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Open Meeting Law Applies to SWCDs

Roadside sign says, "Entering Lincoln County Soil and Water Conservation District" placed in tall grass prairieDate: June 2019

The Minnesota Open Meeting Law applies to soil and water conservation districts (SWCDs). As such, many SWCDs have questions about this sometimes complex law. This article addresses the general information SWCDs need to know about the Open Meeting Law.

Open Meeting Law Purpose

The Open Meeting Law (OML) was enacted in 1957. It has evolved through judicial interpretation (lawsuits) and legislative amendments. The purpose of the law is to:

  • prohibit actions being taken at secret meetings where it is impossible for the interested public to become fully informed about a public body’s decision or to detect improper influences.
  • assure the public’s right to be informed.
  • afford the public an opportunity to present its views to the public body.

Open Meeting Law Application

This OML applies to soil and water conservation districts. For the law to apply, a quorum of the body must be present or a subquorum that is delegated decision making authority by the board. A quorum is simply a majority of the board.

If these members discuss, decide or receive information as a group on issues relating to the official business of the body, it is a meeting for OML purposes.

Generally committees and subcommittees of the board are subject to the open meeting law if:

  • members comprise a quorum of the governing body or
  • the governing body has delegated its power to the subcommittee.

The law generally does not apply to conversations among less than a quorum or to letters or other written communication. However, conversations, e-mail or letters among less than a quorum of the public body used to avoid the open meeting requirements or to fashion an agreement in advance of an open meeting may be found to have violated the law, depending on the circumstances.

The Open Meeting Law does not apply to chance or social gatherings of members of the public body. However, a quorum of the body may not, as a group, discuss or receive information on official business in any setting under the guise of a private social gathering. If the board members show up at a chance or social gathering where other members are present, the best advice is not to discuss any issue that will come before the SWCD for a decision.

The law does apply to informational gatherings, such as retreats, executive sessions, public hearings and work sessions. The Open Meeting Law applies to SWCDs regardless of whether action is taken or contemplated. The Supreme Court has held that a gathering of members of a public body for an informational seminar on matters currently facing the body or that might come before the body must be conducted openly.

However, an Attorney General opinion stated that city council attendance at a League of Minnesota Cities training program for city officials did not violate the law if the members did not discuss specific municipal business.      

Authority to Close an Open Meeting

The Legislature has identified reasons for when a meeting may or must be closed.

A meeting may be closed if the following data is to be discussed:

  1. labor negotiation strategy
  2. performance evaluations, unless the employee being evaluated requests the meeting to be open
  3. data protected by the attorney-client privilege
  4. preliminary consideration of the purchase or sale of real or personal property; review of confidential or nonpublic appraisal data; develop or consider offers or counteroffers for the purchase or sale of real or personal property
  5. to receive security briefing and reports; to discuss issues related to security and emergency response procedures; discuss emergency response procedures; discuss security deficiencies in or recommendations regarding public services, infrastructure and facilities (if disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses). Financial issues related to security matters must be discussed and all related financial decisions must be made at an open meeting.

The law provides that any part of a meeting must be closed if the following data is to be discussed:

  1. data identifying alleged victims or reporters of criminal sexual conduct, domestic abuse or maltreatment of minor or vulnerable adults
  2. active investigation data as defined in the Minnesota Government Data Practices Act (MGDPA) or internal affairs data relating to allegations of law enforcement personnel
  3. educational data (Minn. Stat. § 13.32), health data (Minn. Stat. § 13.3805, subd. 1), medical data (Minn. Stat. § 13.384), welfare data (Minn. Stat. § 13.46, subd. 2), mental health data (Minn. Stat. § 13.46, subd. 7), or an individual’s medical records (when governed by Minn. Stat. §§ 144.291-144.298) that is not public under the MGDPA
  4. preliminary consideration of charges against an employee.

Meeting(s) may be closed while the SWCD is considering whether employee disciplinary action is warranted. Once a decision that discipline is warranted is made, future meetings or hearing related to the allegations must be open. It is advisable that the individual who is the subject of the closed session be made aware of the meeting. However this does not provide for the individual’s participation in the meeting. Typically the only way in which the individual may participate is to request the meeting be open to the public.

The statute includes some procedural requirements that must be followed when closing a meeting. All closed meetings (except those closed because of attorney-client privilege) must be electronically recorded. SWCDs should consult with the county attorney or other legal counsel to ensure such requirements are met.

Distribution of Materials at an Open Meeting

The public must have access to materials distributed to the Soil and Water Conservation board for consideration during its meeting. With increased awareness regarding risks associated with the release of private or confidential information, there may be an inclination to close the meeting whenever private or confidential data may be discussed. Meetings cannot be closed simply because private or confidential data will be discussed.

If the meeting is not required or permitted to be closed, private data may be discussed in public without liability or penalty if the disclosure related to a matter within the scope of the SWCD’s authority and is reasonably necessary to conduct the business or agenda item before the SWCD.

The data discussed at the meeting retains its original classification.

Open Meeting Law Penalties

If a court finds a member of the SWCD violated the Open Meeting Law with specific intent to do so, the individual may be fined up to $300 for each violation. The SWCD cannot indemnify the member from these penalties.

If the individual has been found to have intentionally violated the law three or more separate and unrelated times he or she may be removed from office.

The court may order the individual to pay costs and attorney fees, up to $13,000, to the claimant. The SWCD can choose to indemnify the member for these expenses.

MCIT Coverage for Violations of Open Meeting Law Claims

MCIT coverage typically applies when a claim is made alleging that an SWCD supervisor violated the Open Meeting Law. MCIT assigns counsel and pays for the defense of the matter, including attorney fees and other costs associated with defending the claim.

When an SWCD is determined to have violated the Open Meeting Law, the SWCD has the option of indemnifying board members by paying the court’s award of plaintiff’s attorney fees, which can be up to $13,000. In the event the SWCD chooses not to indemnify the individual supervisors named in the case, the plaintiff’s attorney fees must be paid by the said supervisors.

The court can also fine a supervisor up to $300 for each violation of the law. Fines charged to an SWCD supervisor are the responsibility of the supervisor. The SWCD is legally precluded from paying a supervisor’s fine.

Further Questions

More information about the Minnesota Open Meeting Law, including additional details about the requirements for closing meetings and when meetings can be held by interactive television or telephone, are discussed in the MCIT Resource Minnesota Open Meeting Law.

SWCDs are encouraged to contact their county attorney or other legal counsel to discuss any specific Open Meeting Law questions.

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.