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Open Meeting Law Supersedes Joint Powers Agreements, Bylaws

Date: January 2017

Joint powers entities occasionally include provisions in their formation or operational documents that conflict with the Minnesota Open Meeting Law, Minnesota Statutes Chapter 13D.

Meetings by Telephone

For example, a joint powers entity (JPE) may want to hold meetings via telephone for convenience, cost and ease of operation. Unfortunately the board’s legal ability to do so is extremely limited by the Open Meeting Law (OML). Under the OML, meetings by telephone are permitted only when an in-person meeting or a meeting via interactive television is not practical or prudent because of a health pandemic or an emergency declared under Minnesota Statutes Chapter 12.1

Although state agencies, boards and commissions have a statute permitting telephone meetings, that convenience is not given to local governments.2 Holding a board meeting via telephone could be a violation of the OML, even if the JPE bylaws otherwise permit it. Meetings by interactive television are permitted by the OML, but only after several additional technical and notice conditions are met.3

Meeting Notices, Board Communication

Meeting notice provisions in joint powers agreements and bylaws should be consistent with the Open Meeting Law. For example, the OML requires that written notice of a special meeting, including the meeting’s purpose, be posted at least three days before the meeting.4 Minnesota Department of Administration has opined that a public body’s discussion is confined to the detailed purpose stated on the notice.5 Agreement or bylaw provisions that permit less than the statutory notice time or allow for adding topics to the special meeting agenda could be problematic.

Provisions regarding board communications should also be consistent with the Open Meeting Law. Minnesota Department of Administration has opined that group e-mail discussions among board members, including providing direction to staff, may be a violation of the OML.6 There is no language in the OML that authorizes board members to take action or vote via e-mail.7

JPEs Formed as Nonprofits

Joint powers entities that have also formed as nonprofit corporations, as provided in Minnesota Statutes Section 465.707, Subdivision 2, remain subject to the OML, even though nonprofit laws may provide for alternative means for meetings, meeting notices and board actions. State law requires that the nonprofit corporation/joint powers entity comply with every law that applies to the participating political subdivisions and possess no greater authority or power than that held by the joint powers entity itself.

When drafting joint powers agreements and bylaws, members should keep in mind that joint powers entities must comply with the Open Meeting Law in the same way as other government entities. Existing joint powers entities are encouraged to review their agreements, bylaws and practices to ensure that they are consistent with the OML.

Learn More

More information about the Open Meeting Law is in “Minnesota Open Meeting Law” found in the Resource Library at MCIT.org/resource/.

1 Minn. Stat. § 13D.021.

2 Minn. Stat. § 13D.015.

3 Minn. Stat. § 13D.02.

4 Minn. Stat. § 13D.04, subd. 2.

5 Minn. Dept. of Admin. Op. 15-002.

6 Minn. Dept. of Admin. Op. 09-020.

7 Id. See generally, Minn. Dept. of Admin. Op. 06-017 (noting that OML does not authorize voting by telephone).

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.