Open Meeting Law is vital for all communities
How this important law benefits communities
Almost every week, the PineandLakes Echo Journal has one or more reports from area government meetings, like school boards and city councils. This practice is made possible by laws that require public entities to make available the meetings in which they perform the public's business.
These public meeting laws ensure that those working in the interest of the public do it honestly and in view of those who elected them.
"It's basically to help ensure that the public is informed about what government bodies are doing, and how they're doing it," said Mark Anfinson, an attorney from the Twin Cities who is an expert on open meeting laws.
"It's a law that was designed from the 1970s," said Timothy Houle, Crow Wing County administrator. "They were referred to as Sunshine Laws. What they are designed to do is allow the public access to the business that is the public's business. It requires that the public's business at the local government level be open to the public except under some very limited circumstances."
" "It's really about perception. You want to do your best to assure the public that we are being as diligent as we can with public information and being open about the decision-making process." "
— Jenny Max.
Anfinson said the law helps people to know what a public entity has decided, the process behind a decision, who supported or opposed the decision and the interaction as a whole.
"The law defines the parameters in which elected and appointed officials can and should conduct their business," said Jenny Max, Nisswa city administrator, "and to give them an understanding of when and how conversations and meetings should happen."
"Open Meeting Law just really governs how we in our position here on the school board conduct its business," said Jon Clark, Pine River-Backus School superintendent. "All the business that comes before the school board is front and center, transparent and viewable to the public."
In short, public bodies are forbidden from meeting and discussing board business in a quorum - or enough members to constitute a meeting (usually just over half of its members) - without prior notice to the public.
"The law requires certain notice to be given to the public," Max said. "So, there's a three-day notice in public hearings and there's a longer lead time, a 10-day notice, in some situations. That's to ensure that outside of maybe emergencies or other things, the public has the opportunity to be present for conversations that are going to be had."
This law applies to those elected by the public, such as school board, city council or county board members, but also other boards. Boards with members appointed by elected officials are often also included, such as sanitary districts, hospital boards, prison boards and watershed districts, among others.
"The city's zoning and planning commission may not be elected, but it's also subject to Open Meeting Law," Anfinson said. "So it's all multi-member governmental bodies. ... And it does not apply to meetings of staff, or employees of a public government body."
" You cannot avoid the requirements of Open Meeting Law by going to the members of the governing board one by one by one. "
— Tim Houle.
"Something that isn't typically known or really understood is the commissions and committee roles and how they are part of the Open Meeting Law requirements as well," Max said. "And for them to adhere to the same regulations is really important."
There are nuances to the law. For example, two members of a public entity may meet and discuss business, but if one of those members then discusses the same business with another member, they could be in violation of the Open Meeting Law as this constitutes something called serial meetings.
"You cannot avoid the requirements of Open Meeting Law by going to the members of the governing board one by one by one," Houle said.
The law has become more complicated as technology has advanced.
"I think one of the bigger challenges for us is the transition into electronic communications and social media and the internet," Max said, "because there are more ways for everyone to communicate. Email can be one of the biggest challenges we have to navigate, especially from a staff perspective. We try to be very mindful of that. ... On social media there's comments back and forth with elected officials or appointed officials that can start to raise questions."
"I think the law goes a certain distance, but does not probably go as far as I think it ought to," Houle said. "Things like televising. You're not obligated to, but I think it makes you accessible. Sending your videos to YouTube. You're not obligated, but it's about accessibility and transparency. The spirit of the law should drive you to do more than the actual requirements of the law, but not everybody thinks or agrees with that."
" They were referred to as Sunshine Laws. What they are designed to do is allow the public access to the business that is the public's business. "
— Tim Houle.
Technically, a quorum of board members can be present at events without public notice so long as they do not discuss the board's business, though most organizations have policies against doing so.
"The problem that can happen to the public officials in those cases is somebody else is in the restaurant and sees three of them talking," Anfinson said. "They can't hear what they're saying and they don't know they are talking about the football team, so the appearance itself creates doubt. So a lot of public bodies, a lot of members of public bodies just won't do that ever, even if they're not talking about public issues."
"If it's purely social it's not automatically a violation of the law," Houle said. "I certainly argue that the perception is as bad as reality. But at places like a ribbon cutting, everyone wants to be there and be in the photo. We err on the side of advertising it as a public meeting the public can attend. There's very rare circumstances when I think you need to use the social exception to the law. Maybe a holiday gathering, but it should be used sparingly."
Most councils and boards have ways to avoid violating the Open Meeting Law. One example is when a board assigns specific members, fewer than a quorum, to manage one specific area of business. These committees ensure that only the proper number of board members work together on any one issue.
"In Nisswa, what I think is really helpful is we assign council members to have specific roles," Max said. "For example, our personnel committee is made up of myself, the mayor and one council member. If there is a personnel issue that arises, I can work with those two officials specifically ... so they have someone to work with them when needed. But then it doesn't become potentially a variety of different council members involved in one department."
Other tools to avoid violations include new member training, codes of conduct or bylaws and clerks/administrators who manage document distribution and provide warnings to help avoid violations.
"When I email council members specifically I blind copy them so they can't hit 'reply all'," Max said. "If they do, it just comes back to me. We're very diligent if there are questions or thoughts the council has following a council meeting. Those questions come directly to me and I can help determine the proper way to disseminate information back to the council."
"There is a new commissioner training by the Association of Minnesota Counties and one of the things they cover is Open Meeting Law," Houle said. "We also have an orientation process for new commissioners and we cover the Open Meeting Law."
"The Minnesota School Boards Association has board trainings," Clark said. "There are four different phases of training that goes through and it covers the type of information that can or cannot be covered in an open meeting and when it gets closed. Board members are strongly encouraged to go to all of those trainings."
Many public offices embrace the Open Meeting Law not only because it prevents questionable practices, but because it protects the image of the organization in question and can help the public feel confident in their elected officials.
"It's really about perception," Max said. "You want to do your best to assure the public that we are being as diligent as we can with public information and being open about the decision-making process."
"It's not only the legal requirement, but it's about transparency and openness," Houle said. "We want the public to know what we're doing."
That also goes for not discussing protected information.
"When you have a board that really works well together and something gets said, another member of the board can easily say, 'That's something that can't be discussed here,' or 'That's a private subject' just to keep us all honest," Clark said. "I think most of our board has been receptive to those things. Then we follow up and say, 'Yes, that was the correct response.' Or, 'We need to make sure that gets placed on the agenda so the public knows about it ahead of time.'"
Given that legal recourse against violations of the Open Meeting Law are fairly mild, the loss of trust may be the biggest deterrent against violations. For example, the public might be more resistant with an entire government body and less willing to reelect someone who is hiding their actions from them.
"The penalties that are imposed are usually quite modest," Anfinson said. "The law itself says the maximum penalty of $300 per violation is what's imposed. If you violate the law three times, in unrelated cases, you can be removed from office. That's only happened once in Minnesota history so it's very rare. So the main sanction is a small civil fine. The party bringing the lawsuit can get some attorneys' fees. To be very clear, by far, the biggest penalty under Open Meeting Law is that members of the public body are publicly identified as having broken the law. That doesn't do any public official much good."
There are some exceptions to the Open Meeting Law. Some of the exceptions are designed to protect the privacy of those the public body deals with, such as in the case of students at school, health data and personnel policy. Other exceptions are to situations where public discussion could negatively impact the body's ability to best serve the public, such as in cases of labor negotiations and pending litigation.
The idea is that in these cases public access could undermine their efforts at getting the best outcome, though in many of these cases certain aspects, like outcome, must still be public.
"By far the biggest reasons to close to the media are for preliminary consideration of charges or allegations against an employee," Anfinson said. "Then there's the attorney-client privilege exception and evaluation of employee performances. Those are the ones that come up most frequently."
"Health data is always going to be private. Community services data, who is a client or not, is always going to be private," Houle said. "So we won't talk about those in open session settings. And if we want to buy a piece of property and are negotiating, it wouldn't work to negotiate if the other side can sit and listen to your deliberations."
"Some of the things school boards can close meetings down for are confidential matters," Clark said. "When you're planning negotiation strategies with union groups, if you're dealing with confidential information. There's very strict guideline for when and for what purpose you can close a meeting."
And to close a meeting, a public body must also explain the statute that allows them to close the meeting.
Travis Grimler is a staff writer for the Pineandlakes Echo Journal weekly newspaper in Pequot Lakes/Pine River. He may be reached at 218-855-5853 or email@example.com.