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Advisory Opinion 21-001

January 3, 2021; West Lakeland Town Board of Supervisors

1/3/2021 8:42:00 AM

Note: In 2021, the Legislature amended Minnesota Statutes, section 13D.01, subd. 4, related to a journal of votes.

This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2020). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Vincent Anderson asked for an advisory opinion regarding the West Lakeland Town Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Viet-Hanh Winchell, attorney for the Board, provided comments.

Mr. Anderson asked about four instances of the Board members’ conduct related to the OML. A summary of the circumstances, as described by Mr. Anderson, are as follows:

  1. Journal of votes: “[e]nclosed is a copy of my request for the journal of votes and the town clerk's response that the journal of votes does not exist.”
  2. Special meeting notice: "At various times, the board has moved the meeting location without the required notice. This could be changing rooms at the school to finding the school closed and deciding to meet somewhere else. Under Minnesota Statute 13D.04 Subd. 2 paragraph (b), I have requested to be notified of all special meetings/ changed locations….The particular meeting I am questioning, providing evidence on and enclosing a copy of the minutes of is a June 10, 2019 meeting that was moved without timely notice."
  3. "The treasurer each month at the monthly meeting presents and discusses financial reports to the board and presents required checks together with the applicable invoices to be signed by the chairman. The chairman does sign them at the meeting in company of the other board members. At times, there is not a public copy of the financial report and there has never been a public copy of the individual disbursements. … There were no financial reports available to the public at the regular [meeting]… September 9, 2019. Copies of the invoices with approvals and checks to be signed were not available to the public."
  4. Special meeting purpose: “The particular meeting I am asking for an opinion on is that of September 2nd, 2020. Attached is a copy of the meeting notice and minutes of that meeting. You should note only 2 items were in the meeting notice. I have highlighted on the minutes additional topics that were discussed.”

Issues:

Based on the opinion request, the Commissioner agreed to address the following issues:

  1. Are the West Lakeland Town Board members in compliance with the requirement in the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML), to maintain a journal of votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4?
  2. Did the West Lakeland Town Board members comply with the OML when it changed the location of the June 10, 2019, regular meeting?
  3. Did the West Lakeland Town Board members comply with the OML requirement to have at least one copy of members’ materials available to the public at the September 9, 2019, meeting of the Board, pursuant to Minnesota Statutes, section 13D.01, subdivision 6?
  4. Did the West Lakeland Town Board members comply with the OML when it held a special meeting on September 2, 2020, to discuss, “future virtual meetings and Lake Elmo Airport projects"?

Discussion:

Issue 1: Are the West Lakeland Town Board members in compliance with the requirement in the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML), to maintain a journal of votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4?

The OML requires:

(a) The votes of the members of the state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal kept for that purpose.

(b) The vote of each member must be recorded on each appropriation of money, except for payments of judgments, claims, and amounts fixed by statute. (See, Minnesota Statutes, section 13D.01, subdivisions 4.)

Mr. Anderson requested access to the journal of votes, the town clerk responded that the Board did not keep a journal of votes.

In response to the Commissioner, the Board wrote:

The journal of votes is a journal or booklet of the minutes. The Town Clerk specifically maintains separate binders that hold all meeting minutes from July 1950 to the present. The meeting minutes reflect all actions taken by the Town Board along with summaries of nonaction items for each meeting….

Mr. Anderson believes “journal of votes” to mean a separate book that keeps track of only action items and that tallies up the voting. Certainly, that type of documentation does not exist. Although the Town Clerk responded that a journal of votes did not exist, it was a mistaken belief that what Mr. Anderson was looking for was a separate book that keeps track of only action items and that tallies up the voting.

As the Commissioner recently opined in Advisory Opinion 20-001, “[t]he Board’s comments focusing on meeting minutes here are misplaced. The Board has an obligation to maintain a journal of votes and to provide access to the journal of votes, during all normal business hours where the journal is kept.” 

“Journal” is not defined by the OML. As such, the Commissioner turns to the common usage of the word. (See Minnesota Statutes, section 645.08). Considering the context of subdivision 4, Merriam-Webster defines “journal” as, “a record of current transactions”; “an account of day-to-day events”; “a record of transactions kept by a deliberative or legislative body”; “log.” In addition, section 13D.04, subdivisions 3 and 4 specifically refer to “minutes,” whereas section 13D.01, subd. 4, refers to a “journal of votes.” In distinguishing between a “journal of votes” and “minutes,” the Commissioner must conclude that the Legislature intended the “journal of votes” to differ from “minutes.” It is, therefore, the Commissioner’s opinion that section 13D.01, subd. 4(a) requires public bodies to maintain a journal votes that is separate and distinct from any meeting minutes they also produce. (See also, Advisory Opinion 08-034, Issue 3, concluding that posting on a website is not sufficient for access to the journal of votes.)

As a related issue, both the requester and Board raised the question of which votes need to be recorded in the journal.

The Board wrote:

Minnesota Statute § 13D.01, subdivision 4(a) is related to action items of the town board and has no specific requirement that each board member’s vote be recorded. Subdivision 4(b) is related to action items related to appropriation of money, which does have a specific requirement that each board member’s vote be recorded, in essence, a roll call vote. 

The Attorney General answered this question in an opinion from 1975, reaffirming a conclusion from a prior opinion: 

In Op. Atty. Gen. 471-e, Sept. 18, 1962, it was held that this provision makes it mandatory that the individual vote of each council member on all types of matters be recorded.

For the foregoing reasons, it is our opinion that the vote recording provisions of Minn. Stat. sec. 471.705 (1974) require that the individual votes of public officials on “any action” be recorded in a journay [sic] except for votes on “payments of judgments, claims and amounts fixed by statute.”

Op. Atty. Gen. 125a-14, Feb. 28, 1975. The Commissioner agrees; the Board must include the votes of each member of the public body on any action, “except for payments of judgments, claims, and amounts fixed by statute.”

Issue 2: Did the West Lakeland Town Board members comply with the OML when it changed the location of the June 10, 2019, regular meeting?

Section 13D.04, subd. 1, provides:

A schedule of the regular meetings of a public body shall be kept on file at its primary offices. If a public body decides to hold a regular meeting at a time or place different from the time or place stated in its schedule of regular meetings, it shall give the same notice of the meeting that is provided in this section for a special meeting.

Public bodies must post notices for special meetings three days prior to the meeting. The notice must list the time, date, location, and purpose. The public body must also notify those individuals who have specifically asked for special meeting notice. (See section 13D.04, subdivision 2.)

The Town wrote:

[T]he Town was locked out of its usual place for its regular Town Board meeting. The Town Board and staff took all necessary measures to handle the last minute change, which was merely 0.8 miles down the same road and even had the Deputy Clerk wait at the usual meeting place for nearly half an hour to direct anyone coming for the meeting to go to the church. The Town Board needed to address the public hearing or face other consequences related to the 60-day rule. The Town Board did not violate the OML and did what was reasonably necessary to address the lock out, which was not its fault, in order to conduct town business that needed to be addressed.

The Commissioner understands that public bodies have multiple obligations to consider when holding meetings. Here, however, the OML does not contain an exception to the notice provisions based on the Board’s competing obligation under a public hearing provision. The Board had a regular meeting scheduled and changed the location. The OML requires meetings under those circumstances to be noticed as special meetings, which requires a three-day posting and notice to individuals who have specifically requested notice. 

As a practical matter, if closures of the regular meeting location tend to occur with frequency, the Board may want to reconsider the location, as it seems to put Board members in the position of choosing either to  violate the OML or forgo scheduled meetings.

Issue 3. Did the West Lakeland Town Board members comply with the OML requirement to have at least one copy of members’ materials available to the public at the September 9, 2019, meeting of the Board, pursuant to Minnesota Statutes, section 13D.01, subdivision 6?

Section 13D.01, subd. 6, provides:

(a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:

(1) distributed at the meeting to all members of the governing body;

(2) distributed before the meeting to all members; or

(3) available in the meeting room to all members;

shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.

Mr. Anderson contends that the Board did not make available certain financial documents that the Board considered at its September 9, 2019, meeting.

The Town responded:

At the regular Town Board meeting, the Treasurer provides a financial report, receipts, a listing of disbursements, and checks. The Treasurer generally does not provide these in advance, rather she brings them to the meeting. The Treasurer always places one public copy of the financial report on the back table and also clearly marks it as “Public Copy, DO NOT REMOVE” or similar language.

On September 9, 2019, the Treasurer appeared late at the Town Board meeting because she first went to Baytown’s regular monthly board meeting. She is also the treasurer for Baytown Township. ….On September 9, 2019, upon her entry, she placed a copy of the financial report on the back table with the public copies and then proceeded to the front to provide the remaining copies to the Town Board for consideration. 

Such document is not required to be provided in advance unless the Town Board had access in advance. At the time the Town Board had a copy of the financial report, so did the public.

The Commissioner cannot resolve factual issues. If the treasurer distributed the financial documents at the meeting and then, also made them available to the public, then the Board complied with the law. If the materials were not available, then the Board did not comply with the law.

Mr. Anderson also contends that the unsigned checks should be made available to the public at an open meeting. The Board responded that the checks are not subject to section 13D.01, subd. 6, because they are the result of an action and “not a meeting item.” If the checks are not distributed before or at the meeting to all members or available to all members in the meeting room, then the OML does not require a copy of the checks to be in the public members’ materials. The Commissioner further notes that while there may be nonpublic data on a check that must be redacted (e.g., Minnesota Statutes, section 13.37 classifies checking account numbers), there are likely public data on checks, as well.

Issue 4. Did the West Lakeland Town Board members comply with the OML when it held a special meeting on September 2, 2020, to discuss, “future virtual meetings and Lake Elmo Airport projects”?

As noted in the requirements for Issue 2, special meeting notices require a purpose for the meeting and the public body must confine its discussion to that purpose. (See section 13D.04, subd. 2 and Advisory Opinions 04-057, 07-024, 10-013, and 19-006.)

The Board provided the following comments:

The purpose for this meeting, as clearly noted in the meeting notice, was to address: (1) future virtual meetings; and (2) update board on airport projects. It should be noted that Mr. Anderson was not in attendance at this meeting and is merely comparing the meeting notice to the meeting minutes, albeit, incorrectly.

Paragraph 3 discusses drainage issues and permit issues which is directly related to “Lake Elmo Airport project.”

Paragraph 4 discusses potholes on 30th Street which is part of the “Lake Elmo Airport project.”

Paragraph 5 discusses availability for the Joint Airport Zoning Board Meeting, which was created to address “Lake Elmo Airport project.”

Mr. Anderson contends that the discussions of potholes on 30th street and the availability for the Joint Airport Zoning Board meeting are unrelated to the Lake Elmo Airport Project. The Board asserts that they are. There is a factual dispute here that the Commissioner cannot resolve. If discussion of those issues is included in the Lake Elmo Airport project, then the Board has met its obligations. If not, then the members discussed items outside the noticed purpose and did not comply with the law.


Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:

  1. The West Lakeland Town Board members have not complied with the requirement in the OML to maintain a journal of votes pursuant to Minnesota Statutes, section 13D.01, subdivision 4.
  2. The West Lakeland Town Board members did not comply with the OML when it changed the location of the June 10, 2019, regular meeting and did not notice the meeting as a special meeting.
  3. The Commissioner cannot determine whether the West Lakeland Town Board members complied with the OML requirement to provide access to the members materials at a September 9, 2019, meeting, pursuant to Minnesota Statutes, section 13D.01, subdivision 6, as there is a factual dispute.
  4. The Commissioner cannot determine whether the West Lakeland Town Board members complied with the OML when they held a special meeting on September 2, 2020, by confining discussion to the purpose in the meeting notice, as there is a factual dispute.

Signed:

Lenora Madigan 
Deputy Commissioner

January 3, 2021

Open Meeting Law

Journal of votes, ballots

Purpose

Special meeting notice

Members materials

Printed materials

Townships

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