Open Meeting Law: Can Board Members Communicate Outside of Open Meetings?

A question often raised under the Minnesota Open Meeting Law (Minn. Stat. Ch. 13D) is to what extent a commissioner or board member can communicate with other board members outside of official meetings.

The OML applies to all meetings of a public body and, in general, meetings of its committees and subcommittees. The law requires most meetings to be open to the public. For the law to apply, a quorum (a majority of the members of the public body) must be present.

The OML generally does not apply to conversations, letters or other communication among less than a quorum of board members. However, courts have recognized that this exception could be used to circumvent the law through serial meetings.¹

Serial Meetings in General

Serial meetings have been described as exchanges between individual members of a public body on a particular topic that are close in time and that collectively involve a quorum or more of the public body.²

Courts have held that a violation of the Open Meeting Law may occur when serial meetings in groups of less than a quorum are conducted for the purpose of avoiding a public hearing or to fashion an agreement on an issue in advance of an open meeting, depending on the facts of the individual case.

For example, a serial meeting could occur when board member A meets with board member B, B meets with board member C, and C meets with board member D on issues relating to the official business of the public body. These could be considered serial meetings and a violation of the law if the members were meeting with each other for the purpose of avoiding a public hearing or to fashion an agreement on an issue in advance of a meeting.³

Serial meetings can also occur through an intermediary.⁴ For example, if a staff member meets with each board member individually and shares the other board members’ views and positions on official business or polls the members on how they will vote on a matter.⁵ This could be a violation of the law if it were determined that the procedure was used to fashion an agreement.

Electronic and Written Communication

Serial meetings can occur through electronic or written communication, including phone conversations, emails, texts and social media.⁶

Forwarding emails could potentially result in a violation. For example, if board member A receives an email from board member B regarding the member’s position on an issue, then A forwards the email to board member C, and the three begin discussing the issue. It could be considered a serial meeting because a quorum is discussing an issue in advance of an open meeting.

Note: No violation of the law occurs when material is distributed to board members by mail, either electronic or printed. But a violation could occur if the board members respond to the information and begin a discussion of the materials.⁷

Members of a public body should also use caution with social media. Because of the interactive nature of social media, a problem may arise if board members have a discussion on social media about an issue before the public body. The discussion would occur outside of an open meeting, even if the social media account is open to the public.

However, social media use by members of a public body does not violate the Open Meeting Law if the use is limited to exchanges with members of the general public.⁸

Risk Management Recommendations

Board members may talk to other board members outside of meetings. But they should be thoughtful and use caution when communicating on matters that may come before the board.

Any discussion or deliberation on issues relating to the official business of the public body should occur during the official meeting.

¹ Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983).
² Minn. Dep’t of Admin., Data Practices, Advisory Op. 10-011 (April 23, 2010).
³ See id.
⁴ See Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 294 (Minn. Ct. App. 1997).
⁵ See Minn. Dep’t of Admin., Data Practices, Advisory Op. 06-017 (May 25, 2006).
⁶ See Minn. Dep’t of Admin., Data Practices, Advisory Op. 17-005 (June 22, 2017).
⁷ See Moberg, 336 N.W.2d at 518-19; Minn. Dep’t of Admin., Data Practices, Advisory Op. 09-020 (Sept. 8, 2009).
⁸ Minn. Stat. § 13D.065.