- Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, September 16, 2002 and December 5, 2002?
- Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002?
- Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002?
- Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002?
- Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002?
|
Discussion:
The parties have presented a preliminary issue that needs to be resolved in this advisory opinion. Specifically, the Commissioner needs to determine what Mr. Hvistendahl's March 12, 2002, letter requesting notice of regular and special meetings for Messrs. Brown and Banks covers.
The letter asks that Messrs. Brown and Banks be notified when the following topics are included in a notice of a regular or special meeting of the Board:
1. Feedlot permits and set backs from residential properties;
2. Feedlot permits issued within Cannon Falls' urban expansion district or within two miles of the city limits;
Messrs. Brown and Banks believe that they had requested notice of any meeting at which feedlot permits or set backs from residential properties were on the agenda. The Board has taken the position that it is only required to give notice to Messrs. Brown and Banks when feedlot permits are issued by the Board and not every time the words feedlot, setbacks or distance are part of a discussion in a public meeting. (emphasis added)
Citizens are entitled to receive notice of special meetings of a public body covered by the Open Meeting Law, Minnesota Statutes, Chapter 13D. Specifically, section 13D.04, subdivision 2 (b) says that the notice of special meeting shall be posted and mailed or otherwise delivered to each person who has filed a written request. Posting and mailing or delivery must occur at least three days before the date of the special meeting. There is no similar provision for regular meetings.
Section 13D.04, subdivision 2 (d) says that a person who files a request for notice of special meetings may limit the request to notification of meetings concerning specific topics and the public body is required to send only those notices of special meeting that refer to the specified topic(s). Messrs. Brown and Banks have chosen to limit their demand for notice of special meetings to the topics listed above.
The Minnesota Supreme Court has found that the provisions of the Open Meeting Law are to be interpreted in favor of the public. The Court said:
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 the 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 v. Mader, 642 N.W. 2d 729, 735 (Minn. 2002).
Applying the rule that the Open Meeting Law is construed in favor of public access, the Commissioner finds that the Board's interpretation of the content of the March 12, 2002, letter requesting notice of special meetings is too narrow. Messrs. Brown and Banks requested notice of special meetings where feedlot permits or setbacks were to be discussed. As is required by section 13D.04, subdivision 2, and described in Advisory Opinion 04-004, the notice of special meeting must include the topics to be discussed at the meeting. Therefore, the Board must provide Messrs. Brown and Banks with notice when a special meeting is to cover feedlot permits or setbacks.
Issue 1:
Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, September 16, 2002 and December 5, 2002?
The statutory language governing notices for special meetings is found in section 13D.04, subdivision 2. The pertinent part of that subdivision says:
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.
For each of the meetings listed below, the issue is whether Messrs. Brown and Banks received notice of a special meeting as outlined in their demand for notice dated March 12, 2002.
July 8, 2002
The Board held a special meeting on July 8, 2002. None of the parties have provided the Commissioner with a copy of the notice of the special meeting. Messrs. Brown and Banks have provided an affidavit from A. Edward Bailey who attended the meeting. Mr. Bailey's affidavit includes a copy of the agenda to the meeting that refers to the Olson appeal. Messrs. Brown and Banks have provided the Commissioner with copies of the court documents from Mr. Olson's attorneys to the Goodhue County Board of Commissioners about an appeal to the Minnesota Court of Appeals regarding a conditional use permit for the expansion of a feedlot.
Mr. Bailey's affidavit indicates that he did not see a public notice for this meeting and did not receive a written notice. Mr. Glaess' affidavit indicates that he did post notice of the special meeting at least three days prior to the meeting, as was his routine. The Commissioner cannot resolve this factual dispute.
Its resolution is not needed here, however. What is at issue is whether Messrs. Brown and Banks received notice of the special meeting as was required following their demand of March 12, 2002. The July 8th meeting was held to discuss a court proceeding involving a feedlot. Messrs. Brown and Banks' May 12, 2002, demand requested notice when feedlots were a topic at a special meeting. Messrs. Brown and Banks state that they did not receive a notice for the July 8th meeting. The Board has not complied with the requirements of section 13D.04, subdivision 2(b) and (c) because they did not provide notice of the July 8th special meeting when the topic of feedlots was to be discussed.
July 31, 2002
The Board met with several individuals at the Office of the Goodhue County Attorney on July 31, 2002. Stephen Betcher, the Goodhue County Attorney, convened the meeting at the request of the Goodhue County Commissioners to discuss the Olson appeal. (See July 8, 2002, meeting above.) Messrs. Brown and Banks have provided the Commissioner with a Memorandum written by Mr. Betcher that summarized the meeting and indicates that feedlot setbacks were discussed.
Messrs. Brown and Banks did not receive notice of this special meeting. They also indicate that there are no Board minutes and no notice of the meeting. Mr. Glaess' affidavit indicates that he did post notice of the special meeting at least three days prior to the meeting, as was his routine. The Commissioner cannot resolve this factual dispute.
Its resolution is not needed here, however. What is at issue here is whether Messrs. Brown and Banks received notice of the special meeting as was required following their demand of March 12, 2002. The July 31st meeting was held to discuss the same court proceeding involving a feedlot discussed at the July 8th meeting. Messrs. Brown and Banks' May 12, 2002, demand requested notice when feedlots were on a special meeting agenda. Messrs. Brown and Banks state that they did not receive a notice for the July 31st meeting. The Board has not complied with the requirements of section 13D.04, subdivision 2 (b) and (c) because they did not provide notice of the July 31st special meeting when the topic of feedlots was to be discussed.
September 16, 2002
The minutes of the special meeting held on September 16, 2002, indicate that there were two actions taken. The first related to the Olson appeal which has been previously found to be covered by the demand for notice filed by Messrs. Brown and Banks. The second is to rescind the permit for Mr. Banks to build his house because it was too close to a feedlot and so violated setback requirements.
The Board has provided the Commissioner with a copy of the notice of special meeting that is dated September 13, 2002. Again, the issue is not whether the Board posted notice, but whether Messrs. Brown and Banks received notice according to their demand. As noted above, the Olson appeal is about a feedlot and so falls within their demand. They should have received notice of the special meeting. In addition, the rescission of Mr. Bank's building permit involved the distance between Mr. Banks' home site and a feedlot, otherwise known as a setback. This topic also falls with the demand for notice made by Messrs. Brown and Banks. They did not receive notice of the September 16th meeting. Because they did not receive notice according to their demand, the Board has not complied with the requirements of section 13D.04, subdivision 2 (b) and (c).
December 5, 2002
The Board met on December 5, 2002, with the Township Planning Commission to begin work on updating the township zoning ordinance. Neither party provided the Commissioner with a copy of the notice for this special meeting. The Commissioner assumes that because feedlot permits have been the subject of other special meetings, feedlots and setbacks from feedlots would be discussed at a meeting involving changes to the township zoning ordinance. In addition, the minutes indicate that the Board received information from the Goodhue County feedlot officer.
If the Commissioner's assumption is correct about the topic of the December 5th special meeting, then feedlots and setbacks were discussed. These topics were included in the March 12, 2002, demand for notice of special meetings filed by Messrs. Brown and Banks. They should have received notice of the special meeting on December 5th.
If the Commissioner's assumption about the topic of the December 5th special meeting is not correct, then the Board did not have an obligation to give Messrs. Brown and Banks notice of the special meeting.
The Commissioner does not have enough information to be able to determine if the Board has met the requirements of section 13D.04, subdivision 2 (b) and (c) for the special meeting held on December 5, 2002.
Issue 2:
Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002?
According to the Board, two notices of special meeting were posted on August 21, 2002. The first involved the Olson appeal, and the second involved an inspection of Mr. Banks' property and a discussion of his building permit. The notices stated that the date of the meeting was Tuesday, August 29th. In 2002, August 29th fell on a Thursday. The Board argues that these were effective notices of special meetings to be held on Tuesday, August 27th.
There is nothing explicit in the Open Meeting Law that addresses this issue. However, as has been noted above, the purpose of the Open Meeting Law is to allow the public to observe elected bodies like the Board as they do their work. See Prior Lake American at 735. The public cannot observe the Board at work if the posted notice is for a date that does not exist on the calendar. Therefore, the Board did not comply with the requirements of section 13D.04, subdivision 2 because the notices did not contain a valid date.
There is an additional issue presented by this meeting. Messrs. Brown and Banks suggest that the meeting notices were not prepared until the day of the meeting. The Board indicates that the notices that had been posted on August 21st were either removed or blew away. Again, there is nothing explicit in the Open Meeting Law that addresses this issue. However, section 13D.04, subdivision 2 (a) says that one way to give notice of a special meeting is to post the notice on the principal bulletin board of the public body. If the Board's principal bulletin board is one where notices can either be removed or blow away, then the Board is unable to meet the requirements of the law. The Commissioner encourages the Board to find a principal bulletin board where the notices are protected, such as by glass and a lock, so that the Board controls what is posted, not the public or Mother Nature.
Issue 3:
Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002?
The Board was scheduled to have a regular meeting on August 14, 2002. The Board determined that it needed to move that regular meeting to August 7, 2002. Section 13D.04, subdivision 1 says, in pertinent part:
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.
Section 13D.04, subdivision 2 governs special meetings and appears above. It requires posting of the notice of special meeting, mailing notice to those who have requested notice of special meetings or publication, at least three days before the meeting, of a notice in the official newspaper of the public body.
The Board posted the meeting on the bulletin board according to Mr. Glaess' affidavit. The Commissioner was not, however, provided with any information about what was contained in the posted notice of the meeting. As was found in 04-004, when a special meeting is noticed, the public body must list the topics for discussion. Unless this is done, there is no way for the public body to honor the demand for notice of special meeting on certain topics. See section 13D.04, subdivision 2 (d).
A notice of the meeting was published in the Cannon Falls Beacon on August 8, 2002. No topics for discussion were listed and so the Board did not comply with the content requirements for the notice of the meeting moved to August 7, 2002.
It appears that the Board did comply with the requirement to post the notice of meeting. The Board did not comply with the requirements of section 13D.04, subdivision 1 regarding the content of the meeting notice.
Issue 4:
Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002?
As has been discussed above, a notice of special meeting must include the topics that are to be discussed. Based on the published notice, the Board did not comply with the requirements of section 13D.04, subdivision 2 (b) and (c).
The minutes for the August 7th meeting state that Mr. Ojile made a presentation on setbacks. This suggests that the topic of setbacks should have been included in the meeting notice and the requirement to provide notice to Messrs. Brown and Banks would have been triggered as well.
The notice published in the newspaper appeared on the day after the meeting, August 8th, according to the copy of the paper provided by Messrs. Brown and Banks. This publication did not meet the requirements of section 13D.04, subdivision 2 (c) to publish at least three days before the meeting. The publication does not list the topics of to be discussed at the meeting and so does not meet the requirements of section 13D.04, subdivision 2 (b) and (c).
The Board did not comply with the requirements of section 13D.04, subdivision 2(b) and (c) when it moved its regular meeting from August 14, 2002, to August 7, 2002.
Issue 5:
Did the supervisors of Cannon Falls Township comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002?
The information provided by the parties about this meeting is very confusing. Messrs. Brown and Banks have provided minutes of meetings for June 15, June 16, and June 17, 2002. The content of each set of minutes is different. Each is also stamped COPY Cannon Falls Township.
The Board's submittal indicates that a meeting was held on June 17, 2002, and that it was properly noticed. The Board also argues that the topic covered by the meeting did not require that Messrs. Brown and Banks receive notice. The Board indicated that there was no meeting on June 15, 2002 and made no statement about the June 16, 2002, meeting.
In looking at the minutes dated June 15, 2002, the topic is whether Mr. Ojile has a conflict of interest because he represents the Township and also represents one of its supervisors, Gary Hovel, who runs a feedlot. This topic fits within the demand for notice filed by Messrs. Brown and Banks.
Looking at the minutes dated June 17, 2002, the topic is whether a building was sited to meet the setback requirements. This topic is also within the demand for notice filed by Messrs. Brown and Banks.
No matter when the meeting was held, Messrs. Brown and Banks should have received notice of the special meeting held in June 2002 based on their demand for notice. The Board has not complied with section 13D.04, subdivision 2 for the meeting held in June 2002.
The Commissioner has one final, general comment. The Board provided very few copies of actual meeting notices or postings. The Official Records Act, Minnesota Statutes, section 15.17, requires, in pertinent part, that:
All officers...of...towns... shall make and preserve all records necessary to a full and accurate knowledge of their official activities.
Notices of special meetings and postings demonstrating that the requirements of the Open Meeting Law have been met clearly are official activities of the Board. The Commissioner encourages the Board to keep all necessary records to document future meeting notices and postings so that it can demonstrate to its citizens that it has complied with the Open Meeting Law.
Notices of special meetings and postings demonstrating that the requirements of the Open Meeting Law have been met clearly are official activities of the Board. The Commissioner encourages the Board to keep all necessary records to document future meeting notices and postings so that it can demonstrate to its citizens that it has complied with the Open Meeting Law.
Opinion:
Based on the facts and information provided, my opinion on the issue raised by Messrs. Brown and Banks is as follows:
- The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c) for special meetings held on July 8, 2002, July 31, 2002, and September 16, 2002. The Commissioner cannot determine if the supervisors were in compliance for the meeting held on December 5, 2002.
- The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on August 27, 2002.
- The supervisors of Cannon Falls Township met the requirement to post a notice as found in Minnesota Statutes, section 13D.04, subdivision 1, for a regular meeting moved from August 14, 2002, to August 7, 2002. The Board did not comply with notice requirements of Minnesota Statutes, section 13D.04, subdivision 2.
- The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2 (b) and (c), for a regular meeting moved from August 14, 2002, to August 7, 2002.
- The supervisors of Cannon Falls Township did not comply with Minnesota Statutes, section 13D.04, subdivision 2, for a special meeting held on June 15, 2002.
|
Signed:
Brian J. Lamb
Commissioner
Dated: August 31, 2004
