Facts and Procedural History:

Marshall Helmberger asked for an advisory opinion regarding the Tower City Council (Council) members’ conduct under the Open Meeting Law (OML), Minnesota Statutes, Chapter 13D. Andrew R. Peterson, attorney, responded on behalf of the Council.

According to Mr. Helmberger, the Council held one or more closed meetings in 2019 after it decided to hire an outside investigator to look into allegations against the City Clerk-Treasurer. He wrote:

By agreeing to seek the hiring of an outside investigator, the city council can no longer legitimately claim that its consideration of the allegations is “preliminary.”

... In concluding that the hiring of an investigator is appropriate, the council has self-evidently concluded that “discipline of any nature may be warranted,” (emphasis added)....

...

The city attorney argues that the city council can continue to hold meetings in closed session, apparently indefinitely, until the city has concluded its investigation and made a final determination of what, if any, disciplinary action is appropriate.

Such an interpretation is wildly at odds with the clear language of the statute, which specifically limits closed sessions to preliminary consideration of allegations. ...

Issue:

Discussion:

Minnesota Statutes, section 13D.05, subdivision 2(b) 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. A meeting must also be open at the request of the individual who is the subject of the meeting.

In his comments to the Commissioner, Mr. Peterson discussed Minnesota Statutes, section 13.43, subdivision 2(a) (4) and (5), which states that absent a final disposition of disciplinary action against a public employee, the only related public data are the existence and status of a complaint or charge. He wrote:

In an email that I sent to Mr. Helmberger on March 15, 2019, I told Mr. Helmberger that “the City is in the process of retaining an outside attorney to investigate allegations against … the Clerk-Treasurer.” In my email, I also told Mr. Helmberger that an outside attorney had not yet been retained by the City.... As of the date of this email, the City has not yet retained an outside attorney to investigate the allegations against [the Clerk-Treasurer] and decided to table this issue on April 8, 2019.  The fact that the City may retain an outside attorney to investigate the allegations of [the Clerk-Treasurer] at some time does not mean that the City has decided disciplinary action is warranted. The City would need to gather all of the facts before it can determine whether or not discipline is warranted against [the Clerk-Treasurer]. Since we do not know whether or not disciplinary action will be taken against [the Clerk-Treasurer], there is not a final disposition and only the existence and status of the complaint or charges are public at this time. 

Quoting section 13D.05, subdivision 2(b), Mr. Peterson wrote:

Again, the fact that the City may retain an outside attorney to help them with the investigation does not mean that the City has concluded that discipline of any nature is warranted. Since there has been no final disposition of disciplinary action taken against [the Clerk-Treasurer] by the City, I believe the City did not violate the Minnesota Open Meeting Law when it closed meetings to discuss allegations against [the Clerk-Treasurer] after it was decided to hire an investigator as this would be private data except for the limited data as to the existence and status of such complaint or charge.

The Commissioner respectfully disagrees with the Council’s position. Section 13D.05, subdivision 2(b) requires a public body to close a meeting until it determines that discipline may be warranted. Once it makes that determination, it may not close another meeting for additional consideration of the allegations. 

Furthermore, section 13D.05, subdivision 1(b) states, “… not public data may be discussed at a meeting subject to this chapter without liability or penalty, if the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body.” Therefore, the Council may discuss not public data, including personnel data classified as private under section 13.43, at an open meeting.

Once it decided to hire an outside investigator to look into allegations against the Clerk-Treasurer (even if that decision was subsequently tabled), the Council apparently determined that disciplinary action may be warranted. Accordingly, all subsequent meetings or hearings related to those specific allegations must be open.

Opinion:

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

The Tower City Council did not comply with the Minnesota Open Meeting Law (Minnesota Statutes, Chapter 13D), when it closed meetings to consider “Employee Misconduct Allegations” after it decided to hire an investigator to look into the allegations.

Signed:

Alice Roberts-Davis
Commissioner

May 22, 2019