Facts and Procedural History:

On November 28, 2011, the Information Policy Analysis Division (IPAD) received a letter dated November 27, 2011, from A. Jeanene Kern. In her letter, Ms. Kern asked the Commissioner to issue an advisory opinion about Independent School District 47, Sauk-Rapids-Rice school board's conduct under Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML).

IPAD, on behalf of the Commissioner, wrote to Lisa Braun, Chair of the Board, in response to Ms. Kern's request. The purposes of this letter, dated December 5, 2011, were to inform her of Ms. Kern's request and to ask her to provide information or support for the Board's position. On December 28, 2011, IPAD received a response, dated December 23, 2011, from Michael J. Waldspurger and Scott E. Schraut, attorneys for the District.

A summary of the facts follows. According to Mr. Waldspurger and Mr. Schraut:

On October 18, 2011, the District's Superintendent, Dr. Daniel Bittman, gave an oral presentation in the auditorium at Sauk Rapids-Rice Middle School. Dr. Bittman did not answer questions during his presentation, and neither he nor the Board provided an opportunity for public comment during the presentation.

Before Dr. Bittman spoke, the Board did not call a meeting to order. During Dr. Bittman's presentation, the Board did not discuss, decide, or transact any business. After Dr. Bittman finished speaking, the Board did not make a motion to adjourn the meeting.

According to Mr. Waldspurger and Mr. Schraut, at the conclusion of Dr. Bittman's presentation, the five Board members sat at four tables in different locations in the school, and could not hear what was said at the other tables.

In her opinion request, Ms. Kern wrote:

[The District] violated the [OML] by managing public input, taken in separate locations; at four separate tables in two rooms, during the public meeting. The meeting had not been appropriately adjourned, but discussion(s) continued as directed. The interested public and the quorum of board members were unable to observe all conversations and input between the public, school staff, and board members. The manner in which the public input and comments were structured at the informational meeting was not adequate to insure that interested citizens and board members had the opportunity to observe, to become fully informed or to assure that potential improper influences could be detected-public input and exchanges happened simultaneously during private conversations and there are no minutes creating the necessary public record. The method exercised by the district in managing' public input is a violation of the purpose and spirit of the Minnesota Open Meeting Law. [Emphasis omitted.]

Ms. Kern further asserted:

The manner in which the school board allowed public input during the informational meeting(s) did not provide members of the public, or the quorum of school board members present, to observe' all discussions/input and responses. Members of the public and the school board were unable to 'become fully informed' and/or 'detect improper influences'. The special meeting was not appropriately conducted or closed. A record of the meeting minutes was not created.

Ms. Kern also stated that "[e]ssentially the meeting was opened as an open meeting but then shifted to separate closed meetings."

Issue:

Based on Ms. Kern's opinion request, the Commissioner agreed to address the following issue:

Discussion:

There is no dispute that a school board is a public body subject to Minnesota Statutes, Chapter 13D; the parties agree that the meeting was properly noticed per Minnesota Statutes, section 13D. 04, subdivision 2. Pursuant to Minnesota Statutes, section 123B.09, subdivision 6, a majority of the voting members of a school board constitutes a quorum.

Minnesota Statutes, section 13D.01, subdivision 1, states: "a]ll meetings ust be open to the public." The Legislature did not define "meeting" in the OML; however, the Minnesota Supreme Court described the "quorum rule:"

'Meetings' subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body. Moberg v. Independent School District No. 281, 336 N.W.2d 510, 518 (Minn. 1983).

In their comments to the Commissioner, Mr. Waldspurger and Mr. Schraut wrote that because a quorum of the Board "attended at least part of Dr. Bittman's presentation in order to receive information on an issue relating to official business of the District, a "meeting" occurred during the brief period of time that the five Board members attended Dr. Bittman's presentation."

They wrote:

Ms. Kern incorrectly asserts that the Board closed the public meeting when Dr. Bittman finished his presentation. More specifically, Ms. Kern incorrectly asserts that a closed meeting occurred when three of the Board members sat at two different tables in the auditorium and the other two Board members sat at different tables in the hallway outside the auditorium. Contrary to Ms. Kern's allegation, the meeting was never closed to the public. To the extent that a meeting' occurred on October 18, 2011, the entire meeting was open to the public.

The "meeting" on October 18, 2011 ended as soon as a quorum ceased to exist. Dr. Bittman's presentation is the only time that a quorum of the Board was gathered or present in one location on October 18, 2011.

In Advisory Opinion 10-011, the Commissioner addressed whether a violation of the OML occurred when two members of a seven-member board left the meeting room during a recess to have a discussion with the chief administrator of the entity about the possibility of closing the meeting. Despite the fact that four members of the board were only a few feet away in the regular meeting room the Commissioner opined that there was likely not a violation of the OML because the gathering between the two board members that took place in the adjoining room did not constitute a quorum of the full body." Applying the same reasoning to the instant case, a quorum did not exist when three members of the Board were in the auditorium and two members of the Board were in the adjoining hallway.

[Citations omitted.]

The issues raised here are analogous to 10-011. Although five Board members participated in discussions in the building, they were separate discussions at different locations out of hearing of one another; a quorum of the full body did not participate in any of those discussions.

Mr. Waldspurger and Mr. Schraut further wrote:

Ms. Kern also alleges that the board solicited input, responded, and engaged in private discussions with the public and each other on October 18, 2011. This allegation is simply untrue. A school board does not act through its individual members. It acts as a governing body pursuant to a majority vote of a quorum of its voting members. Because a quorum ceased to exist after Dr. Bittman finished his presentation, Ms. Kern is incorrect in stating or implying that the Board took any action after Dr. Bittman's presentation concluded on October 18, 2011.

Although unclear, Ms. Kern also appears to be alleging that the meeting on October 18, 2011 never ended because the Board did not make a motion to adjourn. Although it may be good practice and a wise procedure for a school board to formally move to adjourn a meeting that it called to order, the OML does not require a school board to take such action.

[Citations omitted.]

Again, the Commissioner concurs. While it might have been clearer to those in attendance that the remainder of the session was not a public meeting subject to the OML if the District had formally adjourned the meeting, the OML does not require it to do so.

Ms. Kern also stated that the Board violated the OML because a "record of the meeting minutes was not created." However, the OML does not require a public body to create meeting minutes. (The Commissioner notes that pursuant to Minnesota Statutes, section 123B.09, subdivision 10, "[t]he board must cause its official proceedings to be published once in the official newspaper of the district.")

Finally, as to Ms. Kern's assertion that "[a]ll members of the attending public have a 'right' to hear all input" that any member of the public provides to a school board member, and that "all board members have an obligation to hear public input in its entirety," Mr. Waldspurger and Mr. Schraut wrote:

School boards have the discretion to decide whether and when an opportunity for public comment will be provided. The OML does not require a period of public comment at a public school board meeting; the OML does not give a citizen the right to speak at a public school board meeting; and the OML does not impose an obligation on school boards to hear public input in its entirety." See Minn. Stat. Ch. 13D. In short, neither Dr. Bittman nor the Board was required to provide an opportunity for public comment during Dr. Bittman's presentation on October 18, 2011.

The Commissioner acknowledges Ms. Kern's concern that the Board violated a purpose of the OML as articulated by the Minnesota Supreme Court, i.e., "to afford the public an opportunity to present its views to the [public body]." Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002). However, the OML does not provide the public with the right to speak at a public meeting.

Opinion:

Based on the facts and information provided, the Commissioner's opinion on the issue Ms. Kern raised is as follows:

Signed:

Spencer Cronk
Commissioner

Dated: January 12, 2012