Facts and Procedural History:

Andrew Jauhola requested an advisory opinion regarding the Hillman Township Board of Supervisors’ (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.

A summary of the facts is as follows:

In his opinion request, Jauhola stated that on November 16, 2021, the three-person Board held a regular meeting at the town hall starting at 7:00 p.m. However, members of the public, including Jauhola, arrived at the town hall up to 45 minutes before the scheduled meeting.

Jauhola wrote that two Board supervisors were discussing matters behind a locked door prior to the 7:00 p.m. meeting. He noted another member of the public overheard the supervisors discussing town business while reviewing meeting materials in front of them, including a court document concerning the township. Specifically, Jauhola maintained that one supervisor said, “‘I agree – I’ll approve’ while pointing at documents on the table in front of them.”

In response to Jauhola’s description of the November 16, 2021, meeting, the Board stated:

The facts as alleged are simply not accurate and do not warrant a point-by-point rebuttal. There was no secret pre-meeting to discuss Town business that evening. Two Fox 9 news trucks were at the Town Hall before any of the supervisors arrived. To the extent any conversations occurred among supervisors in the minutes before calling the meeting to order, they were of a personal nature and did not involve a discussion of Town business…The idea a quorum of the supervisors would arrive at the Town hall early with news trucks in the parking lot, enter the hall, lock the door behind them, and hold a ‘secret’ meeting about Town business with members of the public who arrived 45 minutes early at the window with their ears pressed against the glass is beyond belief.

Jauhola added:

Hillman Township Supervisors failed to provide public copies for multiple documents at multiple public open board meetings. These documents were meeting minutes and correspondences [sic] that were discussed in front of the public at these meetings…. The supervisors denied every documented instance here, including from the months of Sept, Oct, Nov, and Dec of 2021.

The Board responded:

It appears that much of what is being referenced in the [advisory opinion] request is to letters and emails the Town identified as hate mail directed to individual supervisors. These letters, some of which contained explicit language, were not distributed to the other supervisors and did not relate to an action item on the agenda.

However, the Board stated:

It does appear the Town Board misunderstood how to handle unapproved minutes. It believed unapproved minutes were not public and the minutes were not to be released until they were formally approved. The concern being that the language of the minutes may change at the time of approval and so did not want to appear to be misleading the public by distributing unapproved minutes or have two different versions of the minutes in the public.

Issues:

Discussion:

Issue #1: Did the Hillman Township Board of Supervisors violate the Open Meeting Law when a quorum of the Board met before its scheduled meeting on November 16, 2021?

The OML requires meetings of public bodies to be open to the public, with limited exceptions. The governing body of a township is a public body subject to the law. (Minnesota Statutes, section 13D.01, subdivision 1(b)(5).)

While the Legislature did not define “meeting” in the OML, the Minnesota Supreme Court held, “‘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).

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…. This includes meetings at which information is received which may influence later decisions of such bodies.” St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 6 (Minn. 1983). The Minnesota Supreme Court has also determined 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).

Based on the comments provided, the parties dispute whether a quorum of the Board discussed public business before the November 16, 2021, meeting. The Commissioner is unable to resolve issues of fact. If the two Board supervisors, which is quorum of the Board, discussed public business outside of its noticed meeting, the Board did not comply with the requirements of the OML. If the two Board supervisors discussed matters unrelated to public business, there was no OML violation.

The Commissioner understands that, like many townships, there are three supervisors on the Board. When a discussion between two individuals constitutes a quorum, township boards must take extra care to avoid discussion of public business outside of a noticed meeting.

Issue #2: Did the Hillman Township Board of Supervisors provide appropriate access to its public meeting materials at its September 14, 2021, October 19, 2021, November 16, 2021, and December 14, 2021, meetings pursuant to Minnesota Statutes, section 13D.01, subdivision 6?

Section 13D.01, subd. 6, provides:

(a) In any meeting which under subdivisions 1, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and:

(1) distributed at the meeting to all members of the governing body;

(2) distributed before the meeting to all members; or

(3) available in the meeting room to all members;

shall be available in the meeting room for inspection by the public while the governing body considers their subject matter.

Jauhola contends that the Board did not make available certain meeting materials, including correspondence and draft meeting minutes, at its September 14, 2021, October 19, 2021, November 16, 2021, and December 14, 2021, meetings.

The Board indicates that the correspondence Jauhola references were directed to individual supervisors and “were not distributed to the other supervisors.” If the materials were not distributed to all members of the public body at or before the meeting, and are unrelated to the agenda items, the materials are not subject to the meeting material requirements of section 13D.01, subd. 6.

In the Board’s comment, its legal counsel stated:

I have since advised the Town Board that unapproved minutes should be provided to the public upon request, marked as unapproved, and included [in] the public packet at the meeting. Even though the Town does not prepare a traditional meeting packet that is distributed to members in advance of a meeting, I did inform the Town Board of the requirement to prepare and make available at the meeting a public packet containing the materials identified in Minnesota Statutes, section 13D.01, subdivision 6(a). Though, again, with the exception of the unapproved minutes, it appears the requested documents in this case constituted correspondence sent to individual supervisors that did not satisfy the statutory criteria requiring them to be included in the public packet at the meeting.

Townships located in non-metropolitan counties, such as Kanabec County, are not subject to the Minnesota Government Data Practices Act. (See Minnesota Statutes, section 13.02, subdivision 11.) As a result, the OML’s requirements regarding public access to meeting materials is the primary mechanism for transparency and access to government information in these townships.

The Commissioner appreciates the Board’s efforts to improve its process to comply with the OML in the future. However, the Board did not meet the requirements of section 13D.01, subd. 6, when it failed to make the unapproved meeting minutes available in the meeting room for inspection by the public.

Opinion:

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

1. If a quorum of Board members discussed public business before its November 16, 2021, meeting, then the Board did not comply with the OML because it held a meeting without proper notice.
2. The Board did not comply with the requirements of section 13D.01, subd. 6 when it did not make the unapproved meeting minutes available in the meeting room for public inspection during its meetings.

Signed:

Alice Roberts-Davis
Commissioner

July 15, 2022