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HomeMy WebLinkAbout03-10-20 CITY OF Meeting Location: FARMI NGTON Farmington City Hall _ er�_` 430 Third Street Farmington, MN 55024 PLANNING COMMISSION REGULAR MEETING AGENDA March 10, 2020 7:00 PM 1. CALL TO ORDER (a) Election of Officers (b) Appointment to Committees 2. APPROVAL OF MINUTES (a) Approve Planning Commission Minutes 3. PUBLIC HEARINGS (a) Preliminary and Final Plat, Conditional Use Permit and Variances from the required setbacks for the construction of a Convenience Store with Gas in the B-1 zoning district - Holiday Companies (b) Conditional Use Permit to allow the expansion of an Auto Repair, Major use within the B-3 Zoning District- Impact Auto 4. DISCUSSION (a) Open Meeting Law 5. ADJOURN CITY OF O 430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 OFarmingtonMN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Election of Officers DATE: March 10, 2020 INTRODUCTION Each year the Planning Commission is asked to elect a Chair and Vice Chair from its membership. DISCUSSION Commission Member Rotty served as Chair in 2019,with Commission Member Franceschelli serving as Vice Chair. ACTION REQUESTED Elect a Planning Commission Chair and Vice Chair for 2020. CITY OF 0430 Third St., Farmington, MN 55024 FARM I NGTON © 651-280-6800 ® FarmingtonMN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Appointment to Committees DATE: March 10, 2020 INTRODUCTION The Planning Commission needs to discuss which Commissioner(s) should represent the following committees for the 2020 calendar year. DISCUSSION A) Empire/Farmington Planning Advisory Committee(EFPAC) This committee meets periodically to discuss topics pertinent to Farmington and Empire Township. Council Member Donnelly represents the City Council on this committee. The 2019 representative was former Planning Commissioner Bjorge. B) Castle Rock Discussion Group The committee meets periodically to discuss topics pertinent to Farmington and Castle Rock Township. Mayor Larson represents the City Council on this committee. The 2019 representative was Planning Commissioner Franceschelli. C) Eureka/Farmington Planning Group This committee meets periodically to discuss topics pertinent to Farmington and Eureka Township. Council Member Donnelly represents the City Council on this committee. The 2019 representative was Planning Commissioner Tesky. D) MUSA Review Committee This committee meets periodically to discuss the growth of Farmington and where the next extension of sewer will occur in the future. Council Members Donnelly and Bernhjelm represent the City Council on theis committee. Two Planning Commission Members are needed to represent the Commission on this committee. The committee is also made up of two members from the Parks and Recreation Commission/ staff and two members from the School Board/staff. The 2019 representatives were Chair Rotty and Commissioner Windschitl. ACTION REQUESTED The Planning Commission should discuss and appoint who will represent the Commission on each of the above mentioned committees during the 2020 calendar year. CITY OF O 430 Third St., Farmington, MN 55024 FARM I NGTON © 651-280-6800 FarmingtonMN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Approve Planning Commission Minutes DATE: March 10, 2020 INTRODUCTION Attached, are the minutes from the January 14, 2020 regular meeting DISCUSSION NA ACTION REQUESTED Approve the minutes from the January 14, 2020 regular meeting. ATTACHMENTS: Type Description 0 Backup Material January 14, 2020 Regular Planning Commission Meeting Minutes Planning Commission Minutes Regular Meeting January 14,2020 1. Call to Order Chair Rotty called the meeting to order at 7:00 p.m. Members Present: Rotty, Franceschelli, Lehto, Tesky, Windschitl Members Absent: Also Present: Tony Wippler, Planning Manager 2. Approval of Minutes a. MOTON by Franceschelli, second by Tesky to approve the minutes of December 10, 2019. APIF, MOTION CARRIED. 3. Public Hearings—Chair Rotty opened the public hearings a. Amendment to a Conditional Use Permit Allowing a Church in the B-2 Zoning District The applicant is Christian Family Church and the property owner is Paul Otten. The location is 400 Third Street. Churches are allowed in this zoning district. They would like to occupy the northern portion of the building. Parking is available on Third and Oak Streets and in the Second Street parking lot. The congregation has 25 people. Services would be held on Sunday mornings. Contingencies include: 1. The applicant obtain all necessary building permits for conversion of space to a church. 2. A sign permit shall be required for any signage to be placed on site. Member Franceschelli noted there is another church across the street, so during services, parking may be an issue. He welcomed them to the community. Member Tesky noted the same comments regarding parking, but it is a nice element to add to downtown on a Sunday morning. Member Lehto agreed with the previous comments and asked if they had plans for growth. The applicant stated their intention is to gradually grow over time, but at the same time there is practical limitations of the space as it is relatively small. This space would be a stepping stone to bigger things as time goes on. Chair Rotty asked how many parishioners it would take for them to outgrow this space. The applicant stated about 75 to 100 people, although you could do two services on Sunday morning. Chair Rotty noted they were looking at this as a temporary space. The applicant stated they do have a long-term lease for several years. Chair Rotty recalled when this was discussed in 2008 for a different church,they were encouraged to use the Second Street parking lot. He realized not everyone would want to use that, but there may be other businesses operating during that time and encouraged the church to make use of the Second Street parking lot. He asked about hours of operation and days of the week. The applicant stated the primary service would be Sunday morning 10:00 to 12:00. There would be a Wednesday night bible study. Chair Rotty commented that Planning Commission Meeting January 14,2020 Page 2 having too many churches in the downtown will take away space for businesses,but the church is leasing this space, so the property is still taxable. He welcomed them to Farmington. MOTION by Tesky, second by Lehto to close the public hearing. APIF MOTION CARRIED. MOTION by Franceschelli, second by Windschitl to approve the Conditional Use Permit with the contingencies. APIF,MOTION CARRIED. 4. Discussion a. Sapphire Lake 2nd Addition Final Plat The final plat consists of 33 single family lots. There are two outlots for storm water basins and future development. The city is requiring that the entire storm water basin be separated out from Outot B into its own outlot and then deeded to the city. The plat shows 213th Street W extending to the east and terminates within the 1St Addition. Spruce Street on the south end will extend across the Prairie Waterway and into the 2nd Addition. Both 213th Street and Spruce Street will have temporary cul-de-sacs constructed at the eastern boundaries of the 2nd Addition. Five-foot wide sidewalks will be on the north sides of 213th Street W and Spruce Street and on the west side of 15th Street. An eight- foot wide bituminous trail will be provided along the south side of Spruce Street from 14th Street in East Farmington to where Spruce Street will intersect 15th Street in this final plat. A future trail will connect from this location and go behind the lots within Block 5 and continue northeast to Biscayne Avenue. Contingencies include: 1. Satisfaction of all engineering comments dated December 30, 2019. 2. Execution of a Development Contract. 3. Temporary easements must be provided to the city to cover any public drainage that will occur around the temporary cul-de-sacs that will be constructed on 213th Street W and Spruce Street. The developer stated there are four homes being built in the first addition for model homes. This is the next phase of the Sapphire Lake development. They are grading the site for the 2nd Addition and as they move to the 3rd Addition they will finish the entire pond and will have two more additions after the 2nd Addition. Member Franceschelli asked about off-street parking for the residents or is it street parking? The developer stated each house will have a driveway and a three-car garage. They do have the ability to park on the public street. Member Franceschelli was thinking about fire and police emergency access as 32 feet can get narrow. Chair Rotty asked about timing for the 2nd Addition. The developer stated they will bid it out in the next couple weeks. He estimated they will start construction mid-June, as construction in the first phase started last fall. Chair Rotty asked about access for trucks and equipment. The developer stated they will come down 213th Street from the west. Chair Rotty noted they are coming through an existing development so asked they be a good neighbor and stay on top of noise and cleaning up. The other phases would be in 2021 and 2022. Chair Rotty asked if the trail to the northeast will connect with anything in the future. The developer stated it will terminate at the east end of the plat and there is parkland beyond that. Planning Commission Meeting January 14,2020 Page 3 MOTION by Lehto, second by Tesky to approve the Sapphire Lake 2nd Addition Final Plat with the contingencies. APIF,MOTION CARRIED. b. Certificate of Appropriateness Request for Exterior Work—345 3rd Street(Fletcher Building)—continued from October 22,2019 Staff has consulted with Robert Vogel of Pathfinder CRM LLC, to produce a Condition of Historic Property Report and to provide findings and recommendations for rehabilitating the exterior walls of the Fletcher Building at 345 Third Street. Mr. Vogel stated in his report the brick walls are a distinguishing design feature and contribute significantly to the Fletcher building's historical and architectural values. The owner proposed to cover the north and east sides of the building with stucco as the bricks are starting to crumble and fall. Covering historic brick walls with stucco is not an appropriate treatment. He did recommend: 1. Clean the exterior walls. 2. Repoint(tuckpoint)the deteriorated mortar joints. 3. Repair/replace damaged or missing bricks. 4. Remove the old paint. 5. Repaint exterior walls. 6. Conduct routine inspection and maintenance of the building exterior. Based on Mr. Vogel's report, staff recommends denial of the Certificate of Appropriateness. The MN Historical Society's website provides a list of products and services of companies and individuals that have experience in preserving,rehabilitating, or evaluating historic properties. If the Planning Commission elects to deny the request,they should make the applicant aware of their right to appeal this decision via Section G of 2-11-5 of the city code. Member Franceschelli was glad they reached out to Mr. Vogel. He cannot support the applicant's desire to put stucco on the walls. The structure needs a thorough drying out and stucco will create a larger problem. The owner has options that have not been explored yet and the EDA has new funds she may be able to use. The MN Historical Society also has grants available. Member Tesky agreed the owner needs to investigate more and will deny the request. Member Lehto also agreed. She asked if additional comment has been received from the property owner. No comments have been received. Member Lehto asked if the owner has considered doing emergency work to the roof to try to remediate some of the water damage. Then the building could dry out. Staff noted the roof was replaced a couple years ago by using grant funds. But no other work has been done. Member Windschitl agreed with Mr. Vogel. Now it is up to the owner to decide what she wants to do. Chair Rotty stated this is a unique situation. When she purchased the building, it was a Heritage Landmark and falls under a different set of rules. What she is planning to do will affect the appearance of the building. He feels stuck between wanting to help the applicant and not going against what the experts are recommending. He will support Planning Commission Meeting January 14,2020 Page 4 denying the certificate, but he wanted to vent his frustration. This is a unique, awkward situation he wouldn't wish upon anyone. We do have to let the applicant know she can appeal the denial to the City Council within ten days. There is also a process for her to petition to get out of being a Heritage Landmark. The applicant is aware of that. Councilmember Donnelly was in attendance. He related to Chair Rotty's comments and feels bad for all parties. As a city and staff we want to be pro-business and have small businesses. This is a big burden on a small business. It is a historic building. It is a balance between being pro-business and helping out a long-time business owner and preserving the historic character of downtown. It seems like an undue burden. The owner was probably not aware of the restrictions of the building when purchased. He was torn and sided with the property owner. He would hate to see that building go empty because of requiring the special brick necessary to fix it. Member Franceschelli stated the Planning Commission has no funds. The EDA has a façade grant program and this is a new budget cycle for them. If the owner made a positive presentation, can the EDA award all it's funds this year to that one project or is it obligated to spread it out in smaller increments throughout the community. Staff stated there are funding limits to $10,000 maximum. It is meant for smaller projects to be spread out. The EDA could review the application, but it is up to them to determine. Member Franceschelli asked if there is anything else in the city that can be utilized. Staff did not believe so. Member Windschitl asked if the building owner can apply every year to get funds. Staff stated they can apply once a year. Chair Rotty stated his discussion was not to sway the commission, because he understands the limitations we have in dealing with ordinances. He just wanted to voice his frustration with the process. MOTION by Franceschelli, second by Lehto to deny the request for a Certificate of Appropriateness for the Fletcher building. APIF, MOTION CARRIED. c. 2020 Meeting Calendar Staff provided the 2020 meeting calendar. There are date adjustments in August and September. 5. Adjourn MOTION by Franceschelli second by Tesky to adjourn at 7:45 p.m. APIF,MOTION CARRIED. Respectfully submitted, 414,t111,a Muller Cynthia Muller Administrative Assistant CITY OF 0430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 ��IYlllll�w� O FarmingtonMN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Preliminary and Final Plat, Conditional Use Permit and Variances from the required setbacks for the construction of a Convenience Store with Gas in the B-1 zoning district- Holiday Companies DATE: March 10, 2020 INTRODUCTION Applications have been made by Gary Thorson, Franchisee for Holiday Companies,for Preliminary and Final Plat, Conditional Use Permit and Variances from the required setbacks for the construction of a convenience store with gas in the B-1 (Highway Business)zoning district. The subject property is 10-8th Street(former Carbones site). DISCUSSION The applicant is in the process of having plans revised based on review and comment by city staff. The revised plans were not ready at the time of this meeting. Due to this staff is requesting that the public hearing be continued to a March 24, 2020 Special Planning Commission meeting. ACTION REQUESTED Continue the public hearing to March 24, 2020 Special Planning Commission meeting. CITY OF O 430 Third St., Farmington, MN 55024 FARM I N GTO N © 65i-280-6800 FarmingtonMN.gov .00111001111.11 TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Conditional Use Permit to allow the expansion of an Auto Repair, Major use within the B-3 Zoning District- Impact Auto DATE: March 10, 2020 INTRODUCTION Johnson Reiland Builders & Remodelers, Inc. is requesting a Conditional Use Permit[CUP] on behalf of BCD Management, LLC for the expansion of an auto repair, major use located at the southeast intersection of Third Street and Pine Street. The subject property is 101 Third Street and is home to Impact Auto. The property is zoned B-3 (Heavy Business)which conditionally allows for auto repair, major uses. DISCUSSION The property is approximately 14,688 square feet in size. The existing building that is located on site is 3,825 square feet in area. The applicant is requesting a CUP in order to construct a 1,360 square foot (34'x 40') building expansion onto the east side of the existing structure. The addition is a new mechanic shop. The addition will have three overhead doors on the east side of the structure. Setbacks and Lot Coverage The minimum bulk density standards for the B-3 zoning district are: • Lot area: 5,000 square feet • Lot width: 50 feet • Front yard setback: 0 feet • Side yard setback: 6 feet • Rear yard setback: 6 feet • Maximum height: 45 feet • Maximum lot coverage of all structures: 35 percent The setbacks for the proposed addition are as follows: • Front yard setback off of Pine Street: 9.9 feet • Side yard setback: 20.7 feet • Rear yard setback: 56.7 feet The setbacks proposed for the addition meet the above mentioned standards. With the proposed addition the building coverage for the lot will be maxed out at 35%. No further building additions will be allowed on this site without prior approval of a variance by the Planning Commission. Transportation and Off-street parking Code requires that this site(with the proposed addition) be able to handle a minimum of 25 off-street parking spaces between paved surfaces and interior building parking. It appears that the applicant/site should be able to accommodate this number. As shown on the attached survey/site plan,there are no other site improvements currently contemplated to the site other than the building addition. The site currently has two accesses, one off of Third Street and one off of Pine Street. These accesses are proposed to remain as is. Building Elevations The proposed addition will consist of vertical metal siding. This is a continuation of what the majority of the building is currently sided with. The only portion of the existing building that does not have metal siding is the office portion on the northwest corner of the building. Proposed building elevations are attached for your review. ACTION REQUESTED Approve the Conditional Use Permit allowing the expansion of the Auto Repair, Major use within the B-3 zone located at 101 Third Street,subject to the following: 1. The applicant obtaining all necessary building permits. 2. Any outside storage of parts and or equipment will have to be 100%screened from view. All screening will need to be approved in advance by the city's community development department. ATTACHMENTS: Type Description D Backup Material Conditional Use Permit Application D Backup Material Property Survey D Backup Material Building Plans and Elevations I CIT YOF O 430 Third St.Farmington.MN 55024 FARMINGTON © 65r °° ccom ,,,.-r I=tu, ° fommkigtont4Ngov CONDITIONAL USE PERMIT Jole%inc otn iii LO f Applicant: Bic:ld.Lvs el 0.-LUA 45etil y r Telephone: ti-t-IWet-t1. 9Fax: Address: P o1/4' o:'12.1, o O ti.-,Lc._s t1atti ... ;, j . Street City State Zip Code Owner: VrQ. ?AA l.o.s�aan-ut.- '\ Telephone: Fax: Address: lot acol, S.I. rr.,,.tn/ ,h. AA-0 SSQat-{ Street City a State Zap Code Premises involved: tot 3r44 S+ La i 11 Toww a f ci.rwimoil1-bui 31-II LI - 19 Address/Legal Description(lot,block,plat name,section,township,range) Current Zoning District 6.3 Current Land Use S.r.,.c. G-006-.,..y _ Specific Nature of Request: A dot; 4-inn v1 ... -v v t c. a`a-Aeaty.- SIJ M ! L REQUIREMENTS/ Proo of Owne i J 6 Copies of Site Plan `` _App cation F _Abstract/Residential Lis i -,uired :i' . subject property) J Bo',,dary/ JTorrrens(Owner'sDupli. , Certi-.#. of Title Required) .4-, _ - / VII 2020 -411:-.....-...-- ',::�../. t_ s Signature of Ow, r Dat Signs e of App Ir. Da, • Request Submi . _ ' :, vg staff on For office use only - Public Hearing Set for: Advertised in Local Newspaper: Planning Commission Action: Approved Denied Fee Paid - City Council Action(if necessary): Approved Denied $250-City Of Farmington Comments: Conditions Set: ORRITEobY: , Planning division: Date: C°430 f'anthem Mid Simi 9/1W2019 `""simsai Ini i z 0 0 0 mf v ce O y O W U ZN7 mZd Z 6, Z J ¢ Z4 Oa> VZ ' O - 6N 0 IG V R Z ° O = WnV Vw V > Zrg < 0 Z X yaui W 0 cO 0 , d w 2 w ° F,-- 05i-2 , p 0 m v 7 O a rlas 53 NWxa a 5i W a W O O O ZVaO� 3 < ..11:„) ti . N uFti y wiw N 0O0 0 � ° 11 ° 2�i ~ ZO , rc a 30200oooo0 , w w u w w w w zw Z0000000000 ... 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CITY OF 0430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 a-41FarmingtonMN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Open Meeting Law DATE: March 10, 2020 INTRODUCTION Attached, please see the memorandum from City Administrator, David McKnight, regarding open meeting law. DISCUSSION None. ACTION REQUESTED None. This is being provided for information purposes only. ATTACHMENTS: Type Description ❑ Cover Memo Memo from City Administrator ❑ Backup Material Open Meeting Law Information CITY OF 0430 Third St., Farmington, MN 55024 FARM I N GTO N © 651-280-6800 FarmingtonMN.gov Date: January 10, 2020 To: Farmington City Council Farmington Planning Commission Farmington Economic Development Authority Farmington Parks and Recreation Advisory Commission Farmington Rambling River Center Advisory Board From: David McKnight, City Administrator RE: Open Meeting Law Each year I like to remind the elected and appointed officials of the importance of the open meeting law and how it affects the work that you do for Farmington. This law applies to the city council and all of our boards and commissions. Open Meeting Law The open meeting law requires that meetings of public bodies must generally be open to the public. It serves three vital purposes: ✓ Prohibits actions from being taken at a secret meeting where the interested public cannot be fully informed of the decisions of public bodies or detect improper influence. ✓ Ensure the public's right to be informed. ✓ Gives the public an opportunity to present its views. While the work of ensuring that meeting dates,times and locations are made public in a timely fashion falls on city staff, it is important for each of you as board or commission members to remember the following items in regards to the open meeting law. ✓ Please avoid gathering in a quorum of board/commission members outside of the regular meeting. On the chance that a quorum is present at a social gathering, please do not discuss city business. ✓ While there are exceptions to the open meeting law, this small number of exceptions typically pertains to the city council meeting in a closed session on a very limited number of topics. - 1- ✓ Avoid having a serial meeting by telephone, email, text or social media. A serial meeting example is when one member contacts a second member and shares how a third or fourth member feels about a topic. Avoid these types of pitfalls and have these discussions as a part of the regular meeting. ✓ There are legal penalties for those that intentionally violate the open meeting law. A civil penalty of$300 for a single occurrence is the first penalty and the public body may not pay the penalty. A number of years ago I attended a training on this issue that is encompassed below: The most basic summary of this sometimes-complicated law is to conduct city business at the meetings, call city staff with any questions you have or assistance you need and when the meeting is over, go home. I have included information on the open meeting law put together by the League of Minnesota Cities. It is much more than you will probably want, but I wanted to make it available to those who have an interest. If you have any questions on this information, please let me know. Thank you for your time on this important matter and thank you for the work you do for Farmington! RELEVANT LINKS: Therefore, if a school district is holding a special election on a particular day, no other unit of government totally or partially within the school district may hold a meeting between 6 p.m. and 8 p.m. Meetings are also prohibited after 6 p.m. on the day of a major political precinct caucus. II. Open meeting law See LMC information memo, Meetings of City Councils, A. Purpose for more information about the open meeting law. Minn.Stat.§ 13D.01.Si. The open meeting law requires that meetings of public bodies must Cloud Newspapers,Inc.v. Dist.742 CmmmmiO, generally be open to the public. It serves three vital purposes: Schools,332 N.W.2d 1 (Minn.1983). • Prohibits actions from being taken at a secret meeting where the interested public cannot be fully informed of the decisions of public bodies or detect improper influences. • Ensures the public's right to be informed. • Gives the public an opportunity to present its views. B. Public notice See section I-7ypes of Public notice generally must be provided for meetings of a public body council meetings and notice requirements.Minn,Stat.§ subject to the open meeting law. The notice requirements depend on the 13D.04,shad.7. type of meeting. However, if a person receives actual notice of a meeting at least 24 hours before the meeting, all notice requirements under the open meeting law are satisfied regardless of the method of receipt. C. Printed materials Minn.Stat.§13D.01,subd. At least one copy of the printed materials relating to agenda items that are 6.DPO 08-015.APO 17- 006. provided to the council at or before a meeting must also be made available DPO 13-015(noting that the for public inspection in the meeting room while the governing body open meeting law"is silent with respect to agendas;it considers the subject matter. neither requires them nor prohibits them"). Minn.Stat.§ 13D.01,subd. This requirement does not apply to materials classified by law as other 6. than public or to materials relating to the agenda items of a closed meeting. D. Groups governed by the open meeting law Minn.Stat.§ 13D.O1,subd. Under the Minnesota open meeting law, all city council meetings and 1. executive sessions must be open to the public with only a few exceptions. League of Minnesota Cities Handbook for Minnesota Cities 8!3012099 Meetings,Motions,Resolutions,and Ordinances Chapter 71 Page 12 RELEVANT LINKS: Minn.Stat.§465.719,snbd. The open meeting law also requires meetings of a public body or of any 9. committee, subcommittee,board,department, or commission of a public body to be open to the public. For example,the governing bodies of local public pension plans, housing and redevelopment authorities, economic development authorities, and city-created corporations are subject to the open meeting law. Southern Minnesota The Minnesota Supreme Court has held, however, that the governing body Municipal Power Agency v. Boyne,578 N.W.2d 362 of a municipal electric power agency is not subject to the open meeting (Minn.1998). law because the Legislature has granted these agencies authority to conduct their affairs as private corporations. E. Gatherings governed by the open meeting law ,Mlahe,g ti.hrdep.Sch.Dist. The open meeting law does not define the term"meeting."The Minnesota No.281,336 N.W.2d 510 (Minn.1983).SI.Cloud Supreme Court,however,has ruled that meetings are gatherings of a Newspapers,Inc.v.Dist.742 quorum or more members of the governing body—or a quorum of a ConmrnnilySchools,332 N.W.2d I(Minn. 1983). committee, subcommittee,board,department,or commission thereof—at which members discuss, decide,or receive information as a group on issues relating to the official business of that governing body. Minn.Stat.§412.191,subd. For most public bodies, including statutory cities, a majority of its Minn.Stat.§645.08(5). qualified members constitutes a quorum. Charter cities may provide that a different number of members of the council constitutes a quorum. See Section 11-0-1 for more The open meeting law does not generally apply in situations where less information about serial meetings. than a quorum of the council is involved. However, serial meetings, in groups of less than a quorum,that are held to avoid the requirements of the open meeting law may be found to violate the law, depending on the specific facts. F. Open meeting law exceptions The open meeting law is designed to favor public access. Therefore,the few exceptions that exist are carefully limited to avoid abuse. Minn.Stat.§ 13D.0S,subd. All closed meetings(except those closed under the attorney-client 1(a)' 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. Minn.Stat.§13D.0I,sttbd. Before closing a meeting under any of the following exceptions, a city 3. council must make a statement on the record that includes the specific grounds that permit the meeting to be closed and describes the subject to be discussed. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 71 Page 13 RELEVANT LINKS: DPO 14-005.DPO 13-012. The commissioner of the Minnesota Department of Administration has DPO 06-020,DPO 14-005. See The Free Press v.county advised that a member of the public body(and not its attorney) must make of Blue Earth,677 N.W.2d the statement on the record. The commissioner has also advised that citing 471(Minn.Ct.App.2004) (holding mat the county's the specific statutory authority that permits the closed meeting is the statement that it was closing simplest way to satisfy the requirement for stating the specific grounds a meeting under the attorney- client privilege to discuss permitting the meeting to be closed. Both the conn issioner and the "pending litigation"did not Minnesota Court of Appeals have concluded that something more specific satisfy the requirement of j describing the subject to be than a general statement is needed to satisfy the requirement of providing a discussed at the closed description of the subject to be discussed. meeting). Minn.Stat.§13D.04,subd. The same notice requirements that apply to open meetings also apply to 5. closed meetings. For example, if a closed meeting takes place at a regular meeting,the notice requirements for a regular meeting apply.Likewise, if a closed meeting takes place as a special meeting or as an emergency meeting,the notice requirements for a special meeting or an emergency meeting would apply. 1. Labor negotiations Minn.Stat.§ 130.03,subd. 1 The city council may, by majority vote in a public meeting,decide to hold (b). DPO 13-012. a closed meeting to consider its strategy for labor negotiations, including Minn.Stat.§§ 179A.01-.25. negotiation strategies or developments or discussion of labor-negotiation proposals conducted pursuant to Minnesota Statutes sections 179A.01 to 179A.25. The council must announce the time and place of the closed meeting at the public meeting. Minn.Stat.§13D.03,subds. After the closed meeting, a written record of all members of the city 1(d),2. DPO 05-027. council and all other people present must be available to the public. The DPO 00-037. council must tape-record the proceedings at city expense and preserve the tape for two years after signing the contract.The tape-recording must be available to the public after all labor contracts are signed for the current budget period. Minn.Stat.§130.03,subd. If someone claims the council conducted public business other than labor 3. negotiations at the closed meeting, a court must privately review the recording of the meeting. If the court finds the law was not violated,the action must be dismissed,and the recording sealed and preserved. If the court determines a violation of the open meeting law may exist,the recording may be introduced at trial in its entirety, subject to any protective orders requested by either party and deemed appropriate by the court. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 14 RELEVANT LINKS: 2. Not public data under the Minnesota Government Data Practices Act Minn.Stat.§13D.05,subd. The general rule is that meetings cannot be closed to discuss data that are 2. not public under the Minnesota Government Data Practices Act. A meeting must be closed,however, if certain not public data is discussed. Any portion of a meeting must be closed if expressly required by law or if any of the following types of not public data are discussed: • Data that would identify victims or reporters of criminal sexual conduct,domestic abuse, or maltreatment of minors or vulnerable adults. • Active investigative data created by a law-enforcement agency,or internal-affairs data relating to allegations of law-enforcement personnel misconduct. • Educational,health, medical,welfare, or mental-health data that are Minn.Stat.§§ 144.291-.298. not public data. • Certain medical records. Minn,Stat.§ 13D.05,subd. A closed meeting held to discuss any of the not public data listed above l(a). must be electronically recorded,and the recording must be preserved for at least three years after the meeting. Minn.Stat.§13D.05,subd. I Other not public data may be discussed at an open meeting without (b),(c)• DPO 09-012. liability or penalty if the disclosure relates to a matter within the scope of the public body's authority, and it is reasonably necessary to conduct the business or agenda item before the public body. The public body, however,should make reasonable efforts to protect the data from disclosure. Data discussed at an open meeting retains its original classification;however, a record of the meeting shall be public. 3. Misconduct allegations or charges Minn.Stat.§13D.05,subds. A public body must close one or more meetings for"preliminary 1(d),2(b). DPO 03-020.(Advising that consideration"of allegations or charges of misconduct against an when a meeting is closed individual subject to its authority. This type of meeting must be open at the under this exception,Minn. Stat.§13.43,subd.2 request of the individual who is the subject of the meeting. If the public requires the government body concludes discipline of any nature may be warranted, further entity to identify the individual who is being meetings or hearings relating to the specific charges or allegations that are discussed). held after that conclusion is reached must be open. This type of meeting must be electronically recorded, and the recording must be preserved for at least three years after the meeting. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2018 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 15 Ii RELEVANT LINKS: DPO 14-004. The commissioner of the Minnesota Department of Administration has advised that a city could not close a meeting under this exception to consider allegations of misconduct against a job applicant who had been extended a conditional offer of employment. The job applicant was not a city employee. The commissioner reasoned that the city council had no authority to discipline the job applicant or to direct his actions in any way; therefore,he was not"an individual subject to its authority." DPo 10-001. The commissioner has also advised that a tape recording of a closed Minn,Stat.§13.43. meeting for preliminary consideration of misconduct allegations is private personnel data under Minn. Stat. § 13.43,subd. 4,and is accessible to the subject of the data but not to the public. The commissioner noted that at some point in time, some or all of the data on the tape may become public under Minn. Stat. § 13.43, subd. 2. For example, if the employee is disciplined and there is a final disposition, certain personnel data becomes public. 4. Performance evaluations Minn.Stat.§130.05,subds. A public body may close a meeting to evaluate the performance of an 1(d),3(a).See DPO 14-007, DPO 15-002,and DPO 16- individual who is subject to its authority. The public body must identify 002(discussing what type of the individual to be evaluated before closing the meeting. summary satisfies the open meeting law). DPO 05-013(advising that a At its next open meeting,the public body must summarize its conclusions government entity could close a meeting under this regarding the evaluation. This type of meeting must be open at the request exception to discuss its of the individual who is the subject of the meeting. If this type of meeting contract with an independent contractor when that is closed, it must be electronically recorded,and the recording must be contractor is an individual preserved for at least three years after the meeting. human being). 5. Attorney-client privilege Minn.Stat.§13D.05,subd.3 A meeting may be closed if permitted by the attorney-client privilege. (b). Brainerd Daily Dispatch, Meetings between a government body and its attorney to discuss active or LLC v.Dehen,693 N.W.2d threatened litigation may only be closed, under the attorney-client 435(Minn.Ct.App.2005). Prior Lake American v. privilege, when a balancing of the purposes served by the attorney-client Mader,642 N.W.2d 729 privilege against those served by the open meeting law dictates the need (Minn.2002).Northwest Publications,Inc v City of for absolute confidentiality. The need for absolute confidentiality should St.Paul,435 N.W.2d 64 relate to litigation strategy and will usually arise only after the city has (Minn.Ct.App.1989). Minneapolis Star&Tribune made a substantive decision on the underlying matter. This privilege may If v.Housing and not be abused to suppress public observations of the decision-making Redevelopment Authority in and for the City of process and does not include situations where the council will be receiving Minneapolis,251 N.W.2d general legal opinions and advice on the strengths and weaknesses of a 620(Minn.1976). DPO 14-005.DPO 14-017. proposed underlyingaction that may give rise to future litigation. DPO 16-003.DPO 17-003. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 16 RELEVANT LINKS: 6. Purchase or sale of real or personal .property Minn.Stat.§13D.05,subd.3 A public body may close a meeting to: (c). • Determine the asking price for real or personal property to be sold by the public body. Mimi.Stat.§ 13.44,subd.3. • Review confidential or protected nonpublic appraisal data. • Develop or consider offers or counteroffers for the purchase or sale of real or personal property. Minn.Slat.§13D.05,subd.3 Before holding a closed meeting under this exception,the public body (O must identify on the record the particular real or personal property that is the subject of the closed meeting. Vik v.Wild Rice Watershed The closed meeting must be tape-recorded. The recording must be Ct.iApp.Aug.10,2 (Minn.) preserved for eightyears and must be made available to thepublic only ug.10,zo io) $ (unpublished opinion) after all real or personal property discussed at the meeting has been (holding that this exception authorizes closing a meeting purchased or sold,or after the public body has abandoned the purchase or to discuss the development or sale, The real or personal property that is being discussed must be consideration ofa property transaction and is not limited identified on the tape.A list of members and all other persons present at to the discussion of specific the closed meeting must be made available to the public after the closed terms of advanced negotiations).DPO 08-001. meeting.The actual purchase or sale of the real or personal property must DPO 14-014. be approved at an open meeting, and the purchase or sale price is public data. 7. Security reports Minn.Stat.§I30.05,subd.3 Meetings may be closed to receive security briefmgs and reports,to (a). discuss issues related to security systems,to discuss emergency-response procedures,and to discuss security deficiencies in or recommendations regarding public services,infrastructure, and facilities,if disclosure of the information 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. Before closing a meeting under this exception,the public body must,when describing the subject to be discussed,refer to the facilities, systems,procedures, services or infrastructures to be considered during the closed meeting. The closed meeting must be tape-recorded,and the recording must be preserved for at least four years. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 17 RELEVANT LINKS: G. Common issues 1. Interviews channel 10,Inc.v.Indep. The Minnesota Supreme Court has ruled that a school board must Sch.Dist.No.709,215 N.W.2d 814(Minn.1974). interview prospective employees for administrative positions in open sessions. The court reasoned that the absence of a statutory exception indicated that the Legislature intended such sessions to be open. As a result, a city council should conduct any interviews of prospective officers and employees at an open meeting if a quorum or more of the council will be present. Mankato Free Press v.City The Minnesota Court of Appeals considered a situation where individual of North Mankato,563 N.W.2d 291(Minn.Ct.App. councilmembers conducted separate, serial interviews of candidates for a 1997). city position in one-on-one closed interviews. The district court found that no"meeting"of the council had occurred because there was never a quorum of the council present during the interviews. However,the court of appeals sent the case back to the district court for a determination of whether the councilmembers had conducted the interview process in a serial fashion to avoid the requirements of the open meeting law. dlankalo Free Press v.Clo, On remand,the district court found that the individual interviews were not ofNorth Mankato,No.C9- 98-677(Minn.Ct.App.Dec. done to avoid the requirements of the open meeting law. This decision was 15,1998)(unpublished also appealed,and the court of appeals affirmed the district court's opinion). decision. Cities that want to use this type of interview process should first consult their city attorney. 2. Informational meetings and committees St.Cloud Newspapers,Inc.v. The Minnesota Supreme Court has held that informational seminars about Dist.742 Cournnoahy Schools,332 N.W.2d 1 school-board business,which the entire board attends, must be noticed and (Minn.1983). open to the public. As a result, it appears that any scheduled gatherings of a quorum or more of a city council must be properly noticed and open to the public,regardless of whether the council takes or contemplates taking action at that gathering. This includes meetings and work sessions where members receive information that may influence later decisions. Many city councils create committees to make recommendations regarding a specific issue. Commonly, such a committee will be responsible for researching the issue and submitting a recommendation to the council for its approval. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7!Page 18 RELEVANT LINKS: These committees are usually advisory, and the council is still responsible DPO mow. for making the final decision. This type of committee may be subject to • DPO 13-015. the open meeting law. Some factors that may be relevant in deciding whether a committee is subject to the open meeting law include: how the committee was created and who are its members; whether the committee is performing an ongoing function, or instead, is performing a one-time function; and what duties and powers have been granted to the committee. DPO 05-0 14. For example,the commissioner of the Minnesota Department of Administration has advised that"standing"committees of a city hospital board that were responsible for management liaison, collection of information, and formulation of issues and recommendations for the board were subject to the open meeting law.The advisory opinion noted that the standing committees were performing tasks that relate to the ongoing operation of the hospital district and were not performing a one-time or "ad hoc" function. DP007-025. In contrast,the commissioner has advised that a city's Free Speech Working Group,consisting of citizens and city officials appointed by the city to meet to develop and review strategies for addressing free-speech concerns relating to a political convention, was not subject to the open meeting law. The advisory opinion noted that the group did not have decision-making authority. A.G.Op.63a-5(Aug.28, It is common for city councils to appoint individual councilmembers to act 1996). Sovereign v.Dunn,498 as liaisons between the council and particular council committees or other N.W.2d 62(Minn.Ct.App. government entities. The Minnesota Court of Appeals considered a 1993). DPO 07-025. situation where the mayor and one other member of a city council attended a series of mediation sessions regarding an annexation dispute that were not open to the public. The Court of Appeals held that the open meeting law did not apply to these meetings concluding "that a gathering of public officials is not a `committee, subcommittee,board, department or commission' subject to the open meeting law unless the group is capable of exercising decision- making powers of the governing body." The Court of Appeals also noted that the capacity to act on behalf of the governing body is presumed where members of the group comprise a quorum of the body and could also arise where there has been a delegation of power from the governing body to the group. If a city is unsure whether a meeting of a committee, board,or other city entity is subject to the open meeting law, it should consult its city attorney or consider seeking an advisory opinion from the commissioner of the Minnesota Department of Administration. League of Minnesota Cities Handbook for Minnesota Cities 8!3012019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 Page 19 RELEVANT LINKS: 77uana v.Kroschel,506 Notice for a special meeting of the city council may be needed if a quorum N.W1993). 9.)d ld(Minn.Cl.App. of the council will be present at a committee meeting and will be DPO 16-005. participating in the discussion. For example, when a quorum of a city council attended a meeting of the city's planning commission, the Minnesota Court of Appeals ruled that there was a violation of the open meeting law not because the councilmembers simply attended the meeting but because the councilmembers conducted public business in conjunction with that meeting. A.O.Op.63a-5(Aug.28, Based on this decision,the attorney general has advised that mere 5996). attendance by councilmembers at a meeting of a council committee held in compliance with the open meeting law would not constitute a special city council meeting requiring separate notice. The attorney general cautioned, however,that the additional councihnembers should not participate in committee discussions or deliberations absent a separate special-meeting notice of a city council meeting. 3. Social gatherings Si.Cloud Newspapers,Inc.v. Social gatherings of city councilmembers will not be considered a meeting Dist.742 Conwuarity Schools,332 N.W.2d 1 subject to the requirements of the open meeting law if there is not a (Minn.1983).Moberg v. quorum present,or,if a quorum is present, if the quorum does not discuss, Indep.Sch.Dist.No.281, 336 N.W.2d 510(Minn. decide,or receive information on official city business. The Minnesota 1983).Nnbbard Supreme Court has ruled that a conversation between two city Broadcasting,Inc.v.CO,of ,(/ton,323 N.W.2d 757 councilmembers over lunch about a land-use application did not violate (Minn.1982). the open meeting law because a quorum of the council was not present. 4. Serial meetings hfoberg v.Indep.Sch.Dist. The Minnesota Supreme Court has noted that meetings of less than a No.281,336 N.W.2d 510 (Minn.1983).DPO 10.011. quorum of a public body held serially to avoid a public meeting or to DPO 06-017. fashion agreement on an issue of public business may violate the open meeting law. Mankato Free Press v.City The Minnesota Court of Appeals considered a situation where individual of North Mankato,563 N.W.2d 291(Minn.Ct.App. councilmembers conducted separate, serial interviews of candidates for a 1997). city position in one-on-one closed interviews. The district court found that no "meeting"of the council had occurred because there was never a quorum of the council present during the interviews. However,the court of appeals sent the case back to the district court for a determination of whether the councilmembers had conducted the interview process in a serial fashion to avoid the requirements of the open meeting law. League of Minnesota Cities Handbook for fannesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 20 RELEVANT LINKS: Mankato Free Press V.City On remand,the district court found that the individual interviews were not of North Alankato,No.C9- 98-677(Minn.Ct.App.Dec. done to avoid the requirements of the open meeting law. This decision was 15,1998)(unpublished also appealed,and the court of appeals affirmed the district court's opinion). decision. Cities that want to use this type of interview process with job applicants should first consult their city attorney. 5. Training sessions Compare Sl.Cloud It is not clear whether the participation of a quorum or more of the Newspapers,Inc.v.Dist.742 Cornmmnll)y Schools,332 members of a city council in a training program would be defined as a N.W.2d[(Minn. 1983)and meeting under the open meeting law. The determining factor would likely A.G.Op.63a-5(Feb.5, 1975).DPO 16-006. be whether the program includes a discussion of general training information or a discussion of specific matters relating to an individual city. A.G.Op.63a-5(Feb.5, The attorney general has advised that a city council's participation in a 1975).DPO 16-006. non-public training program devoted to developing skills was not a meeting subject to the open meeting law. The commissioner of the Department of Administration has likewise advised that a school board's participation in a non-public team-building session to "improve trust, relationships, communications, and collaborative problem solving among Board members,"was not a meeting subject to the open meeting law if the members are not"gathering to discuss, decide, or receive information as a group relating to 'the official business' of the governing body." However, the opinion also advised that if there were to be any discussion of specific official business by the attending members, either outside or during training sessions, it could be a violation of the open meeting law. 6. Telephone, email, and social media Moberg v.!ade1 Sch.Dlsl. It is possible that communication through telephone calls, email, or other Aro.251,336 N.W.2d 510 (Minn.1983).DPO 17-005 technology could violate the open meeting law. The Minnesota Supreme (advising communication Court has indicated that communication through letters and telephone calls through a letter violated the open meeting law). could violate the open meeting law under certain circumstances. DPO 09-020.DPO 14-015. The commissioner of the Department of Administration has advised that back-and-forth email communications among a quorum of a public body that was subject to the open meeting law in which the members commented on and provided direction about official business violated the open meeting law. However,the commissioner also advised that"one-way communication between the chair and members of a public body is permissible,such as when the chair or staff sends meeting materials via email to all board members, as long as no discussion or decision-making ensues." League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 Page 21 RELEVANT LINKS: O'Keefe v.Carter,No.Al2- In contrast,an unpublished opinion by the Minnesota Court of Appeals 0811(Minn.Cl.App.Dec. 31,2012)(unpublished concluded that email communications are not subject to the open meeting opinion). law because they are written communications and are not a "meeting" for purposes of the open meeting law. The decision also noted that even if email communications are subject to the open meeting law,the substance of the emails in question did not contain the type of discussion that would be required for a prohibited "meeting"to have occurred. The court of appeals noted that the substance of the email messages was not important and controversial; instead,the email communications discussed a relatively straightforward operational matter. The decision also noted that the town board members did not appear to make any decisions in their email communications. Because this decision is unpublished, it is not binding precedent on other courts. In addition, the outcome of this decision might have been different if the email communications had related to something other than operational matters,for example, if the board members were attempting to build agreement on a particular issue that was going to be presented to the town board at a future meeting. Minn.Stat.§130.065. The open meeting law was amended in 2014 to provide that"the use of social media by members of a public body does not violate the open meeting law as long as the social media use is limited to exchanges with all members of the general public."Email is not considered a type of social media under the new law. The open meeting.law does not define the term"social media,"but this term is generally understood to mean forms of electronic communication, including websites for social networking like Facebook,Linkedln, and MySpace as well as blogs and microblogs like Twitter through which users create online communities to share information, ideas,and other content. It is important to remember that the use of social media by councilmembers could still be used to support other claims such as claims of defamation or of conflict of interest in decision-making. As a result, councilmembers should make sure that any comments they make on social media are factually correct and should not comment on issues that will come before the council in the future for a quasi-judicial hearing and decision, such as the consideration of whether to grant an application for a conditional use permit. See 11-G-4-Serial meetings. It is also important to remember that serial discussions between less than a quorum of the council could violate the open meeting law under certain circumstances. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 22 RELEVANT LINKS: As a result, city councils and other public bodies should take a conservative approach and should not use telephone calls, email, or other technology to communicate back and forth with other members of the public body if both of the following circumstances exist: • A quorum of the council or public body will be contacted regarding the same matter. • Official business is being discussed. Minn.Stat.§13.02,subd.7. Another thing councilmembers should be careful about is which email account they use to receive emails relating to city business because such emails likely would be considered government data that is subject to a public-records request under the Minnesota Government Data Practices Act(MGDPA). The best option would be for each councilmember to have an individual email account that the city provides,and city staff manage. However,this is not always possible for cities due to budget,size, or logistics. if councilmembers don't have a city email account,there are some things to think about before using a personal email account for city business. First,preferably only the councilmember should have access to the personal email account. Using a shared account with other family members could lead to incorrect information being communicated from the account,or incoming information being inadvertently deleted. Also, since city emails are government data, city officials may have to separate personal emails from city emails when responding to a public-records request under the MGDPA. Second, if the account a city councilmember wants to use for city business is tied to a private employer,that private employer may have a policy that restricts this kind of use. Even if a private employer allows this type of use, it is important to be aware that in the event of a public-records request under the MGDPA or a discovery request in litigation,the private employer may be compelled to have a search done of a councilmember's email communications on the private employer's equipment or to restore files from a backup or archive. See Handbook,Records What may work best is to use a free,third-party email service, such as Management,for more information about records Gmail or Hotmail, for your city account and to avoid using that email management. account for any personal email or for anything that may constitute an official record of city business since such records must be retained in accordance with the state records-retention requirements. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings.Motions,Resolutions,and Ordinances Chapter 71 Page 23 RELEVANT LINKS: H. Advisory opinions 1. Department of Administration Minn.Stat.§ 13.072,subd. 1 The commissioner of the Minnesota Department of Administration has (b).See Minnesota Department of authority to issue non-binding advisory opinions on certain issues related Administration,Data to the open meeting law. A $200 fee is required. The Data Practices Office Practices for an index of advisory opinions. (DPO) handles these requests. See Requesting an Open A public body, subject to the open meeting law, can request an advisory Meeting Law Advisory Opinion. opinion. A person who disagrees with the way members of a governing body perform their duties under the open meeting law can also request an advisory opinion. 2. Attorney General Minn.Stat.§8.07. The Minnesota Attorney General is authorized to issue written advisory See index of Attorney General Advisory Opinions opinions to city attorneys on"questions of public importance."The from 1993 to present. Attorney General has issued several advisory opinions on the open meeting law. I. Penalties Minn.Stat.§13D.06,subd. Any person who intentionally violates the open meeting law is subject to 1. personal liability in the form of a civil penalty of up to $300 for a single Claude v.Collins,518 occurrence. The public body may not pay the penalty. A court may N.W.2d 836(Minn.1994). consider a councilmember's time and experience in office to determine the amount of the civil penalty. Minn.Stat.§i3D.06,subd. An action to enforce this penalty may be brought by any person in any 2. O'Keefe v.Carte,,No.Al2- court of competent jurisdiction where the administrative office of the 0811(Minn.Q.App.2012) governing body is located. (unpublished opinion). In an unpublished decision,the Minnesota Court of Appeals concluded that this broad grant of jurisdiction authorized a member of a town board to bring an action against his own town board for alleged violations of the open meeting law. This same decision also concluded that a two-year statute of limitations applies to lawsuits under the open meeting law. Minn.Stat.§ 13D.06,subd. The court may also award reasonable costs, disbursements,and attorney 4.Sec LMC information memo,LMICIT Liability' fees of up to$13,000 to any party in an action alleging a violation of the Coverage Guide,for open meeting law. The court may award costs and attorney fees to a information about insurance coverage for lawsuits under defendant only if the action is found to be frivolous and without merit. the open meeting law. A public body may pay any costs,disbursements,or attorney fees incurred by or awarded against any of its members. League of M nnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 71 Page 24 RELEVANT LINKS: Minn.Stat.§ 13D.06,subd. If a party prevails in a lawsuit under the open meeting law, an award of 4. reasonable attorney fees is mandatory if the court determines that the public body was the subject of a prior written advisory opinion from the commissioner of the Minnesota Department of Administration, and the court fmds that the opinion is directly related to the lawsuit and that the public body did not act in conformity with the opinion. A court is required to give deference to the advisory opinion. Minn.Stat.§130.06,subd.4 No monetary penalties or attorney fees may be awarded against a member (d) Coa (Minn.. CtMurray, No. of apublic bodyunless the court finds that there was intent to violate the . C6-95-2436( nn.Ct.App. Aug 6,1996)(unpublished open meeting law. decision).Elseih v.Hille, No Al2-1496(Minn.Ct.App. May 13,2013)(unpublished opinion). Minn.Stat.§I30.06,subd.3 If a person is found to have intentionally violated the open meeting law in (a).Brown v.Cannon Falls Two..723 N.W.2d 31(Minn. three or more separate actions involving the same governing body,that Ct.App.2006). person must forfeit any further right to serve on the governing body or in any other capacity with the public body for a period of time equal to the term of office*the person was serving. Minn.Stat.§13D.06,subd.3 If a court fmds a separate,third violation that is unrelated to the previous (b). violations, it must declare the position vacant and notify the appointing authority or clerk of the governing body. As soon as practicable, the appointing authority or governing body shall fill the position as in the case Minn.Const.art.VIII,§5. of any other vacancy. Under the Minnesota Constitution,the Legislature may provide for the removal of public officials for malfeasance or Jacobsen v.Nagel,255 nonfeasance. To constitute malfeasance or nonfeasance, a public official's Minn.300,96 N.W.2d 569 conduct must affect the performance of official duties and must relate to (Minn 1959). something of a substantial nature directly affecting the rights and interests of the public. Jacobsen v.Nagel,255 "Malfeasance"refers to evil conduct or an illegal deed. "Nonfeasance"is Minn.300,96 N.W.2d 569 (Minn.1959).Claude r. described as neglect or refusal,without sufficient excuse, to perform what Collins,518 N.W.2d 836 is a public officer's legal duty to perform. More likely than not,a violation (Mimi.1994)• of the open meeting law would be in the nature of nonfeasance. Although good faith does not nullify a violation,good faith is relevant in determining whether a violation amounts to nonfeasance. Sullivan v.Credit River The open meeting law does not address whether actions taken at a meeting nip.,299 Minn.170,2I7 N.w.2d 502(Minn.1974). that does not comply with its requirements would be valid. Hubbard Broadcasting,Inc. v.City of Afton,323 N.W.2d 757(Minn.1982).In re D d; A Truck Line,Inc.,524 N.W.2d 1(Mimi.Ct.App. 1994), • League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 Page 25 1 RELEVANT LINKS: Lac Qui Parle-Yellow Bank Minnesota courts have generally refused to invalidate actions taken at an Watershed Dist.v. Wol/sch/ager,No.c6-96- improperly closed meeting because this is not a remedy the open meeting 1023(Minn.Ct.App.Nov. law provides. 12,1996)(unpublished opinion).DPO 11-004. Quasi1'.,Cixrtson,276 Minn. But the Minnesota Supreme Court has held that an attempted school 340,150 N.W.2d 199(Minn. 1967). district consolidation was fatally defective when the initiating resolution was adopted at a meeting that was not open to the public. Ill. Meeting procedures A. Citizen involvement Any person may observe council meetings. In fact,the council should encourage citizen attendance to help raise awareness of the city's problems and help create support for programs suggested by the council. Minn.Stat.§130.01,subd. Citizens must be able to hear the discussion at a meeting and must be able 6. to determine who votes for or against a motion. DPO 08-015.DPO 17-006. One copy of any printed materials relating to the agenda items of the meeting that have been distributed or made available to all members of the council must be made available to the audience unless doing so would violate the Minnesota Government Data Practices Act. Although anyone can attend council meetings, citizens cannot speak or Minn.Stat.§412.191,subd. otherwise participate in any discussions unless the mayor or the presiding 2. officer recognizes them for this purpose. The decision to recognize speakers is usually up to the mayor or presiding officer,but the council can overrule this decision. The council can, through a motion, decide to hear one or more speakers from the audience. Participation in council meetings can be intimidating for the average citizen. Councils should make sure citizens are invited to participate when appropriate and listened to with courtesy. Individual councilmembers should not argue with citizens. Citizens attend council meetings to give information for the council to consider. Discussions or debates between individual councilmembers and citizens during council meetings is inappropriate and may reflect badly on the decision-making process. B. Recording and broadcasting of meetings A.G.Op.63a-5(Dec.4, The public may make an audio or videotape of an open meeting if doing so t972). does not have a significantly adverse impact on the order of the meeting. The city council may not prohibit dissemination or broadcast of the tape. League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 I Page 26