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May 25, 2006; Spring Grove City Council
5/25/2006 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:On April 19, 2006, IPAD received a letter, dated April 14, 2006, from Mark R. Anfinson on behalf of his client the Spring Grove Herald. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding a series of telephone calls between the city administrator and members of the Spring Grove City Council (the Council) on March 31, 2006. The Commissioner required clarification of the issue to be addressed and that was received on April 20, 2006. Mr. Anfinson submitted the $200.00 fee required by section 13.072. On April 24, 2006, IPAD wrote to Pearl Holland, Mayor of Spring Grove and chair of the Council. In its letter, IPAD informed Mayor Holland of Mr. Anfinson's request and gave the Council, or any of its members, an opportunity to explain the Council's position. On May 23, 2006, IPAD received a response, dated May 16, 2006, from Joseph Hammell, the attorney for the City of Spring Grove. A summary of the facts presented by Mr. Anfinson is as follows. In the process of hiring a new accountant, the City of Spring Grove designated a hiring committee that solicited and screened applicants for the position and developed a slate of finalists. The top candidate declined an offer of employment; the second candidate resigned after a week on the job. On March 31, 2006, the city administrator conducted a telephone poll of four of the members of the Council who each responded yes to the proposal to hire the third candidate for the accountant position. One of the members of the Council, Karen Folstad, wrote a letter to the editor of the Herald that was published on April 12, 2006. In that letter, Council Member Folstad confirmed the process that was used and indicated that the four votes represented a majority of the Council. According to Mr. Hammell, on March 31st, the city administrator contacted each council member to determine whether the third candidate should be contacted about the job. As described by Mr. Hammell, the city administrator indicated that each council member was told that if the third candidate expressed interest in the position, hiring would be subject to council approval. A special meeting of the Council was held on April 14, 2006, for the purpose of hiring an accountant. Mr. Hammell indicates that the members of the Council made the hiring decision at the meeting. Issue:Based on Mr. Anfinson's opinion request, the Commissioner agreed to address the following issue:
Discussion:There is no question that the Council is required to comply with Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). Section 13D.01, subdivision 1 (b)(4) states that the provisions of the OML apply to a statutory or home rule charter city. Spring Grove is a city and so its Council is covered by the OML. As noted by Mr. Anfinson, there is a quorum rule for bodies covered by the OML. In essence, when a quorum of the members of a public body subject to the OML want to discuss or decide public business, that discussion or business must occur at a public meeting. Moberg v. Independent School District No. 281, 336 N.W.2d 510 (Minn. 1983). As part of its discussion in Moberg, the Supreme Court directed members of a public body not to use serial meetings in groups of less than a quorum to avoid a public hearing or reach an agreement on a particular issue. Moberg at 518. The conduct at issue here is whether there was a serial solicitation of approval to hire a candidate for the position of accountant in the City of Spring Grove by the city administrator. There is no language in the OML that authorizes members of a public body to vote by telephone. If the members of a public body are unable to gather in person, then section 13D.02 authorizes the use of interactive TV, if certain preconditions are met. The letter to the editor from Council Member Folstad that was published in the Herald on April 12th seems to indicate that a serial vote occurred. However, the response by the City states that the statements by the council member were not accurate. Instead, the City states that There was no discussion with more than one council member at a time by [the city administrator] and no discussion was held between council members about this issue. There is a disagreement whether a vote was taken or whether there were simply one-on-one discussions that there was a need to fill the position. This factual dispute means that the Commissioner cannot resolve the issue presented. In its submission, the City suggests that it is appropriate for the city administrator to follow standard operating procedure by notifying council members of the resignation and that the third candidate would be contacted. The Commissioner believes that it would be possible for the Council, at an open meeting, to have established a procedure that would give the city administrator the authority to act in the manner described. However, the disputed facts here prevent a determination whether there was a procedure in place and how it was followed. The round robin style of contact was discussed by the Court of Appeals in Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291 (Minn. Ct. App.1997). While that case involves the use of round robin interviews to hire a city administrator, the Court noted that the OML was enacted to benefit the public and must be construed in the public's favor. Mankato at 294, citing Claude v. Collins, 518 N.W.2d 836, 841 (Minn. 1994). If, as suggested by Council member Folstad's letter, a majority of the members of the Council took action with respect to the hiring of the accountant, then the OML has been violated. That the city administrator served as the go-between among the members should not change the outcome, given the manner in which the OML is to be construed. The Commissioner will also take this opportunity to remind members of public bodies that the OML requires that public business be conducted in public. St. Cloud Newspapers, Inc. v. District 742 Community Schools, 332 N.W.2d 1, 4-5 (Minn. 1983). While it may be appropriate for the city administrator to inform council members that a City employee has resigned, the better process would be to convene a special meeting of the Council to discuss what the appropriate next step(s) are in the hiring process. Avoiding public scrutiny of a decision by having a city employee serially contact Council members is the type of conduct that was of concern to the Supreme Court in Moberg. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Anfinson raised is as follows:
Signed: Dana B. Badgerow
Dated: May 25, 2006 |
Open Meeting Law
Quorum
Serial meetings
