- Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council?
- Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information.
|
Discussion:
There is no question that the Council is required to comply with Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). Section 13D.01, subdivision 1 (b)(4) states that the provisions of the OML apply to a . . . statutory or home rule charter city. Stillwater is a city and so its Council is covered by the OML.
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. Remely.
Issue 1:
Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council?
To fill a vacancy on the Council due to the resignation of one of its members, the Council accepted applications from individuals who wished to serve out the term. The Council appears to have followed the process described in section 412.02, subdivision 2a. The pertinent part of that subdivision states:
. . . [A] vacancy in an office shall be filled by council appointment until an election is held as provided in this subdivision. In case of a tie vote in the council, the mayor shall make the appointment.
The Council argues that the interviews were part of an election process and so required secrecy. The Council bases its argument on Article 7, Section 5 of the Minnesota Constitution which requires that elections be by ballot and that the ballots be secret. See also section 204C.17. This argument is, however, directly contrary to the statutory language in section 412.02 that draws a distinction between election and appointment to office. The circumstances here involve an appointment, not an election, and so the casting of a ballot protected by secrecy is not the issue. Rather, it is whether there was a basis on which the meeting could be closed.
The OML contains specific provisions that direct when a meeting of a public body must be closed and when it may be closed. For example, a meeting to discuss an active criminal investigation being conducted by the police department must be closed. See section 13D.05, subdivision 2(a)(2). A meeting to evaluate the performance of an individual subject to the Council's authority, like the city administrator, may be closed. See section 13D.05, subdivision 3(a). There is no provision that requires or permits a meeting to be closed to interview candidates for appointment to the Council.
Given the stated policy that the OML is to be construed in favor of public access, the Council did not comply with Chapter 13D when it closed its meeting on January 11 and 12, 2005, to interview candidates for appointment to the Council.
Issue 2:
Did the members of the Stillwater City Council comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information.
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.
The Commissioner recently discussed the requirements of this provision. In Advisory Opinion 06-020, the Commissioner stated that section 13D.01, subdivision 3 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.
Neither party has provided information about whether the first requirement has been met. In 06-020, the Commissioner found that the easiest way to satisfy the second requirement is to cite the statute that mandates or permits the meeting to be closed. As indicated in the discussion of Issue 1 above, there are no specific grounds that permit the meeting to be closed and none were listed in the notice that was published. The final requirement has been met as the notice does describe that the meeting was to be held to conduct interviews. Given the Council's failure to comply with at least one of the requirements, the notice was not in compliance with section 13D.01, subdivision 3.
Opinion:
Based on the facts and information provided, my opinion on the issues that Mr. Remely raised is as follows:
- The members of the Stillwater City Council did not comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, to interview candidates to fill a vacancy on the council.
- The members of the Stillwater City Council did not comply with the Open Meeting Law, Minnesota Statutes, section 13D.01, subdivision 3 when they closed a meeting that began on January 11, 2005, and was continued on January 12, 2005, following a notice that stated: NOTICE IS HEREBY GIVEN the Stillwater City Council will conduct a Closed Special Meeting at 4:30 p.m., Tuesday, January 11, 2005 and Wednesday, January 12, 2005 at City Hall, 216 N. 4th Street. The purpose of the closed meeting is to conduct interviews for the-[sic] appointment of a Councilmember for Ward 4. Do not hesitate to contact the City Clerk's Office (651)430-8802 if you have any questions or need further information.
|
Signed:
Dana B. Badgerow
Commissioner
Dated: November 14, 2006
