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:

Shawn and Shawna Heller requested an advisory opinion regarding the Modern Montessori Charter School Board’s (Board) conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. The Board’s legal counsel provided comments on its behalf.

The Hellers provided the following summary of facts:

On May 18, 2022, Modern Montessori Charter School Board held a closed annual review of the Director of Operations. As the subject of the meeting, the Director requested a copy of the recording. The School Board admitted the meeting was not recorded in accordance with Minnesota Statute 13D.05 Subd. 1 (d). …

On September 28, 2022, Modern Montessori Charter School Board held a closed session under Minnesota Statute 13D.05, Subd. 2 (b). … The meeting notice on the school’s website only contained the following content with no additional information or agenda:

SCHOOL BOARD MEETING: SPECIAL SESSION
Wednesday, September 28, 2022
6:45 PM - 7:45 PM
Modern Montessori Charter School

This special meeting will be closed pursuant to Minn. Stat. 13D.05, Subd. 2 (b) for preliminary consideration of allegations or charges against an individual subject to the board’s authority.

According to the meeting minutes, the special meeting transitioned from closed to open and the School Board voted to end employment of the Director prior to adjournment of the special meeting. The Director and public school community was not informed, provided an agenda, nor given a reasonable expectation that a vote was going to occur based on the content of the special meeting notice and previous meeting precedent. Alternatively, no physical notice was posted on the premises with any additional information in the three days prior to the meeting.

Issues:

Discussion:

Modern Montessori Charter School is a public charter school. Minnesota Statutes, section 124E.03, subdivision 5a requires Minnesota charter schools to “comply with chapter 13D governing open meetings.” Therefore, the Board is subject to the requirements of the OML.

Issue 1: Did the Modern Montessori Charter School Board violate the Open Meeting Law when it did not record the portion of its May 18, 2022, meeting that was closed to evaluate the performance of an individual that was subject to its authority?

Minnesota Statutes, section 13D.05, subdivision 1(d) requires a public body to record its closed meetings at its own expense, except meetings closed as permitted by attorney-client privilege. These recordings must be preserved for at least three years after the date of the meeting unless the law states otherwise.

In its comments to the Commissioner, the Board wrote:

MMCS admits that the closed portion of the May 18, 2022 meeting was not recorded. MMCS was established in the fall of 2019. Having been in existence for only three (3) years, closed sessions of meetings of the board have occurred infrequently. …

… [T]he Board held a series of meetings that were not recorded which was due to inadvertence and lack of knowledge. Once the Board was notified by a board member based upon their training, and also sought guidance from legal counsel regarding recording requirements, MMCS has been in compliance with the Open Meeting Law and has recorded closed meetings when required. …

… MMCS admits to having missed or misunderstood the recording requirement for various types of closed meetings, has recently received training, guidance from legal counsel and has additional training scheduled. MMCS intends to change its board training to include annual training on the requirements of the Open Meeting Law.

The Board acknowledged that it violated the OML when it failed to record the closed portion of its meeting on May 18, 2022. The Commissioner appreciates the Board describing the steps it is taking to avoid similar situations in the future.

Issue 2: Did the Modern Montessori Charter School Board provide appropriate notice of the purpose of its special meeting on September 28, 2022, as required by Minnesota Statutes, section 13D.04, subdivision 2?

The Minnesota Supreme Court stated in Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) that “[b]ecause the Open Meeting Law was enacted for public benefit, we construe it in favor of public access.” (See also St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1 (Minn. 1983), stating “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 governed by § 471.705.”)

A public body must provide notice at least three days before any meeting that is not on its regular schedule. The notice must include the date, time, place, and purpose of the meeting. (Minnesota Statutes, section 13D.04, subdivision 2). These notice requirements also apply to closed meetings. (Minnesota Statutes, section 13D.04, subdivision 5).

The Commissioner has opined that special meeting notices must provide detail about the purpose of the meeting. (See Advisory Opinions 07-014, 10-013, and 15-002.)

Additionally, Advisory Opinion 04-004 indicates that when a public body holds a special meeting, its “actions are limited to those topics included in the notice of the special meeting.” The Commissioner added, “[t]his conclusion is further supported by the purpose and spirit of the OML, which is to allow the public the opportunity to participate in the government that represents it. The public cannot receive effective notice unless [a public body] is limited to acting on only those items for which this notice was provided when the special meeting was scheduled.” (See also Advisory Opinions 04-057, 10-013, 15-002, and 19-006.)

In its response, the Board wrote:

The substance of the Notice fulfills the requirements of Minn. Stat. 13D.04, subd. 2(a). …

Apparently, the Hellers’ issue with the Notice stems from the fact that following the closed session where preliminary consideration of allegations or charges were considered, the board came out of closed session and, at that same meeting, in open session, passed a resolution regarding disciplinary action to be taken against Ms. Heller. …

If MMCS board were to follow the Hellers’ logic, then another special meeting would have to be called for the purpose of acting upon the discipline that the board concluded was warranted. …

In this case, during the closed portion of the September 28, 2022 meeting, the board concluded that discipline was warranted as a result of the allegations or charges against Ms. Heller. In order to act upon the conclusions reached during the closed portions of the meeting, the board returned to open session, passed the resolution … and then adjourned. The board’s resolution was consistent and in keeping with the purpose of the meeting described in the Notice.

The Commissioner respectfully disagrees that the Board met the requirements of section 13D.04, subd. 2, as it failed to provide sufficient details of the special meeting’s purpose in its notice to accurately reflect the Board’s actions during the special meeting.

The OML does not define “purpose.” As a result, the Commissioner must rely upon the common usage of the word. (See Minnesota Statutes, section 645.08.) Meriam Webster defines purpose as “something set up as an object or end to be attained: intention.” Therefore, section 13D.04, subd. 2 requires a public body to provide notice of the intended object or end to be attained in a special meeting.

Here, the Board confirmed that the language describing the special meeting’s purpose was “[t]he special meeting will be closed pursuant to Minn. Stat. 13D.05, Subd. 2 (b) for preliminary consideration of allegations or charges against an individual subject to the board’s authority.” (Emphasis added.)

The notice did not provide details about any discussion or action that might occur beyond the Board’s preliminary considerations of allegations or charges to take disciplinary action, nor did the notice suggest the Board would address topics outside of a closed session.

The Board is correct that the OML requires any subsequent discussions or disciplinary actions to take place in open session after it determines discipline may be warranted. (See also Advisory Opinion 19-008). Additionally, the Commissioner acknowledges the Board’s position that it was administratively inconvenient to schedule and notice a second special meeting to act on discipline it concluded was warranted. However, the Board’s notice stated that the purpose of the meeting was for preliminary considerations of allegations or charges against an individual subject to its authority. In voting to impose discipline, the Board moved beyond the special meeting’s “intended object or end to be obtained” described in the notice.

As the Board did not provide any details in its notice other than its intent to hold a closed session for discussion of preliminary consideration of allegations or charges, the OML required the Board to schedule another special meeting or wait until its next regular meeting before taking additional actions. If the Board wished to take additional action at its September 28, 2022, meeting, it needed to provide more details in the purpose given on the special meeting notice to reasonably inform members of the public that such actions may take place.

Therefore, the Board did not provide appropriate notice of the purpose of its September 28, 2022, special meeting.

Finally, the Commissioner notes that in its comments, the Board stated that the only location it posted the special meeting notice was on its public website. Although the Commissioner agrees with the Board that posting a special meeting notice on a website “has significantly more public visibility than an internal bulletin board or the door to the meeting room,” an online posting alone does not meet the requirements of section 13D.04, subd. 2. Rather, subdivision 2 requires a public body to post the notice on its principal bulletin board or on its meeting room door if there is no principal bulletin board. A public body is also obligated to mail a notice to any individual who has filed a written request to receive notice of special meetings.

As noted in past opinions, the Commissioner recognizes that the OML contains various provisions that may not reflect public bodies’ contemporary business practices. She encourages the Legislature to review the OML for opportunities to address the practical implementation of the law to meet current expectations and abilities of both public bodies and the public.

Opinion:

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

1. The Modern Montessori Charter School Board violated the Open Meeting Law when it did not record the portion of its May 18, 2022, meeting that was closed to evaluate the performance of an individual who was subject to its authority.
2. The Modern Montessori Charter School Board did not provide appropriate notice of the purpose of its special meeting on September 28, 2022, as required by Minnesota Statutes, section 13D.04, subdivision 2.

Signed:

Alice Roberts-Davis
Commissioner

December 8, 2022