When, How Open Meeting Law Applies to Committees

Questions often arise from MCIT members about whether the Minnesota Open Meeting law (Minn. Stat. Ch. 13D) applies to committees of a local government’s governing body when the committee’s membership consists of less than a quorum of the governing body.

General Application of Open Meeting Law

The Open Meeting Law applies to all meetings of:

• A state agency, board, commission or department when it is required or permitted by law to transact public business in a meeting.
• The governing body of any school district, unorganized territory, county, city, town or other public body.
• A committee, subcommittee, board, department or commission of a public body subject to the law.

In the context of the Open Meeting Law, “meeting” is defined as a meeting between a quorum or more of the members at which members discuss, decide or receive information as a group on issues relating to the official business of that governing body.¹

The OML cannot be circumvented by having serial meetings with less than a quorum of the members.² A violation of law occurs if the process was “designed” to avoid public hearings, to forge a majority in advance of a public hearing or to hide improper influences.³

Therefore, the Open Meeting Law applies to a governing body or a committee, subcommittee, board, department or commission of the governing body containing a quorum or more of the governing body’s members.

The law also applies to a committee, subcommittee, board, department or commission if the group is capable of exercising decision-making powers of a governing body.⁴ The capacity to act on behalf of the governing body is presumed when the members of the group comprise a quorum of the governing body or the governing body has delegated its power to the committee or subcommittee.⁵

OML Considerations for Committees

Providing Recommendations

In Minnesota Daily v. University of Minnesota, 432 N.W.2d 189 (Minn. App. 1988), the Minnesota Court of Appeals determined that an advisory committee is not subject to the OML under the facts and circumstances of that case. See the below discussion of Advisory Opinion 05-014 for more about how the Open Meeting Law applies to advisory committees.

In the Minnesota Daily case:

• The University of Minnesota Senate Consultative Committee, a standing subcommittee of the University Senate, recommended members to serve on the Presidential Search Advisory Committee. The regents approved the committee members.
• The advisory committee provided advice and consultation to the regents on the selection of the university’s president. It assumed an active role in screening applicants and narrowing the field to a short list of finalists.
• The committee’s decisions were subject to review by the regents.
• Staff support and payment of expenses were provided by the regents to the advisory committee.

The university’s newspaper sought injunctive relief, arguing that the committee was a committee of the regents, the governing body of the university and, therefore, subject to the Open Meeting Law.

However, the court held that the committee was not subject to open meeting requirements because the statute focuses on meetings where public business is transacted. The resolution of the case turned on whether the committee meetings were, in effect, deliberations of the regents.

Citing an earlier Minnesota Supreme Court case, the court reiterated that “it is the power to decide, as opposed to the right to recommend, that determines whether one is a member of a governing body.”⁶

The court noted that there were no regents on the committee and, therefore, the meetings did not constitute meetings of the governing body. The court also noted that the committee had no authority to set policy or make the final decision.

The court stated that the committee could not transact public business because that power was vested in the regents and that there were no allegations that the regents adopted the procedure used only to achieve a predetermined result.

Capacity to Act on Behalf of the Board

In the 2007 Advisory Opinion 07-025, the Department of Administration opined that the Open Meeting Law did not apply to a city council’s Free Speech Working Group given the below facts:

• The working group included two members of the city council, which was less than a quorum.
• The working group did not have the ability to make decisions on behalf of the city council; it merely developed and reviewed strategies for addressing free speech concerns.
• Any policy decisions related to the issues before the working group would come from the city council.

The department noted in its opinion that the working group’s purpose was to create a model for how the city could preserve the right to political speech and civic debate during a coming event, and it reported to city council committees every six months and as needed.

However, in Advisory Opinion 05-014, the Department of Administration opined that a standing advisory committee that contained less than a quorum of the board was subject to the OML. In that case, a community hospital board created a standing advisory committee that met regularly and considered matters pending before the board.

• Two of the five hospital board members were members of the committee.
• The committee decided what information should or should not be communicated to the board.
• The board delegated responsibility to the committee to make recommendations to the board.
• The board acted upon those recommendations without much discussion or deliberation.

The department stated that the express language of Minnesota Statutes, Section 13D.01, subdivision 1 requires open meetings for any type of committee transacting public business. The department opined that the standing advisory committee was transacting public business and, therefore, must comply with the OML.

The Department of Administration found this type of conduct consistent with the type of conduct that would be subject to the OML versus the single purpose advisory committee in Minnesota Daily.

Currently Department of Administration opinions are advisory, meaning they are not binding on a court. Also what constitutes a standing committee as defined by the Department of Administration is fact specific.

Presence of a Quorum

The Minnesota Department of Administration determined in a 2019 opinion that a school board did not comply with the OML when a quorum of the board was present at a committee meeting (Advisory Opinion 19-012).

• The committee consisted of three school board members, which was not a quorum.
• The school board routinely provided notice for its regularly scheduled meetings and posted a schedule for its committee meetings.

At an Aug. 29, 2019, committee meeting, a fourth member of the board attended, which resulted in a quorum of the full board being present at the meeting.

The department found that the Aug. 29 meeting was a regularly scheduled, properly noticed committee meeting. However, it opined that because a quorum of the school board was present, the committee meeting also became a meeting of the school board. The school board had not provided notice that a regular or special meeting of the board would occur on that date.

The department noted: “If the quorum of the school board present at the Aug. 29, 2019, meeting took a vote and unanimously agreed to an action, [it] would have bound the entire school board and circumvented the OML, as the public was only provided notice that a committee meeting was taking place on that date.”

¹ Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983).

² Id.

³ Id.; see also Mankato Free Press Co. v City of North Mankato, 563 N.W.2d 291, 295 (Minn. App. 1997).

⁴ Sovereign v. Dunn, 498 N.W.2d 62, 67 (Minn. App. 1993).

⁵ Id.

⁶ Minn. Daily, 432 N.W.2d at 192 (quoting Minn. Educ. Ass’n v. Bennett, 321 N.W.2d 395, 397 (Minn. 1982)).