Facts and Procedural History:

Michelle Swenson asked for an advisory opinion regarding the Bois de Sioux Watershed District Board of Managers (Board) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Lukas Croaker, attorney, responded on behalf of the Board.

According to Ms. Swenson, a Board member participated by telephone at regular meetings on October 17, 2017, and January 16, 2018, in order to reach a quorum. Ms. Swenson wrote, “[t]his is a violation of [Minnesota Statutes,] section 13D.021 as the presiding officer for this governing body had not determined that an in-person meeting or a meeting conducted under section 13D.02 was not practical or prudent because of a health pandemic or an emergency declared under chapter 12.”

Issue:

Discussion:

Minnesota Statutes, Chapter 13D, requires meetings of public bodies to be open to the public, with limited exceptions. There are two provisions in the OML that allow public bodies to conduct meetings by telephone. Minnesota Statutes, section 13D.015 allows state-level agencies, boards, commissions, departments and public pension plans to conduct meetings by telephone if certain conditions are met.

Minnesota Statutes, section 13D.021, allows all public bodies to conduct meetings by telephone if conditions similar, but not identical to, those required by section 13.015 are met. In addition, the threshold requirement in section 13D.021 is that “the presiding officer, chief legal counsel, or chief administrative officer for the affected governing body determines that an in-person meeting or a meeting conducted under section 13D.02 is not practical or prudent because of a health pandemic or an emergency declared under chapter 12.” (Minnesota Statutes, section 12.03, subdivision 1e, defines “declared emergency” as “a national security or peacetime emergency declared by the governor under section 12.31.”)

In his comments to the Commissioner, Mr. Croaker stated that at both meetings in question, the Board believed it was complying with the OML when the Board members called in to the meetings in order to reach a quorum. He wrote, “[i]t was a mistaken belief, as the conditions listed under Minn. Stat. § 13D.021 were not met.” He stated that the Board did not intentionally violate the OML, and “the Board made a mistake, which the Board now recognizes and will not allow it to happen in the future.”

The Commissioner acknowledges that the Board understands that it may not conduct meetings by telephone, under section 13D.021, unless it determines that it is warranted due to a health pandemic or declared emergency.

Opinion:

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

Members of the Bois de Sioux Watershed District Board of Managers did not comply with Minnesota Statutes, section 13D.021, when, in order to reach a quorum, a member participated by telephone at the October 10, 2017, and January 16, 2018, meetings.

Signed:

Matthew Massman
Commissioner

December 14, 2018