February 20, 2020; Southwest Minnesota Broadband Services
2/20/2020 5:14:06 PM
This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2019). It is based on the facts and information available to the Commissioner as described below.
Travis Thies, General Manager of the Southwest Minnesota Broadband Services (SMBS) asked the Commissioner about the Board of Directors’ obligations under the Open Meeting Law, Minnesota Statutes, Chapter 13D.
Mr. Thies wrote: “SMBS seeks to confirm that Minnesota’s Open Meeting Law contained in Minnesota Statutes Chapter 13D (the “OML”) is not applicable to SMBS to ease the concern of its municipal members and obtain certainty.”
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Based on the opinion request, the Commissioner agreed to address the following issue: Is the Southwest Minnesota Broadband Services Board of Directors subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D? |
Most public bodies are subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law.
Minnesota Statutes, section 13D.01, subdivision 1, states:
All meetings, including executive session, must be open to the public
(b) of the governing body of a
(1) school district however organized,
(2) unorganized territory,
(3) county,
(4) statutory or home rule charter city,
(5) town, or
(6) other public body.
The Minnesota Supreme Court held that the board of directors of the Southern Minnesota Municipal Power Agency (SMMPA), which was formed by 18 member cities, was not subject to the Open Meeting Law. See, Southern Minn. Mun. Power Agency v. Boyne, 578 N.W.2d 362 (1998) (SMMPA). The Court found that the plain language of the enabling legislation governing municipal power agencies allowed for SMMPA to run its affairs like a “private corporation.” Private corporations may manage their affairs by adopting bylaws that establish the manner of calling and holding meetings. (See SMMPA at 365.)
SMBS wrote:
SMBS was formed as a nonprofit corporation pursuant to Minn. Stat. § 317A. SMBS is comprised of seven municipal members who formed SMBS to develop and deploy broadband infrastructure to their respective communities. It operates in nine rural communities in Jackson, Nobles and Cottonwood counties. It competes with CenturyLink, Frontier and other wireless providers for customers and state grant funding. It operates as a business, handling competitively-sensitive information, forecasting revenue and costs, and developing strategic plans to build, maintain and strengthen its network to remain competitive in the industry in which it operates….
[SMBS’s] position is that the OML does not apply to SMBS due to our corporate entity and because disclosing sensitive and strategic information discussed in Board Meetings would diminish SMBS’ ability to compete with its competitors.
SMBS is a nonprofit corporation subject to the requirements of Minnesota Statutes, Chapter 317A, which includes provisions related to board bylaws and meetings.
Minnesota Statutes, section 317A.181, subdivision 1, provides:
A corporation may, but need not, have bylaws. Bylaws may contain any provision relating to the management or regulation of the affairs of the corporation consistent with law or the articles, including but not limited to:
…
(8) the time, place, and manner of calling, conducting, and giving notice of member, board, and committee meetings, or of conducting mail ballots.
A nonprofit board of directors’ meetings are governed by Minnesota Statutes, section 317A.231, which includes requirements for board meetings but allows a board to alter those statutory requirements through its articles and bylaws. For example, meetings may be held in or out of the state. The board may meet by remote communication where board members are not required to be present at a particular location. The board may hold meetings by telephone. Board members may call meetings not in the articles or bylaws with five days’ notice to other members. Notice to other board members does not need to state a purpose. Additionally, board members may take action outside of a meeting. (See Minnesota Statutes, section 317A.239.)
These provisions are contrary to the requirements of the Open Meeting Law. (See Quast v. Knutson, 150 N.W.2d 199 (Minn. 1967) and Advisory Opinions 06-012, 08-034, and 18-003, requiring meetings of public bodies to be held within the territorial confines of the public body; Minnesota Statutes, sections 13D.02 and 13D.021, providing requirements for meetings conducted via interactive television or telephone, including requirements for members to be present in certain locations; and Minnesota Statutes, sections 13D.03 and 13D.04, requiring notice to the public in specific circumstances and within certain time limits.)
Like the statutes governing municipal power agencies, Ch. 317A does not include any requirements for nonprofit boards of directors to hold public meetings and allows boards to follow or create requirements that are inconsistent with the provisions of the OML.
Therefore, it is the Commissioner’s opinion that as a board of a nonprofit subject to Ch. 317A, the SMBS Board of Directors is not subject to Chapter 13D, the OML.
Based on the facts and information provided, the Commissioner’s opinion on the issue raised is as follows:
The Southwest Minnesota Broadband Services Board of Directors is not subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D.
Signed:
Alice Roberts-Davis
Commissioner
February 20, 2020
Open Meeting Law
Open Meeting Law
