Facts and Procedural History:

John Bassing asked for an advisory opinion regarding the Greenwood Township Board (Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Michael C. Couri, Attorney, responded on behalf of the Board.

According to Mr. Bassing:

At the May 8, 2018, regular meeting of the Greenwood Township Board, a revision of the Greenwood Fire Department’s Standard Operating Guidelines [SOG] was listed on the agenda. When the Board addressed this topic, the Fire Chief (the Fire Chief is an employee of the Township) asked if the Board would like to have a copy of the revision, and he proceeded to pass out copy [sic] to each and every Supervisor. The Clerk did not receive a copy and no public copy was available for viewing. I request a Supervisor’s packet for every meeting, and the revision was not in my packet.

Mr. Bassing submitted an audio recording of the May 8, 2018, meeting.

Issue:

Discussion:

Minnesota Statutes, Chapter 13D, requires meetings of public bodies to be open to the public, with limited exceptions. Minnesota Statutes, section 13D.01, subdivision 1(b)(5), states that the governing body of a town is included in that requirement.

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 response to the Commissioner, the Board wrote:

The document at issue was a one-page amendment to the Township’s Standard Operating Guidelines (see attached document). This document contained one paragraph of text. This SOG was first included in the April 10, 2018 Town Board meeting agenda packet. It was read aloud at a Town Board meeting on April 18, 2018. Although this document was omitted from the May 8, 2018 Town Board meeting agenda packet, the Fire Chief brought copies to the May 8, 2018 meeting and asked those in attendance if anyone needed copies. He then passed out copies to those who asked for one. In addition, the entire document was read aloud at the May 8, 2018 meeting. The Board delayed taking any action on the SOG until the June 12th meeting, when it was adopted by the Town Board.

Although the SOG was not in the May 8th agenda packet for the public, it was read aloud in its entirety at that meeting (and at the April 18. 2018 meeting), thereby informing all in attendance of exactly what the Board was considering. The Township believes that both the offer of copies to anyone who did not have one and reading the document aloud meets the spirit of Minn. Stat. 13D.01, Subd. 6. [Emphasis added.]

The Board acknowledges that the SOG was not in the public packet. However, Mr. Bassing and the Board do not agree as to whether the Board explicitly asked non-Board members present if they would like a copy of the SOG. The audio recording supports Mr. Bassing’s contention that the Fire Chief passed out copies to Board members only, as it doesn’t contain an offer by the Fire Chief or anyone else to provide copies to the public.

The Commissioner acknowledges that the SOG was available to the public at an earlier meeting, and that it was read aloud at the May 8, 2018, meeting. Nonetheless, the Board did not comply with its obligations under section 13D.01, subdivision 6. As the Commissioner discussed in Advisory Opinion 18-003:

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 Commissioner again encourages all public bodies to develop ways to guarantee meaningful access to the information required by section 13D.01.

Opinion:

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

The members of the Greenwood Township Board did not comply with the requirement in Minnesota Statutes, section 13D.01, subdivision 6, to make at least one copy of members’ materials available to the public at its May 8, 2018, meeting.

Signed:

Matthew Massman
Commissioner

Dated: August 1, 2018