Facts and Procedural History:

Alan Mitchell requested an advisory opinion regarding the Birchwood Village City Council (Council) members’ conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Mark F. Gaughan and Caroline Bell Beckman provided comments from the Council.

A summary of the facts as provided by Mr. Mitchell follows:

The last item on the Birchwood City Council’s agenda for its regular monthly meeting on September 8. 2015, was entitled City Attorney’s Report. When this item on the agenda came up, the mayor moved, without any discussion, that the last portion of the meeting be closed for attorney client privilege. The City Council voted 4-0 (one member was absent) to close that portion of the meeting. The item to be discussed in the closed session was not identified… and no statutory authority for closing the meeting was cited.

Mr. Mitchell provided a transcript of the portion of the meeting preceding the closure:

Mary [Mayor]: So now we need to go into our attorney’s report and I think, Alan [City Attorney], we need to go into private session for that.

[City Attorney]: Mayor and council, if you would like to, you can try to caption, I guess, whatever rationale for that you would like to and ask permission to close regarding attorney client privilege information.

[Mayor]: So with that I would move that we close this portion of the meeting for attorney client privilege… (brief interruption to ask another speaker whether she wanted to be heard on another matter before the meeting is closed). So I make a motion that we close this portion of the meeting for attorney client privilege. Is there a second.

[Councilmember]: Second.

[Mayor]: All those in favor. (All ayes. 4-0, Councilman Randy LaFoy absent.)

[City Attorney]: … And mayor and council, I will just note that it is 8:28 p.m. by my phone anyway, and that this is a closure for attorney client privilege communication (recording ceased and speaker was cut off)

The transcribed portion of the meeting that Mr. Mitchell submitted is substantially similar to the transcript submitted by the Council. The Council’s transcript describes the recording cutting off the last statement from the City Attorney as:

[City Attorney]: And that this is a closure for the attorney/client privilege communication re--

Both parties directed the Commissioner to the City’s website to review the video of the meeting at issue, which he did. The video demonstrates that the City Attorney was in mid-sentence when the audio cut out.

Issues:

Based on the opinion request, the Commissioner agreed to address the following issues:

Did the City of Birchwood Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when it closed a portion of its meeting on September 8, 2015, on the basis of the attorney-client privilege?

Discussion:

The Open Meeting Law requires most meetings of public bodies to be open. One exception to this general rule is that public bodies may close a meeting based on attorney-client privilege. (Minnesota Statutes, section 13D.05, subd. 3(b).)

Additionally,[b]efore 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.” (Minnesota Statutes, section 13D.01, subdivision 3.) The Commissioner has addressed this requirement in numerous previous opinions.  (See Advisory Opinions 06-012, 12-008, and 07-018.)

The Minnesota Court of Appeals has held that in order to satisfy the requirement of section 13D.01, subd. 3, public bodies must 1) identify the authority to close a meeting and 2) provide a “particularized statement describing the subject to be discussed.” (See, The Free Press v. County of Blue Earth, 677 N.W.2d 471, 476 (Minn. Ct. App. 2004).) The Commissioner has opined that an efficient way to fulfill the first requirement is to cite to the specific statute that allows or requires the public body to close the meeting. However, citing the law is not a requirement; a public body must simply state the specific grounds. (See Advisory Opinion 06-020 and 14-005.)

The Council submitted the following comments:

Near the end of the meeting, the City Attorney recommended that the Council close the meeting pursuant to the attorney-client privilege. According to the transcript and video recording of the meeting, the City Attorney states, “And that this is a closure for attorney-client privilege information re--,” at which point the television technician cut the audio recording of the meeting. The video camera remained on, clearly capturing on-going discussions between the City Attorney and the Council in open session. According to Mayor Mary Wingfield, the City Attorney went on to explain, in open session, that the meeting was being closed pursuant to attorney-client privilege and the subject of the closure was code violations at 407 Lake Avenue. Further, according to [the Mayor], the City Attorney instructed her to repeat this information herself in open session. The Mayor recalls the awkwardness of repeating the attorney’s statements.

The Council did not submit a recording of the meeting that shows the discussion as described. The video of the meeting available on the City website cuts off at the same point as the transcript notes the audio cutting off. Thus, based on the record, the Commissioner cannot determine whether the Council made a proper statement on the record as it asserts or whether it did not describe the subject to be discussed as Mr. Mitchell asserts.

The Council stated that it was closing the meeting on the basis of the attorney-client privilege exception; therefore, it met the requirement to state the specific grounds permitting the meeting to be closed. If the Council provided the additional statement regarding code violations at 407 Lake Avenue,” then it satisfied the second part of the requirement. If the Council did not provide the particularized description of the subject, then it did not satisfy the requirement.

Even if the statement fulfilled the technical requirements of section 13D.01, subd. 3, the question remains whether the meeting was properly closed pursuant to the attorney-client privilege under section 13D.05, subdivision 3(b).

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:

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, Inc. v. Dist. 742 Cmty. Schs., 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) (Prior Lake).

Minnesota Statutes, section 13D.05, subdivision 3(b), permits a public body to close a meeting on the basis of attorney-client privilege. While the Legislature enacted subdivision 3(b) in 1990, the Minnesota Supreme Court recognized an attorney-client privilege exception to the OML in 1976. (See Minneapolis Star and Tribune v. the Housing and Redevelopment Authority, 251 NW 2d 620 (Minn. 1976) (HRA) and Prior Lake.) A public body may use the exception when the policy underlying the privilege balanced against the policy underlying the OML weighs in favor of absolute confidentiality. Moreover, “the fact of threatened litigation does not necessarily mean that a public body has ‘the need for absolute confidentiality’ in its dealings with its counsel.” Prior Lake at 738. The Court has also cautioned that the privilege is narrower for public bodies and may not be invoked for general legal advice. (See also, Advisory Opinions 99-003, 14-005, 14-015, and 16-004.)

The Council submitted a full transcript of the September 8, 2015, meeting. The transcript does not show any discussion of litigation or potential litigation with the City, as either defendant or plaintiff. The meeting discussion centered on a section of the City’s building code, a specific project that illustrated the challenges of implementing that section, and whether the Council needed to change it going forward.

The majority of the meeting was open to the public. At the beginning of the meeting, the Mayor described how the building code section works and stated, “So I guess we probably should figure out, you know with the advice of our attorney what we want to do.” The meeting continued in open session and the Council went on to discuss a variety of related issues, including a moratorium on the code section and the Council subsequently decided to hold a special meeting to decide whether to institute a moratorium. The Council also decided that it would wait until the following regular meeting to take action on changing the language of the code section. At the end of the meeting, the Council then went into closed session based on the attorney-client privilege exception.

The City Attorney presented the following summary upon returning to open session:

[City Attorney]: Mayor and council, thank you, we did talk generally about what the city’s options are with respect to zoning codes and things like that. I believe it was decided that next week, either Monday or Tuesday, that a special meeting will be called to consider an interim ordinance to study the height determination for purposes of your building and planning of houses in Birchwood. If that's fair to say?

The Council provided additional information in responding to the Commissioner:

[At the September 8, 2015, meeting], the Council conferred in closed session with the City Attorney, There, the Council sought advice from the City Attorney regarding the pursuit of legal action against the contractor/builder. Upon re-opening the meeting to the public, the City Attorney described to the public that “we did talk generally about what the City’s options are with respect to zoning codes and things like that.”

Ultimately the City did not pursue legal action against the contractor/builder, instead choosing to amend its building height requirements and also passed a conflict of interest policy.

The Council further wrote:

In the present case, the Birchwood City Council faced not only a threat (from then-Chair of the Planning Commission) of “repercussions; if his project was not permitted to continue, but also with the question of initiating legal action against the contractor/builder for a project given improper approval by a building official. Importantly, the decision to close the meeting followed significant public discussion and participation on the substance of the matter. This is a case that tips the scale in favor of candid communications between a public body and its attorney without additional public intrusion.

Case law thus far has not addressed closing a meeting pursuant to the privilege when the public body is the potential plaintiff. In Advisory Opinion 14-017, the Commissioner wrote:

The Commissioner is not aware of a court case that examines the application of the attorney-client privilege exception when the public body is a potential plaintiff in a lawsuit, as is the situation here, or how that might affect the balancing of purposes of the privilege and the OML. Nevertheless, the Supreme Court’s limitations on the privilege, taken together with the obligation to construe the OML in favor of the public, set a high standard for public bodies.

Based on the statement on the record that the Council may have made prior to closing the meeting, the summary the City Attorney provided following the closed session, and the transcript of the full meeting, it does not seem that, on balance, the Council met the standard to use the privilege to close the meeting. Discussions of the city options with regard to zoning codes and things like that” (e.g., deciding whether to institute a moratorium or the consequences of whether to change a section of building code), seems like a topic more properly addressed in a public forum.

However, the Council provided additional facts about potential litigation based on a threat of “repercussions” from the builder/contractor and that the Council had considered pursuing legal action.

The situation here is similar to that in the Prior Lake case, in which the Minnesota Supreme Court held that the Prior Lake City Council improperly closed a meeting. A company stated that if it did not receive a conditional use permit (CUP) as allowed under a Prior Lake ordinance or if the City required an environmental assessment worksheet (EAW), the company would sue. Prior Lake had not decided yet whether to require an EAW or whether to issue the CUP. The Prior Lake City Council went into closed session on the basis of attorney-client privilege based on that threat. In rejecting the City use of the exception, the Court provided the following guidance:

Given the contentious nature of many land-use proceedings, we are concerned about the ramifications of holding that open meetings may be closed to allow council members to meet with an attorney about how to view a threat of litigation relating to a public matter that has yet to be decided. Such a holding might well eviscerate the Open Meeting Law. No doubt public bodies frequently face threats of litigation associated with their decisions. Threats of litigation notwithstanding, the public has a right "to be informed of all actions and deliberations" that affect the public interest. Balancing the policies behind the attorney-client privilege and the Open Meeting Law, it is clear to us that when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting.

Prior Lake at 739-740.

Here, when Council closed the September 8, 2015, meeting, it had not yet decided whether to institute a moratorium on the then-current building code section. It had yet to act on changing the building code section at issue to respond to the builder/contractor situation. The record does not reflect whether the Council had taken action to reverse its position and permit the builder/contractor to continue his project (thereby neutralizing the threat of “repercussions” from him) or whether that decision was also pending. Moreover, the Council did not present arguments to the Commissioner that the discussion in closed session would contribute to litigation strategy nor did it generally identify the information that would damage the Council’s position in litigation had it been disclosed to the public. (See Prior Lake at 740.) In short, the record does not demonstrate that the Council required absolute confidentiality when it closed the meeting.

Finally, the Commissioner notes that meetings closed based on the attorney-client privilege exception are the only closed meetings that public bodies are not required to record and thus, the record for review is necessarily limited. As such, adherence to the other requirements of the OML becomes even more significant, so that the public can be informed and can judge whether closure is indeed appropriate.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:

The Commissioner cannot determine whether the Birchwood Village City Council complied with Minnesota Statutes, Chapter 13D, by providing the statement on the record before going into closed session during the September 8, 2015, meeting as required by Minnesota Statutes, section 13D.01, subd. 3.

The Birchwood Village City Council did not comply with Minnesota Statutes, Chapter 13D when it closed a portion of the September 8, 2015, meeting on the basis of the attorney-client privilege exception pursuant to Minnesota Statutes, section 13D.05, subdivision 3(b).

Signed:

Matthew Massman
Commissioner

Dated: April 26, 2017