6. Open Meeting Law Memo for City Administrator 1 ECKBERG LAMMERS MEMO To: Ken Cammilleri, City Administrator From: Chris Nelson, City Attorney Date: January 18, 2021 Re: Review of Minnesota’s Open Meeting Law Minnesota’s Open Meeting Law (Minn. Stat. Ch. 13D) requires that all meetings of a city council, city commissions, or subcommittees must be noticed and open to the public. Minn. Stat. § 13D.01, Subd. 1. The Open Meeting Law articulates meeting notice requirements, with different types of city meetings having different notice requirements. Regular city council meetings, for example, are held at a standardized time and place determined by a council-adopted schedule and for that reason do not require any special notice. § 13D.04, Subd. 1. Special meetings of the council can be called by the Mayor or by two Councilmembers. Minn. Stat. § 412.191, Subd. 2. The council must post written notice of the time, place, and purpose of a special meeting at least three days prior to the meeting on the city bulletin board or on the door of the meeting room as well as mailing or delivering notice to all persons who have requested notice of special meetings. Minn. Stat. § 13D.04, Subd. 2. The best practice is to post notice of a special meeting (or emergency meeting) on the City’s website as well, although this step is not expressly required under the statute. Because the Council must state in advance the purpose of a special meeting, the agenda at a special meeting is limited to the previously stated purpose and must not be amended or added to at the meeting. The council may call an emergency meeting to address a situation that requires immediate council attention. For emergency meetings, the City must make a good faith effort to alert any media that have filed a written request for notice. § 13D.04, Subd. 3. The Open Meeting Law does not specifically define what constitutes a meeting, but the Courts have defined a meeting as a gathering of a quorum of a public body. See Moberg v. Ind. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983) (“We…hold that ‘meetings’ subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.”). Therefore, for Scandia, a City Council meeting is a gathering of three or more councilmembers. See Minn. Stat. § 412.191, Subd. 1. Chance or social gatherings of councilmembers do not constitute a meeting for purposes of the Open Meeting Law so long as (1) the gathering does not constitute a quorum, or (2) if the gathering constitutes a quorum, the members present do not discuss, receive information, or make any decisions about city business. 2 Generally, there is a social media exception in the Open Meeting Law. Pursuant to Minnesota Statutes Section 13D.065, “[t]he use of social media by members of a public body does not violate [the Open Meeting Law] so long as the social media use is limited to exchanges with all members of the general public. For purposes of this section, e-mail is not considered a type of social media.” This is a relatively recent addition to the Open Meeting Law and more administrative decisions in this area are likely to come. While there has not been a Department of Administration opinion directly interpreting the social media exception articulated in Section 13D.065, a recent Department opinion about a Facebook page maintained by the Mayor of Victoria provides some guidance. The Department opinion states, “public body members should refrain from engaging in discussions over social media that include a quorum or more of the public body members.” (Advisory Op. 19-001). Accordingly, councilmembers and commissioners should refrain from debating or discussing City business with each other on social media. The general exceptions to the Open Meeting Law are the statutorily permitted reasons for closing public meetings. The law mandates the closure of a public meeting in certain circumstances and allows for the discretionary closure of the meeting in others. By law, the Council must close a public meeting when it will discuss:  Data that may identify victims or reporters of certain crimes;  Active police investigation data or internal affairs data relating to law enforcement misconduct;  Education, health, medical, welfare, or mental health data that are not public;  An individual’s medical records; or  For preliminary consideration of allegations or charges against an individual subject to the Council’s authority. The Council has the discretion to close a public meeting for the following reasons:  To evaluate the performance of an individual subject to the Council’s authority;  For attorney-client privilege purposes, to discuss active, pending, or threatened litigation;  For real estate sales purposes;  To receive security briefs and reports, to discuss security systems; to discuss emergency response procedures, and other security related concerns; or  To discuss labor negotiations strategy. Apart from meetings closed for attorney-client privilege, all closed meetings must be recorded, and the City has the duty to preserve the recordings for a statutorily prescribed period. The Open Meeting Law permits online or Zoom-style meetings of the Council, commissions, and subcommittees due to the COVID-19 pandemic. Such online meetings are permitted pursuant to Minnesota Statutes Section 13D.021, Subd. 1 if: (1) the presiding officer, legal counsel, or city administrator determines that an in-person meeting is not practical or pursuant due to a health pandemic or declared emergency; (2) all members participating in the meeting can hear each other and all discussion and testimony; 3 (3) the public present at the regular location can hear all discussion, testimony and votes, unless attendance at the regular location is not feasible due to a health pandemic or emergency declaration; (4) at least one member of the body is present at the regular meeting location, unless such presence is unfeasible due to the health pandemic or emergency declaration; and, (5) all votes are conducted by roll call. Finally, members of public bodies need to keep the requirements of the Open Meeting Law in mind because members can face personal liability for violations. Pursuant to Minnesota Statutes Section 13D.06, Subdivision 1, “any person who intentionally violates this chapter shall be subject to personal liability in the form of a civil penalty in an amount not to exceed $300 for a single occurrence.” If a member is found by a Court to have intentionally violated the Open Meeting Law on three or more occasions, that member forfeits the right to continuing serving on the body for the remainder of their term. § 13D.06, Subd. 3. I would be happy to answer any questions you, the City Council, the Planning Commission, or any other body in the City subject to the Open Meeting Law have going forward. The Department of Administration keeps a large library of advisory opinions on the Minnesota Government Data Practices Act and the Open Meeting Law, which are a great resource when reviewing whether a particular practice complies with the Open Meeting Law.