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:

William Brown requested an advisory opinion regarding the Woodbury City Council’s (Council) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Council provided comments in response to the advisory opinion request.

A summary of facts is as follows:

On September 6, 2023, the Council held a regular meeting. In his comments, Brown stated that during this regular meeting the Council went into closed session “to discuss potential litigation strategy regarding the contract with ISD 833 to provide School Resource Officer services with the City Attorney.”

Brown provided details from ISD 833, indicating that there was no threatened litigation at the time of the September 6, 2023 meeting. He notes that on September 5, 2023, the City and Superintendent discussed the contract at issue. Brown stated that the Superintendent did not threaten litigation, but “wanted to know what [the City of Woodbury] [was] doing as it impacted SROs in 2 of her schools.”

In its comments, the Council stated,

Woodbury reviewed its SRO contract with District 833 and quickly ascertained that as of August 2023, even if Woodbury were to immediately provide notice of its intent and desire to stop the SRO services, as a practical matter that contractual notice would not take effect and the City had no direct legal entitlement to cancel its SRO services under the contract until December 31, 2024. As a result, the City did not have a practical means of pulling its SROs out of the ISD 833 high schools absent either: (1) mutual agreement and consent from ISD 833, or (2) by engaging in a purposeful and known breach of contract. City staff was understandably concerned that ISD 833 would not mutually agree to the cancellation of SRO services and that pulling of SROs may well result in breach of contract litigation with ISD 833, so as a result, City staff preemptively placed a potential closed session discussion on the City Council’s agenda.

The Council indicated that in closed session, it “opted to temporarily suspend its SRO activities under contract with ISD 833 until such time there could be greater legal clarity or a legislative amendment.” The Council subsequently informed the school district of its decision to suspend the contract.

The Council noted that after additional guidance from the Attorney General’s Office and the League of Minnesota Cities, the Council has since “directed that the City Staff should reactivate its SROs and send them back into the ISD 833 high schools.”

Issue:

Discussion:

The OML requires meetings of public bodies to be open to the public, with limited exceptions. One exception to this general rule is that public bodies may close a meeting based on attorney-client privilege. (Minnesota Statutes, section 13D.05, subd. 3(b).)

The Minnesota Supreme Court established the test for the appropriate application of the attorney-client privilege exception:

To determine whether the attorney-client privilege exception to the Open Meeting Law applies, we balance the purposes served by the attorney-client privilege against those served by the Open Meeting Law. The exception applies when this balancing dictates the need for absolute confidentiality.

Prior Lake American v. Mader, 642 N.W.2d 729, 732 (Minn. 2002) (Prior Lake American). (See also Minneapolis Star and Tribune v. the Housing and Redevelopment Authority, 251 N.W.2d 620 (Minn. 1976) (HRA).)

The Supreme Court held that the statutory exception in section 13D.05, subd. 3(b), was consistent with its holding in HRA. See Prior Lake American. The Court considered the issue of whether the exception would apply in situations where the public body had received a potential threat of litigation. In holding that the public body violated the OML, the Court wrote, “[b]alancing the policies behind the attorney-client privilege and the Open Meeting Law, it is clear to us that when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting.” Prior Lake American at 741.

The Court also held that because the exception applies only when absolute confidentiality is required, “the scope of the privilege is narrower for public bodies than it is for private clients.” Prior Lake American at 737. Further, the Court stated that the attorney-client privilege exception, “is to be employed or invoked cautiously and seldom in situations other than in relation to threatened or pending litigation.” And that this exception, “would almost never extend to the mere request for general legal advice or opinion by a public body in its capacity as a public agency.” HRA at 626.

Additionally, the Commissioner has issued several advisory opinions on this exception. (See Advisory Opinions 99-003, 14-005, 14-015, 14-017, and 16-003). In Advisory Opinion 14-017, the Commissioner noted, “the privilege does not automatically apply when a public body is threatened with or engaged in active litigation; conversely, the privilege is not always prohibited prior to pending or threatened litigation ... the Supreme Court's limitations on the privilege, taken together with the obligation to construe the OML in favor of the public, set a high standard for public bodies.”

Here, the Council had a contract with the school district. The Council intended to discuss the contract and decide whether to break it. The Council indicated that the school district wanted the City to continue compliance with the contract. In its comments, the Council argued, “[t]his factual scenario rose to the level of a ‘threat of litigation.’ This issue was not some mere enactment of controversial code or denial of a land use application that might result in disputes in the future, rather it involved a direct and present factual scenario in which action on the part of the City Council could immediately open the City up to legal claims against it for breach of an existing contract.”

The Commissioner understands that the Council’s discussion of the contract could result in possible litigation against the City at a later date. However, at the time of the discussion there was no threatened or pending litigation. As the Supreme Court held in Prior Lake American, when a public body is deciding a matter within its jurisdiction, the threat that litigation might be a consequence of deciding the matter one way or another does not, by itself, justify closing the meeting. Therefore, the public’s right to hear the discussion about the contract outweighed the need for absolute confidentiality, and the Council did not comply with the OML when it went into closed session to discuss the contract.

The Commissioner notes that the Council also considered more than legal advice from its attorney during the closed session. The Council decided to suspend the contract in closed session, and subsequently informed the school district of its decision. When public bodies rely on the narrow attorney-client privilege exception to go into closed session, it should return to open session to engage in votes or discussion that fall outside this authority.

Opinion:

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

The Woodbury City Council did not comply with the OML when it went into closed session on September 6, 2023, on the basis of attorney-client privilege, pursuant to Minnesota Statutes, sections 13D.05, subdivision 3(b).

Signed:

Tamar Gronvall
Commissioner

November 14, 2023