| Pursuant to Chapter 13D, did Independent School District 276, Minnetonka, give proper notice that the ArtsCenter reorganization would be acted on at the September 11, 2003, special meeting of the board? |
Discussion:
In order to resolve this issue, the Commissioner will begin with a discussion of the purposes of the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). Although the Legislature has not stated a purpose for the law, Minnesota courts have noted the following.
In its historical review of 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. An essential part of the OML is its notice provisions. See Minnesota Statutes, section 13D.04. A democracy can only be representative if elected officials receive input from their constituents. Constituents can only provide input if they receive notice that a meeting will occur and the topics to be discussed and acted on. In other words, the notice provisions of the OML promote communication between the public and the officials they have elected to act in their behalf.
With this context for and description of the spirit of the OML, the Commissioner now turns to the specific issue that has been presented.
The OML requires that the public body, in this case the Board, give notice that it will be holding a special meeting. Specifically, Minnesota Statutes, section 13D.04, states, with respect to special meetings, the following:
Subd. 2. Special meetings. (a) 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.
(b) The notice shall also be mailed or otherwise delivered to each person who has filed a written request for notice of special meetings with the public body. This notice shall be posted and mailed or delivered at least three days before the date of the meeting.
(c) As an alternative to mailing or otherwise delivering notice to persons who have filed a written request for notice of special meetings, the public body may publish the notice once, at least three days before the meeting, in the official newspaper of the public body or, if there is none, in a qualified newspaper of general circulation within the area of the public body's authority.
(d) A person filing a request for notice of special meetings may limit the request to notification of meetings concerning particular subjects, in which case the public body is required to send notice to that person only concerning special meetings involving those subjects.
(e) A public body may establish an expiration date for requests for notices of special meetings pursuant to this subdivision and require refiling of the request once each year.
(f) Not more than 60 days before the expiration date of a request for notice, the public body shall send notice of the refiling requirement to each person who filed during the preceding year.
In this case, the notice of the September 11, 2003, special meeting said that the purpose of the meeting, as required by Paragraph (a), was to act on a Dome Project at MHS which is Minnetonka High School.
The Board argues that the notice of the special meeting was sufficient because (1) any topic can be discussed at an emergency meeting and so it does not make sense that there is a limit on what can be discussed at a special meeting; (2) there is no limitation on the topics so long as the public has notice of the special meeting; and (3) if the Board had not acted on the ArtsCenter reorganization at the September 11, 2003, meeting, their ability to act would have ended due to Robert's Rules of Order. Each argument will be taken in turn.
First, the notice provision for emergency meetings is found at Minnesota Statutes, section 13D.04, subdivision 3. That provision states:
Subd. 3. Emergency meetings. (a) For an emergency meeting, the public body shall make good faith efforts to provide notice of the meeting to each news medium that has filed a written request for notice if the request includes the news medium's telephone number.
(b) Notice of the emergency meeting shall be given by telephone or by any other method used to notify the members of the public body.
(c) Notice shall be provided to each news medium which has filed a written request for notice as soon as reasonably practicable after notice has been given to the members.
(d) Notice shall include the subject of the meeting. Posted or published notice of an emergency meeting is not required.
(e) An emergency meeting is a special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body.
(f) If matters not directly related to the emergency are discussed or acted upon at an emergency meeting, the minutes of the meeting shall include a specific description of the matters.
(g) The notice requirement of this subdivision supersedes any other statutory notice requirement for a special meeting that is an emergency meeting.
Paragraph (e) indicates that an emergency meeting is one where circumstances will not permit the public body to wait the three days to give notice of a special meeting. The circumstances suggested by this language include dealing with the aftermath of a natural disaster such as a tornado, flood or blizzard or the results of a disaster caused by humans such as a train derailment, explosion or other similar disaster. Paragraph (d) of subdivision 3 requires that the notice include the subject of the meeting.
The Board is correct that Paragraph (f) indicates that if matters not directly related to the emergency are discussed or acted upon at an emergency meeting, those discussions and/or actions must be specifically described in the minutes. There are no cases that deal with this provision of the OML. The Commissioner is of the opinion that Paragraph (f) was included to allow a public body to take care of items of public business to permit the public body to focus on the emergency confronting it. For example, a matter not directly related to the emergency might be to postpone the next regularly scheduled meeting.
It is also the Commissioner's opinion that the notice requirement of Paragraph (d) gives the public the type of notice, via the media, that conforms with the spirit and intent of the OML. The additional authority in Paragraph (f) that permits action on other issues is meant to allow the public body to effectively manage the emergency it faces and is not meant as a tool for the public body to avoid the public scrutiny the OML affords.
In other words, the Legislature has recognized in the emergency meeting provisions that the circumstances surrounding an emergency require the public body to have the greatest flexibility possible while still providing notice to the public of its intent to act.
However, the meeting at issue here was not an emergency meeting. It was a special meeting to discuss a dome project at the Minnetonka High School. Therefore, contrary to the first argument offered by the Board, the special meeting provisions (subdivision 2 above) do not give the Board similar permission to act on any matter. If the Legislature had intended to give the Board that type of power, it would have stated that in subdivision 2.
The Board's second argument is that there is no limitation on what can be discussed at a special meeting, so long as notice of the meeting is provided to the public. The Board argues that its policy regarding the operation of the Board gives it the power to discuss any topic at any meeting. As noted at the beginning of this discussion, one of the purposes of the OML is to afford the public the opportunity to present its views to the public body. How can the public express its views if the public is not given notice that the topic is to be discussed?
The Board's second argument also fails because the provisions governing special meetings also provide that an individual may request to be notified of special meetings only when one or more specific topics will be discussed. See Section 13D.04, subdivision 2(d). This provision assists those members of the public with very busy lives to participate only in those meetings where a topic of interest or concern will be addressed. If the Board is not limited to the topic(s) stated in the notice of the special meeting, how can the Board provide notice to those members of the public who wish to have notice of specific topics? Finally, as to this second argument, Board policy cannot be used to contravene state law. The OML requires that the public must be given notice of a special meeting, including the purpose of the meeting, and so the Board cannot, by policy, adopt and follow a different rule.
The Board's third argument is also not persuasive. The Board uses Robert's Rules of Order to conduct its meetings. The Board's policy does not indicate which version of Robert's Rules of Order will be used; most organizations use the most current version. The Board cites to a 1967 version of the Rules for the position that if a matter is laid on the table, it must be acted on at the meeting at which it was laid on the table or at the very next meeting. If action does not occur within these time lines, the Board asserts that the matter at issue is dead.
The most current version of Robert's Rules of Order is the Tenth Edition published in 2000. In this version, the rule concerning a motion to lay on the table is stated as follows:
In cases in which the next regular business session will be held before a quarterly time interval has elapsed (see p. 88), a question laid on the table remains there until taken from the table or until the close of the next regular session; if not taken up by that time, the question dies.
Robert's Rules of Order Newly Revised (Perseus Books 2000) at page 206. There is a very important difference between what the Board asserts and the rule as published - the issue dies if it is not acted on at the next regular meeting of the body. In this case, the September 11, 2003, meeting of the Board was a special meeting and so, contrary to the Board's argument, the ArtsCenter reorganization matter would not have died if it had not been acted on at the September 11th meeting.
Robert's Rules also provides that A question can only be taken from the table at a special meeting only if it has been laid on the table at that meeting or if previous notice of such intention has been stated in the call of the meeting. (emphasis in the original) Robert's Rules of Order Newly Revised at page 205. As the Board is bound by the OML and follows Roberts Rules, it should not have acted on the ArtsCenter reorganization as it had not provided notice of its intent to do so at the September 11th special meeting.
Having found none of the Board's arguments persuasive, the Commissioner returns to the issue of whether the Board's actions at the September 11th special meeting were limited to those items about which notice has been given. As there is no statutory definition of notice, it is reasonable to turn to the dictionary. The American Heritage College Dictionary (Houghton Mifflin Company Boston 1997) defines notice inter alia as a written or printed announcement; a formal announcement, notification or warning; or the condition of being formally warned or notified. To further understand this definition, we look at the definition of notify which means to give notice to, inform; or to give notice of; make known.
Applying these definitions according to the rules of statutory construction found in Minnesota Statutes, section 645.17, the Commissioner is of the opinion that the Board's actions are limited to those topics included in the notice of special meeting. This conclusion is further supported by the purpose and spirit of the OML, which is to allow the public the opportunity to participate in the government that represents it. The public cannot receive effective notice unless the Board is limited to acting on only those items for which notice was provided when the special meeting was scheduled.
Opinion:
Based on the facts and information provided, my opinion on the issue raised by Mr. Slowter is as follows:
Pursuant to Chapter 13D, Independent School District 276, Minnetonka, did not give proper notice that the ArtsCenter reorganization would be acted on at the September 11, 2003 special meeting of the board.
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Signed:
Brian J. Lamb
Commissioner
Dated: February 3, 2004
