August 30, 2017; Brunswick Township Board
8/30/2017 7:41:48 AM
This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2016). It is based on the facts and information available to the Commissioner as described below.
Ronald Peterson requested an advisory opinion regarding the Brunswick Township Board of Supervisors members’ conduct under Minnesota Statutes, Chapter 13D, the Minnesota Open Meeting Law (OML). Rick Kawalek, Board Chair, and members Jeff Akken and Craig Peterson, responded on behalf of the Board.
A summary of the facts as provided by Mr. Peterson follows. He wrote:
The public gathered a few minutes before the 7 pm meeting on May 31, 2017 and found all the supervisors present, seated, inspecting and discussing documents. Conversation amongst the public prevented hearing any of the supervisor's deliberations until the meeting was called to order. The supervisors delayed convening the meeting at the noticed time of 7 pm while they continued inspecting documents and deliberating amongst themselves until calling the meeting to order at 7:10 pm. These were the same documents not shared with the public during the meeting.
Mr. Peterson also submitted statements from township residents. They wrote:
At this particular meeting of May 31, 2017, at approximately 6:50 PM, the Town Board was already seated and in a private discussion about items and articles they were in possession of, but only amongst themselves. The attendees were not included. In fact, the Board kept talking amongst themselves and did not call the meeting to order until almost 7:10 PM.
According to Mr. Peterson, after convening the meeting, the Board “inspected and adopted an agenda,” and “inspected and deliberated over other documents,” copies of which were not available to the public. He wrote:
One of these documents was identified by the town board as a 2005 Conditional Use Permit (CUP). When a copy was requested by the public, citing the Open Meeting Law (OML) requirement, a copy was not made available for the public but instead the public was told by the town board that the CUP was filed at the county recorder’s office and anyone wanting a copy could get one there.
In their comments, the township residents stated, “[a]ll residents in attendance of this meeting witnessed the same push-back that is received at ALL the Township meetings - no agenda is made available to the residents; no minutes were made available; no discussion material was made available.”
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Based on the opinion request, the Commissioner agreed to address the following issues:
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Issue 1. Did the members of the Brunswick Town Board comply with Minnesota Statutes, Chapter 13D, when a quorum met and discussed documents prior to calling a meeting to order on May 31, 2017?
The OML requires meetings of public bodies to be open to the public, with limited exceptions. Minnesota Statutes, 13D.01, subdivision 1(b) (5), states that the governing body of a town is included in that requirement.
While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held the following:
'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 its response to the Commissioner, the Board stated, “[a]s with every meeting prior to calling it to order supervisors were talking and exchanging pleasantries” and no one discussed documents or board business prior to calling the meeting to order.
Mr. Peterson and other township residents say that before the meeting was convened, they observed a quorum of the Board “seated, inspecting and discussing” documents and “deliberating amongst themselves”. Mr. Peterson did not hear the topic(s) of discussion, but said the documents “were the same documents not shared with the public during the meeting.”
The Commissioner cannot resolve this factual dispute. However, the Commissioner wishes to make clear that once a quorum of the Township board has assembled, it cannot discuss official business prior to convening the meeting. If in this case, the Board engaged in any discussion of the conditional use permits—other than perhaps clerical matters such as whether it had copies prepared—it violated the OML, per Moberg.
Issue 2. Did the members of the Brunswick Town Board comply with Minnesota Statutes, section 13D.01, subdivision 6, by not providing a public copy of all members’ materials at the meeting held on May 31, 2017?
Minnesota Statutes, section 13D.01, subdivision 6, requires that at least one copy of any printed materials relating to the agenda items that are distributed at, or before, the meeting to all members of the governing body, or are available to all members in the meeting room, shall be available in the meeting room for the public to review.
The Board wrote to the Commissioner that it “did not fail to supply copies of all members’ materials at the meeting. At the meeting, we reviewed the existing C.U.P. and then discussed changes to be made to the C.U.P. to bring it up to date and address concerns that had come up in an earlier hearing and since the original C.U. P. had issued.”
The minutes of the May 31, 2017, special meeting state that the Board approved the agenda, and reviewed the C.U.P. permit. Therefore, at least one copy of the agenda and one copy of the permit should have been available to the public during the meeting.
Mr. Peterson said that when members of the public, citing the OML, asked for a copy of the C.U.P at the May meeting, the Board said that it “was filed at the county recorder’s office and anyone wanting a copy could get one there.” Mr. Peterson and other township residents assert that the Board did not comply with the requirements of section 13D.01, subdivision 6, at the May meeting.
The Board wrote to the Commissioner that it “did not fail to supply copies of all members’ materials” but it did not state specifically that the public had access to the agenda and the permit as required. It also stated, “[m]eetings usually do not allow time for making copies of documents during the meeting.”
The Commissioner has discussed the importance of this provision of the OML in previous advisory opinions, given that it provides the public the opportunity to follow along as government considers and deliberates public issues. In order to ensure transparency, public bodies must make sure that they always provide public copies of members’ materials. If necessary, a public body should briefly recess a meeting in order to make the required public copy of all written materials under consideration. The Commissioner offered specific guidance in Advisory Opinion 14-010:
Managing the public copy of the members’ materials is a common issue for public bodies and members of the public. The Commissioner would like to offer the following guidance. The plain language of section 13D.01, subdivision 6, requires that the public body make “at least one copy” of members’ materials available to the public at the meeting. In providing only one complete copy, the body fulfills its obligation. However, as people review its contents, there is a greater chance that the packet may be altered so that others do not have access to it, as Mr. Ruppe suggests may have happened here. In fulfilling the requirement, it is the public body’s responsibility to make certain that the packet is complete. Public bodies may consider the following optional strategies, in addition to providing the one copy during the meeting: posting the information on their websites, providing multiple copies, or including a cover-sheet on the public packet listing its contents.
The Commissioner is sensitive to the fact that members of the public living in certain non-metro townships encounter challenges when trying to access information from their local governments. Because those bodies are not “government entities” subject to the Data Practices Act (Minnesota Statutes, Chapter 13), the access provided for in the Open Meeting Law is vital to township citizens’ participation in and oversight of their government bodies. The Commissioner strongly encourages all public bodies to develop ways to guarantee meaningful access to the information required by section 13D.01.
In its response to the Commissioner, the Board did not assert that it made one copy of members’ materials available to the public,” as the OML requires. The Board asserted that it usually does not have time or capacity to make copies during the meeting. However, the OML makes no exceptions; the law requires copies be available. Likewise, telling people that the C.U.P. document under review is available at another entity, which they can access at some later date after the meeting is over, is also not compliant with the requirement to have at least one copy available for inspection at the meeting.
The Commissioner has an additional comment. It is the Board’s policy to make only approved minutes available to the public. However, when the Board approves previous meeting minutes at an open meeting, those minutes must be available to the public while the Board is considering them. The Board’s policy to make only approved minutes available does not comply with the requirements of section 13D.01, subdivision 6.
Based on the facts and information provided, the Commissioner’s opinion on the issues is as follows:
Signed:
Matthew Massman
Commissioner
Dated: August 30, 2017
Open Meeting Law
Townships
