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Good Faith Is Not a Defense for Open Meeting Law Violations

By Jason Kuboushek; Iverson Reuvers Condon

Date: August 2016

feet standing at crossroads labeled "legal" to the left and "illegal" to the right

Following a six -day trial this spring, a Carver County District Court judge determined four current Victoria City Council members committed a combined total of 38 intentional Minnesota Open Meeting Law violations and ordered $7,800 in personal fines.

The lawsuit was brought by 13 Victoria residents who alleged numerous violations of the Open Meeting Law by city officials in 2013 when the city was in the process of seeking to build a new city hall and public works building. The series of events that served as the basis of the lawsuit involved meetings regarding real estate acquisitions and sales, and contracting for building design and construction.

This case serves as a good reminder for all public officials of the scope of the Open Meeting Law and the responsibility it places upon them. It also highlights penalties that can result from violations of the Open Meeting Law and the high costs for defending these suits—more than $260,000 in legal defense costs.

Open Meeting Law Background

The Open Meeting Law “was enacted to prevent public bodies from dissolving into executive session on important but controversial matters, and to ensure that the public has an opportunity both to detect improper influences and to present its views.”1

As most public officials know, the Open Meeting Law requires that all meetings of the governing body or committees of a public entity be open to the public unless a statutory exception applies.2 A meeting is defined as a gathering of a quorum or more of members of the governing body or committee where the members discuss, decide or receive information on issues relating to the official business of the governing body or committee.

Under this definition, the Open Meeting Law would not apply to informal discussions between a few colleagues or to groups too small to effect a decision of a governing body. Serial meetings with less than a quorum, however, can trigger the Open Meeting Law if they are for the purpose of avoiding public hearings or for forming an agreement on an issue. Serial meetings may occur through either oral or written communication, such as e-mails.

Under the Open Meeting Law, meetings may be closed for only a few specific reasons. For example, meetings may be closed:

  • to evaluate the performance of an individual who is subject to its authority.
  • to determine the asking price for real or personal property sold by the public entity.
  • to develop or consider offers or counteroffers for the purchase or sale of real or personal properties.
  • to discuss litigation or threatened litigation pursuant to the attorney-client privilege.

Before a meeting is closed, however, the public entity “shall state on the record the specific grounds permitting the meeting be closed and describe the subject to be discussed.”3 Also, if the meeting is closed to discuss real or personal property, the public entity must identify on the record the particular real or personal property that is the subject of the closed meeting. Finally, all closed meetings, except those closed pursuant to the attorney-client privilege, must be electronically recorded.

Court Findings

In opposing the allegations, the indi-vidual council members and mayor argued that the Open Meeting Law
was unclear and overly technical. The court rejected this argument and stated: “[T]he defendants profess their ignorance of the OML to a degree this court finds shameful with regard to their duty to the public.”

The court then discussed each of the city council member’s and mayor’s length of time on the council and the training opportunities that were available to the city council and mayor regarding the Open Meeting Law. Judge Cain found being part of the council for at least five years and attending training seminars provided sufficient awareness of the Open Meeting Law and its basic requirements.

Lastly, the court found relying upon the city attorney’s advice was appropriate, but it was not reasonable to believe the city attorney would totally insulate the city council members and mayor from the Open Meeting Law. Rather, the city council members and mayor were also responsible for ensuring that the governing body complied with the Open Meeting Law.

Key Takeaways from Decision

The court decision highlights several areas every county board member, commission member, committee member and staff should know about the Open Meeting law.

  • The responsibility to make sure meetings are properly closed falls upon the governing body members, in addition to staff
    A governing body member’s attendance at a meeting where an Open Meeting Law violation occurs is enough to expose him or her to liability.
  • Ignorance of the law will not excuse an Open Meeting Law violation.
  • Motions to close public meetings must be specific enough to inform the public about what the subject of the closed meeting is, including listing the specific property that will be discussed if applicable.
  • The meeting minutes depicting the motion to close the meeting should match what actually occurred. In other words, the meeting minutes should match the discussion and motion shown on the video of the meeting.
  • All closed meetings, except those closed pursuant to the attorney-client privilege, should be recorded.
  • During closed meetings, the governing body must stick to the subject identified as the reason for closing the meeting. The governing body should not discuss other topics not set forth in the motion to close the meeting.
  • Serial communications on the telephone or through e-mail exchanges can form the basis for an Open Meeting law violation.
  • Committees and subcommittees are subject to the Open Meeting Law.

Although the City of Victoria Open Meeting Law case is only a district court case, it presents several cautionary notes for public officials and staff. The Open Meeting Law can serve as the basis for expensive litigation if public officials and staff fail to follow the basic elements.

MCIT members should review current procedures for noticing and closing meetings and for e-mail communication. If public officials or employees have questions regarding the Open Meeting Law, they should contact an attorney because ignorance of the law will not excuse an Open Meeting Law violation.

1Moberg v. Independent School Dist. No. 281, 336 N.W.2d 510, 517 (Minn. 1983).
2See Minn. Stat. §13D.01, subd. 1-2.
3 See Minn. Stat. § 13D.01, subd. 3.

The information contained in this document is intended for general information purposes only and does not constitute legal or coverage advice on any specific matter.