- Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions?
- Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent?
- Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority?
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Discussion:
As a preliminary matter, there is no dispute between the parties that the Board is subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). As specifically provided in Minnesota Statutes, section 13D.01, subdivision b(1), the Board is required to comply.
Issue 1:
Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions?
Section 13D.01, subdivision 3 states:
Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.
This subdivision requires that three things be done before a meeting is closed: (1) a statement be made on the record; (2) specific grounds permitting the closure of the meeting be given; and (3) a description of the subject to be discussed be provided. It is Mr. Borger's position that for each of the meetings listed, these three things were not done.
Mr. Giles addressed the first task noting that the Board Chair does announce the purpose of the closed meeting on the record. However, the content of any of the announcements made by the Board's Chair was not provided and so the Commissioner is unable to review them for compliance with the statute. As an announcement is statutorily required, the Board should continue to make these announcements giving content as is further described below.
The second task is to provide specific grounds that permit the meeting to be closed. The Legislature has not indicated how the Board, or any other public body, should meet this requirement. There also are no cases that interpret this language, so it is appropriate to consider the plain meaning of the phrase specific grounds.
According to The American Heritage College Dictionary, Houghton Mifflin Company, Boston 1997, specific means explicitly set forth; definite and grounds means the foundation for an argument, belief, or an action; a basis. Therefore, the Board needs to provide the definite basis for closing the meeting. The easiest way to accomplish this is to cite the statute that gives the Board the authority to close the meeting. The general notice that the Board used prior to the meeting dates listed in the issue statement does not include a citation to any statute.
The final element to be considered is whether the notice that the Board has used describes the subject to be discussed. The Court of Appeals has provided direction on how this language is to be interpreted. In The Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. Ct. App. 2004), the Court was asked to decide if a statement that a meeting is being closed for a discussion of pending litigation under the attorney-client privilege met the requirements of section 13D.01, subdivision 3. In analyzing that statement used by Blue Earth County, the Court found that attorney client privilege provided the grounds and pending litigation identified the subject to be discussed, but did not describe the subject as required by the statute. The Free Press at 476 (emphasis in the original).
Applying the holding from The Free Press to these facts, the general statement used by the Board does not describe the subject to be discussed. The general statement does identify possible issues, but does not provide the specificity required by the Court.
The Board is concerned with balancing access by the public with individual privacy. While the Commissioner appreciates the Board's concern, there are ways to provide the public with the specificity required by the statute without disclosing the specific individual involved. Mr. Borger provided several suggestions in his submission and the Commissioner will take this opportunity to offer guidance for others facing the need to provide notice before closing a meeting.
Almost all public bodies subject to the OML will need at some point to consider allegations or complaints against an employee. According to section 13.43, subdivision 2(a)(4), the existence and status of any complaints against a public employee are public. What is not public is the basis or substance of the complaint or charge. To protect the privacy of the employee, the public body could indicate that it will be reviewing a complaint against an unidentified employee and give a general description of the basis or substance of the complaint. A second option would be to identify the employee and indicate that the public body will be considering an unspecified complaint or charge against the employee. Either method gives the public a description of what will be discussed at the closed meeting without violating the privacy rights of the employee.
Another routine reason for a public body to close a meeting is to evaluate the performance of an employee subject to the body's authority. Section 13D.05, subdivision 3(a) requires that the public body identify the employee to be evaluated.
A third basis for closing a meeting is to consider strategy for labor negotiations. According to section 13D.03, subdivision 1(b), a majority of the public body must vote to close a meeting for this purpose. Subdivision 1(c) directs that the time the closed session will begin and its location be announced at the public meeting. The description requirement of section 13D.01, subdivision 3 can be met by naming the union or group of employees involved in the negotiations.
A fourth basis for closing a meeting is to discuss a matter covered by attorney-client privilege. As was outlined in The Free Press case, specificity is required. Mr. Borger has suggested that the public body could provide the names of the litigants, the venue or location of the court where the action is pending and the nature and substance of the legal matter. Providing the venue and description may be more complicated in those situations where a complaint has not yet been served and the public body needs to discuss the threat of litigation and a strategy for response with its attorney. That does not, however, mean that a description cannot be provided so that the public will understand what the public body is about to consider.
The final basis for closing a meeting that will be discussed here is unique to school boards - closing a meeting to discuss discipline of a student. Section 13D.05, subdivision 2(a)(3) requires a meeting to be closed when data about a student will be discussed. According to section 13.32 and the federal Family Educational Rights and Privacy Act, 20 USC section 1232g and 34 CFR part 99, all data about a student are private, with limited exceptions. Discipline, including the possible expulsion of a student, is not one of the exceptions and so the school board will need to use care in describing the basis for closing this type of meeting. As was outlined in Advisory Opinion 01-053, age, grade level, gender, hometown, race and the act that is the basis for the discipline may all be disclosed, depending on the circumstances of the individual case. As was noted in 01-053, if any one of the elements listed above would identify the student involved (i.e.,only one male student from Anytown in grade 11), then that element cannot be disclosed. A school board and its attorneys will need to consider the appropriate elements to release on a case-by-case basis.
A final note is needed. Neither of the parties addressed whether the notices that are the subject of this discussion were provided in advance of regular or special meetings of the Board. Section 13D.04, subdivision 1 only requires that a schedule of regular meetings be maintained in the files of the Board's primary offices with no further notice required.
Before a special meeting, notice is required by section 13D.04, subdivision 2(a). Because of the need to provide notice of special meetings to parties who have filed a written request (see section 13D.04, subdivision 2(b)), the notice of a special meeting must be specific and the Board is limited to the topics stated in the notice of special meeting. For further discussion of notices for special meetings, see Advisory Opinions 04-004 and 04-057.
To summarize, the statement used by the Board in its meeting notices is not in compliance with the requirements of section 13D.01, subdivision 3. Assuming that this same language was used by the Board in its announcement prior to closing the meeting, the content of the announcements is also not in compliance. The Commissioner recognizes that there may be other information that is not part of this record that could change this conclusion.
Issue 2:
Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent?
Section 13D.05, subdivision 3(a) states:
A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.
For purposes of this issue, the focus is on the portion of paragraph (a) that requires a summary of the Board's conclusion once an evaluation is complete. According to Mr. Borger, the Board Chair made the following statement on November 29, 2005:
The board just met in a closed executive session to discuss private personnel matters. First we discussed the superintendent's benchmark performance goals, and the board is continuing to review the superintendent's performance in accordance with the performance goals agreed to by the superintendent and the board earlier.
Mr. Borger has argued that this statement is not sufficient to comply with the statutory requirements and cites several previous advisory opinions in support of his position. These Advisory Opinions, 99-018, 02-021, and 02-035, all support Mr. Borger's contention that the Board's statement is not a sufficient summary of the performance evaluation. The Commissioner has repeatedly opined that each salient point of the evaluation should be summarized so that the public is able to best understand the performance of the employee in question, whether that performance is good, bad, or indifferent. See 99-018.
However, according to Mr. Giles, the Board was not finished with its evaluation when the Board Chair provided information about the evaluation process on November 29, 2005. If the evaluation process was not complete, then the Board was not required to make a statement. It would have been better if the Board had taken the opportunity presented on November 29, 2005, to explain the evaluation process that it was using and to let the public know that the evaluation was not yet complete. While it can be argued that the phrase the board is continuing to review the superintendent's performance indicates the evaluation is not yet over, the phrase can also be interpreted as an indication that the superintendent's performance for a specific time period has been reviewed and that evaluation is complete. Given the ambiguity of the Board's statement, it is understandable why some members of the public would believe the evaluation was complete.
There is a factual dispute between the parties whether the superintendent's evaluation was complete as of November 29, 2005. The Commissioner is unable to resolve this dispute and so cannot reach a conclusion about the status of the superintendent's evaluation, or whether the Board was in compliance with section 13D.05, subdivision 3(a).
Issue 3:
Did the members of the Minneapolis School Board comply with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority?
A meeting may be closed to evaluate the performance of an individual subject to the Board's authority. Section 13D.05, subdivision 3(a) (see Issue 2 above for text of section). The individual subject to the Board's authority in this case was the superintendent. The critical phrase for this issue is close a meeting. (emphasis added)
Mr. Borger argues that the a means that a single meeting may be closed to evaluate the employee's performance. Mr. Giles indicates that there was a single meeting but that it began in July 2005, and was recessed several times as the evaluation was not complete.
However, according to the materials provided by Mr. Borger, the first time that the Board provided notice that it was evaluating the superintendent's performance was in a meeting notice dated December 16, 2005, that described a meeting to be held Tuesday, January 17, 2006. The Commissioner has not been provided with any facts (such as meeting notices, minutes or transcripts of the meetings) that support Mr. Giles' assertion that the Board conducted a single meeting that was recessed several times.
If the Board identified the superintendent as the employee about to be evaluated in July 2005, and if the meeting was recessed and resumed, then it appears that the Board has complied with section 13D.05, subdivision 3(a).
If the Board did not identify the superintendent as the employee it was about to evaluate in July 2005, or if the meeting was not recessed and resumed, then the Board is not in compliance. If the Board was giving preliminary consideration to complaints or charges against the superintendent in July 2005, then section 13D.05, subdivision 2(b) requires the Board to close one or more meetings to consider the complaints or charges.
The record here is not sufficient for the Commissioner to be able to determine if the meetings were for purposes of considering complaints or charges or whether the superintendent's performance was being evaluated. Therefore, the Commissioner is unable to determine whether the Board was in compliance with section 13D.05, subdivision 3(a).
Opinion:
Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows:
- The members of the Minneapolis School Board were not in compliance with Minnesota Statutes, section 13D.01, subdivision 3 when they conducted closed meetings on October 25, November 8, November 15, November 29, December 6, December 10, December 13, and December 20, 2005 and on January 10, January 31, February 14, February 21, March 14, March 21, and March 28, 2006, following notices that consisted only of the broad statement: If necessary, the Board will also meet in a closed Executive Session prior to or after the meeting for the purpose of discussing and/or acting on legal matters, personnel items, negotiations and expulsions and if no further information was provided at the time the meeting was closed.
- The Commissioner is unable to determine if the members of the Minneapolis School Board complied with Minnesota Statutes, section 13D.05, subdivision 3(a) on November 29, 2005, when they (through their Chair) summarized a closed meeting conducted on the same date concerning the performance of the superintendent as the evaluation of the performance because it is unclear whether the evaluation was complete.
- The Commissioner is unable to determine if members of the Minneapolis School Board were in compliance with Minnesota Statutes, section 13D.05, subdivision 3(a) when they conducted closed meetings on September 6 and November 29, 2005, to evaluate the performance of a single individual who was subject to the Board's authority.
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Signed:
Dana B. Badgerow
Commissioner
Dated: June 23, 2006
