Facts and Procedural History:

Nancy Robinett asked for an advisory opinion regarding the conduct of the St. Anthony Village City Council (Council) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Jay Lindgren, City Attorney, responded on behalf of the Council.

According to Ms. Robinett, on January 11-12, 2018, the Council held what it described, in part, as a “Goal Setting Session.” The meeting was held at the Marriott Northwest Hotel in Brooklyn Park, MN (outside the legal boundaries of St. Anthony Village).

Ms. Robinett stated to the Commissioner that “all materials relevant to the … meetings…were not available to the public.”

According to Ms. Robinett:

The attendees on the second day had a “pyramid” document that they were discussing and working on; I asked the facilitator for a copy of this so I could follow along. He gave me a copy of this single sheet, after some reluctance, but it was an older 2017 copy, as I saw a newer copy with 2018 written on it, in front of the invited attendees….

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At the end of the first day, a dinner was scheduled for attendees …. I understand that a number of attendees, which I believe included council members and the mayor, were scheduled to spend the night in the hotel.

Issues:

Discussion:

The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a city is a public body subject to the law. (Minnesota Statutes, 13D.01, subdivision 1(b)(4).)

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) (Moberg).

The Minnesota Supreme Court has stated that the OML “will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies.” St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 6 (Minn.1983) (St. Cloud Newspapers). And that the purposes behind the law “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.) Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).

Issue 1: Did the members of the St. Anthony Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held meetings on January 11 and 12, 2018, in Brooklyn Park, MN?

The Minnesota Supreme Court previously considered whether a school board violated the OML when it held a meeting 20 miles outside of the school district. The Court held: “To meet this statutory requirement [that meetings of public bodies shall be open to the public] it is essential that such meetings be held in a public place located within the territorial confines of the school district involved.” Quast v. Knutson, 150 N.W.2d 199, 200 (Minn. 1967) (Quast). Based on the holding in that case, the Commissioner has previously opined that all public bodies must hold their meetings within the territorial confines of their jurisdictions. (See Advisory Opinions 06-012 and 08-034.)

In her opinion request, Ms. Robinett wrote:

I am unaware of any reason why the meetings of the January 11-12 could not and should not have been held within the borders of the city of St. Anthony, in keeping with Minnesota law. Comments have been made by the mayor of St. Anthony that the long-standing practice of holding this annual meeting outside the borders of St. Anthony is approved by him, and is likely to continue.

The City Manager described the meeting in this way:

The City of St. Anthony City Council has had a tradition of holding its annual goalsetting session in a location outside City Hall in order to reflect on and organize its goals and strategies in an environment free from distractions and interruptions.

In response to the Commissioner, the Council wrote:

Holding the St. Anthony annual goal-setting session outside City limits does not violate the Open Meeting Law…. Ms. Robinett contends that Quast creates a bright-line rule that every meeting of every public body must be held within the territorial jurisdiction of that body, regardless of circumstances. 

The Council then provided a number of arguments to support its position that Quast does not create a bright-line rule and that public bodies should instead, employ a balancing test. However, the Commissioner respectfully disagrees with the Council’s arguments and relies on the clear public policy underlying the Supreme Court’s holding in Quast and past opinions applying that case to all public bodies.

Requiring public bodies to hold meetings within their jurisdictions accomplishes the central purpose of the OML, which is to allow the public to observe the decision-making process of its governing bodies. Here, the Council spent two days talking about the long-term vision for the City and prioritizing goals and action steps. They also heard presentations from consultants and staff on issues related to finance, emergency services, and engineering, amongst other topics. The OML seeks to facilitate open, public access to these types of Council discussions in a manner accessible to its constituents. By holding the meetings outside of the Council’s jurisdiction, the Council effectively removed themselves from the people that they serve, thus undermining the public policy intent of the OML. Per the direction of the Supreme Court, the Commissioner interprets the OML in favor of public access.

The Commissioner also notes that this interpretation of Quast is consistent with Advisory Opinion 13-009, which concluded that when the conditions of Minnesota Statutes, section 13D.02, subdivision 1(3), are met, public body members may “attend” meetings via interactive television even when they are outside of the geographic boundaries of the public body. That provision requires at least one member of the public body to be physically present at the regular meeting location. It also requires that members of the public be able to see and hear all testimony, discussion, and votes. So, in essence, a meeting via interactive TV is still a meeting in the regular meeting room of the public body and within the territory of the public body. There are similar conditions for meetings by telephone. (See Minnesota Statutes, sections 13D.015 and 13D.021.)

Issue 2: Did the members of the St. Anthony Village City Council comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members materials available at its January 11 and 12, 2018, meetings?

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.”

In her opinion request, Ms. Robinett wrote that the public materials had not been made available at the meeting. On the second day, she asked one of the meeting facilitators for a copy of a document and was provided a document that was similar to, though not exactly the same as, the one being reviewed by the Council members.

In a letter to the Commissioner, the City Manager wrote:

Staff prepared and brought to the goal-setting session a copy of all the materials that would be reviewed and discussed during the meeting. I kept the copy near me on top of the front table and sat in front of a large placard with my name on it, in case anyone asked to view the copy of the materials. No one did…. As a matter of fact, we had two extra copies.

The Council’s attorney wrote:

The statute does not impose an affirmative duty to distribute a copy of these materials, or to ask each member if they would like to inspect the materials. It only requires that a public body make the materials “available for inspection.”

Ms. Robinett wrote that, given the configuration of the meeting room, it was not clear to her that the required packet was available. She stated, “[the City Manager] may well have had extra materials at his personal seating area. However, there were jumbles of materials at many seats, which were all clearly personal seating areas….”

The Council stated that the materials were in the meeting room and would have been provided, if requested. However, when Ms. Robinett asked to see the “pyramid document” that the Council members were reviewing and discussing, she was not given a copy of the same document. The City Manager wrote, “Although the copy provided unintentionally had ‘2017’ written on it, it was in all other respects identical to the ‘2018’ version the group was reviewing.”

The Council stated that it had two extra copies of “all the materials that would be reviewed and discussed during the meeting.” If that had been the case, it is not clear why Ms. Robinett was provided with a document that was different in any respect from the one the Council members had. Secondly, Ms. Robinett would not have been able to verify that the document she had and the one members had was, “in all other respects identical,” because she did not have a copy of the 2018 pyramid with which to compare her copy. Even if the documents were nearly identical, providing a substantially similar document does not fulfill the requirement in section 13D.01, subd. 6. Thus, the Council did not comply with the OML requirement regarding members’ materials.

The Commissioner also notes that a public body cannot fulfill its obligation to make members’ materials available in the meeting room for inspection by the public if the public does not know they are available for inspection. While there is not an affirmative duty to distribute copies to each member of the public in attendance at the meeting, liberally construing the OML to protect the public’s right to full access to the decision-making process of public bodies requires a public body to provide easy access to the materials. Where here, the materials were at a staff work station with other personal materials and not demonstrably available, members of the public could have been intimidated and possibly prevented from exercising their right to review a copy of the materials by being compelled to ask for them. The fact that the meeting was not in a familiar location also weighs in favor of a more proactive approach by the Council.

Issue 3: Did the members of the St. Anthony Village City Council comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they met for dinner in a hotel dining room, the evening of the January 11, 2018, meeting?

The Minnesota Supreme Court has held that chance or social gatherings of a quorum or more public body members are not “meetings,” subject to the OML. (See, St. Cloud Newspapers v. Dist. 742 Com. Schools, 332 NW 2d 1, 7 (Minn. 1983.)

Ms. Robinett wrote:

I request an advisory opinion on whether the practice of holding a scheduled evening social dinner for an entire public body, following by a scheduled overnight stay together for that entire public body at a hotel, strains the exception to the open meeting law for chance or social gatherings, or even actually violates the open meeting law. The evening social dinner was listed as an agenda item, as a 6:30 p.m. dinner, and presumably a quorum of the city council was present at this dinner. The dinner was not held in the conference room in which the day’s meeting was held, but rather in a hotel dining area. This area was available only to the invited meeting attendees, for whom the city paid for dinner, and not general public. There was no notice given during the day one session inviting the public to this dinner session, even though it was listed on agenda. 

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I don’t know whether a quorum of the public body as a group discussed or received information pertinent to city business, as I was not at this dinner meeting….. However, the fact that this meeting was listed as an agenda item and yet was not available to the public, means the public simply has lost its right to be informed.

In his letter to the Commissioner, the City Manager wrote:

Council Members are aware of the quorum and official city business elements of a “meeting” subject to the law. For this reason, City Council Members were each seated at a separate table in order to prevent formation of a quorum. City business and information were not discussed. As far as I was able to observe from my place at dinner, Council Members did not circulate between tables, and I did not observe any two Council Members talking together during dinner. Similarly, I have no reason to believe, based on the intent of the meeting, the Council Members’ training and what I observed, that any official city business was discussed.

The dinner was in the general dining area of the hotel’s public restaurant. To my knowledge, no member of the public asked if they could attend the dinner, and no member of the public was informed by any City official that they would not be allowed to attend the dinner. I observed Ms. Robinett leave the goal-setting session before we broke for dinner. ….. [Footnote omitted.]

Despite the fact that the dinner was listed on the agenda, the City Manager made clear in his comments that the Council members took specific measures to ensure that they would be in compliance with the OML. The members sat at different tables in a public dining room. No official business was discussed. The City Manager did not see any members speaking to one another. Ms. Robinett did not attend the dinner and thus was unable to observe the conduct of the Council members. Based on the City Manager’s comments and observations, it seems that a quorum of members did not discuss, decide, or receive information as a group related to official business. Therefore, the dinner was a social gathering and not a “meeting” subject to the OML and, the Council did not violate the OML.

While members of public bodies may legally attend social gatherings together, the Commissioner again notes that the occurrence of this particular social gathering appears to have arisen exclusively as the result of Council holding a multi-day goal-setting meeting outside of the jurisdiction in violation of the OML. The Commissioner reiterates that such meetings should be held within the jurisdiction and cautions the Council to not conduct meetings at social events wherever they may occur. As always, public bodies must be mindful of even the appearance of impropriety when dining together as a group.

Opinion:

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

1. The members of the St. Anthony Village City Council did not comply with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they held meetings on January 11 and 12, 2018, in Brooklyn Park, MN.
2. The members of the St. Anthony Village City Council did not comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members materials available at its January 11 and 12, 2018, meetings.
3. The members of the St. Anthony Village City Council complied with the Open Meeting Law, Minnesota Statutes, Chapter 13D, when they attended dinner in a hotel dining room, the evening of the January 11, 2018, where they did not sit together or discuss, decide, or receive information related to official business as a group.

Signed:

Matthew Massman
Commissioner

Dated: April 5, 2018