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HomeMy WebLinkAbout02/17/2009 AGENDA MAPLEWOOD PLANNING COMMISSION Tuesday, February 17, 2009 7:00 PM City Hall Council Chambers 1830 County Road BEast 1. Call to Order 2. Roll Call 3. Approval of Agenda 4. Approval of Minutes a. January 20, 2009 5. Public Hearings a. 7:00 pm: Conditional Use Permit-Mountain of Fire and Miracle Ministries Church, 2020 Rice Street 6. New Business a. City Attorney Discussion-Open Meeting Law 7. Unfinished Business 8. Visitor Presentations 9. Commission Presentations a. Report by Commissioner Hess about the January 26, 2009 City Council Meeting. Items reviewed were the Feed Products CUP for an office building and the Menard's warehouse building. b. Report by Commissioner Martin about the February 9, 2009 City Council Meeting. Items reviewed were the R1 R Code Amendment and the F to R1 R Rezoning Proposals. c. Upcoming City Council Meeting of February 23, 2009. Item scheduled at this time is Second Reading of the R1 R Code Amendment. 10. Staff Presentations 11. Adjournment DRAFT MINUTES OF THE MAPLEWOOD PLANNING COMMISSION 1830 COUNTY ROAD BEAST, MAPLEWOOD, MINNESOTA TUESDAY, JANUARY 20, 2009 I. CALL TO ORDER Chairperson Fischer called the meeting to order at 7:05 p.m. II. ROLL CALL Commissioner Joseph Boeser Vice-Chairperson Tushar Desai Chairperson Lorraine Fischer Commissioner Harland Hess Commissioner Robert Martin Commissioner Gary Pearson Commissioner Dale Trippler Commissioner Joe Walton Commissioner Jeremy Yarwood City Staff Present: Present Absent Present Absent Present Present Present Present Absent Tom Ekstrand. City Planner Mike Martin. Planner III. APPROVAL OF AGENDA Commissioner Trippler moved to approve the amended agenda adding item 9.a.- Report by Commissioner Fischer on the January 12 City Council Meeting and item 9.b.-Staff Report on the February 9 City Council Agenda. Commissioner Boeser seconded The motion passed. IV. APPROVAL OF MINUTES a. January 6, 2009 Ayes - all Commissioner Trippler moved to approve the minutes of January 6, 2009 as submitted. Commissioner Pearson seconded Ayes - Fischer, Martin, Pearson, Trippler, Walton Abstention - Boeser The motion passed. V. PUBLIC HEARING a. 7:00 p.m. - Code Amendment and Property Rezoning Requests: . Code Amendment for the R-1 R, Rural Single-Dwelling Residence District Requirements, with a Name Change to "Rural Conservation District" . Rezoning (Zoning Map Changes) from F, Farm Residence District to R-1 R, Rural Conservation District Planning Commission Minutes of 01-20-09 -2- Planner Tom Ekstrand introduced Jennifer Haskamp of Pulse Land Group. Ms. Haskamp presented the staff report for the requested code amendment and property rezoning. Ms. Haskamp gave a Power Point presentation explaining the need for the interim ordinance to protect the natural resources in south Maplewood until the Comprehensive Plan update is legally adopted. Ms. Haskamp explained that at the last commission meeting commissioners suggested that a moratorium or a comprehensive plan amendment might be done to achieve the same goals of creating an interim ordinance. Ms. Haskamp said she has received a legal opinion from the city attorney on this stating that the city has used the moratorium and an extension of the moratorium and has now exhausted that option. Ms. Haskamp said it would take too much time to do a comprehensive plan amendment or a moratorium. Ms. Haskamp said the interim ordinance will help protect the city legally. Ms. Haskamp reviewed the draft interim ordinance and explained how it will work. Commissioner Walton asked why more than the seven conservation principles are not required to discourage development under Tier III. Ms. Haskamp replied that it would be possible to increase the number of conservation principles, possibly tying them to earned density bonuses. Ms. Haskamp said that it should be recognized what a site can support and whether the principles could be supported on a small lot. Commissioner Boeser suggested removing the example given under the "Tree Preservation" section, since none of the others have examples listed and it does not seem to give additional value or clarification. Commissioner Martin asked if the interim ordinance will eliminate the contradiction between the zoning code and the existing comprehensive plan. Ms. Haskamp responded that this interim ordinance eliminates the contradiction between the two codes because the zoning code will support the land use. The commission discussed increasing the number of conservation principles required. Commissioner Boeser said his understanding was that the conservation principles need to be applied consistently across the entire development, rather than to one lot or one small area. Ms. Haskamp said that language could be added that would clarify that the principles would apply to a particular percentage or portion of a development. Ms. Haskamp said that a paragraph could also be added before Table 44-128 stating that the conservation principles need to predominate throughout the entire development. The public hearing was opened for comments from the public. The following people spoke: Jay Libby, 2591 Carver, said his parents bought his parcel in 1948 and now he is the current owner. Mr. Libby said the proposed changes will devalue his property even more and asked the commission to consider this. Mr. Libby said after holding this land all these years he will now have to jump through hoops and do more things to develop it. Fredrica Musgrave, 1949 Greenbrier Street, said she is a member of the environmental natural resources commission and a publisher of Citizens Reporter. Ms. Musgrave suggested that credits in the ordinance need to be revised so developers do not get credit for land that they cannot develop. Ms. Musgrave also mentioned that when there is development on slopes there is soil destruction that can occur. Ms. Musgrave said the environmental natural resources commission did not have the updated ordinance when they reviewed this document. Ms. Musgrave said she is concerned with who Ms. Haskamp is representing. Planning Commission Minutes of 01-20-09 -3- Paul Schlomka, 2511 Carver Avenue, said he is concerned about high taxes on his property and whether he will be able to afford to stay there. Susan Korf, 1486 Sterling Street, said she has been trying to sell her seven acres and has been unable to and these restrictions will just exacerbate that. Commissioner Trippler suggested that property owners look into dedicating conservation easements as a financial means to lessen their tax burden. Carolyn Peterson, 1801 Gervais Avenue, said she is concerned with losing the rural aspect of south Maplewood. Ms. Peterson said she is not happy with the conservation principles since she believes they make it too easy to destroy the rural aspect of the land. Ms. Peterson also requested the commission consider changing "view" shed to "vista" including it in the ordinance and changing "view" where noted to "vista" throughout the document. Susan Korf again spoke saying most of the people who are interested in keeping south Maplewood rural do not live in the area affected by the rezoning. Planner Mike Martin clarified that the properties along Sterling Street are already zoned R-1 R, so they are not being targeted for rezoning. Ms. Haskamp clarified that the rezoning and interim ordinance will not affect what is now being taxed, but the tax assessor will consider the land use. Ms. Haskamp said the tax assessor will look at the updated comprehensive plan land use when it is finally adopted. Commissioner Boeser asked what the financial benefit would be for dedicating a conservation easement. Ms. Haskamp responded that there is not much financial benefit for dedicating the easement, but the benefit is in the additional lots gained. Mr. Boeser questioned whether the property owners in south Maplewood were in favor of the rural designation or if this now puts them in the position of being bound and they cannot personally afford it. Commissioner Trippler responded that the rural designation was created to try to protect the character of the south Maplewood area. Mr. Trippler said there have been many previous public meetings and that the owners present tonight do have a legitimate concern, but the city as a whole wants to preserve the rural nature for future generations. Chair Fischer asked staff if there were public meeting sign in sheets. Planner Ekstrand responded affirmatively and said that many attending were property owners from the area, but also there were some from other areas attending who were concerned about south Maplewood. Mr. Ekstrand said that up to this time they have heard from those who want to keep the area rural and tonight is the first time they have heard from those with a different opinion. Commissioner Pearson said there have been many public meetings over the past two and one- half years that were very well attended with people from the south Maplewood area. Mr. Pearson said the public meeting comments previously were very supportive of maintaining the rural character of south Maplewood. Mr. Pearson said he understood the financial concerns of the property owners, but these properties have also enjoyed a tax-sheltered status under the farm designation for the past 60 years. Mr. Pearson said if a property owner had wanted to develop their property, the property could have been rezoned. Planning Commission Minutes of 01-20-09 -4- Fran Meyer, 2252 Carver, said he lives in St. Paul but has owned a parcel of land in south Maplewood for 30 years that could have been divided for two lots. Mr. Meyer said he has been paying taxes on this land and has maintained it and asked whether he could be grandfathered in since he cannot expand. Planner Martin said that there is a code provision for lots of record that do not meet a new ordinance's lot standards that would grandfather it in to allow a residence on the property. Mr. Martin said that if this ordinance is adopted, this new ordinance would then apply for a request for a lot division. John Nephew, 628 County Road B East, said he concurred with the discussion that the comments heard previously by the city have been in favor of this proposal, but tonight there are two things being considered: the code amendment and the rezoning. Mr. Nephew suggested that the smaller lots in this area might be considered for a different zoning other than the R-1 R rural district. Ms. Haskamp responded that the rationale for changing the farm designation to R-1 R is that they have been looking at the large geographical area of south Maplewood previously designated as farm or open space in order to apply a conservation designation to the area to keep it rural and consistent with the comprehensive plan. Jay Libby, Carver Avenue, said the people in favor of this are the owners of small lots who want the property owners with large parcels to maintain park land for them. Mr. Libby said he is concerned with the county assessing high taxes and the city saying we don't want development. Mr. Libby questioned why the county and city are not working together. In response to the comments on property tax increases, commissioners responded that there are very different tax rates between taxes paid on an empty lot and taxes paid on a developed lot. There were no further public comments; the public hearing was closed. Commissioner Trippler moved to recommend approval of the amended text in the R-1 R zoning district, with a change to modify the number of conservation principles in Table 44-130.1 to 0, 3, 5, 7, 9, 11, 13 and 15, to reinsert the paragraph on "view shed" and call it "vista shed" corridor preservation, make the other changes that were discussed with the planning commission and environmental natural resources commission including dedicating 50% of open space "permanently", to apply all conservation principles equally to the site, and to delete the example in the last sentence of the Tree Preservation paragraph on page 5. Commissioner Pearson seconded Ayes - Pearson, Trippler, Walton Nays - Boeser, Fischer, Martin The motion failed. Commissioner Boeser moved to recommend approval of the code amendment for the R-1 R, Rural Single-Dwelling Residence District Requirements, with a name change to "Rural Conservation District" with the noted text changes, reinserting the paragraph on "view shed" and calling it "vista shed" corridor preservation, making the other changes that were discussed by the planning commission and environmental natural resources commission including dedicating 50% of open space permanently, applying all conservation principles equally to a site, deleting the example in the last sentence of the Tree Preservation paragraph on page 5, and keeping the conservation principles in Tiers I-III at 0-7. Commissioner Martin seconded Ayes - Boeser, Fischer, Martin, Pearson, Walton Planning Commission Minutes of 01-20-09 -5- Nay - Trippler The motion passed. Commissioner Trippler said he voted nay because he wanted the higher number of conservation principles required, but he is in agreement with the other changes approved in the last motion. Commissioner Trippler moved to recommend approval of the Rezoning (Zoning Map Changes) from F, Farm Residence District to R-1 R, Rural Conservation District, as defined by the attached maps which were received this evening and dated January 6, 2009. Commissioner Pearson seconded The motion passed. Ayes - all It was noted by Planner Ekstrand that this item will go before the city council on February 9. VI. NEW BUSINESS None VII. UNFINISHED BUSINESS None VIII. VISITOR PRESENTATIONS None IX. COMMISSION PRESENTATIONS a. Commissioner Fischer reported on the January 12 city council meeting. b. February 9 City Council Meeting - Commissioner Martin is scheduled. c. January 26 City Council Meeting - Commissioner Hess is scheduled. X. STAFF PRESENTATIONS a. Amendment to Rules of Procedure-Special Meeting Requirements City planner Ekstrand explained a requested revision in the commission's Rules of Procedure changing the special meeting notification to three days notice, instead of the previous two days, in order to match State law. Commissioner Pearson moved approval of the revision in the Rules of Procedure to change the special meeting notification to three days notice instead of the previous two days. Commissioner Trippler seconded The motion passed. Ayes - Boeser, Fischer, Pearson, Trippler, Walton Planning Commission Minutes of 01-20-09 -6- Jennifer Haskamp said she discussed with council member Nephew the option of rezoning some of the smaller parcels south of Carver Avenue to R1 or leaving them as farm designation. Ms. Haskamp said it is not clear if these parcels were intended to be included in the rural density designation based on the city council's recommendation on the comprehensive plan update. Ms. Haskamp explained that the minutes need to be checked from the city council meeting where they considered the comprehensive plan update to see if that area is included in the rural density designation. XI. ADJOURNMENT The meeting was adjourned at 9:40 p.m. MEMORANDUM TO: FROM: SUBJECT: PROJECT: LOCATION: DATE: Chuck Ahl, Acting City Manager Michael Martin, AICP, Planner Conditional Use Permit Church - Mountain of Fire and Miracle Ministries 2020 Rice Street February 9, 2009 INTRODUCTION Project Description Pastor Lekan Litan, representing Mountain of Fire and Miracle Ministries, is proposing to open a church in an existing 13,292 square foot building located at 2020 Rice Street. The existing building on site had previously housed an Abra Autobody business. Request To have the church in this location, Mr. Litan is asking that Maplewood approve a conditional use permit (CUP). The Maplewood City Code requires a CUP for churches and places of worship in any location. BACKGROUND On August 23, 1996, the city council approved the following for this site: 1. A lot split to create the site. 2. A conditional use permit (CUP) for automotive repair. 3. Site, building and landscape plans. 4. Authorize the applicant to request the use of the City of Roseville's water system. DISCUSSION The proposed church meets the city's requirements for a conditional use permit. The church would complete the purchase of the building if its request for a CUP is approved by the city council. Clark Miller, current owner of the building and site, confirmed to city staff that a purchase agreement would be executed when and if a CUP is granted. Mr. Litan has indicated to staff that it would be the church's intention to remodel the interior of the building to better suits its needs. Initially the church intends to use the first floor of the building as a gathering and welcoming space. Services and official programming will be held on the second floor of the building. The applicant intends to provide 180 seats at its services. No exterior or landscaping work is being proposed with this request. The applicant should note that the city will require permits for any remodeling of the existing space. The city will require any remodeling to include meeting handicapped accessibility requirements (including building entrances and bathrooms), occupancy loads and exiting, having sprinklers and a fire alarm system that meet current code requirements. The church would use the space primarily on Sunday mornings but expect that use would occur throughout the entire week. According to Mr. Litan, the church has between 150 and 180 members. Mr. Litan indicated that on a typical Sunday about 140 to 160 members attend the service. The site plan currently shows 59 parking spaces available. City code requires churches to provide a minimum of one space of off-street parking for every four seats provided. If the church provided seats for all 180 of its members to attend a single service the code would require that 45 parking spaces be provided. The applicant should be aware that parking along Rice Street is prohibited and it would be undesirable to have parishioners park in the neighborhood on the Roseville side of Rice Street since it would require crossing a busy street to gain access to the building. The church would be required to constantly monitor its parking to ensure compliance with city code. If the church finds itself in a situation where it cannot continue meeting parking requirements the church would need to consider alternatives such as holding multiple services, establishing a shared parking agreement or seeking a new site. DEPARTMENT REVIEWS Fire Marshal Comments Butch Gervais, the Maplewood Fire Marshal, noted the following conditions: 1. 20' Fire Department Access 2. Fire protection installed per code 3. Alarms installed per code 4. FD Lock box Building Official Comments David Fisher, the Maplewood Building Official, noted the following conditions: 1. Contractor or owner is required to obtain a building permit for all remodeling and the change in occupancy. 2. The owner is required to obtain a Minnesota registered architect for assembly occupancy. 3. Must comply with the Minnesota State Building Code. 4. Verify the type of construction based on the 2006 I BC. 5. Verify the building is fire sprinkled for an assembly occupancy. 6. Verify how the second level is used and the occupant load based on the 20061BC- a second exit may be required or an elevator. 7. Provide accessible parking. 8. Provide address numbers on the building. 9. A Minnesota registered structural engineer is required for any structural changes to the building. 10. Recommend a preconstruction meeting. Police Department Comments Lt. Kevin Rabbett reviewed the proposal and had no significant public safety concerns. He did mention the concern about adequate parking being available. RECOMMENDATIONS Adopt the resolution that approves the conditional use permit for Mountain of Fire and Miracle 2 Ministries to operate a church in the building at 2020 Rice Street. Maplewood bases this permit on the findings required by the code and subject to the following conditions: 1. The proposed church must be started in this location within one year after council approval or the permit shall end. The council may extend this deadline for one year. 2. The owner and the church operators shall ensure that the church space meets all the requirements of the building code as determined by the building official and the fire marshal. In addition, city staff shall determine the maximum capacity of the church upon review of the final floor and building plans. 3. The proposed church must ensure compliance with the city's parking requirements. If the church were to grow in membership making it difficult to provide the required parking the church would be obligated to utilize alternatives such as holding multiple services, establishing a shared parking agreement or seeking a new site. 4. The city council shall review this permit in one year. 3 CITIZEN COMMENTS Staff surveyed the 13 property owners within 500 feet of 2020 Rice Street for their opinions about this proposal. Staff received four replies. Of the four replies, one was for the project, one had no comment and two had comments. In Favor 1. This would be fine with me, a welcome member of our community. (Ziittel, 426 Minnesota Avenue, Roseville) Comments 1. A concern of mine would be for the safety of folks who chose to park on the streets west of Rice Street and needed to cross to the east side. With the absence of a designated crosswalk, I feel such a traverse would be dangerous. I feel that door to door solicitation of viewpoints would be unwelcome/unwanted. (Hockemeyer, 161 Elmer Street, Roseville) 2. The only concern for Schroeder Company is that Miracle Ministries has enough parking places. That there is no parking of their customers in our parking lot. (Schroeder, 2080 Rice Street) No Comments 1. No comment. (Galilee Evangelical Lutheran Church, 145 McCarrons Blvd N, Roseville) 4 REFERENCE INFORMATION SITE DESCRIPTION Site Size: 1.49 acres Existing Use: Unoccupied commercial building and parking lot SURROUNDING LAND USES North: Schroeder Milk South: Single dwelling and Dean's Tavern West: Rice Street and commercial buildings East: Holding pond PLANNING Land Use Plan designation: BC (business commercial) Zoning: BC Conditional Use Permit Ordinance Requirements Section 44-1092(3) of the city code requires a CUP for churches and for places of worship in any zoning district. Findings for CUP approval Section 44-1097(a) states that the city council must base approval of a CUP on nine standards for approval. Refer to the findings in the attached resolution. Application Date The city received the complete application for a conditional use permit on January 23, 2009. The 60-day review deadline for a decision is March 24, 2009. As stated in Minnesota State Statute 15.99, the city is allowed to take an additional 60 days if necessary in order to complete the review of the application. P: ISEC1812020RiceStreetl2020Rice _pc _ 020609. doc Attachments: 1. Location Map 2. Zoning Map 3. Future Land Use Map 4. Site Plan 5. Applicant's Letter 6. Conditional Use Permit Resolution 5 Attachment 1 Request for Conditional Use Permit to operate a Church 2020 Rice Street 20 0 Ri 1958 t Figure One-Location Map City of Maplewood January 26, 2009 NORTH Attachment 2 Request for Conditional Use Permit to operate a Church 2020 Rice Street t Figure Two - Zoning Map City of Maplewood January 26, 2009 NORTH Attachment 3 Request for Conditional Use Permit to operate a Church 2020 Rice Street 2 20 FLU - usi t Figure Three - Land Use Map City of Maplewood January 26, 2009 NORTH ~. -~ - - . It.. ~ ~ " Ir, I , i I: ~+ , I , , I , Attachment 4 ,-------- , i --~ ' .;-:.;..;~ .:..:...;.l---t - t- -f -,..--_......._~w-'.!:!r!.!:!!l"!.;~...a__ .,..___._._...__ ~_._ .,..__._ ___... ......;,....;_ _..,......;....;.;._.. "-"._';"'-.___~__ I I ': , I -.------------: --~-~~I-. , u't_ -----..-----i , , ! , I slY << . . ~- . , SITE PLAN {) N Attachment 5 MOUNTAIN FIRE MINISTRI ST. PAUL BRANCH MINNESOTA 2375 University Ave. Panl, MN 55114 651-274-9224' 651-917-0737' nnaemeka_uchegbu@yahoo.com The City ofMaplewoQd To Whom It May Conce1'!1: Dear Madam/Sir 1 write to you as the Pastor of the Mountain of Fire and Miracles Ministry, Saint Paul Minnesotacoltcerning the property at 2020 Rice Street, Mapiewood, Attached to this note is the application for Conditional Gse Permit to use the aforementioned property as a church. Our church is in the process of acquiring the property because of the following reasons. 1. 3. 4. 5. 6. 7. 8. 9. 10, it is a concrete building that is virtually as good as soundproof '""' tv, 14 {L . has ample parking - it willlt least 85 cars has more land that could be filled and turned into more parking if need be has a 2nd level to serve as multipurpose llse beside the main edifice has enough office space and other amenities for our purposes sewer and water are already connected there are few residences within 500 feet of the building easy access to highways needs no significant physical alteration members who live in Maplewood and Little Canada say the cities are excellently managed In the Hght oftheabove, I do hope that the respectable body that will be deciding on the permit weare requesting will favorably approve our request. Waiting earnestly to hear from you, I wish you happy Thanksgiving weekend and Merry Christmas in advance, Pastor MF:V1 Ministries Worldwice Attachment 6 CONDITIONAL USE PERMIT RESOLUTION WHEREAS, Pastor Lekan Litan, representing Mountain of Fire and Miracle Ministries, is requesting that Maplewood approve a conditional use permit for a church to operate in an existing building. WHEREAS, this permit applies to the property at 2020 Rice Street. The legal description is: SECTION 18 TOWN 29 RANGE 22 N 142 FT OF W 455.6 FT OF PART OF W 1/2 OF NW 1/4 LYING S OF A LINE RUN FROM A PT ON WL OF SD W 1/2 DIST 525 FT N FROM NW COR OF S 675 FT OF SD W 1/2 TO A PT ON EL OF SD W 1/2 DIST 1214 FT N OF SE COR OF SD W 1/2 OF NW 1/4. (PIN 18-29-22-23-0016) WHEREAS, the history of this conditional use permit is as follows: 1. On February 17, 2009, the planning commission held a public hearing. The city staff published a notice in the paper and sent notices to the surrounding property owners. The planning commission gave everyone at the hearing a chance to speak and present written statements. The commission also considered reports and recommendations of the city staff. The planning commission recommended that the city council this permit. 2. On , the city council discussed this request. The council gave everyone at the meeting a chance to speak and present written statements. The council also considered reports and recommendations of the city staff and planning commission. NOW, THEREFORE, BE IT RESOLVED that the council conditional use permit. The city approves this permit because: the above-described 1. The use would be located, designed, maintained, constructed and operated to be in conformity with Maplewood's Comprehensive Plan and Code of Ordinances. 2. The use would not change the existing or planned character of the surrounding area. 3. The use would not depreciate property values. 4. The use would not involve any activity, process, materials, equipment or methods of operation that would be dangerous, hazardous, detrimental, disturbing or cause a nuisance to any person or property, because of excessive noise, glare, smoke, dust, odor, fumes, water or air pollution, drainage, water run-off, vibration, general unsightliness, electrical interference or other nuisances. 5. The use would generate only minimal vehicular traffic on local streets and would not create traffic congestion or unsafe access on existing or proposed streets. 6. The use would be served by adequate public facilities and services, including streets, police and fire protection, drainage structures, water and sewer systems, schools and parks. 7. The use would not create excessive additional costs for public facilities or services. 8. The use would maximize the preservation of and incorporate the site's natural and scenic features into the development design. 9. The use would cause minimal adverse environmental effects. Approval is subject to the following conditions: 1. The proposed church must be started in this location within one year after council approval or the permit shall end. The council may extend this deadline for one year. 2. The owner and the church operators shall ensure that the church space meets all the requirements of the building code as determined by the building official and the fire marshal. In addition, city staff shall determine the maximum capacity of the church upon review of the final floor and building plans. 3. The proposed church must ensure compliance with the city's parking requirements. If the church were to grow in membership making it difficult to provide the required parking the church would be obligated to utilize alternatives such as holding multiple services, establishing a shared parking agreement or seeking a new site. 4. The city council shall review this permit in one year. The Maplewood City Council adopted this resolution on ,2009. 12 MEMORANDUM TO: FROM: SUBJECT: DATE: Planning Commission Shann Finwall, AICP, Environmental Planner Open Meeting Law Discussion February 11, 2009 for the February 17 Planning Commission Meeting The Minnesota Open Meeting Law (Minnesota Statutes, section 130) requires that meetings of governmental bodies generally be open to the public. The Minnesota Supreme Court has articulated three purposes of the law: 1. Prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed about a public board's decision or to detect improper influences. 2. To assure the public's right to be informed. 3. To afford the public an opportunity to present its views to the public body. Alan Kantrud, city attorney, will be present at the February 17 Planning Commission meeting to summarize the Minnesota Open Meeting Law and how it impacts the commission. Attachments: 1. Minnesota House of Representatives Open Meeting Law Information Brief 2. Minnesota Open Meeting Law 3. Alan Kantrud Open Meeting Law White Sheet (2-3-09) A-ItQGhmer1t 1 ~..."""""" ~-, 0'" - - -"ttrf!tF~'Ji. Research Department "''M;....._ta;U,'''...''''..",u.,''"'"..."t.o,ti"..s...". ~~~~~di~lbi~~~~J,1ll~(':-4 600 State Office Building St. Paul, MN 55155 Deborah A. Dyson, Legislative Analyst 651-296-829I Revised~3' Minnesota Open Meeting Law iliiim.Mm~i!!l,~i.inl!rfia,'equires that meetings of governmental bodies generally be open to the public. The Minnesota Supreme Court has articulated three purposes of the law: . To prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed about a public board's decisions or to detect improper influences . To assure the public's right to be informed . To afford the public an opportunity to present its views to the public body' This information brief discusses the groups and types of meetings covered by the open meeting law, and then reviews the requirements of and exceptions to the law and the penalties for its violation. Contents Groups and Meetings Governed by the Open Meeting Law ...................................2 Requirements ofthe Open Meeting Law.................................................................5 Exceptions to the Open Meeting Law......................................................................7 Penalties... ........... ............... ............ .................................................. ...... ................ I I Advice .................................................................................................................... 12 1 Minn. Stat. ch. 13D (recoded from Minn. Stat. ~ 471.705 in 2000). The Minnesota Open Meeting Law was originally enacted in Laws 1957, chapter 773, section 1. , Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002) (citing St. Cloud Newspapers, Inc. v. District 742 Community Schoois, 332 N.W.2d 1, 4 (Minn. 1983)). While the courts consistently say that the open meeting law is to afford the public an opportunity to present its views to the public body, there is no general right for members of the public to speak at a meeting. Some statutes, and perhaps some home rule charters, specify that a hearing on a particular matter must be held at which anyone who wishes to address the public body may do so. See, e.g., Minn. Stat. ~ 117.0412, subd. 2. Copies of this publication may be obtained by calling 651-296-6753. This document can be made available in alternative formats for people with disabilities by calling 651-296-6753 or the Minnesota State Relay Service at 711 or 1-800-627-3529 (TTY) , Many House Research Department publications are also available on the Internet at: www.house.mn/hrd/hrd.htm. House Research Departmeut Minnesota Open Meeting Law Revised: November 2008 Page 2 Groups and Meetings Governed by the Open Meeting Law The law applies to all levels of state and local government. The open meeting law applies to: . 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; and . the governing body or a committee of a statewide or local public pension plan.' "Public body" is not defined but the Minnesota Supreme Court has stated that "[i]n common understanding, 'public body' is possibly the broadest expression for the category of governmental entities that perform functions for the public benefit.''' In determining whether the open meeting law applies to a particular entity, one should look at all ofthc entity's charactcristics. For example, in a 1998 case, the Minnesota Supreme Court held that because the statute authorizing creation of a municipal power agency authorized an agency to conduct its affairs as a private corporation, it could hold closed meetings.' The court held so notwithstanding the statute that provides for municipal power agencies to be political subdivisions of the state.' The open meeting law and the Government Data Practices Act apply to the University of Minnesota Board of Regents, and the application of these laws to the university does not violate the university's constitutional autonomy.' 'Minn. Stat. ~ 13D.OI, subd. 1. 4 Star Tribune Co. v. University of Minnesota Board of Regents, 683 N.W.2d 274, 280 (Minn. 2004). , Southern Minn. Mun. Power Agency v. Boyne, 578 N.W.2d 362, 364 (Minn. 1998) (citing Minn. Stat. ~ 453.54, subd. 21, and discussing the factors that distinguish a public corporation from a private corporation). 'Minn. Stat. ~ 453.53, subd. I, ~ (I) (The agency agreement shall state: "(I) That the municipal power agency is created and incorporated. .. as a municipal corporation and a political subdivision ofthe state, to exercise thereunder a part of the sovereign powers of the state;"). . , Star Tribune Co., 683 N.W.2d 274. In 2002, Mark Yudofresigned from the presidency of the University of Minnesota. When finalists for the position had been selected but not announced, the Board of Regents closed a meeting to interview them, ensuring their privacy. The university asserted that its constitutional autonomy meant it was not subject to these laws. A number of newspapers sued, claiming that the university is subject to the open meeting law and data practices act, and that it violated both laws. The district court and court of appeals agreed with the newspapers, and the state supreme court affmned those decisions. House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 3 The law generally applies to nonprofit corporations created by governmental entities. The list of groups covered by the open meeting law does not refer to nonprofit corporations created by a governmental entity. However, the law creating a specific public nonprofit corporation may specify that it is subject to the open meeting law.' In addition, corporations created by political subdivisions are clearly subject to the open meeting law.' Gatherings ofless than a quorum of a public body are not subject to the law;,a "meeting" is held when the group is capable of exercising decision-making powers. The Minnesota Supreme Court has held that the open meeting law applies only to a quorum or more of members ofthe govenring body or a committee, subcommittee, board, department, or commission of the governing body.1O Serial meetings in groups ofless than a quorum held in order to avoid open meeting law requirements may also be found to be a violation, depending on the facts of the case.ll A public body subject to the law should be cautious about using e-mail to communicate with other members ofthe body. Although the statute does not specifically address the use of e-mail, it is likely that the court would analyze use of e-mail in the same way as it has telephone conversations and letters." That is, communication about official business through telephone conversa~ions or letters by a quorum of a public body subject to the law would violate the law. Serial communication through telephone conversations or letters by less than a quorum with the intent to avoid a public hearing or to come to an agreement on an issue relating to official business could also violate the law. In a 1993 case, the Minnesota Court of Appeals held that the open meeting law was not violated when two of five city council mell).bers attended private mediation sessions related to city 8 E.g., Minn. Stat. ~~ 62Q.03, subd. 6 (Minnesota Risk Adjustment Association); 1160.03, subd. 5 (Minnesota Technology, Inc.); 116V.OI, subd. 10 (Agricultural Utilization Research Institute); 116S.02, subds. 6 and 7 (Minnesota Business Finance, Inc.); l24D.385, subd. 4 (Minnesota Commission on National and Community Service may create a nonprofit b\lt it is subject to the open meeting law); 128C.22 (State High School League); and Laws 1990, ch. 535, ~ 2, subd. 6 (Lake Superior Center Authority). 'Minn. Stat. ~ 465.719, subd. 9 (enacted by Laws 2000, ch. 455, art. 1, * 2, subd. 9). A 1986 attorney general opinion stated that the open meeting law did not apply to nonprofit corporations created by political subdivisions. Op. Att'y Gen. 92a-30, Ian. 29, 1986. The 1999 Legislature established a task force to recommend legislation in 2000, governing corporations created by political subdivisions. Laws 1999, ch. 186. Among other things, the 2000 legislation addressed the issue of application ofthe open meeting law, stating that the law applied and a corporation created by a political subdivision cannot be exempted from it. 10 Mobergv. Independent School Dist. No. 281, 336 N.W.2d 510 (Minn. 1983). 11ld at 518; see also Mankato Free Press Co. v. City a/North Mankato, 563 N.W.2d 291, 295 (Minn. App. 1997). On remand to the district court for a factual fmding on whether the city used serial interviews to avoid the open meeting law, the trial court found, and the court of appeals affirmed, that the serial meeiings were not held to avoid the law. Mankato Free Press Co. v. City a/North Mankato, 1998 WL 865714 (Minn. App. 1998) (lUlpublished opinion). "Moberg, 336 N.W.2d at 518. The Commissioner of Administration stated in a July 9, 2008, opinion that an e-mail sent to all members of a city council was effectively "printed material" that should be available to members of the public and also suggested that the legislature revise the statute to recognize the use of electronic and other types of communications. Minn. Dept. of Admin. Advisory Op. 08-15. House Research Department Minnesola Open Meeting Law Revised: November 2008 Page 4 business. The court determined that the two council members did not constitute a committee or subcommittee ofthe council because the group was not capable of exercising decision-making powers." The law applies to informational meetings. The Minnesota Supreme Court has held that the open meeting law applies to all gatherings of members of a governing body, regardless of whether or not action is taken or contemplated. Thus, a gathering of members of a public body for an informational seminar on matters currently facing the body or that might comc bcforc the body must bc conducted openly.l' However, a 1975 attorney general opinion stated that city council attendance at a League of Minnesota Cities training program for city officials did not violate the open meeting law if the members did not discuss specific municipal business. 15 Under a 2007 law, it appears that informational meetings of the Legislative-Citizen Commission on Minnesota Resources may be closed." The law does not cover chance or social gatherings. The open meeting law does not apply to chance or social gatherings of members ofa public body.17 However, a quorum of a public body may not, as a group, discuss or receive information on official business in any setting under the guise of a private social gathering.18 The law does not apply to certain types of advisory groups. The Minnesota Court of Appeals has held that the open meeting law does not apply to certain types of advisory groups. l' In that case, a presidential search advisory committee to the University of Minnesota Board of Regents was held not to be a committee of the governing body for purposes of the open meeting l\lw. In reaching its holding, the court pointed out that no regents were on the search committee and that the committee had no power to set policy or make a final decision. It is not clear if a court would reach the same result if members of the governing body were also on the advisory committee. Depending on the number of members of the governing body involved and on the form of the delegation of authority from the governing 13 Sovereign v. Dunn, 498 N.W.2d 62 (Minn. App. 1993). I'St. Cloud Newspapers, Inc. v. District 742 Cmty. Schools, 332 N.W.2d I (Minn. 1983). IS Gp. Att'y Gen. 63a-5, Feb. 5, 1975. 16 Minn. Stat. !i 116P.08, subd. 5 ("(a) Meetings oflbe commission, committees or subcommittees ofthe commission, technical advisory committees, and peer review panels must be open to the public. The commission shall attempt to meet throughout various regions of the state during each biennium. For purposes of this subdivision, a meeting occurs when a quorum is present and action is taken regarding a matter within the jurisdiction of the commission, a committee or subcommittee of the commission, a technical advisory committee, or a peer review panel. (b) For legislative members oflbe commission, enforcement of this subdivision is governed by section 3.055, subdivision 2. For nonlegislative members of the commission, enforcement of this subdivision is governed by section 13D.06, subdivisions I and 2." (emphasis added)). 17 St. Cloud Newspapers, Inc., 332 N.W.2d at 7. 18 Moberg, 336N.W.2d at 518. I' The Minnesota Daily v. University of Minnesota, 432 N.W.2d 189 (Miun. App. 1988). House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 5 body to the members, a court might consider the advisory committee to be a committee of the governing body. A separate law applies to the legislature. In I990, the legislature passed a law separate from the open meeting law that requires all legislative meetings be open to the public." The law applies to House and Senate floor sessions and to meetings of committees, subcommittees, conference committees, and legislative commissions. For purposes of this law, a meeting occurs when a quorum is present and action is taken regarding a matter within the jurisdiction ofthe group. Each house of the legislature must adopt rules to implement these requirements. Remedies provided under these rules are the exclusive means of enforcing this law. Requirements of the Open Meeting Law The primary requirement ofthe open meeting law is that meetings be open to the public. The law also requires that votes in open meetings be recorded in a journal and that the journal be open to the public. The vote of each member must be recorded on appropriations of money, except for payments of judgments and claims and amounts fixed by statute.21 A straw ballot to narrow the list of candidates for city administrator and not made public was held to be a secret vote in violation of the open meeting law." Open meetings must be held in a public place within the borders of the public body." Meetings may be held by interactive television if specified conditions are met to ensure openness and accessibility for those who wish to attend." Specific agencies have broader authority to hold meetings by telephone conference call or other electronic means as long as. specified conditions are met to ensure openness and accessibility for those who wish to attend. In addition, a meeting of any public body may be conducted by telephone or other electronic means if a health pandemic or other emergency makes meeting in person impractical or imprudent and all ofthe same conditions as for other meetings held by telephone conference call or other electronic means are met, unless unfeasible due to the pandemic or emergency. In general, those conditions include the following: "Minn. Stat. ~ 3.055 (added by Laws 1990, ch. 608, art. 6, ~ 1). 21 Minn. Stat. ~ 13D.Ol, subds. 4 and 5. " Mankato Free Press Co., 563 N.W.2d at 295-96. " Quast v. Knutson, 150 N.W.2d 199, 200 (Minn. 1967)(school board meeting held 20 miles outside the jurisdiction ofthe school board at a private office did not comply with opeu meeting law; consolidation proceedings were fatally defective because the resolution by which the proceedings were initiated was not adopted at a public meeting as required by law). "Minn. Stat. ~ 13D.02. See also Minn. Stat. ~ 471.59, subd. 2 (joint powers board for educational purposes). House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 6 . All members ofthe body can hear one another and can hear all discussion and testimony . Members ofthe public at the regular meeting location can hear all discussion, testimony, and votes . At least one member ofthe body, chieflegal counsel, or chief administrative officer is present at the regular meeting location . All votes are conducted by roll call . The public body must allow a person to monitor the meeting electronically from another location. The body may require the person to pay for any documented additional costs the body incurs as a result of the additional connection . The public body must give notice of the regular meeting location, of the fact that some members may participate by telephone or other electronic means, and of the right of the public to monitor the meeting from another location" The law requires public bodies to give notice of their meetings. In 1974, the Minnesota Supreme Court held that failure to give notice of a meeting is a violation of the open meeting law." The court has also held that it is a violation of the open meeting law to condu~t business before the time publicly announced for a meeting." In I987, the legislature spelled out the notice requirements in statute for regular, special, emergency, and closed meetings. BI1~JJilim~l:!,ttlll1mW~1ii\1!ImllflifllGi.Wili1!f. ''''''''''''''''''''''''''''''''''~;''''''~~'''=''.....a''',,,,s..n~'"'''I'~a.',_'''--s''.'') . -;;.l~v\;ip-,-~e;Houtl1\;tS".OIf,1t!e'5,u;'tiJ!,(;&~.t.,,,..,~;!!,_~:,l'IoJ~,{~!'~~:"~~'9'.'r<g:!t'!\(~--A'"G~1'1ili\i:;l:e ,F . ~i~Jl.V!!.~'!lt.~S.<<~q&"!!fl\\ll~iJ]~il1i~m~~~~Ili!h.\~L~W~l:;m"'--~~I_m~~1 '"~~;>l''' ' ' ',''''C ,. =" "Minn. Stat. ~~ t3D.021 (bealth pandemic, other emergency); 35.0661 (Board of Animat Health during restricted travel for animal health reasons); 41A.0235 (Minnesota Agricultural and Economic Development Board); 41B.026 (Rural Fiuance Agency); 1161.68, subd. 5 (Small Business Development Center Advisory Board); 116L.03, snbd. 8 (Minnesota Jobs Skills Partnership Board); t t6L.665, subd. 2a (Governor's Workforce Development Council); 116M.15, subd. 5 (Urban Initiative Board); 116U.25 (Explore Minnesota Tourism Council); 129C.I05 (Perpich Center for Arts Edncation); 248.10 (Rehabilitation Council for the Blind); 256.482, subd. 5b (Minnesota State Council on Disability); 256.975, subd. 2a. (Minnesota Board on Aging); 256C.28, subd. 7 (Commission of Deaf, Deaf-Blind, and Hard of Hearing Minnesotans); 268A.02, subd. 3 (State Rehabilitation Council and Statewide Independent Living Council); 326B.32, subd. 7 (Board of Electricity); 326B.435, subd. 7 (Board of Plumbing); 341.26 (Combative Sports Commission); 462A.041 (Minnesota Housing Finance Agency). "Sullivan V. Credit River Township, 217 N.W.2d 502 (1974). "Merzv. Leitch, 342 N.W.2d 141,145 (Minn. 1984). 28 Minn. Stat. ~ 13D.04, subd. 1 (~ 13D.04, previously ~ 471.705, subd. Ie, was added by Laws 1987, ch. 313, Pl. "Minn. Stat. ~ 13D.04, subd. 2; Rupp V. Mayasich, 533 N.W.2d 893 (Minn. App. 1995) (bulletin board must be reasonably accessible to the public). A February 3, 2004, advisory opinion by the Commissioner of House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 7 · Make good faith efforts to notify news media that have filed written requests (with telephone numbers) for notice of emergency meetings (special meetings called because of circumstances that require immediate consideration)" The same notice requirements apply to closed meetings.3) For state agencies, absent any other specific law governing notice, publication requirements can be satisfied by pilblishing notice in the State Register." The law requires relevant materials to be publicly available. The open meeting law requires that for open meetings, at least one copy of any printed material prepared by the public body and distributed or available to all members of the public body also be available in the meeting room for inspection by the public. This requirement does not apply to materials that are classified as other than public under the Government Data Practices Act." Exceptions to the Open Meeting Law A closed meeting, except one closed under the attorney-client privilege, must be electronically recorded at the expense of the public body. Unless otherwise provided by law, the recordings must be preserved for at least three years after the date of the meeting." The law does not apply to state agency disciplinary hearings. The open meeting law does not apply to any state agency, board, or commission when exercising quasi-judicial functions involving'disciplinary hearings." Certain meetings involving employee evaluation or discipline must be closed. A public body must close meetings for preliminary consideration of allegations or charges against an individual subject to its authority." If the members of the public body conclude that discipline may be warranted as a result ofthose charges, further meetings or hearings relating to Administration stated that a public body's actions at a special meeting are limited to those topics included in the notice of special meeting. Minnesota Depa_ent of Administration Advisory Opinion 04-004. " Minn. Stat. ~ 13D.04, subd. 3. ]J Minn. Stat. ~ 13D.04, subd. 5. 32 Minn. Stat. ~ 13D.04, subd. 6. " Minn. Stat. ~ 13D.OI, subd. 6. "Minn. Stat. ~ 13D.05, subd. I, cl. (d). " Minn. Stat. ~ 13D.Ol, subd. 2 (2); see also Zahavy v. University of Minnesota, 544 N.W.2d 32, 41-42 (Minn. App. 1996). "Minn. Stat. ~ 13D.05, subd. 2 (b). House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 8 the charges must be open. Meetings must also be open at the request of the individual who is the subject of the meeting. Statutes other than the open meeting law may permit or require closed meetings for certain local governmental bodies to conduct specific kinds of disciplinary hearings. For example, school board hearings held to discharge or demote a teacher are private unless the affected teacher wants a public hearing." A public body may close a meeting to evaluate the performance of an individual who is subject to its authority.38 Before closing a meeting, the public body must identify the individual to be evaluated. The public body must summarize the conclusions ofthe evaluation at its next open meeting. An evaluation meeting must be open at the request of the subject of the meeting. A meeting must be closed ifan individual's medical records governed by Minnesota Statutes, section 144.291 to 144.298, are discussed." A meeting may be closed to discuss labor negotiations. The open meeting law permits a public body to hold a closed meeting to discuss strategy and proposals for labor negotiations conducted under the Public Employment Labor Relations Act.40 The statute specifies procedures for tape-recording of these meetings, and for the recordings to become public when negotiations are completed." Another law permits the Commissioner of the Bureau of Mediation Services to close negotiations and mediation sessions between public employers and public employees. These negotiations are public meetings, unless the commissioner closes them." The law permits closed meetings. based on a limited attorney-client privilege. In 1976, the Minnesota Supreme Court held that there is a limited exception, based on the attorney-client privilege, for meetings to discuss strategy for threatened or pending litigation." In 1990, the legislature added the attorney-client exception to the open meeting law." Although the statute is not limited, the court has since held that the scope of the exception remains limited in relation to the open meeting law." " Minn. Stat. ~ 122AAI, subd. 9. 38 Minn. Stat. ~ 13D.05, subd. 3(a). "Minn. Stat. ~ 13D.05, subd. 2. 40 Minn. Stat. ~ 13D.03, subd. 1. 41 Minn. Stat. ~ 13D.03, subd. 2. 42 Minn. Stat. ~ 179A.J4, subd. 3. " Minneapolis Star & Tribune CO. V. Housing & RedevelopmentAuth., 251 N.W.2d 620, 626 (1976). 44 Minn. Stat. ~ 13D.05, subd. 3(b) (added by Laws 1990, ch. 550 ~ 2). "Star Tribune V. Board of Ed, Special School Dist. No.1, 507 N.W.2d 869 (Minn. App. 1993) review denied (Minn. Dec. 22, 1993). The court of appeals did not accept the argument that the statutory exception encompassed the full attorney-client privilege because that would result in the exception swallowing the rule in favor of open meetings. In 2002, the Minnesota Supreme Court restated that the attorney-client privilege exception only applies House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 9 The attorney-client privilege exception does not apply to a mere request for general legal advice. Nor does it apply when a governing body seeks to discuss with its attorney the strengths and weaknesses of a proposed legislative enactment (like a city ordinance) that may lead to future lawsuits because that can be viewed as general legal advice. Furthermore, discussion of proposed legislation is just the sort of discussion that should be public." In order to close a meeting under the attorney-client privilege exception, the governing body must give a particularized statement describing the subject to be discussed. A general statement that the meeting is being closed to discuss pending or threatened litigation is not sufficient." A meeting may be closed to address certain security issues. If disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses, a meeting may be closed to: . receive security briefings and reports, . discuss issues related to security systems, . discuss emergency response procedures, and · discuss security deficiencies in or recommendations regarding public services, infrastructure, and facilities. Before closing a meeting, the public body must refer to the facilities, systems, procedures, services, or infrastructures to be considered during the closed meeting. A closed meeting must be tape-recorded at the expense of the governing body, and the recording must be preserved for at least four years. Financial issues related to security matters must be discussed and all related financial decisions must be made at an open meeting." when the purposes for the exception outweigh the purposes ofthe open meeting law. In that case, the city council was threatened with a lawsuit if it did not grant a request. The court found that the threat of a lawsuit did not warrant closing the meeting. Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) (en bane). Cf Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435 (Minn. App. 2005) (applying analysis of StarTribune and Prior Lake American, fmding threats were sufficiently specific and imminent that confidential consultation with legal counsel appointed by city's insurer to discnss defense strategy or reconciliation to address a threatened lawsuit justified closing the meeting). " Northwest Publications, Inc. v. City of St. Paul, 435 N.W.2d 64, 68 (Minn. App. 1989); Star Tribune, 507 N.W.2d at 872. 47 The Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. App. 2004). 4. Minn. Stat. ~ 13D.05, subd. 3. House Research Departmeut Minnesota Open Meeting Law Revised: November 2008 Page 10 A meeting may be closed to discnss certain issnes relating to government property sales or purchases. A public body may close a meeting to: . determine the asking price for real or personal property to be sold by the government entity; . review confidential or nonpublic appraisal data; and . develop or consider offers or counteroffers for the purchase or sale of real or personal property . Before holding a closed meeting, the public body must identify on the record the particular property that is the subject of the closed meeting. The proceedings must be tape-recorded at the expense of the public body. The recording must be preserved for eight years after the date of the meeting and made available to the public after all property discussed at the meeting has been purchased or sold or the governing body has abandoned the purchase or sale. The property that is the subject of the closed meeting must be specifically identified on the tape. A list of members and all other persons present at the closed meeting must be made available to the public after the closed meeting. If an action is brought claiming that public business other than discussions allowed IInder this exception was transacted at a closed meeting held during the time when the tape is not available to the public, the court would review the recording of the meeting in camera and either dismiss the action if the court fmds no violation, or permit use of the recording at trial (subject to protective orders) if the court fmds there is a violation." An agreement reached that is based on an offer considered at a closed meeting is contingent on approval ofthe public body at an qpen meeting. The actual purchase or sale must be approved at an open meeting after the notice period required by statute or the governing body's internal procedures, and the purchase price or sale price is public data. 50 There is a narrow exception for certain meetings of public hospital boards. Boards of public hospitals and certain health organizations may close meetings to discuss competitive market activities and contracts.'1 On-site inspections by town board members are not subject to the law. The law does not apply to a gathering of town board members to perform on-site inspections, if the town has no employees or other staff able to perform the inspections and the town board is acting essentially in a staff capacity. The town board must make good faith efforts to provide notice of the inspections to the media that have filed a written request, including a telephone "Minn. Stat. ~ 13D.05, subd. 3, referring to ~ 13D.03, subd. 3. 50 Minn. Stat. ~ 13D.05, subd. 3. Property appraisal data covered by this law is described in Minnesota Statutes, section 13.44, subdivision 3. 'I Minn. Stat. ~ 144.58t, subds. 4 and 5. House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 11 number, for notice. Notice must be by telephone or by any other method used to notify the members of the public body." The law does not apply to meetings of the Commissioner of Corrections." The law specifies how it relates to the Government Data Practices Act. Except as specifically provided, public meetings may not be closed to discuss data that are not public data under the Government Data Practices Act." Data that are not public may be discussed at an open meeting without liability, if the matter discussed is within the public body's authority and if it is reasonably necessary to conduct the business before the public body." A portion of a meeting must be closed ifthe following data are discussed: . Data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults" . Active investigative data collected by a law enforcement agency, or internal affairs data relating to alleged misconduct by law enforcement personnel" . Certain types of educational, health, medical, welfare, or mental health data that are not p\lblic data" Penalties The open meeting law provides a civil penalty of up to $300 for intentional violation." A person who is found to have intentionally. violated the law in three or more legal actions involving the same governmental body forfeits the right to serve on that body for a time equal to the term the person was serving. The Minnesota Supreme Court has held that this removal provision is constitutional only if the conduct constitutes malfeasance or nonfeasance and provided that the violations occurred after the person had a reasonable amount of time to learn the responsibilities of office." "Mino. Stat. ~ 366.oI, subd. II. 53 Minn. Stat. ~ 13D.OI, subd. 2 (1). This exception does not make sense. Until 1982, the exception was for meetings of the corrections board-a multimember body. A 1983 instruction directed the revisor of statutes to change "corrections board" to "commissioner of corrections" throughout the statutes. Laws 1983, ch. 274, ~ 18. " Minn. Stat. ~ 13D.05, subd. I. " Minn. Stat. ~~ 13.03, subd. 11, 13.05, subd. 4, 11 (e), and 13D.05, subd. I. "Minn. Stat. ~ 13D.05, subd. 2 (a)(I). "Minn. Stat. ~ 13D.05, subd. 2 (a)(2). "Minn. Stat. ~ 13D.05, subd. 2 (a)(3). "Minn. Stat. ~ 13D.06. 60 Claude V. Collins, 518 N.W.2d 836,843 (Minn. 1994) (discussing the constitutionality of provision relating to removal from office); see also Brawn V. Cannon Falls Township, 723 N.W.2d 31, 41-44 (Minn. App. 2006) (discussing the statutory history and that since 1994 the statute has required three or more legal actions). House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 12 A public body may not pay a civil penalty on behalf of a person who violated the law. However, a public body may pay any costs, disbursements, or attorney fees incurred by or awarded against a member of the body in an action under the open meeting law ifthe member was found not guilty of a violation.61 A court may award reasonable costs, disbursements, and reasonable attorney fees of up to $13,000 to any party in an action under the open meeting law. However, the following conditions apply: . A court may award costs and attorncy fccs to a dcfcndant only if it finds that the action was frivolous and without merit . A court may award monetary penalties or attorney fees against a member of a public body only if the court finds there was an intent to violate the open meeting law The court must award reasonable attorney fees to a prevailing plaintiff if the public body was also the subject of a prior written opinion issued by the Commissioner of Administration, and the court finds that the opinion is directly related to the cause of action being litigated and that the public body did not follow the opinion." The appropriate mechanism to enforce the open meeting law is to bring an action in district court seeking injunctive relief or damages. The statute does not provide for a declaratory judgment action." The Minnesota Supreme Court has held that actions taken at a meeting held in violation of the open meeting law are not invalid or rescindable." Advice Public bodies subject to the open meeting law may seek advice on the application of the law and how to comply with it from three sources: . The governmental entity's attorney . The attorney general" . The Commissioner of Administration" 61 Op. Att'y Gen. 471-a, Dec. 31, 1992; Minn. Stat. Ii 13D.06, subd. 4 (c). " Minn. Stat. Ii 13D.06, subd. 4. " Rupp V. Mcryasich, 561 N.W.2d 555 (Minn. App. 1997). "Sullivan v. Credit River Township, 299 Minn. 170, 176-177, 217N.W.2d 502, 507 (Minn. 1974). " Under Minnesota Statutes, section 8.06, the attorney general is the attorney for all state officers and boards or commissions created by law. Under Minnesota Statutes, section 8.07, the attorney general, on request from an attorney for a county, city, town, public pension fund, school board, or unorganized area, gives written opinions on matters of public importance. House Research Department Minnesota Open Meeting Law Revised: November 2008 Page 13 An individual may seek advice from two sources: . The individual's attorney . The Commissioner of Administration" Since 2003, an individual who disagrees with the manner in which members of a governing body perform their duties under the open meeting law may request the Commissioner of Administration to give a written opinion on the governing body's compliance with the law. A governing body or person requesting an opinion of the Commissioner of Administration must pay a $200 fee if the commissioner issues an opinion. The commissioner may decide not to issue an opinion. If the commissioner decides not to issue an opinion, the commissioner must notify the requester within five days of receipt of the request. If the commissioner decides to issue an opinion, it must be done within 20 days ofthe request (with a 30-day extension possible for good cause and notice to the requester). The governing body must be allowed to explain how it performs its duties under the law. Opinions of the Commissioner of Administration are not binding, but a court must give the opinions deference. However, a governing body that follows an opinion is not liable for fines, attorney's fees or any other penalty, or forfeiture of office. For more information about open meetings and other issues related to the government, visit the government operations area of our web site, www.house.mn/hrd/issinfo/gv_state.htm. 66 . Minn. Srat. ~ 13.072, subds. 1 aud 2. 67 Id.; see www.ipad.state.rnn.us/opinions/index.html for access to prior opinions of the Commissioner of Administration or to find out how to request an opinion. Atqcn.r'f\ei\t 2 1 MINNESOTA STATUTES 2008 13D.Ol MEETINGS MUST BE OPEN TO THE PUBLIC; EXCEPTIONS. Subdivision 1. In executive branch, local government. All meetings, including executive sessions, must be open to the public (a) of a state (I) agency, (2) board, (3) commission, or (4) department, when required or permitted by law to transact public business in a meeting; (b) of the governing body of a (I) school district however organized, (2) unorganized territory, (3) county, (4) statutory or home rule charter city, (5) town, or (6) other public body; (c) of any '. (1) committee, (2) subcommittee, (3) board, (4) department, or (5) commission, of a public body; and (d) of the governing body or a committee of: (1) a statewide public pension plan defined in section 356A.Ol, subdivision 24; or (2) a local public pension plan governed by section 69.77, sections 69.771 to 69.775, or chapter 354A, 422A, or 423B. Subd. 2. Exceptions. This chapter does not apply Copyright @ 2008 by the Revisor of Statutes, State ofMilUlesota. All Rights Reserved. 2 MINNESOTA STATUTES 2008 13D.OI (I) to meetings of the commissioner of corrections; (2) to a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings; or (3) as otherwise expressly provided by statute. Subd. 3. Subject of aud grouuds for closed meeting. Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. Subd. 4. Votes to be kept in journal. (a) The votes of the members ofthe state agency, board, commission, or department; or of the governing body, committee, subcommittee, board, department, or commission on an action taken in a meeting required by this section to be open to the public must be recorded in a journal kept for that purpose. (b) The vote of each member must be recorded on each appropriation of money, except for payments of judgments, claims, and amounts fixed by statute. Subd. 5. Public access to journal. The journal must be open to the public during all normal business hours where records of the public body are kept. Subd. 6. Public copy of members' materials. (a) In any meeting which under subdivisions I, 2, 4, and 5, and section 13D.02 must be open to the public, at least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and: (I) distributed at the meeting to all members of the governing body; (2) distributed before the meeting to all members; or (3) available in the meeting room to all members; shall be available in the meeting room for inspection by thc public while the governing body considers their subject matter. (b) This subdivision does not apply to materials classified by law as other than public as defined in chapter 13, or to materials relating to the agenda items of a closed meeting held in accordance with the procedures in section 13D.03 or other law permitting the closing of meetings. History: 1957 c 77381; 1967 c 46281; 1973 c 123 art 5 87; 1973 c 654815; 1973 c 6808 1,3; 1975 c 271 8 6; 1981 c 17481; 1983 c 13781; 1983 c 274818; 1984 c 462 8 27; 1987 c 313 8 1; 1990 c 55082,3; 1991 c 292 art 8812; 1991 c 319822; 1994 c 618 art 1839; 1997 c 15482; ISp2001 c 10 art 481 Copyright@ 2008 by the Revisor of Statutes, State of Minnesota. All Rights Reserved. I MINNESOTA STATUTES 2008 13D.02 13D.02 MEETINGS CONDUCTED BY INTERACTIVE TV; CONDITIONS. Subdivision 1. Conditions. A meeting governed by section 13D.OI, subdivisions 1,2,4, and 5, and this section may be conducted by interactive television so long as: (I) all members of the body participating in the meeting, wherever their physical location, can hear and see one another and can hear and see all discussion and testimony presented at any location at which at least one member is present; (2) members ofthe public present at the regular meeting location of the body can hear and see all discussion and testimony and all votes of members of the body; (3) at least one member of the body is physically present at the regular meeting location; and (4) each location at which a member of the body is present is open and accessible to the public. Subd. 2. Members are present for quorum, participation. Each member of a body participating in a meeting by electronic means is considered present at the meeting for purposes of determining a quorum and participating in all proceedings. Subd. 3. Monitoring from remote site; costs. If interactive television is used to conduct a meeting, to the extent practical, a public body shall allow a person to monitor the meeting electronically from a remote location. The body may require the person making .such a connection to pay for documented marginal costs that the public body incurs as a result of the additional connection. Subd. 4. Notice of regular and all member sites. If interactive television is used to conduct a regular, special, or emergency meeting, the public body shall provide notice of the regular meeting location and notice of any site where a member of the public body will be participating in the meeting by interactive television. The timing and method of providing notice must be as described in section 13D.04. History: 1957 c 773 s I; 1967 c 462 s I; 1973 c 123 art 5 s 7; 1973 c 654 s 15; 1973 c 680 s 1,3; 1975 c 271 s 6; 1981 c 174 s I; 1983 c 137 s I; 1983 c 274 s 18; 1984 c 462 s 27; 1987 c 313 sI; I990c550s2,3; 1991 c292art8s 12; 1991 c3I9s22; I994c6I8art I s39; I997c I54s2 Copyright <<;:l2008 by the Reviso'r of Statutes, State of Minnesota, All Rights Reserved. 1 MINNESOTA STATUTES 2008 13D.021 13D.021 MEETINGS BY TELEPHONE OR OTHER ELECTRONIC MEANS; CONDmONS. Subdivision 1. Conditions. A meeting governed by this section and section 13D.oI, subdivisions 1, 2, 4, and 5, may be conducted by telephone or other electronic means so long as the following conditions are met: (1) the presiding officer, chief legal counsel, or chief administrative officer for the affected governing body determines that an in-person meeting or a meeting conducted under section 13D.02 is not practical or prudent bccausc of a health pandemic or an emergency declared under chapter I2; (2) all members of the body participating in the meeting, wherever their physical location, can hear one another and can hear all discussion and testimony; (3) members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the health pandemic or emergency declaration; (4) at least one member of the body, chief legal counsel, or chief administrative officer is physicaIfy present at the regular meeting location, unless unfeasible due to the health pandemic or emergency declaration; and (5) all votes are conducted by toll call, so each member's vote on each issue can be identified and recorded. Subd. 2. Members are present for quorum, participation. Each member ofthe body participating in a meeting by telephone or other electronic means is considered present at the meeting for purposes of determining a quorum and participating in all proceedings. Subd. 3. Monitoring from remote site; costs. If telephone or another electronic means is used to conduct a meeting, to the extent practical, the body shall allow a person to monitor the meeting electronically from a remote location. The body may require the person making a connection to pay for the documented additional cost that the body incurs as a result of the additional connection. Subd. 4. Notice ofregular and all member sites. Iftelephone or another electronic means is used to conduct a regular, special, or emergency meeting, the public body shall provide notice of the regular meeting location, of the fact that some members may participate by telephone or other electronic means, and of the provisions of subdivision 3. The timing and method of providing notice is governed by section 13D.04 of the Open Meeting Law. Copyright ~ 2008 by the Revisor of Statutes, State of Minnesota. All Rights Reserved. 1 MINNESOTA STATUTES 2008 13D.03 13D.03 CLOSED MEETlNGS FOR LABOR NEGOTIATIONS STRATEGY. Subdivision 1. Procedure. (a) Section 13D.OI, subdivisions I, 2, 4, 5, and section 13D.02 do not apply to a meeting held pursuant to the procedure in this section. (b) The governing body of a public employer may by a majority vote in a public meeting decide to hold a closed meeting to consider strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.Ol to l79A.25. ( c) The time of commencement and place of the closed meeting shall be announced at the public meeting. (d) A written roll of members and all other persons present at the closed meeting shall be made available to the public after the closed meeting. Subd. 2. Meeting must be recorded. (a) The proceedings of a closed meeting to discuss negotiation strategies shall be tape-recorded at the expense of the governing body. (b) The recording shall be preserved for two years after the contract is signed and shall be made aVllilable to the public after all labor contracts are signed by the governing body for the current budget period. Subd. 3. Ifviolation claimed. (a) If an action is brought claiming that public business other than discussions of labor negotiation strategies or developments or discussion and review of labor negotiation proposals was. transacted at a closed meeting held pursuant to this section during the time when the tape is not available to the public, the court shall review the recording of the meeting in camera. (b) If the court finds that this section was not violated, the action shall be dismissed and the recording shall be sealed and preserved in the records of the court until otherwise made available to the public pursuant to this section. ( c) If the court finds that this section was violated, the recording may be introduced at trial in its entirety subject to any protective orders as requested by either party and deemed appropriate by the court. History: 1957 c 773 s 1; 1967 c 462 s 1; 1973 c 123 art 5 s 7; 1973 c 654 s 15; 1973 c 680 s 1,3; 1975 c 271 s 6; 1981 c 174 s 1; 1983 c 137 s 1; 1983 c 274 s 18; 1984 c 462 s 27; 1987 c 313 s 1; 1990c 550s 2,3; 1991 c 292 art8s 12; 1991 c319s22; 1994c 618 art 1 s39; 1997c 154s2 Copyright@ 2008 by the Revisor of Statutes, State of Minnesota . All Rights Reserved. MINNESOTA STATUTES 2008 13D.04 13D.04 NOTICE OF MEETINGS. Subdivision 1. Regular meetiugs. A schedule of the regular meetings ofa public body shall be kept on file at its primary offices. If a public body decides to hold a regular meeting at a time or place different from the time or place stated in its schedule of regular meetings, it shall give the same notice of the meeting that is provided in this section for a special meeting. Subd. 2. Sp.ecial meetings. (a) For a special meeting, except an emergency meeting or a special meeting for which a notice requirement is otherwise expressly established by statute, the public body shall post written notice of the date, time, placc, and purpose ofthe meeting on the principal bulletin board of the public body, or if the public body has no principal bulletin board, on the door of its usual meeting room. (b) The notice shall also be mailed or otherwise delivered to each person who has filed a written request for notice of special meetings with the public body. This notice shall be posted and mailed or delivered at least three days before the date of the meeting. ( c) As an alternative to mailing or otherwise delivering notice to persons who have filed a written request for notice of special meetings, the public body may publish the notice once, at least thr~ days before the meeting, in the official newspaper of the public body or, if there is none, in a qualified newspaper of general circulation within the area of the public body's authority. (d) A person filing a request for notice of special meetings may limit the request to notification of meetings concerning particular subjects, in which case the public body is required to send notice to that person only <;:oncerning special meetings involving those subjects. (e) A public body may establish an expiration date for requests for notices of special meetings pursuant to this subdivision and require refiling of the request once each year. (t) Not more than 60 days before the expiration date of a request for notice, the public body shall send notice of the refiling requirement to each person who filed during the preceding year. Subd. 3. Emergency meetings. (a) For an emergency meeting, the public body shall make good faith efforts to provide notice of the meeting to each news medium that has filed a written request for notice if the request includes the news medium's telephone number. (b) Notice of the emergency meeting shall be given by telephone or by any other method used to notiJy the members of the public body. (c) Notice shall be provided to each news medium which has filed a written request for notice as soon as reasonably practicable after notice has been given to the members. Copyright 1tl2008 by the Revisor of Statutes, State of Minnesota. All Rights Reserved. 2 MINNESOTA STATUTES 2008 13D.04 (d) Notice shall include the subject of the meeting. Posted or published notice of an emergency meeting is not required. ( e) An "emergency" meeting is a special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body. (f) If matters not directly related to the emergency are discussed or acted upon at an emergency meeting, the minutes of the meeting shall include a specific description of the matters. (g) The notice requirement of this subdivision supersedes any other statutory notice requirement for a special meeting that is an emergency meeting. Subd. 4. Recessed or continued meetings. (a) If a meeting is a recessed or continued session of a previous meeting, and the time and place of the meeting was established during the previous meeting and recorded in the minutes ofthat meeting, then no further published or mailed notice is necessary. (b) For purposes ofthis subdivision, the term "meeting" includes a public hearing conducted pursuant to chapter 429 or any other law or charter provision requiring a public hearing by a public body. Subd. 5. Closed meetings. The notice requirements of this section apply to closed meetings. Subd. 6. State agencies. For a meeting of an agency, board, commission, or department of the state: (I) the notice requirements of this section apply only if a statute governing meetings of the agency, board, or commission does not contain specific reference to the method of providing notice; and (2) all provisions ofthjs section relating to publication are satisfied by publication in the State Register. Subd. 7. Actual notice. If a person receives actual notice of a meeting of a public body at least 24 hours before the meeting, all notice requirements of this section are satisfied with respect to that person, regardless of the method of receipt of notice. History: 1957 c 773 s 1; 1967 c 462 s 1; 1973 c 123 art 5 s 7; 1973 c 654 s 15; 1973 c 680 s 1,3; 1975 c 271 s 6; 1981 c 174 s 1; 1983 c 137 s 1; 1983 c 274 s 18; 1984 c 462 s 27; 1987 c313 s 1; 1990 c550 s 2,3; 1991 c 292 art 8 s 12; 1991 c 319 s 22; 1994 c 618 art 1 s 39; 1997 c 154 s 2 Copyright ~ 2008 by the Revisor of Statutes; State of Minnesota. All Rights Reserved. ~Y\(w\fftt 3 THE OPEN MEETING LAW AND YOU This short white-sheet is intended to provide basic information regarding the Open Meeting Law in Minnesota as codified in Minnesota Statutes S 13D.OI et seq. While nothing can take the place of the actual law, this document will hopefully address very basic questions and situations that you may have. WHAT IS THE PURPOSE OF THE LAW? The open meeting law is intended to provide the public with the most transparent governmental activities possible and ensure that the decision-making process is subject to full public scrutiny and access while still being managed in a way that allows the process of government to function effectively. THE FIRST QUESTION THAT SHOULD BE ASKED: IS YOUR GROUP SUBJECT TO THE OPEN MEETING LAW? ANSWER: In most cases a 'public body' is subject to the Open Meeting Law. Standing Committees of a City Council are specifically called out as being subject to the law, so there really is no debating whether the ENR is subject to the law: It is. THE SECOND QUESTION THAT SHOULD BE ASKED: IS A MEETING OF YOUR GROUP CONDUCTING A 'MEETING' THAT MUST COMPLY? ANSWER: To be subject to the requirement of the Open Meeting Law, a body subject to it has to have a quorum of its members present together to trigger the requirements of the Statute. Less-than quorum size groups cannot meet in order to avoid having an open meeting. Email exchanges between members, if passed between a quorum of members, can be considered a violation of the open meeting law. Telephone calls can also trigger a violation if enough calls are placed between members and public business discussed. My recommendation is to avoid email and phone discussions entirely and restrict all discussions and debate to the gaveling of the meetings. WHAT ABOUT THE TWINS GAME?! Truly social, chance, meetings of a quorum of members are not per se violations of the Open Meeting Law. However, members need to be mindful of the fact that the appearance of impropriety may trigger allegations of a violation so steps should be taken to reduce that appearance. Not sitting together or huddling, even to exchange pleasantries, would be the best practice. 2...~-o, THE TIllRD QUESTION THAT SHOULD BE ASKED: WHAT DO WE HAVE TO DO TO COMPLY? ANSWER: 1. The open meeting law is simple to comply with. Provide a standing date and time for meetings of the ENR and deliberate in good faith at the meeting. Notice special and emergency meetings 3 days in advance (or with as much time and notice as possible for emergency . meetings. 2. have materials available for the public to take and follow-along with if needed. 3. Take discussion and votes in public only and at the meetings. 4. Record your votes! CONSEQUENCES FOR VIOLATIONS Violations are handled in civil court and a complaint must be brought in the district court againstthe person who is alleged to have violated the law. No City may pay this cost once found to be validly imposed. The Fine my be up to $300.00 and removal from office is possible for multiple-offense violators. As public-body members, your conduct must be found to be intentionally designed to violate the law however and none of the decisions made at such a meeting are deemed invalid or rescindable.