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HomeMy WebLinkAbout02.14.24 Parks and Rec Packet Meeting Location: Farmington City Hall 430 Third Street Farmington, MN 55024 PARKS AND RECREATION REGULAR MEETING AGENDA Wednesday, February 14, 2024 7:00 PM Page 1. CALL TO ORDER 2. APPROVE AGENDA 3. APPROVE MINUTES 3.1. January 10, 2024 Meeting Minutes Agenda Item: January 10, 2024 Meeting Minutes - Pdf 3 - 7 4. PRESENTATIONS 4.1. Public Comments Agenda Item: Public Comments - Pdf 8 5. BUSINESS ITEMS 5.1. Chair and Vice-Chair Elections Agenda Item: Chair and Vice-Chair Elections - Pdf 9 6. DISCUSSION ITEMS 6.1. Parks and Recreation Commission Group Photo Agenda Item: Parks and Recreation Commission Group Photo - Pdf 10 6.2. Open Meeting Law Review Agenda Item: Open Meeting Law Review - Pdf 11 - 29 6.3. Review Parks and Recreation Commission Bylaws Agenda Item: Review Parks and Recreation Commission Bylaws - Pdf 30 - 36 6.4. Park Tour with City of Empire’s Parks and Recreation Commission Agenda Item: Park Tour with City of Empire’s Parks and Recreation Commission - Pdf 37 6.5. Tobacco-Free Parks Policy Agenda Item: Tobacco-Free Parks Policy - Pdf 38 - 69 6.6. 2024 Work Plan Progress 70 - 73 Page 1 of 76 Agenda Item: Review 2024 Work Plan Progress - Pdf 7. COMMISSION ROUNDTABLE 7.1. Round Table Format Agenda Item: Round Table Format - Pdf 74 8. STAFF REPORT/UPDATES 8.1. Informational Updates Agenda Item: Informational Updates - Pdf 75 9. MEETING AGENDA TOPICS 9.1. Possible Items for March 13, 2024 Meeting Agenda Agenda Item: Possible Items for March 13, 2024 Meeting Agenda - Pdf 76 10. ADJOURN Page 2 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: January 10, 2024 Meeting Minutes Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: Attached are the draft minutes from the parks and recreation commission’s January 10, 2024 meeting. Commission members are asked to review the minutes and provide any corrections or additions that are needed at the meeting. ATTACHMENTS: January 10, 2024 PRC Draft Meeting Minutes Page 3 of 76 Farmington Parks and Recreation Commission Minutes from the January 10, 2024 Regular Meeting Members Present: Katharine Caron, Katie Putt, Megan Merricks, Cody Fishman, and David McMillen Members Absent: Other’s Present: Parks and Recreation Director Kellee Omlid and TJ DeBates, East Metro Area Fisheries Supervisor, Minnesota Department of Natural Resources I. Call Meeting to Order Chair Putt called the meeting to order at 7:00 p.m. Quorum was present. II. Approval of January 10, 2024 Meeting Agenda Moved by Caron and seconded by McMillan to approve the meeting agenda. All persons in favor (APIF). Motion carried. III. Approval of December 13, 2023 Regular Meeting Minutes Moved by Fishman and seconded by Merricks to approve the meeting minutes with no revisions. APIF. Motion carried. IV. Presentations A. Public Comments There were no public comments shared at the meeting. B. Minnesota Department of Natural Resources (DNR) Fish & Wildlife Overview of the Vermillion River TJ Debates, East Metro Area Fisheries Supervisor, Minnesota Department of Natural Resources (DNR), presented on fisheries management in the Twin Cities and the Vermillion River. Fishing is a $5 billion industry in Minnesota. More trout are stocked in the Vermillion River than any other stream in Minnesota. Approximately 10,000 rainbow trout are stocked in the Vermillion River in the spring with most of them dropped at Rambling River Park. Winter angling is now legal in Vermillion River upstream of Vermillion Fall in Hastings and all tributaries (Dakota County); it is catch-and-release only. The commission asked what they could do; DeBates said provide access and get the word out. There is plenty of parking available at Rambling River Park, but better access to the river is needed. Commission thanked TJ for attending the meeting and great presentation. V. Business Items A. 2024 Work Plan Director Omlid reviewed the addition of the goal to “Develop a Tobacco-Free Parks Policy.”. The only other change was the timing of Goal #6: “Participate in the process of identifying and making improvements at Depot Way Arts Park.”. It was pushed back to late 2024 and carried into 2025, so can seek input from the tenants of the Emery Apartments. Moved by McMillan and seconded by Caron to approve the 2024 work plan. APIF. Motion carried. Page 4 of 76 B. Minnesota Department of Natural Resources (DNR) Outdoor Recreation Grant Program Director Omlid provided an overview of the Minnesota Department of Natural Resources (DNR) Outdoor Recreation grant program. The outdoor recreation grant program provides an opportunity to increase and enhance facilities in local and community parks throughout the state. It is a matching grant program for up to 50% of the cost of acquisition, development, and/or redevelopment of local parks and recreation areas. The maximum grant award is $350,000 for a total project of $700,000. Project proposals must include one or more major recreation facilities as defined by the MN DNR. Support facilities are also eligible for funding as part of a grant application that contains at least one facility from the eligible recreation facilities as identified by the DNR. A permanent skatepark is one of the eligible recreation facilities. Public engagement in the Rambling River Park master planning process showed a strong desire for a skatepark in the community. Staff’s recommendation is to apply for the MN DNR Outdoor Recreation grant with the major recreation facility being the skatepark and to be constructed at Feely Fields. Commission discussed the skatepark and pickleball courts. Regarding the pickleball courts, the land must be owned by the city or will be acquired with the grant application. The land where the pickleball courts are proposed is owned by the School District. If pickleball courts are the preferred facility, we would need to work with the School District to acquire the land. The consensus was the skatepark would be awesome as the park system has so little for teenagers and is a population that has fallen through the cracks. Moved by McMillen and seconded by Caron to recommend to city council to authorize the city’s grant application for the MN DNR Outdoor Recreation for a skatepark and support facilities with matching funds of $350,000. APIF. Motion carried. VI. Discussion Items A. Pavement Condition Index (PCI) for Trails Director Omlid explained how the bituminous pavement conditions for trails are rated, with each segment of trail being assigned a numerical value from 0 to 100 with 0 pavement being in extremely poor condition and 100 representing new trail. The map identifies the trails in the worst condition in red, orange, and light pink and trails in the best condition and/or new trails in dark green. To maintain current and relevant data, the trail pavement conditions will be rerated every two years. New trail segments will be added to the data and map during the rerating process. As of the day the trails were rated, the average PCI of the trail network in Farmington was 67. Discussion included map ratings, trail conditions and pictures of what staff found in the field, preventative trail maintenance, distresses and what they are caused by, and priority trails. Commission asked if there were funding / grant opportunities in conjunction with the ADA to ensure trails are accessible. Director Omlid wasn’t aware of any, but would look into it. There was discussion about creating an interactive trail map, which could highlight loops and amenities along the trails and parks. Director Omlid is going to visit with the city’s GIS Specialist regarding this. B. Chair and Vice-Chair Elections During February Meeting The commission discussed the chair and vice-chair positions as the election will take place during the February meeting. In addition to running the meeting, the chair meets with Director Omlid a week prior to the meeting to set the agenda. Caron and Merricks aren’t interested Page 5 of 76 currently. Fishman is interested in the chair position. McMillen said he will be the chair or vice- chair if no one else is interested. Chair Putt is fine with either position. VII. Commission Roundtable McMillen: Wanted to congratulate and thank the sponsors, Minnwest Bank, Finch & Daisy, and the McKnight Family for the new passenger van. The van is very nice, safe to drive, and no special driver’s license is required to drive it. Putt: Didn’t have anything to share. Caron: Didn't have anything to share. Merricks: Didn’t have anything to share. Fishman: Didn't have anything to share. VIII. Staff Report/Updates Director Omlid provided information on the following: A. Rambling River Center Facility Master Plan The Rambling River Center concept plan will be presented to city council at their January 16 meeting at 7 p.m. Please note this is a Tuesday as Monday is a holiday. Neil Anderson, Minnwest Bank, will be at the meeting to present the $50,000 check for construction of an outdoor patio at the Rambling River Center. B. Park Dedication Study Staff met with HKGi today to resume the park dedication study since the opinion in the Burnsville v Puce case has been published. The city attorney reviewed the draft park dedication code language and double checked it with League of Minnesota materials, state statute, other city codes, and the Puce decision. Staff anticipates a joint meeting with the Planning Commission to present the draft park dedication code language. C. Pilot Knob Road Trail Preliminary Design and Open House City and Dakota County staff met with Bolton & Menk in late December to see the preliminary trail layouts and estimated construction cost. The estimated project cost is $2,839,000, which includes two retaining walls. The open house for the project is Tuesday, January 30 from 5-6:30 p.m. at city hall in the lobby. D. S’mores & More S’mores & More is Sunday, January 28 from 2-4 p.m. at Distad Park. Hopefully, we will have ice for skating and snow for snowshoeing. There will be music, hot cocoa, s’mores, and more. IX. Meeting Agenda Topics The following items were tentatively identified by the commission for its February 14, 2024 meeting agenda: 1. X. Adjournment Moved by Fishman and seconded by Caron to adjourn the meeting. APIF. Motion carried. The meeting was adjourned at 8:57 p.m. Page 6 of 76 Respectfully Submitted, Kellee Omlid Parks & Recreation Director and Recording Secretary Page 7 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Public Comments Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: This agenda item allows the public to speak to commission members about any item that is not on the agenda. When speaking to the commission it must be in a respectful and non-threatening manner. Anyone wishing to provide public comments must provide their name and address for the record. Public comments shall not exceed five minutes. The commission will not respond to the comments and a formal written response will be sent prior to the next commission meeting to the person who made the public comments. Under no circumstances will any formal action be taken on the public comments that are provided to the commission. Page 8 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Chair and Vice-Chair Elections Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: According to the commission’s bylaws and city ordinance, the commission is to elect a chair and vice-chair from its members. The election occurs in February due to the possible appointment and seating of new members at this meeting. The chair and vice-chair may serve no more than two consecutive years in the same position except under extenuating circumstances. and meetings commission monthly the over for responsible is position chair The presiding collaborating with city staff to create the meeting agenda. The vice-chair position is responsible for assuming the chair duties in the absence of the chair. Current commission chair Putt will ask for nominations for the chair position. After the chair is elected, this member then asks for nominations for the vice-chair position. The person elected as the commission chair will run the remainder of the meeting. Page 9 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Parks and Recreation Commission Group Photo Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: Annually a group photo of the commission is taken, so it can be used for public purposes. The photo will be posted on the city’s website and used in the Parks and Recreation Department’s annual report. Commission members should come to the meeting prepared for a group photo, so it can be posted to the city’s website. Page 10 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Open Meeting Law Review Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: Minnesota State Statute has a law that pertains to open meetings for elected and appointed officials including city councils and all boards and commissions. It is important to understand the open meeting law and how it affects the work you do as a parks and recreation commission member for the City of Farmington. The open meeting law requires 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 influences. •Ensures the public’s right to be informed. •Gives the public an opportunity to present its views. City staff is responsible for making sure meeting dates, times, and locations are made public in a timely manner. As a parks and recreation commission member, each of you are responsible for and to remember the following in regards to the open meeting law: •Avoid gathering in a quorum (3+ members) outside of the regular meeting. If a quorum is present at a social gathering, please do not discuss, decide, or receive information on city business. •There are few exceptions to the open meeting law. The exceptions usually pertain to city council on a limited number of topics (i.e. labor negotiations) that permit them to hold a closed meeting. •Serial discussions between less than a quorum could violate the open meeting law under certain circumstances. Avoid phone calls, email, text and social media to discuss city business to avoid having a serial meeting. Have these discussions during regular meetings. •Any person who intentionally violates the open meeting law is subject to a civil penalty up to $300 for a single occurrence. The public body may not pay the penalty. Included in the packet is information about the open meeting law that was put together by the League of Minnesota Cities. Commission members are asked to read the open meeting law information prior to the meeting, come prepared to discuss, and ask any questions you have. ATTACHMENTS: Page 11 of 76 Open Meeting Law Information Page 12 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 12 Minn. Stat. § 645.15. See Section I-B-2 for more information about notice for special meetings. State law does not prohibit meetings on weekends. However, state law regulating how time is computed for the purpose of giving any required notice provides that if the last day of the notice falls on either a Saturday or a Sunday, that day cannot be counted. For example, if notice for a special meeting to be held on a Saturday or Sunday is required, the third day of that notice would need to be provided on the preceding Friday. Minn. Stat. § 204C.03. Minn. Stat. § 202A.19. Minnesota election law provides that meetings are prohibited between 6 p.m. and 8 p.m. on any election day, including a local general or special election. 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. See LMC MemberLearn course, Open Meeting Law. II. Open meeting law See LMC information memo, Meetings of City Councils. A. Purpose Minn. Stat. § 13D.01. St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, 332 N.W.2d 1 (Minn. 1983). 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 influences. • Ensures the public’s right to be informed. • Gives the public an opportunity to present its views. B. Public notice See section I-Types of council meetings and notice requirements. Minn. Stat. § 13D.04, subd. 7. Public notice generally must be provided for meetings of a public body subject to the open meeting law. The notice requirements depend on the 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 with respect to that person regardless of the method of receipt. C. Location Quast v. Knutson, 276 Minn. 340, 150 N.W.2d 199 (1967). (Holding that a school board violated the open meeting law when it held a meeting in a room located 20 miles outside the school district). DPO 18- 003. The Minnesota Supreme Court has held that, to meet the statutory requirement that meetings of public bodies shall be open to the public, “it is essential that such meetings be held in a public place located within the territorial confines of the [public body] involved.” Page 13 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 13 D. Printed materials Minn. Stat. § 13D.01, subd. 6. DPO 08-015. DPO 17-006. DPO 13-015 (noting that the open meeting law “is silent with respect to agendas; it neither requires them nor prohibits them”). DPO 18- 003. DPO 18-011. Minn. Stat. § 13D.01, subd. 6. At least one copy of the printed materials relating to agenda items that are provided to the council at or before a meeting must also be made available for public inspection in the meeting room while the governing body considers the subject matter. This requirement does not apply to materials classified by law as other than public or to materials relating to the agenda items of a closed meeting. E. Groups governed by the open meeting law Minn. Stat. § 13D.01, subd. 1. Under the Minnesota open meeting law, all city council meetings and executive sessions must be open to the public with only a few exceptions. Minn. Stat. § 465.719, subd. 9. The open meeting law also requires meetings of a public body or of any 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 Municipal Power Agency v. Boyne, 578 N.W.2d 362 (Minn. 1998). The Minnesota Supreme Court has held, however, that the governing body of a municipal electric power agency is not subject to the open meeting law because the Legislature has granted these agencies authority to conduct their affairs as private corporations. F. Gatherings governed by the open meeting law Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983). St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, 332 N.W.2d 1 (Minn. 1983). The open meeting law does not define the term “meeting.” The Minnesota Supreme Court, however, has ruled that meetings are gatherings of a quorum or more members of the governing body—or a quorum of a 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. 1. Minn. Stat. § 645.08(5). For most public bodies, including statutory cities, a majority of its qualified members constitutes a quorum. Charter cities may provide that a different number of members of the council constitutes a quorum. See Section II-G-4 for more information about serial meetings. The open meeting law does not generally apply in situations where less 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. Page 14 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 14 G. Open meeting law exceptions Minn. Stat. § 13D.01, subd. 3. Minn. Stat. § 13D.05, subd. 1 (d). See Closing a Meeting from DPO. See LMC MemberLearn course, How to Close a Meeting, for more information There are seven exceptions to the open meeting law that authorize the closure of meetings to the public. Under these exceptions some meetings may be closed, and some meetings must be closed. Before a meeting is closed under any of the exceptions, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. DPO 14-005. DPO 13-012. DPO 14-014. The commissioner of the Minnesota Department of Administration has advised that a member of the public body (and not its attorney) must make the statement on the record. The open meeting law does not define the phrase “on the record,” but the commissioner has advised that the phrase should be interpreted to mean a verbal statement in open session. Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. Ct. App. 2004). The commissioner has also advised that citing the specific statutory authority that permits the closed meeting is the simplest way to satisfy the requirement for stating the specific grounds permitting the meeting to be closed. Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. Ct. App. 2004) (holding that a county’s statement that it was closing a meeting under the attorney- client privilege to discuss “pending litigation” did not satisfy the requirement of describing the subject to be discussed at a closed meeting). Both the commissioner and the Minnesota Court of Appeals have concluded that something more specific than a general statement is needed to satisfy the requirement of providing a description of the subject to be discussed. Minn. Stat. § 13D.05, subd. 1 (d). All closed meetings, except those closed as permitted by the attorney- client privilege, must be electronically recorded at the expense of the public body. Unless otherwise provided by law, the recordings must be preserved for at least three years after the date of the meeting. Minn. Stat. § 13D.04, subd. 5. The same notice requirements that apply to open meetings also apply to 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, the notice requirements for a special meeting apply. 1. Meetings that may be closed The public body may choose to close certain meetings. The following types of meetings may be closed: Page 15 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 15 a. Labor negotiations under PELRA Minn. Stat. § 13D.03. DPO 13-012. A meeting to consider strategies for labor negotiations, including negotiation strategies or development or discussion of labor-negotiation proposals, may be closed. However, the actual negotiations must be done at an open meeting if a quorum of the council is present. Minn. Stat. § 13D.03. Minn. Stat. § 13D.01, subd. 3. The following procedure must be used to close a meeting under this exception: See Closing a Meeting from DPO. DPO 05-027. DPO 00-037. • The council must decide to close the meeting by a majority vote at a public meeting and must announce the time and place of the closed meeting. • Before closing the meeting, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. • A written record of all people present at the closed meeting must be available to the public after the closed meeting. • The meeting must be recorded. • The recording must be kept for two years after the contract is signed. • The recording becomes public after all labor agreements are signed by the city council for the current budget period. Minn. Stat. § 13D.03, subd. 3. If an action claiming that other public business was transacted at the closed meeting is brought during the time the tape is not public, the court will review the recording privately. If the court finds no violation of the open meeting law the action will be dismissed and the recording will be preserved in court records until it becomes available to the public. If the court determines there may have been a violation, the entire recording may be introduced at the trial. However, the court may issue appropriate protective orders requested by either party. b. Performance evaluations Minn. Stat. § 13D.05, subd. 3(a). A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. Minn. Stat. § 13D.05, subd. 3(a). Minn. Stat. § 13D.01, subd. 3. The following procedure must be used to close a meeting under this exception: DPO 05-013 (advising that a government entity could close a meeting under this exception to discuss its contract with an independent contractor when that contractor is an individual human being). • The public body must identify the individual to be evaluated prior to closing the meeting. • The meeting must be open at the request of the individual who is the subject of the meeting; so some advance notice to the individual is needed to allow the individual to make a decision. Page 16 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 16 DPO 14-007, DPO 15-002, and DPO 16-002 (discussing what type of summary is sufficient). • Before closing the meeting, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. • The meeting must be electronically recorded, and the recording must be preserved for at least three years after the meeting. • At the next open meeting, the public body must summarize its conclusions regarding the evaluation. The council should be careful not to release private or confidential data in its summary. c. Attorney-client privilege Minn. Stat. § 13D.05, subd. 3(b). Brainerd Daily Dispatch, LLC v. Dehen, 693 N.W.2d 435 (Minn. Ct. App. 2005). Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002). DPO 16-003. DPO 17-003. Meetings between the governing body and its attorney to discuss active, threatened, or pending litigation may be closed when the balancing of the purposes served by the attorney-client privilege against those served by the open meeting law dictates the need for absolute confidentiality. The need for absolute confidentiality should relate to litigation strategy, and will usually arise only after a substantive decision on the underlying matter has been made. Northwest Publications, Inc. v. City of St. Paul, 435 N.W.2d 64 (Minn. Ct. App. 1989). Minneapolis Star & Tribune v. Housing and Redevelopment Authority in and for the City of Minneapolis, 251 N.W.2d 620 (Minn. 1976). This privilege may not be abused to suppress public observations of the decision-making process, and does not include situations where the council will be receiving general legal opinions and advice on the strengths and weaknesses of a proposed action that may give rise to future litigation. Minn. Stat. § 13D.01, subd. 3. The following procedure must be used to close a meeting under this exception: See Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. Ct. App. 2004) (holding that a general statement that a meeting was being closed under the attorney-client privilege to discuss “pending litigation” did not satisfy the requirement of describing the subject to be discussed). • Before closing the meeting, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. • The council should also describe how a balancing of the purposes of the attorney-client privilege against the purposes of the open meeting law demonstrates the need for absolute confidentiality. • The council must actually communicate with its attorney at the meeting. d. Purchase or sale of property A public body may close a meeting to: Minn. Stat. § 13D.05, subd. 3(c). • Determine the asking price for real or personal property to be sold by the public body. Page 17 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 17 Vik v. Wild Rice Watershed Dist., No. A09-1841 (Minn. Ct. App. 2010) (unpublished opinion). • Review confidential or nonpublic appraisal data. • Develop or consider offers or counteroffers for the purchase or sale of real or personal property. Minn. Stat. § 13D.05, subd. 3(c). The following procedure must be used to close a meeting under this exception: DPO 14-014. DPO 08-001 (advising that a public body cannot authorize the release of a tape of a closed meeting under this exception until all property discussed at the meeting has been purchased or sold or the public body has abandoned the purchase or sale). • Before closing the meeting, the council must state on the record the specific grounds for closing the meeting, describe the subject to be discussed, and identify the particular property that is the subject of the meeting. See Closing a Meeting from DPO. • The meeting must be recorded and the property must be identified on the recording. The recording must be preserved for eight years, and must be made available to the public after all property discussed at the meeting has been purchased or sold or after the public body has abandoned the purchase or sale. • A list of council members and all other persons present at the closed meeting must be made available to the public after the closed meeting. • The actual purchase or sale of the property must be approved at an open meeting, and the purchase or sale price is public data. e. Security reports Minn. Stat. § 13D.05, subd. 3(d). A meeting may be closed to receive security briefings and reports, to discuss issues related to security systems, emergency response procedures, and 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. Minn. Stat. § 13D.05, subd. 3(d). The following procedure must be used to close a meeting under this exception: • Before closing the meeting, the council must state on the record the specific grounds for closing the meeting and describe the subject to be discussed. • When describing the subject to be discussed, the council must refer to the facilities, systems, procedures, services or infrastructure to be considered during the closed meeting. • The closed meeting must be recorded, and the recording must be preserved for at least four years. Page 18 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 18 2. Meetings that must be closed There are some meetings that the open meeting law requires to be closed. The following meetings must be closed: a. Misconduct allegations Minn. Stat. § 13D.05, subd. 2(b). Minn. Stat. § 13.43, subd. 2(4). DPO 03-020. A public body must close a meeting for preliminary consideration of allegations or charges against an individual subject to the public body’s authority. 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. Minn. Stat. § 13.43. The commissioner has also advised that a recording of a closed 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. Minn. Stat. § 13D.01, subd. 3. Minn. Stat. § 13D.05, subd. 1. The following procedure must be used to close a meeting under this exception: Note: There is a special provision dealing with allegations of law enforcement personnel misconduct; see Minn. Stat. § 13D.05, subd. 2(a) and section II.G.2.b.- Certain not- public data. • Before closing the meeting, the council must state on the record the specific grounds for closing the meeting and describe the subject to be discussed. • The meeting must be open at the request of the individual who is the subject of the meeting. Thus, the individual should be given advance notice of the existence and nature of the charges against him or her, so that the individual can make a decision. • The meeting must be electronically recorded, and the recording must be preserved for at least three years after the meeting. • If the public body decides that discipline of any nature may be warranted regarding the specific charges, further meetings must be open. Page 19 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 19 DPO 03-020. (Advising that when a meeting is closed under this exception, Minn. Stat. § 13.43, subd. 2 requires the government entity to identify the individual who is being discussed). While the law permits the council to announce that it is closing a meeting to consider charges against an individual, it is still the best practice not to refer to that individual by name. The council should state only that it is closing the meeting to give preliminary consideration to allegations against someone subject to its authority. However, if someone requests the name of the employee who is the subject of the closed meeting, the name will probably have to be furnished since the existence and status of any complaints against an employee are public data. b. Certain not-public data The general rule is that meetings cannot be closed to discuss data that are not public under the Minnesota Government Data Practices Act. A meeting must be closed, however, if the following not-public data is discussed: Minn. Stat. § 13D.05, subd. 2(a). Minn. Stat. § 13.32. Minn. Stat. § 13.3805, subd. 1. Minn. Stat. § 13.384. Minn. Stat. § 13.46, subds. 2, 7. Minn. Stat. §§ 144.291- 144.298. • Data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults. • Internal affairs data relating to allegations of law enforcement personnel misconduct or active law enforcement investigative data. • Educational data, health data, medical data, welfare data or mental health data that are not-public data. • Certain medical records. Minn. Stat. § 13D.01, subd. 3. Minn. Stat. § 13D.05, subd.1. The following procedure must be used to close a meeting under this exception: • The council must state on the record the specific grounds for closing the meeting and describe the subject to be discussed. • The meeting must be electronically recorded, and the recording must be preserved for at least three years after the meeting. H. Common issues 1. Data practices Minn. Stat. § 13D.05, subds. 1(a), 2(a). See section II.G.2.b.-Certain not-public data. Generally, meetings may not be closed to discuss data that is not public under the Minnesota Government Data Practices Act (MGDPA). However, the public body must close any part of a meeting at which certain types of not-public data are discussed. Minn. Stat. § 13D.05, subd. 2(a). Minn. Stat. § 13.03, subd. 11. If not-public data is discussed at an open meeting when the meeting is required to be closed, it is a violation of the open meeting law. Discussions of some types of not-public data may also be a violation of the MGDPA. Page 20 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 20 However, not-public data may generally be discussed at an open meeting without liability or penalty if both of the following criteria are met: Minn. Stat. § 13D.05, subd. 1(b). • The disclosure relates to a matter within the scope of the public body’s authority. • The disclosure is necessary to conduct the business or agenda item before the public body. Minn. Stat. § 13D.05, subd. 1(c). Data that is discussed at an open meeting retains its original classification under the MGDPA. However, a record of the meeting is public, regardless of the form. It is suggested that not-public data that is discussed at an open meeting not be specifically detailed in the minutes. 2. Interviews Channel 10, Inc. v. Indep. Sch. Dist. No. 709, 215 N.W.2d 814 (Minn. 1974). The Minnesota Supreme Court has ruled that a school board must 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 of North Mankato, 563 N.W.2d 291 (Minn. Ct. App. 1997). The Minnesota Court of Appeals considered a situation where individual council members conducted separate, serial interviews of candidates for a 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 council members had conducted the interview process in a serial fashion to avoid the requirements of the open meeting law. Mankato Free Press v. City of North Mankato, No. C9-98- 677 (Minn. Ct. App. Dec. 15, 1998) (unpublished decision). On remand, the district court found that the individual interviews were not done to avoid the requirements of the open meeting law. This decision was also appealed, and the court of appeals affirmed the district court’s decision. Cities that want to use this type of interview process should first consult their city attorney. 3. Informational meetings and committees St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, 332 N.W.2d 1 (Minn. 1983). The Minnesota Supreme Court has held that informational seminars about school-board business, which the entire board attends, must be noticed and open to the public. Page 21 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 21 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. DPO 08-007. DPO 13-015. These committees are usually advisory, and the council is still responsible for making the final decision. This type of committee may be subject to 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 its members are; 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 05-014. 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” function. DPO 07-025. 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, 1996). Sovereign v. Dunn, 498 N.W.2d 62 (Minn. Ct. App. 1993). DPO 07-025. It is common for city councils to appoint individual council members to act as liaisons between the council and particular council committees or other government entities. The Minnesota Court of Appeals considered a 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.” Page 22 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 22 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. Thuma v. Kroschel, 506 N.W.2d 14 (Minn. Ct. App. 1993). DPO 16-005. Notice for a special meeting of the city council may be needed if a quorum of the council will be present at a committee meeting and will be 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 council members simply attended the meeting but because the council members conducted public business in conjunction with that meeting. A.G. Op. 63a-5 (Aug. 28, 1996). Based on this decision, the attorney general has advised that mere attendance by council members 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 council members should not participate in committee discussions or deliberations absent a separate special-meeting notice of a city council meeting. 4. Social gatherings St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, 332 N.W.2d 1 (Minn. 1983). Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983). Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757 (Minn. 1982). Social gatherings of city council members will not be considered a meeting subject to the requirements of the open meeting law if there is not a quorum present, or, if a quorum is present, if the quorum does not discuss, decide, or receive information on official city business. The Minnesota Supreme Court has ruled that a conversation between two city council members over lunch about a land-use application did not violate the open meeting law because a quorum of the council was not present. 5. Serial meetings Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983). DPO 10-011. DPO 06-017. The Minnesota Supreme Court has noted that meetings of less than a quorum of a public body held serially to avoid a public meeting or to fashion agreement on an issue of public business may violate the open meeting law. Page 23 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 23 Mankato Free Press v. City of North Mankato, 563 N.W.2d 291 (Minn. Ct. App. 1997). The Minnesota Court of Appeals considered a situation where individual council members conducted separate, serial interviews of candidates for a 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 council members had conducted the interview process in a serial fashion to avoid the requirements of the open meeting law. Mankato Free Press v. City of North Mankato, No. C9-98- 677 (Minn. Ct. App. Dec. 15, 1998) (unpublished decision). On remand, the district court found that the individual interviews were not done to avoid the requirements of the open meeting law. This decision was also appealed, and the court of appeals affirmed the district court’s decision. Cities that want to use this type of interview process with job applicants should first consult their city attorney. 6. Training sessions Compare St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, 332 N.W.2d 1 (Minn. 1983) and A.G. Op. 63a-5 (Feb. 5, 1975). DPO 16-006. It is not clear whether the participation of a quorum or more of the members of a city council in a training program would be defined as a meeting under the open meeting law. The determining factor would likely 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, 1975). DPO 16-006. The attorney general has advised that a city council’s participation in a 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. 7. Telephone, email, and social media Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983). It is possible that communication through telephone calls, email, or other technology could violate the open meeting law. Page 24 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 24 DPO 17-005 (advising communication through a letter violated the open meeting law). The Minnesota Supreme Court has indicated that communication through letters and telephone calls could violate the open meeting law under certain circumstances. Best practice to share information with the entire council is to send it to city staff and have them distribute it. If a council member needs to email the entire council, they should use blind carbon copy (BCC) to add recipients to avoid accidental use of reply all which may constitute the initiation of a discussion among a quorum of the public body. 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.” O’Keefe v. Carter, No. A12- 0811 (Minn. Ct. App. Dec. 31, 2012) (unpublished decision). In contrast, an unpublished decision by the Minnesota Court of Appeals concluded that email communications are not subject to the open meeting 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. § 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. Page 25 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 25 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, Instagram, and 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 council members could still be used to support other claims such as claims of defamation or of conflict of interest in decision-making. As a result, council members 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 II-H-5 - 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. 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 council members 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 council member 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 council members 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 council member 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. Page 26 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 26 Second, if the account a city council member 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 council member’s email communications on the private employer’s equipment or to restore files from a backup or archive. See Handbook, Records Management, for more information about records management. What may work best is to use a free, third-party email service, such as Gmail or Hotmail, for your city account and to avoid using that email 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. I. Advisory opinions 1. Department of Administration Minn. Stat. § 13.072, subd. 1 (b). See Minnesota Department of Administration, Data Practices for an index of advisory opinions. The commissioner of the Minnesota Department of Administration has authority to issue non-binding advisory opinions on certain issues related to the open meeting law. The Data Practices Office (DPO) handles these requests. See Requesting an Open Meeting Law Advisory Opinion. A public body, subject to the open meeting law, can request an advisory 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. See index of Attorney General Advisory Opinions from 1993 to present. The Minnesota Attorney General is authorized to issue written advisory opinions to city attorneys on “questions of public importance.” The Attorney General has issued several advisory opinions on the open meeting law. J. Penalties Minn. Stat. § 13D.06, subd. 1. Claude v. Collins, 518 N.W.2d 836 (Minn. 1994). Any person who intentionally violates the open meeting law is subject to personal liability in the form of a civil penalty of up to $300 for a single occurrence. The public body may not pay the penalty. A court may consider a council member’s time and experience in office to determine the amount of the civil penalty. Page 27 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 27 Minn. Stat. § 13D.06, subd. 2. O’Keefe v. Carter, No. A12- 0811 (Minn. Ct. App. Dec. 31, 2012) (unpublished decision). An action to enforce this penalty may be brought by any person in any court of competent jurisdiction where the administrative office of the governing body is located. 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. 4. See LMC information memo, LMCIT Liability Coverage Guide, for information about insurance coverage for lawsuits under the open meeting law. The court may also award reasonable costs, disbursements, and attorney fees of up to $13,000 to any party in an action alleging a violation of the open meeting law. The court may award costs and attorney fees to a defendant only if the action is found to be frivolous and without merit. A public body may pay any costs, disbursements, or attorney fees incurred by or awarded against any of its members. Minn. Stat. § 13D.06, subd. 4. If a party prevails in a lawsuit under the open meeting law, an award of 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 finds 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 (d). Coalwell v. Murray, No. C6-95-2436 (Minn. Ct. App. Aug 6, 1996) (unpublished decision). Elseth v. Hille, No A12-1496 (Minn. Ct. App. May 13, 2013) (unpublished decision). No monetary penalties or attorney fees may be awarded against a member of a public body unless the court finds that there was intent to violate the open meeting law. Minn. Stat. § 13D.06, subd. 3 (a). Brown v. Cannon Falls Twp., 723 N.W.2d 31 (Minn. Ct. App. 2006). If a person is found to have intentionally violated the open meeting law in three or more separate actions involving the same governing body, that 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 (b). Minn. Const. art. VIII, § 5. If a court finds a separate, third violation that is unrelated to the previous 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 of any other vacancy. Under the Minnesota Constitution, the Legislature may provide for the removal of public officials for malfeasance or nonfeasance. Page 28 of 76 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 7/11/2023 Meetings, Motions, Resolutions, and Ordinances Chapter 7 | Page 28 Jacobsen v. Nagel, 255 Minn. 300, 96 N.W.2d 569 (1959). To constitute malfeasance or nonfeasance, a public official’s conduct must affect the performance of official duties and must relate to something of a substantial nature directly affecting the rights and interests of the public. Jacobsen v. Nagel , 255 Minn. 300, 96 N.W.2d 569 (1959). Claude v. Collins, 518 N.W.2d 836 (Minn. 1994). “Malfeasance” refers to evil conduct or an illegal deed. “Nonfeasance” is described as neglect or refusal, without sufficient excuse, to perform what is a public officer’s legal duty to perform. More likely than not, a violation 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 Twp., 299 Minn. 170, 217 N.W.2d 502 (1974). Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757 (Minn. 1982). In re D & A Truck Line, Inc., 524 N.W.2d 1 (Minn. Ct. App. 1994). The open meeting law does not address whether actions taken at a meeting that does not comply with its requirements would be valid. Sullivan v. Credit River Township, 217 N.W.2d 502 (Minn. 1974). Lac Qui Parle- Yellow Bank Watershed Dist. v. Wollschlager, No. C6-96- 1023 (Minn. Ct. App. Nov. 12, 1996) (unpublished decision). DPO 11-004. Minnesota courts have generally refused to invalidate actions taken at an improperly closed meeting because this is not a remedy the open meeting law provides. Quast v. Knutson, 276 Minn. 340, 150 N.W.2d 199 (1967). But the Minnesota Supreme Court has held that an attempted school district consolidation was fatally defective when the initiating resolution was adopted at a meeting that was not open to the public. III. 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. 6. Citizens must be able to hear the discussion at a meeting and must be able 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. Minn. Stat. § 412.191, subd. 2. Although anyone can attend council meetings, citizens cannot speak or otherwise participate in any discussions unless the mayor or the presiding officer recognizes them for this purpose. Page 29 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Mayor, Councilmembers and City Administrator From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Review Parks and Recreation Commission Bylaws Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: One of commission’s goals for the 2020 Work Plan was to “Create Commission Bylaws”. These bylaws were intended to identify rules so the commission operates consistently, there are clear expectations The manner. orderly an in function commission the and members, for can commission developed bylaws over several months in 2020, which included reviewing sample bylaws from other parks and recreation commissions and boards and deciding what to include in its bylaws. Commission created draft bylaws that it approved at its May 13, 2020 meeting and forwarded them to city council for approval. City council approved the parks and recreation commission bylaws at its June 1, 2020 meeting. Included in the packet is the city council approved parks and recreation commission’s bylaws. The bylaws are reviewed annually in February due to the possible appointment and seating of new members at this meeting. Commission members are asked to read the bylaws prior to the meeting, come prepared to discuss, and ask any questions you have. No formal action is required as this is for informational purposes only. ATTACHMENTS: 2020 City Council Approved PRC Bylaws Signed Version Page 30 of 76 Page 31 of 76 Page 32 of 76 Page 33 of 76 Page 34 of 76 Page 35 of 76 Page 36 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Park Tour with City of Empire’s Parks and Recreation Commission Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: The parks and recreation commission has met with the City of Empire’s Parks and Recreation Commission on every other year basis. At the October 11, 2021 joint meeting, both commissions thought the meeting was beneficial and should be held annually. Thus, meetings were held in 2022 and 2023. At the November 8, 2023 parks and recreation commission meeting, the commission reviewed the joint meeting with Empire Parks and Recreation Commission. The consensus was it is good to meet, but it gets repetitive as there is only so much to discuss. It was suggested to do a joint parks tour as it would be helpful to see what we have been discussing for the last several years. A spring tour, in May, was proposed as then could discuss upcoming improvements. Director Omlid followed up with Empire to see if they would be interested in a parks tour. Empire’s Parks and Recreation Commission was on board with a joint parks tour; however, a consideration would be how best to participate in the event. In the past, when similar park tours were done, Farmington was able to provide a bus to transport everyone on the tour. Although we no longer have this bus, we have a new 12-passenger van available. Thus, transportation will be provided by the City of Farmington. The commission is asked to come prepared to discuss the following items related to having a joint tour with Empire Parks and Recreation Commission: •Preferred date and backup date for the tour •Timeframe for the tour •Identify city parks, trails, and/or recreational facilities to tour Director Omlid will then follow up with the Deputy Clerk and Chair of the Empire Parks and Recreation Commission with potential tour dates. For commission’s information, Empire Parks and Recreation Commission meets the second and fourth Mondays of the month at 7 p.m., which would be May 13 and 27 respectively. However, May 27 is Memorial Day and according to Empire’s community the on rescheduled not it’s and no calendar. be will there calendar meeting Commission’s regularly scheduled meeting for May is the 8th. Page 37 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Tobacco-Free Parks Policy Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: One of the parks and recreation commission’s (the commission) work plan goals for 2024 is to “Develop a Tobacco-Free Parks Policy.”. This discussion started at the commission’s August 2023 meeting. The memo and attachment from the meeting are included in the packet. Discussion at the meeting included how much if an issue cigarette smoking and tobacco use was in the parks, what other cities were doing for enforcement of tobacco free parks policies, commission’s current work plan, and working on a tobacco-free parks policy that still might not be approved. The commission decided they were interested in Dakota County Public Health coming to present their Commercial Tobacco-Free Living program at a future parks and recreation commission meeting. Kjirsten Anderson, Dakota County Public Health, and Elyse Levine Less, Tobacco-Free Alliance, attended the November 2023 commission meeting to present a tobacco-free parks overview. The presentation included (1) rationale for tobacco-free parks, (2) role modeling and social norms, (3) dangers of secondhand smoke and vape waste, (4) examples of popular vape devices, (5) levels of tobacco-free policy coverage, (6) current outdoor air landscape of the cities in Dakota County, and (7) standard enforcement. Following the meeting, the commission reviewed the presentation and discussed if and how they wanted to move forward. The commission decided to pursue a tobacco-free parks policy. Thus, it was added to the 2024 work plan. Included in the packet are smoking and tobacco use ordinances from Ramsey County, City of Inver Grove Heights, and City of Woodbury. Also included is the Public Health Law Center’s (PHLC) Model Ordinance for Minnesota Communities and the smoke-free policy for the City of West St. Paul. If you remember from the tobacco-free parks overview, there were levels of tobacco-free policy coverage ranging from 1 (most recreation areas) to 5 (few recreation areas). The gold standard policy is all facilities covered all the time, which is 1 as is the most comprehensive. Some facilities least the is events youth during and mid-range is time the all covered coverage comprehensive (5). Ramsey County and the City of Inver Grove Heights are gold standard as all facilities are covered all the time. As the commission is pursuing a tobacco-free parks policy, something to consider is violations and enforcement of the policy. The PHLC best practice model ordinance suggests that a “request for voluntary compliance” is the “preferred method of enforcement”. Page 38 of 76 Commission members are asked to review the attached information and be prepared to discuss what should be included in the City of Farmington tobacco-free parks policy. Based on this discussion, staff will draft a tobacco-free parks policy to be presented to the commission for feedback. ATTACHMENTS: Smoking and Tobacco Use in Parks Memo from August 2023 Meeting Ramsey County Smoking and Commercial Tobacco Use Ordinance 7.12.22 Inver Grove Heights Ordinance Woodbury Ordinance MN Outdoor Areas Model Ordinance West St. Paul Smoke-Free Policy Page 39 of 76 Page 40 of 76 Page 41 of 76 Page 42 of 76 1 Ramsey County Smoking and Commercial Tobacco Use Ordinance 1.00 This Ordinance will be known as the "Ramsey County Smoking and Commercial Tobacco Use Ordinance.” 2.00 Purpose 2.01 The main objectives of this Ordinance are: A. To protect the health of the people of Ramsey County from the negative effects of commercial tobacco while in public places and places of employment. B. To affirm the right of people to breathe air without secondhand smoke. C. To reduce commercial tobacco use and exposure in children, youth and young adults. D. To protect the health of vulnerable and disproportionately impacted populations. E. To reduce waste from commercial tobacco products that can harm human and animal health and the environment. 3.00 Authority The Ramsey County Board of Commissioners is authorized to adopt this Ordinance by Minnesota Statutes sections 44.417, subd. 4(a) and chapters 145A and 375, the Home Rule Charter for Ramsey County, and other applicable legislation, as may be adopted or amended from time to time. 4.00 Jurisdiction 4.01 This Ordinance applies throughout all of Ramsey County. 4.02 Nothing in this Ordinance will prevent cities and townships within Ramsey County from adopting stricter rules to protect people from smoking or commercial tobacco products. 4.03 Nothing in this Ordinance authorizes smoking or the use of commercial tobacco products in any location where smoking or the use of commercial tobacco products is restricted by other laws. 5.00 Definitions For purposes of this Ordinance, the following definitions apply, unless the context clearly indicates a different meaning. Any term that is not defined will be interpreted as the commonly understood meaning. 5.01 County staff. County staff and service providers include but are not limited to: employees; independent contractors; contractors; vendors; consultants; volunteers; and elected and appointed officials. 5.02 Electronic delivery device. Any product containing or delivering nicotine, lobelia or any other substance, whether natural or synthetic, intended for human consumption through the inhalation of aerosol or vapor from the product. Electronic delivery device includes, but is not limited to, devices manufactured, marketed or sold as e-cigarettes, e-cigars, e-pipes, vape pens, mods, tank systems, or under any other product name or descriptor. Electronic delivery device includes any component part of Page 43 of 76 2 a product, whether or not marketed or sold separately. Electronic delivery device does not include any “drug,” “device,” or “combination product” as defined in the Federal Food, Drug, and Cosmetic Act that has been authorized by the United States Food and Drug Administration for sale as a tobacco ce ssation product, a tobacco dependence product, or for other medical purposes. 5.03 Minnesota Clean Indoor Air Act. Minnesota Statutes Sections 144.411 to 144.417, as amended from time to time. 5.04 Place of employment. “Place of employment” as defined in Minnesota Statutes Section 144.413, subd. 1b, as amended from time to time. 5.05 Public place. “Public place” as defined in Minnesota Statutes Section 144.413, subd. 2, as amended from time to time. 5.06 Smoking. Inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette, pipe or any other lighted or heated product containing, made or derived from nicotine, marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. Smoking will also include carrying or using an activated electronic delivery device. 5.07 Commercial tobacco product. Any product containing, made, or derived from tobacco or nicotine, whether natural or synthetic, that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product including, but not limited to, cigarettes; cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco. Commercial tobacco pro ducts do not include traditional or ceremonial tobacco plant material used as part of an American Indian cultural practice or a lawfully recognized religious, spiritual or cultural ceremony or practice or any nicotine cessation product that has been authorized by the U.S. Food and Drug Administration to be marketed and for sale as “drugs,” “devices,” or “combination products,” as defined in the Federal Food, Drug, and Cosmetic Act. 5.08 Commercial tobacco product use. The act of smoking or the consumption of any commercial tobacco product. 6.00 Prohibitions and Exceptions 6.01 Prohibitions A. Smoking is not allowed in indoor public places and places of employment as defined by the Minnesota Clean lndoor Air Act. B. Smoking and commercial tobacco product use are not allowed at any time by any person on any property that is owned, leased, rented, contracted or otherwise used or controlled by Ramsey County. This prohibition includes but is not limited to, all facilities; grounds; parking lots; work areas, vehicles and equipment; walkways, paths and trails; park and recreation areas, lands and bodies of water; public golf courses, playgrounds, beaches, swimming pools, nature areas and recreation centers. Page 44 of 76 3 C. Smoking or commercial tobacco product use is not allowed in personal vehicles parked on property that is owned, leased, rented, contracted or otherwise used or controlled by Ramsey County. D. Except as provided in Section 6.02, smoking is not allowed within twenty-five (25) feet of entrances, exits, windows and ventilation intakes of public places and places of employment. 6.02 Exceptions. The prohibitions in Section 6.01 do not apply to the following places or situations: A. The proprietor of a food establishment may set aside an outdoor dining or bar area of a food establishment for smoking. This may be done if this location is appropriately signed as a smoking area, and the area is not immediately next to a building entrance. B. Members of the public passing through on an outdoor street, alley or sidewalk where smoking is prohibited by this Ordinance, while on their way to another location. C. Use of tobacco as part of an American Indian cultural practice or a lawfully recognized religious, spiritual or cultural ceremony or practice. Sacred, traditional use of tobacco for prayer, ceremony and memorial is allowed. 7.00 Enforcement A. No person or employer can permit smoking in an area they control where smoking is prohibited by this or any other law. B. No County staff can permit smoking or commercial tobacco product use in any area that is under the control of Ramsey County and in which smoking or commercial tobacco product use is prohibited by this or any other law. C. County staff may check property that is owned, leased, rented, contracted or otherwise used or controlled by the County to make sure this Ordinance is not violated. Any person who violates this Ordinance will be reminded of its requirements and asked to immediately stop smoking or using commercial tobacco products. Any person who does not stop smoking or using commercial tobacco products will be asked to immediately leave Ramsey County property. 8.00 Violations and Penalties A. Citations. Where appropriate, the preferred method of enforcement will be a request for voluntary compliance. Whenever any person authorized to issue administrative citations for the violation of law, discovers a violation of this ordinance, a n administrative citation may be issued to the person alleged to have committed the violation. The administrative citation will be issued to the person charged with the violation, or in the case of a corporation or municipality, to any officer or agent authorized to accept such issuance. B. Civil administrative fine. Any person who violates this Ordinance by smoking or engaging in commercial tobacco use anywhere it is prohibited, and who does not immediately stop when asked to, may be issued an administrative citation according to the Ramsey County Administrative Ordinance. Fine amounts vary depending on violation. Refer to the Ramsey County Smoking and Commercial Tobacco Use Ordinance Violations Fine Schedule for detailed amounts. Page 45 of 76 4 C. Proprietors. Any proprietor, person or entity that owns, leases, manages, operates or otherwise controls the use of an area in which smoking and commercial tobacco product use is prohibited, and that knowingly does not comply with this Ordinance, may be issued a civil penalty. Fine amounts vary depending on violation. Refer to the Ramsey County Smoking and Commercial Tobacco Use Ordinance Violations Fine Schedule for detailed amounts. D. Repeat violations. Each day a violation occurs or continues will be considered a separate offense. Repeat or ongoing offenses may result in an administrative citation per day, as well as trespass from Ramsey County property. E. Ramsey County licensees. Failure to comply with this Ordinance may be a basis for adverse action for licenses issued under Ramsey County ordinances. 9.00 Severability If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of the Ordinance. The Board of Commissioners hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. 10.00 Previous Ordinance Upon the Effective Date of this Ordinance, the Ramsey County Clean Indoor Air Ordinance, B2015-302, adopted September 22, 2015, effective November 29, 2015, is repealed. 11.00 Effective Date This amendment of the Ordinance will be effective on August 26, 2022. Page 46 of 76 5-5-13: SMOKING AND VAPING OF CANNABIS AND TOBACCO AND CONSUMPTION OF ALCOHOLIC BEVERAGES OR BEVERAGES CONTAINING THC IN PUBLIC PLACES PROHIBITED. A. Definitions: For purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning. CANNABIS FLOWER, CANNABIS PRODUCT, and HEMP-DERIVED CONSUMER PRODUCTS: Shall have the meanings given in Minn. Stat. §342.01 (enacted under Minnesota Laws 2023). GOVERNMENTAL UNIT: A county, city, town, school district, or other political subdivision of the state. “Political subdivision” means a county, home rule charter or statutory city, town, school district, metropolitan or regional agency, public corporation, political subdivision, or special district. PUBLIC PLACE: Property owned, leased, or controlled by a governmental unit, including the City. Public places include but are not limited to the following owned, leased, or controlled by the City: 1) buildings and all the land thereon, parking lots, Inver Wood golf course, parks, pathways and trails; and 2) rights-of-way consisting of both the traveled portion and the abutting boulevard, sidewalks and trails. Public Places also includes personal property, including motor vehicles, city equipment, and the like owned, leased or controlled by the City. A Public Place does not include: (1) a private residence, including the person’s curtilage or yard; (2) private property not generally accessible to the public, unless the person is explicitly prohibited from consuming cannabis flower, cannabis products, lower-potency hemp edibles, or hemp-derived consumer products on the property by the owner of the property; or (3) the premises of an establishment or event licensed to permit on-site consumption. TOBACCO AND ELECTRONIC DELIVERY DEVICE: Shall have the meanings given in Minn. Stat. § 609.685, subd. 1. VAPE or VAPING: Shall have the meaning given in Minn. Stat. § 120B.238, subd. 1(e). B. Prohibitions: 1. No person shall smoke tobacco or any cannabis flower, cannabis product, or hemp-derived consumer product in any public place. 2. No person shall use any electronic delivery device or otherwise engage in vaping of tobacco, any product containing nicotine, or any cannabis flower, cannabis product, or hemp-derived consumer product in any public place. 3. No person shall consume any alcoholic beverage or beverage containing tetrahydrocannabinol (THC) in any public place, except as otherwise permitted by a City-issued license or permit or as otherwise allowed under City Code Section 4- 1-16. C. Exceptions: 1. The prohibition on the smoking or vaping of tobacco or any product containing nicotine in any public place shall not prohibit the smoking or vaping of such products inside a motor vehicle located on public right-of-way. This exception shall not apply to City-owned vehicles. 2. The prohibitions listed in Section B.1. and 2. above shall not apply to the parking lots of properties owned, leased or controlled by governmental units other than the City. D. Penalty: A violation of this section is a petty misdemeanor. (Ord. 1459, 9-11-2023) Page 47 of 76 Created: 2023-03-27 10:54:26 [EST] (Supp. No. 41) Page 1 of 1 Sec. 16-68. Tobacco. (a) No person shall use any form of tobacco product within 100 feet of any beach, athletic field or playground contained within any public site or open space. (b) No tobacco product shall be used by any person upon the grounds of the facilities at Central Park, Ojibway Park or the Sports Center. (Ord. No. 1817, § 1817.26, 3-25-2009; Ord. No. 1939 , § 1, 6-28-2017; Ord. No. 2022 , 7-27-2022) Page 48 of 76 www.publichealthlawcenter.org December 2023SMOKE-FREE PLACES IN MINNESOTA This model ordinance was prepared for Minnesota cities and counties interested in enacting a policy to establish smoke- free and commercial tobacco-free outdoor areas in their jurisdictions. Commercial tobacco use is still the leading cause of preventable death in Minnesota.1 Secondhand smoke has repeatedly been identified as a health hazard; in 2006, the U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke.2 1 Minn. Dep ’t of HealtH, Minn. CoMpreHensive tobaCCo Control fraMework 2016–2021 (2021), https://www.health. state.mn.us/communities/tobacco/initiatives/docs/mnframework.pdf. 2 U.s. Dep ’t of HealtH anD HUMan servs., tHe HealtH ConseqUenCes of involUntary exposUre to tobaCCo sMoke: a report of tHe sUrgeon general (2006), https://www.cdc.gov/tobacco/data_statistics/sgr/2006/index.htm. Model Ordinance for Minnesota Communities SMOKE- & COMMERCIAL TOBACCO-FREE OUTDOORS Page 49 of 76 www.publichealthlawcenter.org 2Smoke- & Commercial Tobacco-Free Outdoors Many studies have also found that levels of secondhand smoke exposure in outdoor areas can reach levels recognized as hazardous, depending on the direction and amount of wind, the number and proximity of people who smoke, and the presence of enclosures such as walls or roofs.3 Outdoor commercial tobacco-free laws protect communities from secondhand smoke exposure. Outdoor commercial tobacco-free laws also help people who are trying to quit by eliminating the sight and smell of commercial tobacco use. Prohibiting smoking and commercial tobacco use in certain outdoor areas sends a message to children and youth, as well as adults, that smoking and commercial tobacco use is not a norm in the community and is an unacceptable behavior in these settings. Over the last two decades, many Minnesota communities have enacted smoke-free and commercial tobacco-free laws or policies affecting outdoor areas such as parks, recreational facilities, beaches, outdoor workplaces, restaurant and bar patios, transit waiting areas, and public events, such as county fairs and farmers’ markets. Before August 1, 2023, when adult- use recreational cannabis use was legalized in Minnesota, at least twenty Minnesota cities and seven counties had adopted policies that prohibit smoking, commercial tobacco use, or both, in certain outdoor areas. Note about Cannabis On Aug. 1, 2023, the State of Minnesota made recreational cannabis legal for adult-use consumption. The new law specifically allows local units of government to adopt ordinances to restrict or prohibit public use of cannabis.4 This model ordinance addresses smoking or “vaping” as a method of cannabis use through a comprehensive definition of “smoking” that reflects the definition used in the Minnesota Clean Indoor Air Act. This model ordinance does not address other methods of using cannabis (edibles), nor does it address or restrict possession of cannabis. 3 Andrea Licht et al., Secondhand Smoke Exposure Levels in Outdoor Hospitality Venues: A Qualitative and Quantitative Re- view of the Research Literature, 22 tobaCCo Control 172-9 (2012), doi:10.1136/tobacco-control-2012-050493; Neil Kle- peis et al., Real-time Measurement of Outdoor Tobacco Smoke Particles, 57 J air waste MgMt a ssoC. 522–34 (2007), doi:10.3155/1047-3289.57.5.522 ; Xisca Sureda et al., Second-hand Smoke Exposure in Outdoor Hospitality Venues: Smoking Visibility and Assessment of Airborne Markers, 165 env ’t res 220-27 (2018), doi: 10.1016/j.envres.2018.04.024; Bekir Kaplan et al., Evaluation of Secondhand Smoke Using PM2.5 and Observations in a Random Stratified Sample in Hospitality Venues From 12 Cities, 16 int ’l J env ’t res pUbliC HealtH 1381 (2019), doi: 10.3390/ijerph16081381; James Repace, Benefits of Smokefree Regulations in Outdoor Settings: Beaches, Golf Courses, Parks, Patios, and in Motor Vehi- cles, 34 williaM MitCHell l. rev. 1621–38 (2008), https://open.mitchellhamline.edu/wmlr/vol34/iss4/15. 4 Minn. stat. § 152.0263, subd. 5, https://www.revisor.mn.gov/statutes/cite/152.0263#stat.152.0263.5. December 2023 Page 50 of 76 www.publichealthlawcenter.org 3Smoke- & Commercial Tobacco-Free Outdoors Legal Considerations Outdoor smoke-free and commercial tobacco-free policies have become more common in recent years, and very few have been challenged in court. In most instances, courts have upheld local ordinances that prohibit smoking in outdoor areas on the grounds that such laws are within the local government’s authority to protect public health, safety, and welfare and are not preempted by statewide smoke-free laws.5 The Minnesota Clean Indoor Air Act does not regulate outdoor areas, nor does it contain a provision prohibiting smoking within a certain number of feet of places of work or public places. The Minnesota Clean Indoor Air Act does, however, expressly authorize local communities to enact additional restrictions that are more stringent than those in state law, and many local ordinances contain so-called set-back provisions that prohibit smoking near entryways and windows of buildings.6 Additionally, the state law legalizing the use, sale, and possession of adult-use recreational cannabis explicitly allows local units of government to regulate cannabis use in public places, including smoking and vaping cannabis.7 Customizing an Ordinance Crafting an ordinance requires drafters to tailor the content to meet the unique circumstances of each community. Therefore, as you review this model ordinance, please keep in mind that every city or county will need to tailor it. We have included context boxes throughout the model ordinance to explain some of the key provisions. These boxes, and the explanations within them, are not meant to be included in a final ordinance. Whether a city or county chooses to incorporate portions, or all, of this model ordinance language, the drafters need to remember to omit the context boxes. In some instances, we have inserted prompts for customization or suggested optional language in brackets (ex. [ optional text ]) to prompt drafters to customize the language to fit community- specific needs. In some instances, the provided options are followed by notes describing the 5 See, e.g., Gallagher v. Clayton, 699 F.3d 1013 (8th Cir. 2012) (upholding Clayton, Missouri’s ordinance prohibiting smok- ing on any city-owned or -leased property, including buildings, grounds, parks and playground. A city resident had challenged the ordinance on constitutional grounds claiming “the health threat of secondhand smoke from outdoor tobacco use is de minim[i]s” and that the city lacked a sufficient rationale for prohibiting it. The court found the City had established a rational basis for the prohibition.), http://media.ca8.uscourts.gov/opndir/12/11/113880P.pdf. 6 Minn. stat. § 144.417, subd. 4. 7 Minn. stat. § 152.0263, subd. 5. December 2023 Page 51 of 76 www.publichealthlawcenter.org 4Smoke- & Commercial Tobacco-Free Outdoors provisions in more detail. Drafters should remove these bracketed prompts and choose or remove the option provided and delete the brackets. Please keep in mind that some degree of customization will be necessary to ensure that the proposed ordinance is consistent with a community’s existing laws. Customization also helps communities apply the model ordinance to address racial and health equity impacts and aims. For questions about this model ordinance, please contact us at publichealthlawcenter@ mitchellhamline.edu. This publication was prepared by the Public Health Law Center, a nonprofit organization that provides information and legal technical assistance on issues related to public health. The Center does not provide legal representation or advice, and the Center does not lobby, advocate, or directly represent communities. The information in this document should not be considered legal advice. This model ordinance was made possible by funds from the Minnesota Department of Health’s Commercial Tobacco Prevention and Control Program. December 2023 Page 52 of 76 www.publichealthlawcenter.org 5Smoke- & Commercial Tobacco-Free Outdoors AN ORDINANCE OF THE [ CITY/COUNTY OF ___________ ] TO REGULATE SMOKING AND COMMERCIAL TOBACCO USE IN OUTDOOR AREAS The [ city council/county board of commissioners ] of [ city/county ] does ordain: Section 1. Title. This Ordinance will be known as the “[ insert jurisdiction name ] Smoking and Commercial Tobacco Use Ordinance.” Section 2. Findings Of Fact And Purpose. Comment A Findings of Fact and Purpose section is important because it provides the evidentiary basis for the proposed commercial tobacco control policies and demonstrates the jurisdiction’s reasoning for adopting specific provisions. The Public Health Law Center can provide support for communities to determine which Findings of Fact and Purpose statements and references should be retained in a final ordinance, depending on which provisions from the model ordinance the community chooses to adopt. Section 1. Title. 5 Section 2. Findings Of Fact And Purpose. 5 Section 3. Authority and Jurisdiction. 7 Section 4. Definitions. 8 Section 5. Prohibitions. 12 Section 6. Sacred Use of Tobacco. 14 Section 7. Enforcement. 14 Section 8. Violations and Penalties. 15 Section 9. Severability. 17 Section 10. Effective Date. 17 December 2023 Page 53 of 76 www.publichealthlawcenter.org 6Smoke- & Commercial Tobacco-Free Outdoors The purpose of this Ordinance is to protect the health of the people of [ city / county ] from the negative effects of smoking and commercial tobacco use when in public places and places of employment; affirm the right of people to breathe air without exposure to secondhand smoke; reduce commercial tobacco use and exposure among children, youth, and young adults; protect the health of vulnerable and disproportionately impacted populations; and reduce commercial tobacco product waste, which can harm human and animal health, and the environment. The [ city council / county board ] adopts the following findings to support the provisions in this Ordinance: z In 2006, the U.S. surgeon general concluded that there is no risk-free level of exposure to secondhand smoke.1 z Exposure to secondhand smoke can occur at significant levels outdoors. Levels of secondhand smoke exposure outdoors can reach levels recognized as hazardous, depending on direction and amount of wind, number and proximity of smokers, and enclosures like walls or roofs.2, 3, 4, 5, 6, 7, 8 To be completely free from exposure to secondhand smoke in outdoor places, a person may have to be at least 29 feet away from the source of the smoke.5, 9, 10 z Commercial tobacco use is the number one cause of preventable death in Minnesota11 and continues to be an urgent public health issue, as evidenced by the following: An estimated 6,300 Minnesotans die from smoking annually;12 each year, smoking costs Minnesota an estimated $2.92 billion in medical expenses, including $605.4 million in Medicaid costs and $5.4 billion in productivity losses;13 and, research indicates that approximately 30% of all cancer deaths in Minnesota are attributable to commercial tobacco use.14 z Significant disparities in commercial tobacco use exist in Minnesota, which create barriers to health equity.15 American Indian or Alaska Native (32.8%), multiracial Minnesotans (21%), and Minnesotans who identify as “some other race” (17.3%) report a higher smoking prevalence than Minnesotans who identify as white (13.6%), Black (12.8%), Hispanic (10.7%), and Asian (8.3%).16 z Evidence continues to build that exposure to electronic smoking device aerosol, including secondhand exposure, has immediate impacts on the human respiratory and cardiovascular systems, and poses a risk to human health.17, 18, 19, 20, 21, 22, 23, 24, 25 z Secondhand cannabis smoke has been identified as a health hazard and cannabis smoke contains at least 33 known carcinogens.26 December 2023 Page 54 of 76 www.publichealthlawcenter.org 7Smoke- & Commercial Tobacco-Free Outdoors z The Minnesota Clean Indoor Air Act does not prohibit smoking outdoors, regardless of the distance from building openings, nor does it prohibit smoking in cabs of trucks, certain residential healthcare facilities, tobacco shops, and hotel rooms.27 z Commercial tobacco waste is a major, consequential, and persistent source of litter. Cigarette butts are perennially the most common form of litter collected during cleanup programs worldwide,28, 29 for example, in 2020, cigarette butts made up nearly 20% of all litter collected through cleanup programs in the U.S. (9.7 billion out of 49.6 billion items).30 Non-cigarette forms of commercial tobacco waste, such as plastic cigar tips and little cigar wrappers, also significantly contribute to litter.31, 32, 33 Waste from electronic smoking devices has become a recognized and growing form of litter.32, 34, 35 z Laws restricting the use of commercial tobacco products have recognizable benefits to public health including reduced prevalence of use;36, 37 reduced secondhand smoke exposure, as measured by self-report and laboratory analysis of biomarkers or indoor air;36, 37, 38, 39 increased cessation of commercial tobacco use;36, 37 and reduced initiation of commercial tobacco use among young people.37 Section 3. Authority and Jurisdiction. [ Choose the city or county version and delete the language that is not applicable to the jurisdiction adopting this ordinance. ] [ County version: ] (A) Authority. The County Board of Commissioners is authorized to adopt this Ordinance by Minnesota Statutes sections 144.417, subd. 4(a), 145A.04, 145A.05, 152.0263, subd. 5, and Chapter 375, and any other applicable state law, as may be adopted or amended from time to time. (B) Jurisdiction. This Ordinance applies throughout [ ___________ ] County. (C) Nothing in this Ordinance shall prevent cities and tiownships within [ ___________ ] County from adopting stricter regulations to protect people from smoking or use of commercial tobacco products. (D) Nothing in this Ordinance authorizes smoking or use of commercial tobacco products in any location where smoking or use of commercial tobacco products is prohibited. [ City version: ] (A) Authority. The City Council is authorized to adopt this Ordinance by Minnesota Statutes sections 144.417, subd. 4(a), 145A.05, subd. 9, 412.221, 152.0263, subd. 5, [ insert any December 2023 Page 55 of 76 www.publichealthlawcenter.org 8Smoke- & Commercial Tobacco-Free Outdoors other applicable state statutes ], and any other applicable state law, as may be adopted or amended from time to time. (B) Nothing in this Ordinance authorizes smoking or use of commercial tobacco products in any location where smoking or use of commercial tobacco products is prohibited. Section 4. Definitions. Except as may otherwise be provided or clearly implied by context, all terms are given their commonly accepted definitions. For the purpose of this ordinance, the following definitions apply unless the context clearly indicates or requires a different meaning: (A) [ City/county ] staff. [ City/county ] staff and service providers include but are not limited to employees; independent contractors; contractors; vendors; consultants; volunteers; and elected and appointed officials. (B) Commercial Tobacco Product. Any product containing, made, or derived from tobacco or nicotine, whether natural or synthetic, that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, or any component, part, or accessory of a tobacco product including, but not limited to, cigarettes; cigars; cheroots; stogies; perique; granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff; snuff flour; cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco; and other kinds and forms of tobacco. Tobacco product does not include any nicotine cessation product that has been authorized by the U.S. Food and Drug Administration to be marketed and for sale as “drugs,” “devices,” or “combination products,” as defined in the Federal Food, Drug, and Cosmetic Act. (C) Commercial Tobacco Product Use. The act of smoking commercial tobacco or the consumption of any commercial tobacco product. (D) Electronic Delivery Device. Any product containing or delivering nicotine, lobelia or any other substance, whether natural or synthetic, intended for human consumption through the inhalation of aerosol or vapor from the product. Electronic delivery device includes, but is not limited to, devices manufactured, marketed or sold as e-cigarettes, e-cigars, e-pipes, vape pens, mods, tank systems, or under any other product name or descriptor. Electronic delivery device includes any component part of a product, whether or not marketed or sold separately. Electronic delivery device does not include any nicotine cessation product that has been authorized by the U.S. Food and Drug Administration to be marketed and for sale as “drugs,” “devices,” or “combination products,” as defined in the Federal Food, Drug, and Cosmetic Act. December 2023 Page 56 of 76 www.publichealthlawcenter.org 9Smoke- & Commercial Tobacco-Free Outdoors (E) Indoor Area. All space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent. A 0.011-gauge window screen with an 18 by 16 mesh count is not a wall. (F) Minnesota Clean Indoor Air Act. Minnesota Statutes Sections 144.411 to 144.417, as amended from time to time. (G) Place of Employment. “Place of employment” as defined in Minnesota Statutes Section 144.413, subd. 1b, as amended from time to time. Definition of “Place of Employment” The local unit of government may use a reference to the state statute, as is done in this model, or include the actual text of the definition of “place of employment” from the Minnesota Clean Indoor Air Act: “Place of employment” means any indoor area at which two or more individuals perform any type of a service for consideration of payment under any type of contractual relationship, including, but not limited to, an employment relationship with or for a private corporation, partnership, individual, or government agency. Place of employment includes any indoor area where two or more individuals gratuitously perform services for which individuals are ordinarily paid. A place of employment includes, but is not limited to, public conveyances, factories, warehouses, offices, retail stores, restaurants, bars, banquet facilities, theaters, food stores, banks, financial institutions, employee cafeterias, lounges, auditoriums, gymnasiums, restrooms, elevators, hallways, museums, libraries, bowling establishments, employee medical facilities, and rooms or areas containing photocopying equipment or other office equipment used in common. Vehicles used in whole or in part for work purposes are places of employment during hours of operation if more than one person is present. An area in which work is performed in a private residence is a place of employment during hours of operation if: (1) the homeowner uses the area exclusively and regularly as a principal place of business and has one or more on-site employees; or (2) the homeowner uses the area exclusively and regularly as a place to meet or deal with patients, clients, or customers in the normal course of the homeowner’s trade or business. (Minnesota Statutes § 144.413, subd. 1b) December 2023 Page 57 of 76 www.publichealthlawcenter.org 10Smoke- & Commercial Tobacco-Free Outdoors (H) Proprietor. The party who ultimately controls, governs, or directs the activities at the public place or place of employment, regardless of whether the party is owner or lessee of the public place or place of employment. The term “proprietor” may apply to a corporation, partnership, limited liability company, or other entity, as well as an individual. (I) Public Meeting. “Public meeting” as defined in Minnesota Statutes Section 144.413, subd. 3, as amended from time to time. (J) Public Place. “Public place” as defined in Minnesota Statutes Section 144.413, subd. 2, as amended from time to time. The term “public place” does not include streets or sidewalks that are used only as pedestrian or vehicular thoroughfares. Alternative Definitions of “Public Place” Using the MCIAA definition: The local unit of government may use a reference to the state statute, as included here, or include the actual text of the definition of “public place” from the Minnesota Clean Indoor Air Act: “Public place” means any enclosed, indoor area used by the general public, including, but not limited to, restaurants; bars; any other food or liquor establishment; retail stores and other commercial establishments; educational facilities other than public schools, as defined in section 120A.05, subdivisions 9, 11, and 13; hospitals; nursing homes; auditoriums; arenas; meeting rooms; and common areas of rental apartment buildings. Covering all public sidewalks and streets: If the jurisdiction intends to prohibit smoking on public sidewalks, streets, and roads, then the following definition could be adopted, along with the changes recommended in the comment to Section 5 below: Any publicly or privately owned place that is open to the general public, regardless of any fee or age requirement, including sidewalks, streets, parking lots, plazas, shopping areas, stadiums, or sporting facilities. December 2023 Page 58 of 76 www.publichealthlawcenter.org 11Smoke- & Commercial Tobacco-Free Outdoors Public Use of Cannabis This model ordinance provides language to specifically address smoking any substance, including cannabis, and including use of e-cigarettes to consume any substance, including cannabis. The purpose of this ordinance is to address secondhand smoke exposure and other commercial tobacco use. This ordinance does not address public cannabis use, in general, including use of edibles. Some local jurisdictions choose to regulate cannabis use similar to alcohol use since the use of cannabis can be impairing or intoxicating. If a local unit of government would like to regulate all public use of cannabis, then a separate ordinance should be considered that specifically addresses that topic. (K) Public Transportation. As defined in Minnesota Statutes Section 144.413, subd. 5, as amended from time to time. (L) Smoking. Inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette, pipe or any other lighted or heated product containing, made, or derived from nicotine, marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. Smoking includes carrying or using an activated electronic delivery device. “Smoking” does not include the use of traditional, or sacred, tobacco used by many American Indian and Alaska Native communities for spiritual and medicinal purposes. Sacred Use of Tobacco Smoke-free policies, while prohibiting the use of commercial tobacco, often provide exceptions that allow a person to possess or provide tobacco or a tobacco-related device to another person as part of a traditional, or sacred, tobacco practice used by American Indian or Alaska Native communities for spiritual and medicinal purposes. These exemptions include the use of tobacco, tobacco-related devices, imitation tobacco products, or lighters as part of an educational experience related to traditional, or sacred, tobacco practices that have been approved by administrators. If you would like more information about this topic, please visit keepitsacred.itcmi.org. This definition of “smoking” provides for such an exception. December 2023 Page 59 of 76 www.publichealthlawcenter.org 12Smoke- & Commercial Tobacco-Free Outdoors Section 5. Prohibitions. (A) Smoking is not allowed in indoor public places, public meetings, places of employment, or in public transportation, as defined by the Minnesota Clean lndoor Air Act. (B) Smoking and commercial tobacco product use are not allowed at any time by any person on any property that is owned, leased, rented, or otherwise used or controlled by the [ city/county ]. This prohibition includes but is not limited to indoor and outdoor areas of all [ city/county ] controlled facilities; grounds; parking lots; work areas; vehicles and equipment; outdoor park and recreation areas, lands, and bodies of water; public golf courses; playgrounds; beaches; swimming pools; nature areas; recreation centers; and walkways, paths and trails that are part of, within, or adjacent to the grounds of any of the above. This prohibition does not include public streets or sidewalks that are used only as pedestrian or vehicular thoroughfares. (C) Smoking and commercial tobacco product use are not allowed in personal vehicles parked on property that is owned, leased, rented, or otherwise used or controlled by the [ city/ county ]. (D) Smoking is not allowed within twenty-five (25) feet of entrances, exits, windows and ventilation intakes of public places and places of employment. Comprehensive Outdoor Smoking Prohibition This model has been drafted to limit smoking in outdoor areas of most public places and places of employment, as well as in areas within the control of the city or county. However, the language in the model does not cover public sidewalks, streets, and roads. If a jurisdiction would like to prohibit smoking in all outdoor areas, including public sidewalks, streets, and roads, then the more comprehensive definition of “public place” above at Section 4 (J) should be adopted along with the comprehensive version of Section 5 of this model below: Section 4. Definitions. (J) Public Place. Any publicly or privately owned place that is open to the general public, regardless of any fee or age requirement, including sidewalks, streets, parking lots, plazas, shopping areas, stadiums, or sporting facilities. Section 5. Prohibitions. (A) Smoking is not allowed in indoor public places, public meetings, places of employment, or in public transportation, as defined by the Minnesota Clean lndoor Air Act. December 2023 Page 60 of 76 www.publichealthlawcenter.org 13Smoke- & Commercial Tobacco-Free Outdoors (B) Smoking is not allowed in outdoor public places, including public sidewalks, streets, or roads that are used as pedestrian or vehicular thoroughfares. (C) Smoking and commercial tobacco product use are not allowed at any time by any person on any property that is owned, leased, rented, or otherwise used or controlled by the [ city/county ]. This prohibition includes but is not limited to indoor and outdoor areas of all [ city/county ]-controlled facilities; grounds; parking lots; work areas; vehicles and equipment; outdoor park and recreation areas, lands, and bodies of water; public golf courses; playgrounds; beaches; swimming pools; nature areas; recreation centers; and walkways, paths and trails that are part of, within, or adjacent to the grounds of any of the above. (D) Smoking and commercial tobacco product use are not allowed in personal vehicles parked on property that is owned, leased, rented, or otherwise used or controlled by the [ city/county ]. (E) Smoking is not allowed within twenty-five (25) feet of entrances, exits, windows and ventilation intakes of public places and places of employment. Why a 25-Foot Buffer Zone? Twenty-five feet is the common distance used in many smoke-free air policies as a buffer zone to protect people from secondhand smoke exposure due to drifting from outdoor smoking. This is the distance used by the U.S. Department of Housing and Urban Development in its smoke-free public housing rule, implemented in 2018. To be completely free from exposure to secondhand smoke in outdoor places, a person may have to be at least nine meters (29.5 feet) away from the source of the smoke, about the width of a two- lane road. (Jihee Hwang & Kiyoung Lee, Determination of Outdoor Tobacco Smoke Exposure by Distance from a Smoking Source, 16 niCotine tob res. 478-84 (2014), doi:10.1093/ntr/ntt178.) While 25 feet has become the commonly used distance, a jurisdiction could include a further distance to be more protective. (E) Nothing in this ordinance prohibits any person, proprietor, or employer with control over any property from prohibiting smoking and commercial tobacco product use on any part of such property, even if smoking or commercial tobacco product use is not otherwise prohibited in that area. December 2023 Page 61 of 76 www.publichealthlawcenter.org 14Smoke- & Commercial Tobacco-Free Outdoors Section 6. Sacred Use of Tobacco. Religious, Spiritual, or Cultural Ceremonies or Practices. Nothing in this ordinance prevents the use of traditional, or sacred, tobacco used by many American Indian and Alaska Native communities for spiritual and medicinal purposes. Section 7. Enforcement. (A) No proprietor or other person, firm, limited liability company, corporation, or other entity that owns, leases, manages, operates, or otherwise controls the use of a public place or place of employment will permit smoking in an area they control where smoking is prohibited by this or any other law. (B) No [ city/county ] staff may permit smoking or commercial tobacco product use in any area that is under the control of the [ city/county ] and in which smoking or commercial tobacco product use is prohibited by this or any other law. (C) [ City/county ] staff may check property that is owned, leased, rented, or otherwise used or controlled by the [ city/county ] to make sure this Ordinance is not violated. Any person who violates this Ordinance will be reminded of its requirements and asked to immediately stop smoking or using commercial tobacco products. Any person who does not stop smoking or using commercial tobacco products will be asked to immediately leave [ city/county ] property. (D) The proprietor or other person, firm, limited liability company, corporation, or other entity that owns, leases, manages, operates, or otherwise controls the use of a public place or place of employment shall make reasonable efforts to prevent smoking in the public place and place of employment by: (1) Posting appropriate signs or by any other means which may be appropriate; and (2) Asking any person who smokes in an area where smoking is prohibited to refrain from smoking and, if the person does not refrain from smoking after being asked to do so, asking the person to leave. If the person refuses to leave, the proprietor, person, or entity in charge shall handle the situation consistent with lawful methods for handling other persons acting in a disorderly manner or as a trespasser. (E) The proprietor or other person or entity in charge of the outdoor area of a public place or place of employment where smoking is prohibited, must not provide smoking equipment, including ashtrays or matches, in areas where smoking is prohibited. December 2023 Page 62 of 76 www.publichealthlawcenter.org 15Smoke- & Commercial Tobacco-Free Outdoors (F) The proprietor or other person or entity in charge of a restaurant or bar may not serve an individual who is in violation of this section. Balanced and Equitable Enforcement Enforcement of smoke-free outdoor area policies is important because there is no risk-free amount of exposure to secondhand smoke and because even outdoors, secondhand smoke can reach hazardous levels. Enforcement, however, should balance the goal of protecting the public from secondhand smoke exposure with the knowledge that punitive measures are unlikely to help those struggling with commercial tobacco addiction to end their commercial tobacco use. Research tells us the best approaches to help those confronting addiction are counseling and education. Since most people will refrain from smoking if they know a smoke-free and commercial tobacco-free policy is in place, the best way to improve enforcement is to educate the public and local businesses about the policy throughout the implementation process. Greater community compliance will be achieved if the policy is easy to understand, the boundaries and areas covered under the policy are clearly identified, and active steps are taken to communicate its impact to all affected groups. Section 8. Violations and Penalties. (A) Citations. Where appropriate, the preferred method of enforcement will be a request for voluntary compliance. Whenever an ordinance is violated, any person authorized to issue administrative citations for the violation of law may issue an administrative citation to the person alleged to have committed the violation. The administrative citation will be issued either to the person charged with the violation, or in the case of a corporation or municipality, to any officer or agent authorized to accept it. (B) Proprietors. Any proprietor, person or entity that owns, leases, manages, operates, or otherwise controls the use of an area in which smoking and commercial tobacco product use is prohibited, and that knowingly does not comply with this Ordinance, may be issued a civil administrative fine not to exceed $300. (C) Individuals in violation. Any person who violates this Ordinance by smoking or engaging in commercial tobacco use anywhere it is prohibited, and who does not immediately stop when asked to, may be issued an administrative citation and required to: (1) Pay a civil fine not to exceed $25 [ or a fine based on ability to pay determined by the following criteria: December 2023 Page 63 of 76 www.publichealthlawcenter.org 16Smoke- & Commercial Tobacco-Free Outdoors (a) The individual’s base income from all sources of income including pensions, dividends, wages, salary, and public benefits; (b) Adjusted daily income of the individual based on deductions for self-support and support of dependents; (c) Individual’s assets; and, (d) Multiple or repeat violations of this [ article/chapter ] ]; or, Fines Based on Ability to Pay In the context of smoke-free and commercial tobacco-free policies, basing any civil fines on the person’s ability to pay may reduce the risk of overly burdensome fines that low-income individuals may not be able to pay. Adjusting fines based on ability to pay may also reduce the risk of civil penalties being escalated to more severe or criminal sanctions for failure to pay. (For more information on reforming fines and fees, see the Fines and Fees Justice Center and its resource, First Steps Toward More Equitable Fines and Fees Practices (2020)). (2) Participate in a community service program established by the public health department or complete an approved, evidence-based tobacco cessation program, including but not limited to telephone counseling, group counseling, or individual counseling. Importance of Cessation Support Support for quitting or reducing smoking is critical in any smoke-free and commercial tobacco free policy. Minnesota resources to assist with nicotine dependence are available for free through the Minnesota Department of Health’s Quit Partner program or in partnership with local public health departments and local health care providers. (D) Repeat violations. Each day a violation occurs or continues will be considered a separate offense. Repeat or ongoing offenses may result in one administrative citation per day. (E) [ City/county ] licensees. Failure to comply with this Ordinance may be a basis for adverse action for licenses issued under [ city/county ] ordinances. December 2023 Page 64 of 76 www.publichealthlawcenter.org 17Smoke- & Commercial Tobacco-Free Outdoors Section 9. Severability. If any section or provision of this ordinance is held invalid, such invalidity will not affect other sections or provisions that can be given force and effect without the invalidated section or provision. Section 10. Effective Date. [ County version: This ordinance becomes effective on the date of its publication, or upon the publication of a summary of the ordinance as provided by Minn. Stat. § 375.51, subd. 3, as it may be amended from time to time, which meets the requirements of Minn. Stat. § 331A.01, subd. 10, as it may be amended from time to time. ] [ City version: This ordinance becomes effective on the date of its publication, or upon the publication of a summary of the ordinance as provided by Minn. Stat. § 412.191, subd. 4, as it may be amended from time to time, which meets the requirements of Minn. Stat. § 331A.01, subd. 10, as it may be amended from time to time. ] Endnotes 1 U.s. Dep ’t of HealtH anD HUM. servs. tHe HealtH ConseqUenCes of involUntary exposUre to tobaCCo sMoke, a report of tHe sUrgeon general: e xeCUtive sUMMary (2006), https://www.ncbi.nlm.nih.gov/books/NBK44324/pdf/ Bookshelf_NBK44324.pdf. 2 off. of env ’t HealtH HazarD assessMent, air resoUrCes bD., C al. env ’t prot. agenC y, proposeD iDentifiC ation of environMental tobaCCo sMoke as a toxiC air ContaMinant: appenDix iii (2005), https://ww2.arb.ca.gov/sites/default/ files/barcu/regact/ets2006/app3exe.pdf. 3 Xisca Sureda et al., Secondhand Tobacco Smoke Exposure in Open and Semi-Open Settings: A Systematic Review, 121 env ’t HealtH persps. 766-73 (2013). 4 Andrea S. Licht et al., Secondhand Smoke Exposure Levels in Outdoor Hospitality Venues: A Qualitative and Quantitative Review of the Research Literature, 22 tobaCCo Control 172-79 (2013). 5 Neil E. Klepeis et al., Real-Time Measurement of Outdoor Tobacco Smoke Particles, 57 J. air waste MgMt. ass’n 522-34 (2007). 6 Xisca Sureda et al., Second-hand Smoke Exposure in Outdoor Hospitality Venues: Smoking Visibility and Assessment of Airborne Markers, 165 env ’t r sCH. 220-27 (2018). 7 Bekir Kaplan et al., Evaluation of Secondhand Smoke Using PM2.5 and Observations in a Random Stratified Sample in Hospitality Venues From 12 Cities, 16 int. J. env ’t. r sCH. pUb. HealtH 1381 (2019). 8 Michael Zhang et al., Exposure to Secondhand Tobacco Smoke at Airport Terminals, 2019 J env ’t. pUb. HealtH 1-8 (art.) 9648761. 9 James L. Repace, Benefits of Smoke-free Regulations in Outdoor Settings: Beaches, Golf Courses, Parks, Patios, and in Motor Vehicles, 34 wM. MitCHell l . rev. 1621-38 (2008). December 2023 Page 65 of 76 www.publichealthlawcenter.org 18Smoke- & Commercial Tobacco-Free Outdoors 10 Jihee Hwang & Kiyoung Lee, Determination of Outdoor Tobacco Smoke Exposure by Distance from a Smoking Source, 16 niCotine tobaCCo r sCH. 478-84 (2014). 11 Minn. Dep ’t of HealtH, CoMMerCial tobaCCo prevention anD Control initiatives (Jun. 27, 2022), https://www.health. state.mn.us/communities/tobacco/initiatives/index.html. 12 Minn. Dep ’t of HealtH, CoMMerCial tobaCCo prevention anD Control (Jan. 6, 2023), https://www.health.state. mn.us/communities/tobacco/index.html. 13 C aMpaign for tobaCCo free kiDs, tHe toll of tobaCCo in Minnesota (Oct. 6, 2023), https://www.tobaccofreekids.org/ problem/toll-us/minnesota. 14 Minn. Dep ’t of HealtH, CanCer in Minnesota, https://data.web.health.state.mn.us/web/mndata/cancer. 15 U.S. Nat’l Cancer Inst., tobaCCo Control Monograph 22, A Socioecological Approach to Addressing Tobacco-Related Health Disparities (2017), https://cancercontrol.cancer.gov/sites/default/files/2020-08/m22_complete.pdf. 16 Minn. Dep ’t of HealtH, sMoking (Aug. 2023), https://data.web.health.state.mn.us/smoking_basic#byrace. 17 nat ’l aC aDs. of sCi. eng’g anD MeD., pUbliC HealtH ConseqUenCes of e-Cigarettes (Kathleen Stratton et al., eds., 2018). 18 U.s. Dep ’t of HealtH anD HUM. servs., e-Cigarette Use aMong yoUtH anD yoUng aDUlts: a report of tHe sUrgeon general (2016), https://www.cdc.gov/tobacco/sgr/e-cigarettes/pdfs/2016_sgr_entire_report_508.pdf. 19 Dazhe James Cao et al., Review of Health Consequences of Electronic Cigarettes and the Outbreak of Electronic Cigarette, or Vaping, Product Use-Associated Lung Injury, 16 J. MeD. toxiCology 295-310 (2020). 20 Michelle R Staudt et al., Altered Lung Biology of Healthy Never Smokers Following Acute Inhalation of E-cigarettes, 19 respiratory rsCH.78 (2018). 21 Anna Tzortzi et al., Passive Exposure to E-cigarette Emissions: Immediate Respiratory Effects, 4 tobaCCo prev. Cess. 18 (2018). 22 Peter G. Shields et al., A Review of Pulmonary Toxicity of Electronic Cigarettes in the Context of Smoking: A Focus on Inflammation, 26 CanCer epiDeM. bioMarkers prev. 1175-91 (2017). 23 Wouter F. Visser et al., The Health Risks of Electronic Cigarette Use to Bystanders, 16 int. J. env ’t. rsCH. pUb. HealtH 1525 (2019). 24 Jennifer E. Bayly et al., Secondhand Exposure to Aerosols from Electronic Nicotine Delivery Systems and Asthma Exacerbations Among Youth with Asthma, 155 J. CHest 88-93 (2019). 25 Anna Tzortzi et al., Passive Exposure of Non-Smokers to E-Cigarette Aerosols: Sensory Irritation, Timing and Association with Volatile Organic Compounds, env ’t rsCH. (art.)108963 (2020). 26 reproD. & CanCer HazarD assessMent branCH, off. of env ’t HealtH HazarD a ssessMent, Cal. env ’t prot. agenCy. eviDenCe on tHe CarCinogeniCity of Cannabis sMoke (2009), https://oehha.ca.gov/media/downloads/proposition-65/ chemicals/finalmjsmokehid.pdf. 27 Minn. Dep ’t of HealtH, Minnesota Clean inDoor air aC t (MCiaa) (Sept. 7, 2023), https://www.health.state.mn.us/ communities/environment/air/mciaa/index.html. 28 Elizabeth A. Smith & Thomas E. Novotny, Whose Butt Is It? Tobacco Industry Research About Smokers and Cigarette Butt Waste, 20 tobaCCo Control 2-9 (Supp.) 1 (2011). 29 oCean ConservanC y & int ’l Coastal CleanUp, #sea tHe CHange, 2023 Report (2023), https://oceanconservancy.org/ wp-content/uploads/2021/09/Annual-Report_FINAL_Digital.pdf. December 2023 Page 66 of 76 www.publichealthlawcenter.org 19Smoke- & Commercial Tobacco-Free Outdoors 30 Keep Am. Beautiful inc., 2020 National Litter Study (2021), https://kab.org/wp-content/uploads/2021/05/Litter-Study- Summary-Report-May-2021_final_05172021.pdf. 31 Scott D. Hardy & Jill Bartolotta, Plastic Cigar Tips Debris: Exploring Use and Disposal Issues for Lake Erie Beaches, 137 Marine pollUt. bUll. 262-66 (2018). 32 Jeremiah Mock & Yogi Hendlin, Notes from the Field: Environmental Contamination from E-cigarette, Cigarette, Cigar, and Cannabis Products at 12 High Schools — San Francisco Bay Area, 2018–2019, 68 Morb. Mortal. wkly. rep. 897-99 (2019). 33 Public Health Law Center, Commercial Tobacco, Health, and the Environment (2019), https://publichealthlawcenter.org/ sites/default/files/resources/Commerical-Tobacco-Health-and-the-Environment.pdf. 34 Yogi Hale Hendlin, Alert: Public Health Implications of Electronic Cigarette Waste, 108 aM. J. pUb. HealtH 1489-90 (2018). 35 Public Health Law Center, Disposing of E-cigarette Waste: FAQ for Schools and Others (2019), https://www. publichealthlawcenter.org/sites/default/files/resources/Disposing%20of%20E-Cigarette%20Waste%20 Publication-FINAL.pdf. 36 Walter Young et al., Health, Secondhand Smoke Exposure, and Smoking Behavior Impacts of No-Smoking Policies in Public Housing, Colorado, 2014–2015, 13 prev. CHroniC Disease E148 (2016). 37 CMty. prev. servs task forCe, reDUCing tobaCCo Use anD seConDHanD sMoke exposUre: sMoke-free poliCies (2013), https://www.thecommunityguide.org/media/pdf/Tobacco-Smokefree-Policies.pdf. 38 T. Lucas Hollar et al., Smoke-free Multi-unit Housing Policies Show Promise in Reducing Secondhand Smoke Exposure Among Racially and Ethnically Diverse, Low-income Seniors, 19 J. iMMigr. Minority HealtH 1281-89 (2017). 39 Xisca Sureda et al., Impact of the Spanish Smoke-free Legislation on Adult, Non-smoker Exposure to Secondhand Smoke: Cross-Sectional Surveys Before (2004) and After (2012) Legislation, 9 plos one E89430 (2014). December 2023 Page 67 of 76 CITY OF WEST ST. PAUL SMOKE-FREE POLICY CONTACT: West St. Paul Parks and Recreation 1616 Humboldt Ave West St. Paul, MN 55118 651-552-4150 APPROVED: REVISED: Page 68 of 76 City of West St. Paul Smoke-Free Policy Policy Statement It is the policy of the City of West St. Paul to provide a smoke-free environment for employees, visitors, and clients in all City facilities, parks, and vehicles, consistent with the Minnesota Clean Indoor Air Act and statewide adult-use cannabis legislation, concern for public health and safety, and the inherent managerial right to implement reasonable work rules. General Smoking or vaping is prohibited on all City-owned property and in all City-owned vehicles and facilities with the following exceptions: • City-owned parking lots • City streets, sidewalks, and right-of-ways • Within 25 feet of locations where the smoke, aerosol, or vapor of a smoking product could be inhaled by a minor, especially: o Playgrounds o Athletic fields and courts while in use by youth and youth groups o Pool • As part of a traditional Native American spiritual and cultural ceremony. This policy includes smoking or vaporizing any cigar, cigarette, pipe, electronic delivery device (vaping), or any other lighted or heated products containing, made, or derived from nicotine, tobacco, cannabis, hemp-derived products, or other plant, whether natural or synthetic, that is intended for inhalation. This policy is encouraged by the City through signage, awareness, and education. The City Manager is charged with the responsibility of ensuring that employees, visitors, and clients adhere to all aspects of the City policy. Violations of this policy are subject to progressive discipline, as well as sanctions imposed under the Minnesota Clean Indoor Air Act and other pertinent state statutes. Page 69 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: 2024 Work Plan Progress Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: The commission’s updated 2024 work plan is included in the meeting packet. Shown in bold red are work plan items completed either at or since the last commission meeting held on January 10, 2024. Items that are in bold black have been completed. Commission members should be prepared to review the work plan to identify any other additional items that have been completed and then discuss other work plan items it would like to work on at future meetings. ATTACHMENTS: 2024 Parks and Recreation Commission Work Plan February Update Page 70 of 76 FARMINGTON PARKS AND RECREATION COMMISSION 2024 WORK PLAN Goal #1: Provide to the City Council a recommended 2025-2029 capital improvement plan for the park improvement fund. Objectives: 1. By April 1, the Commission will have discussed and identified a preliminary list of five-year capital improvement projects for the park improvement fund that will include a list of parks, costs, and schedule to be completed in the years 2025 to 2029. 2. By August 1, the Commission will finalize the five-year capital improvement projects for the years 2025-2029 and make a recommendation to the City Council for approval. 3. By December 31, the improvement projects recommended for funding from 2025-2029 will be included in the City Council’s approved 2025 final budget. Goal #2: Participate in a parks and facilities tour with the Rambling River Center Advisory Board and City Council. Objectives: 1. By March 1, the Commission, Advisory Board and City Council will have identified a date to have a tour. 2. By May 1, a draft list of parks and facilities to tour will be reviewed by the Commission. 3. By June 1, a final list of parks and facilities to tour will be approved by the Commission. 4. By October 1, a parks and facilities tour will have occurred. Goal #3: Participate in a work session with City Council. Objectives: 1. By February 1, a date to have a work session with City Council will be identified. 2. By May 1, a list of work session topic(s) will be approved by the Commission. 3. By October 1, a work session with City Council will have occurred. Goal #4: Participate in the process of finishing and making improvements at Sunny Hills Park, Flagstaff Meadows Park, and Rambling River Park. Objectives: 1. By January 1, City Council will have approved the purchase and installation of new playground equipment for Rambling River Park. Status: Completed. At their December 18, 2023 meeting, City Council approved the purchase and installation of playground equipment for Rambling River Park. 2. By June 1, the final improvements at Sunny Hills Park will be completed and a ribbon cutting ceremony will have occurred. 3. By July 1, the final improvements at Flagstaff Meadows Park will be completed and a ribbon cutting ceremony will have occurred. 4. By July 15, installation of the new playground equipment at Rambling River Park will have been completed and a ribbon cutting ceremony will have occurred. Page 71 of 76 Goal #5: Identify Bike Pedestrian Plan Priorities to Accomplish in 2024. Objectives: 1. By March 31, the Commission will have reviewed the priorities identified in the Bike Pedestrian Plan. 2. By May 15, the Commission will have developed and approved a list of priorities to work on and complete in 2024-2025. 3. By December 31, Commission members will have worked with staff to accomplish the Bike Pedestrian Plan priorities it identified to complete. Goal #6: Participate in the process of identifying and making improvements at Depot Way Arts Park. Objectives: 1. By November 1, the Commission will have discussed Depot Way Arts Park and brainstormed potential improvements, ideas, partners, etc. 2. By February 1, 2025, an open house seeking ideas for improvement will have been held. 3. By March 1, 2025, the Commission will have given input on potential improvements. 4. By May 1, 2025, cost estimates and potential funding sources will be identified and shared. 5. By August 1, 2025, improvements that can be completed by staff and/or volunteers will be finished. Goal #7: Host food truck events in the spring and fall with City of Empire Parks and Recreation Commission. Objectives: 1. By January 1, the date and location for the spring food truck event will be approved. Status: Completed. Friday, May 17 from 5 – 8 p.m. in Empire at Stelzel Ball Fields was approved for the spring food truck event at the joint meeting on October 23, 2023. 2. By April 1, the details, including, but not limited to date, location, and music, of the fall food truck event will be approved. Commission will also have decided who will contact the food trucks to see if they are interested in participating. 3. By May 15, Commission members will have decided who will help at what times with the spring food truck event. 4. By May 31, the spring food truck event will have happened. 5. By September 1, Commission members will have decided who will help at what times with the fall food truck event. 6. By September 30, the fall food truck event will have happened. 7. By October 31, the commissions will have jointly discussed and evaluated the spring and fall food truck events. Goal #8: Continue to build and strengthen relationships with the City of Empire Parks and Recreation Commission, Minnesota Department of Natural Resources (DNR), and Dakota County Parks. Objectives: Page 72 of 76 1. By February 1, organize and host a presentation by the Minnesota Department of Natural Resources (DNR). Status: Completed. TJ Debates, Minnesota Department of Natural Resources, attended the January 10 parks and recreation commission meeting and presented on fisheries management and Vermillion River. 2. By June 1, organize and conduct a joint parks tour with the City of Empire. 3. By October 1, organize and host a presentation by Dakota County Parks. Goal #9: Develop a Tobacco-Free Parks Policy. Objectives: 1. By April 1, review tobacco-free parks policies from other cities in Dakota County and discuss what should be included in a City of Farmington Tobacco-Free Parks Policy. 2. By May 1, review draft tobacco-free parks policy and make recommendations for edits. 3. By July 1, forward updated draft policy to Dakota County Public Health and Tobacco-Free Alliance for feedback. 4. By August 15, further discuss and revise the policy, if needed, based on feedback from Dakota County Public Health and Tobacco-Free Alliance, and forward to City Council for approval. 5. By September 15, present policy to City Council for approval. Goal #10: Receive periodic presentations from each of the parks and recreation department’s professional staff members about programs, parks, facilities and trails and a presentation from the Finance Director on the budget and a presentation from the Planning Manager on new housing and business developments. Objectives: 1. By April 15, Commission members will have received a presentation from the Finance Director on the city’s budget and funding sources. 2. By May 15, the Commission will have received a presentation by professional staff members of the Department’s 2023 Annual Report. 3. By June 15, Commission members will have received a presentation from staff on the results of the Schmitz-Maki Arena’s winter ice season. 4. By July 15, Commission members will have received a presentation from the Planning Manager on current and future developments. 5. By September 15, Commission members will have received a presentation from staff on the first half operations of the Rambling River Center. 6. By October 15, Commission members will have received a presentation from staff on the results of the summer programs offered. 7. By December 15, Commission members will have received a presentation from staff about the spring turf season and summer ice season. 8. By December 15, the Commission will have received a presentation from staff about maintenance and improvements to parks and trails. Page 73 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Round Table Format Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: The round table agenda item allows commission members to share information or ask staff about items not on the agenda. No formal decisions are made during this agenda item. Page 74 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Informational Updates Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: This agenda item is an opportunity for staff to provide informational updates to commission members. These items are informational only and no formal decision can be made during this agenda item. Staff will provide an update during the meeting about the following: 1.Pilot Knob Road Trail Open House 2.Rambling River Park 3.North Creek Greenway Trail 4.Rambling River Center 5.Emerald Ash Borer 6.Food Truck Events with Empire Parks and Recreation Commission Page 75 of 76 PARKS AND RECREATION COMMISSION AGENDA MEMO To: Parks and Recreation Commission From: Kellee Omlid, Parks & Recreation Director Department: Parks & Recreation Subject: Possible Items for March 13, 2024 Meeting Agenda Meeting: Parks and Recreation Commission - Feb 14 2024 INTRODUCTION: The following are possible topics staff has identified for commission to consider for its March 13, 2024 meeting agenda: •2023 Parks and Recreation Department Annual Report •Park and Facilities Tour with Rambling River Center Advisory Board and City Council •Rambling River Park •Bike Pedestrian Plan Priorities •2024 Work Plan Progress Commission members should come prepared to identify other possible topics for the March 13, 2024 meeting agenda. 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