This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Jana Peterson, editor of the Pine Knot News, requested an advisory opinion regarding the Thomson 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.

Peterson provided the following summary of facts:

The Thomson Township Board of Supervisors held its regular meeting on Sept. 8, but went into closed session for what it termed “personnel” discussions, along with an update on a potential real estate transaction. There were no names listed on the agenda (attached) regarding the alleged “personnel” discussion.

What the supervisors actually discussed under its “personnel” OML exemption were the six applications from citizens of Thomson Township to replace elected supervisor Jason Paulson, who had stepped down. In their private discussion about his replacement, the board narrowed its applicant pool from six to three.

Issue:

Discussion:

The OML requires meetings of a public body to be open to the public, with limited exceptions. The exceptions for closing a meeting are described primarily in Minnesota Statutes, section 13D.05.

Specifically, Minnesota Statutes, section 13D.05, subdivision 3(a) states:

A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.

In its response to the Commissioner, the Board wrote:

The Town properly closed a meeting on September 8, 2022 pursuant to sec. 13D.05, Subd. 3(a) of the Open Meeting Law to review and evaluate applicant data, both private and public, pursuant to sec. 13.43, subd. 1 and 3 of the Data Practices Act, as modified by sec. 13.601, subd. 2 and 3 of the Data Practices Act, to determine a short list of applicants to invite back for public interviews to fill an open board seat, from individuals who had voluntarily placed themselves under and made themselves subject to the Board’s authority by submitting such letters of application to the Board.

The Commissioner respectfully disagrees.

The ability of a public body to close a meeting under the language of section 13D.05, subd. 3(a) is limited to situations when it will “evaluate the performance of an individual subject to its authority.” (Emphasis added.) The language does not allow a public body to close meetings to generally discuss personnel issues, such as hiring or appointment decisions. Additionally, the subdivision’s language itself further supports the limitation of closing meetings only to performance evaluations, stating that a body must “identify the individual to be evaluated” as well as requiring the body to “summarize its conclusions regarding the evaluation” at its next open meeting.

Here, the Board did not provide any information indicating it closed the meeting to evaluate the performance of any individual subject to its authority. Rather, the Board explained that the closure was to review and evaluate applications to select finalists who it would interview for a Board vacancy.

Based on the information provided, the Board did not close the meeting to conduct performance evaluations of individuals subject to its authority. Therefore, it could not rely upon section 13D.05, subd. 3(a) to close its meeting. Even if it were conducting performance evaluations, the Board failed to comply with the necessary steps to close a meeting under section 13D.05, subd. 3(a), including identifying the individual subject to its authority who will be evaluated in closed session and summarizing the conclusions of the evaluation at the next open meeting.

Additionally, the Board cited Minnesota Statutes, sections 13.43 and 13.601 to maintain that it was permitted to close the September 8 meeting. However, a not public classification is insufficient authority to close a meeting. (Minnesota Statutes, section 13D.05, subdivision 1(a) states, “Except provided in this chapter, meetings may not be closed to discuss data that are not public.”) Further, townships located in non-metropolitan counties, such as Carlton County, are not subject to the Minnesota Government Data Practices Act. (See Minnesota Statutes, section 13.02, subdivision 11.)

The Board did not identify any other provision within the OML or any other statute that would permit it to close a meeting in this situation. Therefore, the Board did not comply with the OML when it went into a closed session to review applications for a board vacancy.

Opinion:

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

The Thomson Township Board of Supervisors violated the Open Meeting Law when it closed a meeting on September 8, 2022, to review applications to appoint a new board supervisor.

Signed:

Alice Roberts-Davis
Commissioner

December 2, 2022