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02-09-21
CITY OF Meeting Location: FARMINGTONFarmington City Hall 430 Third Street Farmington, MN 55024 PLANNING COMMISSION REGULAR MEETING AGENDA February 9, 2021 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. DISCUSSION (a) Open Meeting Law 4. ADJOURN CITY OF © 43o Third St., Farmington, MN 55024 FARMINGTON © 651-280-6800 Farmington MN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Election of Officers DATE: February 9, 2021 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 2020,with Commission Member Franceschelli serving as Vice Chair. ACTION REQUESTED Elect a Planning Commission Chair and Vice Chair for 2021. CITY OF O 43o Third St., Farmington, MN 55024 FARMINGTON © 651-28o-6800 �y ® Farmington MN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Appointment to Committees DATE: February 9, 2021 INTRODUCTION The Planning Commission needs to discuss which Commissioner(s) should represent the following committees for the 2021 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 Bernhjelm represents the City Council on this committee. The 2020 representative was Planning Commissioner Windschitl. B) Castle Rock Discussion Group The Committee meets periodically to discuss topics pertinent to Farmington and Castle Rock Township. Council Member Wilson represents the City Council on this committee. The 2020 representative was Planning Commissioner Franceschelli. C) Eureka/Farmington Planning Group This committee meets periodically to discuss topics pertinent to Farmington and Eureka Township. Mayor Hoyt represents the City Council on this committee. The 2020 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 Bernhjelm and Wilson represent the City Council on this 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 2020 representatives were Chair Rotty and Commissioner Lehto. ACTION REQUESTED The Planning Commission should discuss and appoint who will represent the Commission on each of the above mentioned committees during the 2021 calendar year. CITY OF O 430 Third St., Farmington, MN 55024 FARMINGTON © 651-28o-6800 Farmington MN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Approve Planning Commission Minutes DATE: February 9, 2021 INTRODUCTION Attached, are the minutes from the January 12, 2021 regular meeting and the January 26, 2021 special meeting. DISCUSSION NA ACTION REQUESTED Approve the minutes from the January 12, 2021 regular meeting and the January 26, 2021 special meeting. ATTACHMENTS: Type Description 0 Backup Material January 12, 2021 Regular Planning Commission Minutes 0 Backup Material January 26, 2021 Special Planning Commission Minutes Planning Commission Minutes Regular Meeting January 12,2021 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: None Also Present: Tony Wippler, Planning Manager 2. Approval of Minutes a. MOTON by Franceschelli, second by Tesky to approve the minutes of December 8, 2020. APIF, MOTION CARRIED. 3. Discussion a. Sapphire Lake 3rd Addition Final Plat Sapphire Lake Development Company is proposing to plat 32 single-family lots within the Sapphire Lake 3rd Addition. These lots are located to the east of the previous 69 lots platted as part of the 1St and 2nd Additions. This addition is part of the 131 single-family lots proposed for the entire project. The total plat area is just over 32 acres. The preliminary plat was approved in August 2018. The property is zoned R-2 (low medium density residential) and requires a minimum lot size of 6,000 square feet with a minimum lot width of 60 feet. All lots meet these requirements. The final plat includes three outlots. Outlots B and C will be deeded to the city. This addition will include the extensions of 213 Street W and Spruce Street into the development and will have temporary cul-de-sacs at the eastern boundaries of the 3rd Addition. Both streets will have 5-foot wide sidewalks on the north side. An 8-foot wide trail will go through Outlot C, extending from Spruce Street to the intersection of the future Biscayne Avenue. The trail will be constructed in future phases. Lot frontage trees will be provided. Staff recommended approval of the final plat contingent upon the following: 1. The satisfaction of all engineering comments related to the construction plans for grading and utilities. 2. A Development Contract between the applicant and the City of Farmington shall be executed and security fees and costs shall be paid. Submission of all other documents required under the Development Contract shall be required. Mr. John Anderson, developer,had no issues with the report. They are working on the storm sewer line and the parks department has requested a trail with this phase. Construction will start this spring. Grading for the 3rd and 4th additions will be completed this summer. They will dig the storm water pond and dewater this spring for both phases. Chair Rotty asked about the trail. Staff noted the trail will go to Biscayne Avenue. Chair Rotty asked about cul-de-sac signage. Mr. Anderson stated there will be signage on both Planning Commission Minutes January 12,2021 Page 2 streets and they will be taken down this summer. The 4th addition will also have 30 lots. Chair Rotty noted this is a nice addition and recommended forwarding approval to the City Council. MOTION by Windschitl, second by Lehto to approve the Sapphire Lake Yd Addition final plat with the above contingencies and forward it to the City Council. APIF, MOTION CARRIED. b. 2021 Meeting Calendar All meetings in 2021 will be held on the second Tuesday of the month at 7:00 p.m. There will be a special meeting on January 26, 2021. 4. Adjourn MOTION by Lehto, second by Franceschelli to adjourn at 7:14 p.m. APIF,MOTION CARRIED. Respectfully submitted, OoKkKA MULLer Cynthia Muller Administrative Assistant Planning Commission Minutes Special Meeting January 26,2021 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: None Also Present: Tony Wippler, Planning Manager 2. Public Hearings—Chair Rotty opened the public hearings a. Whispering Fields Preliminary Plat and PUD Jay and Patricia Christensen and ISD 192, owners, and Summergate Companies, developer,have jointly submitted an application for a Preliminary Plat and PUD for Whispering Fields located directly south of the Farmington High School off of Flagstaff Avenue. The proposal consists of 119 single-family lots on 47.89 acres. On May 18, 2020,the City Council approved putting this property into MUSA. It was also re-zoned from A-1 (Agriculture)to R-3 (Medium Density Residential)Planned Unit Development. There are two access points for the development. Street B will connect with Flagstaff Avenue midway through the property. Fleming Avenue will be extended north through the center of the development from Regetta Fields to the south. Streets C and B will eventually be extended to the west upon development of the adjacent property. The developer proposed to construct a temporary 20-foot wide bituminous mat between Streets B and C to provide a temporary turnaround until the streets are extended. Streets E and C will end with temporary turnarounds near the southeast corner of the development as the developer does not own the adjacent residential property at that location. Street E will end with a temporary hammer head and Street C will end with a temporary cul-de-sac. There will be a 1.5-acre park in the southwest corner(Outlot C). It is adjacent to city park property within Regetta Fields to the south. Trails and sidewalks are being provided throughout the development. Trails are being provided along Flagstaff Avenue and along the northern boundary of the plat through the school district property. The deviations that are proposed with this planned unit development are: - Allowing single-family dwellings within the R-3 zoning district. - Reducing the minimum lot area to 6,500 square feet. - Reducing the minimum lot width to 45 feet. - Increasing the minimum front yard setback to 25 feet. - Reducing he minimum side yard setback to 7.5 feet. - Increasing the maximum lot coverage to 35 percent. Contingencies that need to be met before review of the final plat are: Special Planning Commission Minutes January 26,2021 Page 2 1. The satisfaction of all engineering comments/requirements including construction plans for grading, storm water and utilities. 2. Continue to work with the city on the design of the temporary turnaround between Streets B and C. Mrs. Christopherson asked where the location of the walkway will be on the west side. Staff stated it will start on the north boundary of your property and go north. The sidewalk along Fleming will connect to the trail. Staff received two emails with questions from the Sayers family as follows: Question#1: How much rain fall is required to have the Whispering Fields holding pond exceed its capacity and overflow when the pond is filled to its normal water level? The approximately 3.5 acre pond is designed to City standards such that it will be able to manage a 100-yr storm (7.41 inches of rain within a 24-hr period). It will contain the 100 year storm event and release the water through an outlet structure at a controlled rate. The overall capacity of the pond between the normal water level and high water level is 447,000 cubic feet, or 10.25 ac-ft. Question#2: If it is over topped, where does the water go? If the water level raises above the 100 year high water level, it will first overflow into the top of the outlet structure. If the water level continues to rise it will exit the pond via a designed emergency overflow on the south side of the basin. It will be conveyed over land through the City Park area to the Regetta Fields pond. Question#3: Does over topping put homes in Regetta Fields in jeopardy of flooding? No, Regetta Fields homes are all set at an elevation above emergency overflows per City Standards. Water will overflow at these points making its way to the Regetta Fields pond, which in turn has an overflow to the ditch. Question#4: The outflow from the Whispering Fields Pond flows to the Regetta Fields Pond; is this correct?Yes. Question#5: Does the Regetta Fields pond have the capacity to accept the increased flow? City standard is that basement floors of houses must be 2 feet above the 100 year high water level of an adjacent pond. While the Whispering Fields pond is discharging into the Regetta Fields pond, the outlet structure for the Regetta Fields pond will be adjusted such that this 2 ft. separation requirement will not be violated. Questions#6: With the increase in water being sent to the Regetta Fields pond, how much rain is needed before it is filled to capacity starting from its normal water level? The available storage in the existing Regetta Fields pond is 250,000 cubic feet between the normal water level and high water level or about 5.8 ac-ft.Again, the outlet control structure is proposed to be modified to accept the additional flow from the Whispering Fields pond, thus the 100 year high water level of the Regetta Fields pond is only anticipated to rise by 0.15 feet. If the water level raises above the 100 year high water level, it will first overflow into the top of the outlet structure. If the water level continues to rise it will exit the pond via a designed emergency overflow on the west side of the basin near the outlet structure to the existing ditch. Special Planning Commission Minutes January 26,2021 Page 3 Question#7: What is the plan to protect homes in Regetta Fields that are at the bottom end of Fleming Street during heavy rain falls or snow melt with rain when street drains are plugged or overrun by the amount of water? Drainage through Regetta Fields, in the event of heavy events and I or plugged catch basins, is designed to drain over a series of overland emergency overflows. These EOF's are designed per City standards with houses set above those elevations. Question#8: What water drainage agreements exist for these properties being developed and who is responsible for maintaining the drainage ditch that all this water will dump into? If such agreements exist, can you please provide a copy or reference to such documents? In the current pre-development condition, an estimated 75% of the site drains toward the adjacent property to the west. After development, 75% percent of the property will drain through the Whispering Fields pond, then into the Regetta Fields pond and ultimately through a controlled outlet into the ditch. The ditch north of the Regetta Fields outlet structure will receive significantly less runoff in the 2, 10 and 100 year storm events. The Regetta Fields pond outlet will control the rate of discharge to a level below the existing condition rate in the 100 year storm event. The outlet control structure, though modified, will remain in its current location. Therefore, since the location is the same and the discharge to be reduced, no additional agreement should be needed. Question#9: Have the Vermillion River environmental group signed off? No contact has been made. Question#10: Are all the ponds used for run off control (Regetta Fields,Whispering Fields and the High School) all clay lined? The Regetta Fields pond is not clay lined. The filtration portion of the Whispering Fields pond is proposed to be clay lined due to native soil types and separation to groundwater, however the"wet" portion of the Whispering Fields pond is not proposed to be clay lined. Both ponds are charged by ground water. We suspect the high school pond is clay lined. This will be verified during expansion of that pond. The clay lined status of that pond will be applied to the expansion of the pond as well. Question#11: Will the east pond at the High School be drained and repaired as part of the Whispering Fields reconstruction of the pond? It has to be drained in order to be expanded. Question#12: Who is responsible for the maintenance of all these ponds to make sure they operate as advertised, including sediment removal, vegetation control and liner integrity if clay lined? Ponds will become part of the City's Storm Water Management System. Question#13: Who absorbs the cost of drainage problems when they occur? Who is responsible for correcting any issues when they occur for water drainage? The ponds, the outlets and the emergency overflows are designed to City standards. Question#14: Will there be some kind of backflow preventer to prevent backflow from the High School pond into Whispering Fields during high water levels through the storm drains? No. Question#1: The boring tests have been completed, correct? What are the results of those tests? Soil borings were completed. Elevated ground water levels were encountered along with some wet soils. Some soil samples were overly wet and will likely require drying to allow the soil compaction levels to be achieved. If Mr. Sayers would like more information, please contact Casey at Summergate at 952-239-2293. Question#2: Road extensions to the west look to service future development, correct? Yes Special Planning Commission Minutes January 26,2021 Page 4 Question#3: Are applicable utilities stubbed to the west for future development, like we had left for the Christensen property?Yes Question#4: 1 don't see the sewer and water loops that the City required in previous developments? Sanitary Sewer is never looped. Watermain is stubbed to the west and will need to be looped once extended in the future development in the Sayers property. Question#5: Where are turn lanes or collector streets shown? There are no collector streets. One southbound right-turn lane will be constructed with the project. Member Franceschelli noted staff did a good job with this review. The storm water questions and answers are appropriate. He had no issues. Member Tesky confirmed the trail to the north along Flagstaff will not connect by the Christopherson property. Member Windschitl noted the temporary turnaround is a concern. He asked if they can make it a street at the end of the block and will there be a temporary lock? Staff stated that will be discussed with the developer during the final plat review. For fire regulations the street is at the minimum width. We may want to widen it. Member Lehto had no concerns. A resident asked if there will be a turn lane on Flagstaff Avenue. Staff stated there will be a southbound right turn lane. There will not be a northbound left turn lane. Chair Rotty asked if there will be more turn lanes as houses are added? Staff replied yes. Chair Rotty noted the property is in MUSA, it does not deviate from the comp plan, it meets the transportation plan and a traffic analysis has been done for turn lanes. He asked about timing of construction. Staff stated they want to start construction this year. Chair Rotty noted the next steps are the final plat and PUD. MOTION by Windschitl, second by Tesky to close the public hearing. APIF,MOTION CARRIED. MOTION by Franceschelli, second by Windschitl to recommend approval to the City Council with the above contingencies. APIF,MOTION CARRIED. 3. Discussion a. Vita Attiva Schematic PUD The developer is Paul Whiteman of Vita Attiva Developers. The property is currently owned by the Donald Peterson Family Limited Partnership and is located south of County Road 50 and to the southwest of the Vermillion River Crossings development. This is proposed as a 55+development. The schematic plan shows 198 units split between 134 detached villa units and 8-unit rowhomes, for a total of 64 units. There will be a private pool, amenities building,tennis and pickleball courts. These would be located on the east side of the development adjacent to the stormwater facility. Special Planning Commission Minutes January 26,2021 Page 5 The villa lots are proposed to be 6500 square feet with a lot width of 42 feet. The proposed setbacks are 15 feet from the front lot line, 5 feet from the side lot lines and 20 feet from the rear lot line. The property is a mixture of zoning districts including Business/Commercial Flex,Mixed Use, R-3 (Medium Density Residential),R-5 (High Density Residential) and P/OS (Park/Open Space). The property will need to be rezoned as a Planned Unit Development to allow the requested uses and to address the reduced front and side yard setbacks. The property is located south of County Road 50 and would be situated between Eaton Avenue to the east and Pilot Knob to the west(if both were to be extended south of County Road 50). Eaton Avenue will be extended south through adjacent property owned by the Peterson family to provide the only means of access from an existing roadway that the applicant is proposing for the site. Eaton Avenue would then intersect with a portion of Spruce Street at a T-intersection and would then continue east and then turn south to where two accesses in the development are proposed(Superior Street and Vermillion Street). The applicant does not propose to construct the remaining portion of Spruce Street west of the Eaton Avenue intersection. Eaton Avenue is a collector and needs to be built to a minimum standard of 36 feet of road width and 70 feet of right-of- way. The schematic plan shows the right-of-way of Eaton Avenue as 80 feet. The applicant would be required to dedicate the necessary right-of-way for Eaton Avenue south of the development through/over the river, wetland and floodplain to the southerly extent of the property. This portion of Eaton Avenue would not be constructed with this development. Staff does not support how Eaton Avenue intersects with Spruce Street and how the far eastern leg of Eaton is offset in the schematic. It should be constructed as a more continuous roadway as it is a residential collector. Interior roads are proposed as 32 feet wide within 66-foot rights-of-way and will be public roads. As the property is adjacent to the future County Road 31 (Pilot Knob) it is subject to the county's contiguous plat ordinance. The County Plat Commission met on January 6, 2021, and will require that the plat dedicate 60 feet of half right-of-way along with a 15 foot trail, drainage and utility easement along the west border of the property. The schematic plan accommodates this requirement. The applicant does not intend to construct any portion of Pilot Knob with this development. The Pilot Knob right-of-way dedication is shared with half on the Peterson property and half on the Devney property. Staff has concerns regarding the schematic plan and how the transportation network will function as presently laid out especially from an emergency services standpoint. A couple additional options to improve the connectivity and accessibility of this development are: 1. Spruce Street(at a minimum half right-of-way) constructed to the west from Eaton Avenue to connect to the north/south stub proposed near the northwest corner of the development. Special Planning Commission Minutes January 26,2021 Page 6 2. Extend Spruce Street to the east from Eaton Avenue to connect into where it terminates within the Vermillion River Crossings development. 3. The construction of Pilot Knob Road from County Road 50 south to Spruce Street and then construct Sprue Street to the east to the north/south stub located near the northwest corner of the development. Because this property is "leap frogging" adjacent vacant land, it is self-creating many of these issues and needs for road connections that previously didn't exist. The Planning Commission should discuss whether this development is premature as providing the necessary road system needed to support this development is substantial and the responsibility to construct these roads would fall to the applicant. Mr. Paul Whiteman, developer, stated he didn't know the Eaton Avenue extension would not be acceptable until just before the meeting. The owner has agreed to bring Eaton all the way through the development and push the design to the west to connect to both streets for two accesses. Member Tesky noted this type of development is needed. However, she had concerns with Eaton Avenue. She appreciated the option to align Eaton. Member Windschitl asked if the amenities will be private. They will be private. He asked why not construct Spruce Street. The developer stated because of the cost. Member Windschilt would like to see a Spruce Street access. Member Lehto had no issues. Member Franceschelli stated there are too many red flags. Only two access points will cause a bottleneck. He asked the developer to work more with staff to resolve these concerns. It's unsafe and unreasonable. Chair Rotty liked the development and it provides another housing option that is needed. He does not want to see it go away, but there are several concerns with transportation. Having one ingress and egress for 200 families is a safety concern. The burden of constructing roadways is left open and moving the burden of Spruce and Pilot Knob to the future. He is concerned it would put the burden on the taxpayers to construct the roads. If there was commercial development to the north,the two developers could work together to share the costs. This is premature. He encouraged the developer to continue to work with staff. Staff noted the schematic plan is going to the February 8 City Council work session for discussion. Mr. Whiteman noted Mr. Peterson has buyers looking at the northern area. That will bring roads in quickly. If we start the process it will bring activity to the area. Chair Rotty encouraged him to work with City staff. Staff stated depending on the City Council,we may need to revise the preliminary plat. In that case, it would come back to the Planning Commission. Special Planning Commission Minutes January 26,2021 Page 7 The next Planning Commission meeting is February 9, 2021. 4. Adjourn MOTION by Windschitl, second by Tesky to adjourn at 8:03 p.m. APIF, MOTION CARRIED. Respectfully submitted, CO wtKa ML&er Cynthia Muller Administrative Assistant CITY OF O 43o Third St., Farmington, MN 55024 FARMINGTON © 651-28o-6800 IMI�111 © Farmington MN.gov TO: Planning Commission FROM: Tony Wippler, Planning Manager SUBJECT: Open Meeting Law DATE: February 9, 2021 INTRODUCTION Organizational matters are normally handled during the Planning Commissions February regular meeting. As part of these organizational discussions it is important to review the Minnesota State Statute as it relates to open meeting law. DISCUSSION I ncluded within the packet please find information regarding open meeting law as provided by the League of Minnesota Cities. As the Planning Commission is a publicly appointed commission, it must comply with open meeting law. ACTION REQUESTED Review the attached information and ask any questions that the Commission may have. ATTACHMENTS: Type Description D Backup Material Open meeting law information 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 01J,Councils, Q. Purpose for more information about the open meeting law. Minn.Slat.§ 13D.01.St. The open meeting law requires that meetings of public bodies must Cloud A'euspapem,Inc.v. Dist.712 Co„nnunio) generally be open to the public. It serves three vital purposes: Schools,332N.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 1-73ves 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 1313,04,snbd.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,snbd. At least one copy of the printed materials relating to agenda items that are 6.DPO 08-0IS.DPO 17- OD6. 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,snbd. 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.Slat.§ 1313.0 1,snbd. 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 8/3012019 Meetings,Motions,Resolutions,and Ordinances Chapter 71 Page 12 f RELEVANT LINKS: Minn.Stat.§465.719,subs. The open meeting law also requires meetings of a public body or of any 9. connrnittee, subconunittee,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. S0011e171 AIN)Wota The Minnesota Supreme Court has held,however, that the governing body Alunlclpal Pourer 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 Afoberg v.brdep.Sch.Dist. The open meeting law does not define the term"meeting."The Minnesota Aro,281,336 N.W.2d 510 (Minn.1983).St.Cloud Supreme Count.,however,has ruled that meetings are gatherings of a Newspapers,Inc.v.Dist.7¢2 quorum or more members of the governing body—or a quorum of a Community Schools,332 N.W.2d 1(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.1. Slat.§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-G-4 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.§ 1313.05,subd. All closed meetings(except those closed raider the attorney-client 1(d). 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.§ 1313.0 1,subd. 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 C Ales 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 13 RELEVANT LINKS: DPo 14-005.Dro 13-012. The commissioner of the Minnesota Department of Administration has DPO06-020.DPO 14-005. See The Free Press v.Cnnno, advised that a member of the public body(and not its attorney) must make qfBlue Gnat, App.77 004) the statement on the record. The conunissioner has also advised that citing I d71(Minn.Ct.App.2004) (holding that 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 commissioner and the "pending litigation"did not Minnesota Court of Appeals have concluded that something more specific satisfy the requirement of describing the subject to be than a general statement is needed to satisfy the requirement of providing a discussed at the closedi meeting). description of the subject to be discussed. Minn.Stat.§13D.04,subd. I 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.§13D.03,subd.1 The city council may, by majority vote in a public meeting, decide to hold ' 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. j Minn.Stat.§13D.03,snbds. After the closed meeting, a written record of all members of the city 1(d),2. Dro 05-027. council and all other people present must be available to the public. The Dro 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.§13D.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 8/30/2018 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 14 i RELEVANT LINKS: 2. Not public data under the Minnesota Government Data Practices Act Minn.stat.§1313.05,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.§1313.05,subd. A closed meeting held to discuss any of the not public data listed above 1(d). must be electronically recorded,and the recording must be preserved for at least three years after the meeting. Minn.Stat.§ 1313.05,subd. I Other not public data may be discussed at an open meeting without (b),(c). DPO 09-012. Iiability 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 I(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. Slat.§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 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 71 Page 15 RELEVANT LINKS: DPO 14-004. The commissioner of the Miimesota 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.§1313.05,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 DPO16- 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). Brabierd Dal$,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 Alader,642 N.W.2d 729 privilege against those served by the open meeting law dictates the need (Minn.2002).Northwest Publications,Gie,v.CIO,of for absolute confidentiality. The need for absolute confidentiality should St.Paid,435 N.W.2d 64 relate to litigation strategy and will usually arise only after the city has (Minn.Ct.App.1989). A4hineapolls Star&71-1bune made a substantive decision on the underlying matter. This privilege may v.lronsingand not be abused to suppress public observations of the decision-making Redevelopment Authority In andfor 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 underlying action that may give rise to fitture 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 1 Page 16 RELEVANT LINKS: 6. Purchase or sale of real or personal .property Minn.Stat.§ 1313.05,subd.3 A public body may close a meeting to: • Determine the asking price for real or personal property to be sold by the public body. Minn.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.Stat.§1313.05,subd.3 Before holding a closed meeting under this exception,the public body (c). must identify on the record the particular real or personal property that is the subject of the closed meeting. Vi*v.Wild Rlce lVarershed The closed meeting must be tape-recorded. The recording must be Ct.A No.Aug.A09-1 82 010) . reserved for eight ears and must be made available to the public only Ct.App. ug.10,20 10) p g y p y (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 of 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.§13D.05,subd.3 Meetings may be closed to receive security briefings and reports,to (d). 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 8/3012019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 17 i 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. jWnkato T)-ee Press r.City The Minnesota Couto of Appeals considered a situation where individual ofArorth Afankato,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. Akmkato!)•ee Press r.CH), On remand,the district court found that the individual interviews were not ofNoryh.Mankato,No.C9- 9"77(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.Clond A'ewspapers,ina.v. The Minnesota Supreme Court has held that informational seminars about Dist.742 CommumHy 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. Comnnonly, 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!2018 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 18 s i i RELEVANT LINKS: These committees are usually advisory,and the council is still responsible DPo08-007. for slaking the final decision. This type of committee may be subject to oPO 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 filnction; and what duties and powers have been granted to the committee. DPO05-014. 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" fiinction. DPO07-025. 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 flee-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). Soveretgrr v.Drum,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). nro 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 fi-om 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 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 19 RELEVANT LINKS: 77nana,i�Krosche4 506 Notice for a special meeting of the city council may be needed if a quorum N.W.2d 14(Minn.C1.App. 1993). 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 bort 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 1996). 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 councilmembers should not participate in committee discussions or deliberations absent a separate special-meeting notice of a city council meeting. 3. Social gatherings St ClondNeuspapers,lac.v. Social gatherings of city councilmembers will not be considered a meeting Dist.742 Communio, Schools,332 N.W.2d 1 subject to the requirements of the open meeting law if there is not a (Minn.1983).rWobergv. 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).Hubbard Supreme Court has ruled that a conversation between two city Broadcasting,fire.v,Ciry 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 ,►toberg v.htdep.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 hfankalo,563 N.W.2d 291(Minn.C1.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 meetnig law. League of Minnesota ClUes Handbook for Minnesota Cities 81301209 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 20 f i RELEVANT LINKS: Alankalo/)•ee Press it.City On remand,the district court found that the individual interviews were not of North 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 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.792 Community Schools,332 members of a city council in a training program would be defined as a N.W.2d l(Minn. 1983)and meeting under the open meeting law. The determining factor would likely A.G.Op.63n-S(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 Aloberg it Indep.Sch.Dist. It is possible that communication through telephone calls, email, or other No.231,336 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 Opel)meeting law). could violate the open meeting law tinder 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 8/3012018 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 21 RELEVANT LINKS: O'Keefe v.Carter,No.At2- In contrast,an unpublished opinion by the Minnesota Court of Appeals 0811(Minn.Ct.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 fitture meeting. Minn.stat. 13D.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,LinkedIn,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 8/30/2018 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 22 i 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 govertunent 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 fiom 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 dfanagestenr,for more information about records Gmail or Hotmail, for your city account and to avoid using that email manage'nent• 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 i 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 Mimi.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 tip 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.§13D,06,subd. An action to enforce this penalty may be brought by any person in any 2. O'Keefe v.Carter,No.Al2- court of competent jurisdiction where the administrative office of the 0911(Mimi.Ct.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.See LMC information memo,LAICIT Liability fees of up to$13,000 to any party in an action alleging a violation of the Covet-age Gutde,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 Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 71 Page 24 i i i 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 funds 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.§ 13D.06,subd.4 No monetary penalties or attorney fees may be awarded against a member C6 5-243Coahrll v..nn.Cup, No. of a public bol unless the court finds that there was intent to violate the C6-9S-243b{Minn.Ct.App. p y Aug 6,1996)(unpublished open meeting law. decision).Elselh v.Wile, No Al2-1496(Minn.CL App. May 13,2013)(unpublished opinion). Minn.Slat.§ 13D.06,subd.3 If a person is found to have intentionally violated the open meeting law in (a).Brown v.Cannon Falls Trip.,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 finds 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.Vlll,15. 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 v. 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 (Minn.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.Credil RAer The open meeting law does not address whether actions taken at a meeting 71rp.,299 Minn. 170,217 N.W.2d 502(Minn.1974). that does not comply with its requirements would be valid. Hubbard Buoadcasling,lnc. v.City of Afion,323 N.W.2d 757(Minn.1982).In re D c& A Truck Line,Inc.,524 N.W.2d I(Minn.Cl.App. 1994), League of Minnesota Cities Handbook for Minnesota Cities 8/30/2019 Meetings,Motions,Resolutions,and Ordinances Chapter 7 1 Page 25 i RELEVANT LINKS: Lac Qui Parle-Yellow Rank Minnesota courts have generally refiised to invalidate actions taken at an II-afershed Disf.r. 111611schlager,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. Quasi v.Kn,rison,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.§13D.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 1972). 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 71 Page 26