This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2024). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

On February 14, 2025, Joshua Malchow asked for an advisory opinion regarding whether a gathering of the Murray County Board of Commissioners (Board) violated the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.

Malchow provided the following summary of facts:

On February 4, 2025 the Murray County Board of Commissioners held a regularly scheduled (and duly posted) meeting at the Murray County Government Center (2500 28th Street, Slayton, MN) starting at 8:30AM. I virtually attended this meeting via Zoom and was present for the “Additions to the Agenda” portion of the meeting. …

There were a couple of additions to the agenda but none of them pertaining to a visit after the regular meeting to a County owned building in Slayton with members of the Wonderworld Daycare Center board of directors to explore options for a new childcare center in Slayton.

Multiple members of the board of directors for the Wonderworld childcare center and the childcare center director have confirmed that all five members of the Murray County Board of Commissioners were physically present at this location in Slayton as well as the County Administrator and discussion was held with all parties regarding options for building for Wonderworld. …

This “tour/discussion” at the building located at 2989 Maple Road in Slayton, was not part of the posted agenda, and was not an addition to the agenda. The Board adjourned their meeting, did not recess their meeting, and proceeded to then meet at the facility located at 2989 Maple Road. In the audio [recording of the meeting] at 1:01:30 Board Chair Dennis Welgraven states, “I think that’s all we have today. I will adjourn the meeting.” …

Malchow also provided links to the Board’s meeting agenda and audio recording of its February 4 meeting posted on the Murray County website as well as a copy of draft meeting minutes for the February 4 meeting. The meeting agenda, draft minutes, and recording that Malchow submitted did not contain any information or reference to Board members gathering to tour a building with daycare center staff on February 4.

Issue:

Discussion:

The OML requires meetings of public bodies to be open to the public, with limited exceptions. Although the Legislature did not define “meeting” in the OML, the Supreme Court defined meetings subject to the law as “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).

A public body must provide appropriate notice of its meetings as required by Minnesota Statutes, section 13D.04. Section 13D.04, subdivision 1 requires a public body to keep a schedule of its regular meetings on file at the body’s primary offices. Section 13D.04, subdivision 2 governs notices for special meetings, which are any meetings that a public body holds that do not appear on the schedule of regular meetings. Subdivision 2 requires a public body to post written notice of the date, time, place, and purpose of a special meeting on its principal bulletin board or the door of its usual meeting room at least three days before the meeting.

Additionally, section 13D.04, subdivision 4(a) states, “If a meeting is a recessed or continued session of a previous meeting, and the time and place of the meeting was established during the previous meeting and recorded in the minutes of that meeting, then no further published or mailed notice is necessary.”

In its response to the Commissioner, the Board wrote:

The Murray County Board of Commissioners held a regular meeting on February 4, 2025. When preparing the agenda for the meeting, County staff inadvertently did not include a planned walkthrough of a County-owned building with representatives from a childcare center located in Slayton, MN. …

At the conclusion of the February 4 meeting, Board Chair Dennis Welgraven commented “I think that’s all we have today. I will adjourn the meeting.” … What the recording does not show, and what Mr. Malchow did not see because he was not physically at the meeting, is that the County Administrator Carolyn McDonald promptly corrected Chair Welgraven’s statement and stated that the Board was recessing and would immediately reconvene at the ACE Building, which is located at 2989 Maple Road in Slayton. County Administrator McDonald’s comments were not captured in the audio recording of the meeting because the County employee who manages the recording of meetings stopped the recording before she corrected Chair Welgraven’s comment. …

The County Board has since taken action to correct the minutes from the February 4 meeting to reflect the discussion that took place before the Board recessed the meeting to reconvene at the ACE Building site. . . .

The County acknowledges that all five Commissioners then went to the ACE Building for the walkthrough with the WonderWorld representatives. The purpose of the walkthrough was simply to allow the WonderWorld representatives to see the building. . . .

… While there was some confusion toward the end of the meeting when Chair Welgraven mentioned adjourning the meeting, the Board never voted to adjourn the meeting. Ms. McDonald promptly clarified in public that the Board would be going into a recess and then immediately reconven[e] at the ACE Building.

The Board has taken action to clarify in its meeting minutes that the location and time of the recessed meeting was noted on the public record. The OML is silent as to when the Board is required to prepare meeting minutes. The only notice requirements for a recessed meeting is that the time and place of the recessed meeting be established during a previous meeting, which happened in this situation, and that the time and place of the recessed meeting is recorded in the minutes of that meeting, which the County has now done. … (Emphasis in original.)

The Commissioner is limited to the information presented to her, and she cannot resolve factual issues. Here, there’s no dispute that the gathering of Board members to meet with daycare officials was subject to the OML’s requirements under the Minnesota Supreme Court’s definition of a “meeting” in Moberg. Both Malchow and the Board agree that the county commissioners conducting a walkthrough of the county-owned ACE Building with potential tenants involved discussing and receiving information related to the Board’s official business.

Therefore, the question becomes whether the Board appropriately noticed the commissioners’ tour of the ACE Building with daycare officials. The notice the Board was obligated to provide under section 13D.04 depends on whether this tour was a special meeting or a continuation of the February 4 regular meeting.

However, the parties disagree on what occurred near the conclusion of the Board’s meeting at its regular location on February 4, and it is not clear whether the Board adjourned the regular meeting as Malchow indicated in his opinion request or the Board recessed to gather at the ACE Building later as it maintained in the response to the Commissioner.

If the Board adjourned the February 4 meeting, then the Board members’ meeting with daycare officials to tour the ACE Building violated the OML.

Section 13D.04, subd. 2 requires a public body to provide a special meeting notice when it holds a meeting that does not appear on its schedule of regular meetings. That notice must be posted on the public body’s principal bulletin board or usual meeting room door at least three days in advance of the special meeting and include the date, time, place, and purpose of the meeting.

Neither Malchow nor the Board have suggested that the tour appeared on the schedule of regular meetings or that a special meeting notice was posted regarding the tour of the ACE Building with the daycare staff. Therefore, the Board violated the OML if it adjourned its February 4 regular meeting, as it appeared to do in the original recording and meeting minutes, because the subsequent tour at the ACE Building would have been an unnoticed special meeting.

However, if, as the Board contends, it announced the time and place of the tour before recessing the February 4 meeting, then the Board members reconvening to tour the ACE Building with daycare officials did not violate the OML.

Section 13D.04, subd. 4(a) contemplates situations when a public body may recess a regular meeting and then reconvene elsewhere. The subdivision requires a public body to establish the time and place it intends to reconvene the meeting before recessing, and that information must be recorded in the meeting minutes.

The Board maintains it announced to in-person meeting attendees that members would reconvene the February 4 regular meeting at the ACE Building after a short recess despite initial confusion over Chair Welgraven’s announcement that the meeting was adjourned. The Board also explained that it corrected the approved meeting minutes of its February 4 meeting to document the recess and the tour, which happened after it received notice of Malchow’s advisory opinion request. Therefore, the Board appears to have complied with the OML if it announced the time and location of the tour when recessing and reconvening the February 4 meeting.

The Commissioner has an additional note about the records of the Board’s February 4 meeting. At least some of the confusion regarding what occurred during the meeting appears to be the result of the Board not clearly documenting in the meeting agenda or audio recording that all county commissioners planned to tour the ACE Building on February 4. Additionally, the February 4 meeting minutes did not officially document the time and place of the reconvened meeting until the Board took action to correct those previously approved minutes.

The Commissioner reminds the Board that, in addition to its OML obligations, it also has obligations under the Official Records Act, Minnesota Statutes, section 15.17, to create records that document its official business. The purpose of this requirement is to ensure that government entities and public bodies have “a full and accurate knowledge of their official activities.” (See section 15.17, subdivision 1.)

The OML does not require a public body to create meeting agendas or meeting minutes for a regular meeting. However, many public bodies do create and maintain such agendas and minutes in order to meet the requirements of the Official Records Act. (See, e.g., Advisory Opinion 04-059.) When creating these records, a public body should take care to ensure the records do indeed provide full and accurate information about the body’s activities.

The Commissioner encourages the Board to review its processes and procedures related to the creation of its records to confirm that it is accurately documenting its activities as required by the Official Records Act. A lack of complete and accurate official records will likely lead only to further confusion for the public in the future.

Opinion:

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

The Commissioner cannot determine whether the Murray County Board of Commissioners complied with the Open Meeting Law when commissioners gathered to tour a county-owned building on February 4, 2025.

If the Board adjourned its February 4 regular meeting, then the Board violated the Open Meeting Law because it did not appropriately notice a special meeting as required by section 13D.04, subdivision 2.

If the Board announced the time and place and recorded in the meeting minutes where it would reconvene before recessing the February 4 meeting, then the Board did not violate the Open Meeting Law because it met the requirements of section 13D.04, subdivision 4(a).

Signed:

Tamar Gronvall
Commissioner

March 27, 2025