- Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, subdivision 2, when it posted a notice for a special meeting on September 13, 2006, that contained the statement Other Legal issues may be discussed?
- Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney?
- Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 5 when it limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board?
- Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007?
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Discussion:
Before turning to the issues raised by Mr. McKenzie, it is necessary to establish that the Board is subject to the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. According to Minnesota Statutes, section 13D.01, subdivision 1(b)(5), the governing body of a town is subject to the requirements of the OML. Therefore, the Board is subject to Chapter 13D.
There are several purposes for the OML. The Minnesota Supreme Court stated in Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) that:
The Open Meeting Law serves several purposes:
(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public an opportunity to present its views to the [public body]. St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)
Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. State by Archabal v. County of Hennepin, 505 N.W.2d 294, 297 (Minn. 1993); see St. Cloud Newspapers, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies ).
Prior Lake American at 735. With this background and the Court's instruction to construe the law in favor of public access, the next step is to review the issues presented by Mr. McKenzie.
Issue 1:
Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.04, subdivision 2, when it posted a notice for a special meeting on September 13, 2006, that contained the statement Other Legal issues may be discussed?
Prior to conducting a special meeting, the Board is required to post a notice that must meet certain requirements. Section 13D.04, subdivision 2(a) states:
For a special meeting, except an emergency meeting or a special meeting for which a notice requirement is otherwise expressly established by statute, the public body shall post written notice of the date, time, place, and purpose of the meeting on the principal bulletin board of the public body, or if the public body has no principal bulletin board, on the door of its usual meeting room.
The Commissioner has previously opined that for the notice to be effective and meet the direction of the Supreme Court in the Prior Lake case, the notice must provide detail about the purpose of the meeting. See Advisory Opinions 04-004 and 04-057.
The township's attorney argues that the statutory requirements were met. However, in order for the Board to be able to give notice to those who have requested notice about special meetings for specific purposes, more detail is needed than was provided before the September 13th meeting. See section 13D.04, subdivision 2(b). Mr. Gilchrist outlined five different legal issues that the Board discussed at the September 13th meeting. Without a more specific notice, there is no way for the members of the public to know what will be discussed and whether they should attend a special meeting. The public also had no way of knowing that these were the five legal issues that would be discussed.
Mr. Gilchrist also argues that the concepts of new business and old business that apply in a regular meeting should apply to a special meeting. However, the public knows that any business can be discussed at a regular meeting of the Board. The September 13th meeting was a special meeting and different rules apply. Specifically, the Board is limited to the topics listed in the notice of special meeting. The phrase other legal issues does not give notice that the Board would, and did, discuss a traffic issue, enforcement of a zoning provision, the duties of the planning commission, review of permits issued under the zoning code and cutting weeds.
Construing the requirements in section 13D.04, subdivision 2 in favor of public access, the notice for the September 13th special meeting was not sufficient and the Board was not in compliance with section 13D.04, subdivision 2.
Issue 2:
Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney?
The Minnesota Supreme Court has held that a gathering of a quorum or more of the members of a public body like the Board is a meeting for purposes of Chapter 13D and the requirements of that chapter must be met. Moberg v. Independent School District No. 281, 336 N.W.2d 510, 518 (Minn. 1983). In other words, the meeting needs to be conducted in a way that allows the public the opportunity to see and hear what is occurring. Prior Lake American at 735.
Mr. McKenzie has presented facts that indicate that at the special meeting on September 13th, then Board Chair Donna Otto told the other two supervisors to step outside to talk to the township's attorney . . .about that land deal, we can't do as we planned. On behalf of the Board, Mr. Gilchrist acknowledges that it . . .would likely be a violation of the open meeting law for a quorum of the Town Board to gather in the Town Hall parking lot to discuss Town business. . . . He goes on to state that a discussion of town business did not occur when the two supervisors went out to meet with the attorney.
While this is a factual dispute the Commissioner is unable to resolve, it is difficult to understand how Town business was not discussed as the specific direction by the Board Chair was for the two other members of the Board to talk about the land deal, the specific reason the special meeting was occurring. The Commissioner encourages the members of the Town Board not to act in ways that could be construed as violations of the Open Meeting Law, such as having a quorum adjourn to the Town Hall parking lot with the Town's attorney.
Because of the factual dispute, however, the Commissioner is unable to determine whether a violation of Chapter 13D occurred.
Issue 3:
Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 5 when it limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board?
Chapter 13D requires that the Board keep a journal of votes (section 13D.01, subdivision 4) and also requires that the public have access to that journal. The pertinent language states:
The journal must be open to the public during all normal business hours where records of the public body are kept.
Section 13D.01, subdivision 5. Chapter 13D does not contain a definition for the term business hours nor is there any case law interpreting what it means. However, the Supreme Court has consistently interpreted the provisions of Chapter 13D in favor of public access. SeePrior Lake American at 735 (above).
Mr. Gilchrist argues that because Hampton Township does not have any employees and because the journal is kept at the Town Hall, it is appropriate that access to the journal be limited to the night of the Board's monthly meeting. As an alternative, copies can be obtained any time during the month by contacting the Town Clerk.
Mr. McKenzie argues that sections 365.55 and 367.11 control the location of the journal and that Hampton Township does not maintain its journal in the proper place. Each section will be reviewed in turn.
Section 365.55 states:
The town clerk is clerk of the town meeting and shall keep full minutes of its proceedings. The minutes must contain the full text of every order, direction, and rule made by the meeting. If the town clerk is absent, the voters present shall elect a clerk of the meeting. The minutes of the meeting must be signed by the clerk of the meeting and by the judges. The minutes must be filed in the office of the town clerk within two days after the meeting.
While section 365.55 directs that minutes be filed in the office of the town clerk, there is no direction about where that office is to be located. In addition, section 365.55 is about meetings of all residents in a township, not meetings of the Town's Board.
The parts of section 367.11 that are pertinent to minutes and journals state:
It shall be the duty of the town clerk:
(1) to act as clerk of the town board and keep in the clerk's office a true record of all of
its proceedings;
(2) unless otherwise provided by law, to have custody of the records, books, and papers of the town and file and safely keep all papers required by law to be filed in the clerk's office;
(3) to record minutes of the proceedings of every town meeting in the book of town records and enter in them at length every order or direction and all rules and regulations made by the town meeting; . . . .
Again, there are directions to keep records in the clerk's office, but no direction on where that office is to be maintained. Without that direction, it appears that the Board can choose where the clerk's office will be located. In Hampton Township, it appears that the Board has chosen the Town Hall as the location of the clerk's office.
Given the Supreme Court's direction to construe Chapter 13D in favor of public access, it is the Commissioner's opinion that restricting public access to the journals to the night of the monthly Board meeting is not in compliance with Chapter 13D. The Board should establish more times when the journals are available at the Town Hall or consider changing the location where the journal is stored to one that allows requesters more access.
It is the Commissioner's opinion that the Board is not in compliance with section 13D.01, subdivision 5 when it restricts access to the Town's journals to one night per month.
Issue 4:
Did the members of the Hampton Township Board of Supervisors comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007?
Section 13D.01, subdivision 6(a) states:
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. McKenzie has indicated that at five different meetings in late 2006 and early 2007, presentations were made to the Board that included the distribution of materials to members of the board but no copies were available for the public to review. Mr. Gilchrist stated that the materials in question involve work by a contractor charged with enforcing official controls of the Town. Mr. Gilchrist further argues that the names of the parties against whom enforcement actions were pending are confidential and that other materials in the reports were secret or confidential information as identified by the company.
For a government entity subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, the resolution of this issue would be straightforward as the provisions in Chapter 13 would direct an outcome on the classification and accessibility. However, Hampton Township is not subject to Chapter 13. See Advisory Opinion 06-007. Therefore, there are no statutes that resolve the classification and access issue that has been presented.
Given the absence of statutory direction, the Commissioner will follow the language in section 13D.01, subdivision 6 and the direction provided in Prior Lake American to construe provisions of the OML in favor of public access. Although the Commissioner was not provided a copy of the materials in question, the fact that the company distributed the materials to the members of the Board indicates that the content is not protected. According to the common law governing trade secrets, protecting the information is one of the requirements for finding that a trade secret exists. The conclusion that the materials are not trade secrets is further enforced by the Town Clerk who provided copies of the February, March and April, 2007, reports to Mr. McKenzie. Therefore, the Commissioner is of the opinion that nothing in the reports is protected and so the reports should have been accessible in the meeting room during each meeting for the public to review.
It is not clear why the December 2006, and January 2007, reports were not sent to Mr. McKenzie. Given the disclosure of some of the reports, the Commissioner urges the Town Clerk to send the remaining reports to Mr. McKenzie.
It is the Commissioner's opinion that the Board was not in compliance with section 13D.01, subdivision 6 at each of the meetings in 2006 and 2007 because copies of the zoning reports were not available in the meeting room for the public to review.
Opinion:
Based on the facts and information provided, my opinion on the issues that Mr. McKenzie raised is as follows:
- The members of the Hampton Township Board of Supervisors did not comply with Minnesota Statutes, section 13D.04, subdivision 2, when they posted a notice for a special meeting on September 13, 2006, that contained the statement Other Legal issues may be discussed.
- The Commissioner is unable to determine if the members of the Hampton Township Board of Supervisors complied with Minnesota Statutes, Chapter 13D when a quorum left the meeting room on September 13, 2006, and had a discussion with the township's attorney.
- The members of the Hampton Township Board of Supervisors did not comply with Minnesota Statutes, section 13D.01, subdivision 5 when they limited access to the journal in which votes are kept to once a month during the regular meeting of the Township Board.
- The members of the Hampton Township Board of Supervisors did not comply with Minnesota Statutes, section 13D.01, subdivision 6 at meetings held on December 19, 2006, January 16, 2007, February 20, 2007, March 21, 2007 and April 17, 2007.
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Signed:
Dana B. Badgerow
Commissioner
Dated: June 27, 2007
