Facts and Procedural History:

On March 1, 2006, IPAD received a letter, dated February 27, 2006, from Ronald L. Peterson. In his letter, Mr. Peterson asked the Commissioner to issue an advisory opinion regarding closed meetings held by the Brunswick Town Board (the Board) on August 26 and 29, 2005. Mr. Peterson submitted the $200.00 fee required by section 13.072.

On March 3, 2006, IPAD wrote to Rick Kawalek, chair of the Board. In its letter, IPAD informed Mr. Kawalek of Mr. Peterson's request and gave the Board, or any of its members, an opportunity to explain the Board's position. The Board presented its position in a letter from its attorney, Kevin A. Hofstad, dated April 3, 2006.

A summary of the facts presented by Mr. Peterson is as follows.

On August 26, 2005, the members of the Board met at Mr. Hofstad's offices. According to a January 25, 2006, written statement by the town clerk, Gladys Nelson, Mr. Hofstad called the meeting, no notice of a special meeting was posted and the meeting was held at Mr. Hofstad's office. Mr. Hofstad's office is located in Pine City, Minnesota. According to a February 12, 2006, written statement from Board Supervisor Loren Barnick, the lawyer's office is located more than 15 miles outside the territorial limits of Brunswick Township. Supervisor Barnick, who was present at the meeting, also stated that there was no declaration during the August 26th meeting giving the reason why the meeting was closed or the statutory basis for its closure.

Another meeting of the Board was held on August 29, 2005. Clerk Nelson's January 25th statement indicates that this was not a regular meeting of the Board and that no notice was posted. The August 29th meeting was held at the Town Hall. Supervisor Barnick was also present for the August 29th meeting and his written statement provides that no declaration was made giving the reason why the meeting was closed or the statutory basis for its closure.

Issues:

Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005? Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005? Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005?

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Discussion:

Before turning to the issues raised by Mr. Peterson, 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, the next step is to review the issues presented by Mr. Peterson.

Issue 1:

Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005?

Public bodies, such as the Board, are generally required to hold meetings in public. Minnesota Statutes, section 13D.01. The Minnesota Supreme Court has interpreted this requirement to mean that meetings must be held within the borders of the public body. Quast v. Knutson, 150 N.W.2d 199, 200 (Minn. 1967).

The information provided by Mr. Peterson states that the August 26, 2005, meeting was held in Pine City, Minnesota that is located outside the borders of Brunswick Township. Mr. Hofstad indicated that the meeting was held at his office for two reasons: to save attorney expense based on his travel to the town hall and because of his tight time schedule. The OML does not provide bases on which a public body can be excused from holding a meeting within the borders of the public body. Therefore, the August 26, 2005, meeting was not in compliance with the OML.

Issue 2:

Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005?

According to the information provided by Mr. Peterson, the meetings on August 26 and 29, 2005, were special meetings of the Board. Therefore, the notice requirements are found in section 13D.04, subdivision 2(a). That provision 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 written statement by the Town Clerk clearly states that no notice was provided before either meeting. As there was no posting, either on the Town's principal bulletin board or on the door of the usual meeting room, the notice requirements of section 13D.04, subdivision 2(a) were not met and the Board was not in compliance with the OML.

Issue 3:

Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005?

The meetings on August 26 and 29 were closed to the public. Before a meeting can be closed, section 13D.01, subdivision 3 requires that there be a statement about the closure on the record. Specifically, that subdivision 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.

The statement by the Supervisor Barnick, who attended both meetings, indicates that no statement was made before either meeting was closed. Therefore, the Board was not in compliance with section 13D.01, subdivision 3.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Peterson raised is as follows:

The members of the Brunswick Town Board did not comply with Minnesota Statutes, Chapter 13D, when they held a meeting outside the territorial limits of Brunswick Township on August 26, 2005. The members of the Brunswick Town Board did not comply with Minnesota Statutes, section 13D.04, subdivision 2(a), for meetings held on August 26, 2005 and August 29, 2005. The members of the Brunswick Town Board did not comply with Minnesota Statutes, section 13D.01, subdivision 3, for meetings held on August 26, 2005 and August 29, 2005.

Signed:

Dana B. Badgerow
Commissioner

Dated: April 7, 2006

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