October 3, 2023; City of Fertile
10/3/2023 8:50:13 AM
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.
X (a pseudonym used pursuant to section 13.072, subdivision 4) requested an advisory opinion regarding the Fertile City Council’s (Council) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D, as well as the City of Fertile’s (City) response to a data request under Minnesota Statutes, Chapter 13. The City’s legal counsel provided comments in response to the advisory opinion request.
A summary of facts is as follows:
X works in a position that is subject to the Council’s authority. On January 24, February 24, May 22, and June 12, the Council held closed meetings, citing Minnesota Statutes, section 13D.05, subdivision 2(b) as its authority to go into closed session to discuss allegations against X. During a special meeting on June 20, the Council also went into closed session under section 13D.05, subd. 2(b), but reopened the meeting when X submitted her resignation.
On June 29, 2023, X submitted a data subject request to the City’s Responsible Authority, asking for the recordings from all the closed meetings since January in which X was the subject. On July 12, the City told X that it was preparing and redacting the recordings to fill the request. X reported that recordings for the January, May and June 12 meetings were provided to her on August 18. In a letter to X dated August 17, the City wrote that the recording device used during the February 24 meeting malfunctioned, and there were no data from this meeting responsive to X’s request. As part of her advisory opinion request, X provided the recordings of the January 24, May 22, and June 12 meetings to the Temporary Commissioner.
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Based on the opinion request, the Temporary Commissioner agreed to address the following issues:
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Issue 1: Did the Fertile City Council comply with the Open Meeting Law when it held closed meetings pursuant to Minnesota Statutes, section 13D.05, subdivision 2(b), on January 24, February 24, May 22, and June 12, 2023?
The Open Meeting Law requires all meetings of public bodies be open to the public unless a specific law permits or requires the public body to close the meeting. When a closed meeting is conducted under these provisions, discussion at the closed session is limited to the topic outlined by law. Here, the Council closed all four meetings under Minnesota Statutes, section 13D.05, subdivision 2(b). This provision states:
A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open. . . .
Under this statute, a public body must close a meeting to discuss allegations or charges against an individual subject to its authority. However, once a public body determines that discipline of any nature may be warranted, then the subsequent meetings or hearings must be open to the public. (See also Advisory Opinion 19-008.)
In its comments to the Temporary Commissioner, the Council reviewed each closed meeting at issue and confirmed discussion occurred at each meeting about allegations against X, as well as other topics related to X’s place of employment. The comments indicated the Council continued holding closed meetings on this issue until a decision regarding disciplinary action was made by the Council. The Council stated:
As an individual subject to the Council’s authority, the Council believed that closing each of these meetings was the best and most efficient way for it to address and review concerns regarding X’s performance, while maintaining the integrity of the ongoing investigation that the City Administrator was conducting.
The Temporary Commissioner acknowledges that the Council would prefer to hold closed meetings to discuss the allegations until a final decision regarding discipline against X has been made. However, the legislature provided for closed meetings only until the Council determines that discipline may be warranted. As a result, to determine whether closure of a particular meeting under section 13D.05 subdivision 2(b) was appropriate, the Temporary Commissioner looks to the discussion at the January 24, February 24, May 22, and June 12 meetings.
The redacted recordings of these closed meetings provided by X to the Temporary Commissioner indicate the Council determined discipline may be warranted at the meeting on January 24, 2023, if not earlier. While the Council members did not vote to remove X from her position at this meeting, the Council discussed hiring a temporary replacement and theorized that the issues raised in the allegations or charges would disappear if X was no longer employed by the City. Once a public body discusses replacing or otherwise removing an employee, it is clear that disciplinary action may be warranted. As a result, all later meetings on this topic must be open to the public, pursuant to section 13D.05, subd. 2(b). Further, if the Council determined prior to this session that discipline may be warranted against X, then the Council was not permitted to go into closed session under section 13D.05, subd. 2(b) during the January 24 meeting.
Additionally, the City provided the following comment regarding the discussion at the January 24 meeting:
. . . Council discussion covered multiple topic areas of concern and did not focus on [X] or any one individual specifically as the subject of the meeting.
From the brief recording provided to the Temporary Commissioner and the City’s own comments, it is clear the Council discussed issues beyond the scope of closure authorized by section 13D.05, subd. 2(b). Therefore, the portions of the discussion beyond the scope of preliminary consideration of allegations against X at the January 24 should have been held while the meeting was open to the public.
Discussion at later meetings also confirm that the Council previously determined that discipline against X may be warranted. The February 24 meeting was not properly recorded or provided to X due to a technology malfunction, but discussions at the meetings on May 22 and June 12 focus on continuing concerns about X’s work performance, hiring a replacement, and notifying X of the Council’s decision to remove X from her position. The underlying assumption throughout all these discussions is that the Council previously determined discipline against X may be warranted. Given that the Council had already determined that discipline may be warranted at or before the January 24 meeting, these ongoing discussion of allegations against X in closed session were not permitted by section 13D.05, subd. 2(b).
In addition, the subject matter of the meetings on May 22 and June 12 also strays beyond the scope of the authority to go into closed session under section 13D.05, subd. 2(b). Discussion of hiring a replacement, management of the city business, or other employees or matters not relevant to the allegations are outside of the scope of permitted topics for closure under section 13D.05, sub. 2(b).
Finally, the City communicated to X that the February 24 meeting was not properly recorded due to a malfunction in the recording equipment. Minnesota Statutes, section 13D.05, subdivision 1(d) requires public bodies to record closed meetings and retain the recordings for three years.The Temporary Commissioner encourages the Council to rectify any issues with equipment to ensure compliance with this provision for future meetings.
Issue 2: Did the City of Fertile respond appropriately to a June 29, 2023 data request from a data subject pursuant to Minnesota Statutes, section 13.04?
On June 29, X emailed the City Administrator and asked for “copies of all recordings from closed meetings related to me since January.” The City updated X on July 12, stating that they were preparing the data. Both the City and X stated that these recordings were provided to X on August 18.
Minnesota Statutes, section 13.04, subdivision 3 addresses a government entity’s response to data requests when individuals request data about themselves. Subdivision 3 states, in part:
The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible.
The Temporary Commissioner recognizes that meeting this required timeframe can be difficult for government entities, especially for smaller entities facing limited staff and exponential increases in electronic data. However, section 13.04, subd. 3, creates a strict deadline for responding to data subject requests within 10 business days and does not provide for exceptions to this requirement. Therefore, the City’s response was outside the appropriate timeframe for a response required by statute.
Based on the facts and information provided, the Temporary Commissioner’s opinion on the issues are as follows:
Signed:
Stacie Christensen
Temporary Commissioner
October 3, 2023
Open Meeting Law
Closed meetings
Requests for data
Data subjects
Timeliness of response to data subject - immediately or ten business days
Recording meetings
