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HomeMy WebLinkAbout02.11.25 Planning Packet Meeting Location: Farmington City Hall 430 Third Street Farmington, MN 55024 PLANNING COMMISSION Tuesday, February 11, 2025 7:00 PM Page 1. CALL TO ORDER 1.1. Election of Officers Elect a Planning Commission Chair and Vice Chair for 2025. Agenda Item: Election of Officers - Pdf 3 1.2. Appointments to Committees The Planning Commission should discuss and appoint who will represent the Commission on each of the above mentioned committees during the 2025 calendar year. Agenda Item: Appointments to Committees - Pdf 4 - 5 2. APPROVAL OF MINUTES 2.1. Approve Planning Commission Minutes Approve the minutes from the January 14, 2025 regular meeting. Agenda Item: Approve Planning Commission Minutes - Pdf 6 - 8 3. PUBLIC HEARINGS 4. DISCUSSION 4.1. Potential Beekeeping Ordinance Discussion Discussion only. Staff is requesting the Planning Commission to review and compare ordinances. Staff is looking for feedback from the Commission if they would like to pursue a draft ordinance and what standards they would like to see in such ordinance. Agenda Item: Potential Beekeeping Ordinance Discussion - Pdf 9 - 15 4.2. Open Meeting Law This is being provided for informational purposes only. Agenda Item: Open Meeting Law - Pdf 16 - 33 Page 1 of 33 5. ADJOURN Page 2 of 33 PLANNING COMMISSION AGENDA MEMO To: Planning Commission From: Tony Wippler, Planning Manager Department: Planning Commission Subject: Election of Officers Meeting: Planning Commission - Feb 11 2025 INTRODUCTION: Each year the Planning Commission is asked to elect a Chair and Vice Chair from its membership. DISCUSSION: Commission Member Rotty served as Chair in 2024, with Commission Member Tesky serving as Vice Chair. BUDGET IMPACT: Not applicable ACTION REQUESTED: Elect a Planning Commission Chair and Vice Chair for 2025. Page 3 of 33 PLANNING COMMISSION AGENDA MEMO To: Planning Commission From: Tony Wippler, Planning Manager Department: Planning Commission Subject: Appointments to Committees Meeting: Planning Commission - Feb 11 2025 INTRODUCTION: The Planning Commission needs to discuss which Commissioner(s) should represent the following committees for the 2025 calendar year. DISCUSSION: A) Empire/Farmington Planning Advisory Committee (EFPAC) This committee meets periodically to discuss topics pertinent to the cities of Farmington and Empire. Mayor Hoyt represents the City Council on this committee. The 2024 representative was Planning Commissioner Windschitl. B) Castle Rock Discussion Group This committee meets periodically to discuss topics pertinent to Farmington and Castle Rock Township. Mayor Hoyt represents the City Council on this committee. The 2024 representative was former Planning Commissioner Lehto. C) Eureka Farmington Planning Group This committee meets periodically to discuss topics pertinent to Farmington and Eureka Township. Councilmember Bernatz represents the City Council on this committee. The 2024 representative was Planning Commissioner Tesky. D) MUSA Review Committee This committee meets periodically to discuss the growth of Farmington and where the next extension of sewer will occur in the future. Councilmembers Bernatz and Lien represent the City Council on this committee. Two Planning Commission Members are needed to represent the commission on the committee. The committee is also made up of two members from the Parks and Recreation Commission/staff and two members from the School Board/staff. The 2024 representatives where Chair Rotty and Commission Member Snobeck. BUDGET IMPACT: Page 4 of 33 Not applicable ACTION REQUESTED: The Planning Commission should discuss and appoint who will represent the Commission on each of the above mentioned committees during the 2025 calendar year. Page 5 of 33 PLANNING COMMISSION AGENDA MEMO To: Planning Commission From: Tony Wippler, Planning Manager Department: Planning Commission Subject: Approve Planning Commission Minutes Meeting: Planning Commission - Feb 11 2025 INTRODUCTION: Attached, are the minutes from the January 14, 2025 regular meeting. DISCUSSION: Not applicable BUDGET IMPACT: Not applicable ACTION REQUESTED: Approve the minutes from the January 14, 2025 regular meeting. ATTACHMENTS: January 14, 2025 PC Minutes Page 6 of 33 CITY OF FARMINGTON PLANNING COMMISSION MINUTES REGULAR MEETING January 14th, 2025 1. CALL TO ORDER The meeting was called to order by Commissioner Tesky at 7:00pm Members Present: Lehto, Windschitl, Snobeck, Tesky Members Absent: Rotty Staff Present: Tony Wippler, Planning Manager 2. APPROVAL OF MINUTES MOTION by Windschitl, second by Lehto to approve minutes of Planning Commission for December 10th, 2024, regular meeting. APIF, MOTION CARRIED 3. PUBLIC HEARINGS Commissioner Tesky opened all public hearings. 3.1 Akin Knoll Combined Preliminary plat and Final plat withdrawal. Planning Manager Wippler explained Kerry Hanifl, applicant, is requesting withdrawal until a future date. MOTION by Snobeck, second by Windschitl to close the public hearing. APIF MOTION CARRIED MOTION by Windschitl, second by Lehto to accept withdrawal of Akin Knoll Combined Preliminary Plat and Final Plat. APIF MOTION CARRIED 4. DISCUSSION 4.1 Meadowview Preserve 2nd Addition Final Plat- Planning Manager Wippler presented the Meadowview Preserve 2nd addition final plat details. He stated the requirements have all been met and the plat is consistent with the preliminary plat. • 75 single family lots • Minimum lot area 7,764 square feet • Setbacks: o Front yard- 20 feet o Side yard (interior)- 6 feet o Side yard (corner)- 20 feet o Rear yard – 6 feet • Transportation o Everfield Avenue and Everglade path will be extended north. Everglade Path connecting into existing roadway to the east. 192nd Street is the center of the second phase and connects Everfield Avenue to Everglade Path. o Everfield Avenue: 60 foot right-of-way with 32 foot wide roadway. Page 7 of 33 o Everglade Path: 60 foot right-of-way with 28 foot wide roadway. o 192nd Street: 60 foot right-of-way with 32 foot wide roadway. o 190th Street W to be constructed from Everest Path to the Everfield Avenue intersection. Right -of-way for 190th Street dedicated in first phase. o Construction work with 190th Street W will be reviewed separately with further discussion by staff and developer. • Parks, Trails and Sidewalks o City will seek cash-in-lieu of parkland dedication with this plat. o Sidewalks will be provided on north and west side of Everglade Path, the west side of Everfield Avenue, and south side of 192nd Street W. o Bituminous trail will be constructed within adjacent outlot (Outlot A, Meadowview Preserve running north/south through the out from 195th Street W to 190th Street W right-of-way. Commissioner Tesky opened discussion for any comments. Bryan Tucker with Summergate development was available for questions. Commissioner Windschitl asked how cash in lieu is determined, Planning Manager Wippler explained there is a formula based on appraised value of the property. Commissioner Snobeck asked what an estimated timeline for full development would be. Mr. Tucker stated that they are looking at starting to be build the rest of the infrastructure in April/May of this year and the market will dictate the rest. MOTION by Windschitl, second by Snobeck for recommendation to City Council for Approval of Meadowview Preserve 2nd Addition final plat upon satisfaction of contingencies. APIF MOTION CARRIED 4.2 Recognize Outgoing Commission Member Lehto. The Commissioners and Planning staff thanked her for all her efforts during her time on the commission. 5. ADJOURN MOTION by Lehto, second by Snobeck to adjourn the meeting at 7:12 pm. APIF MOTION CARRIED Respectfully submitted, Tony Wippler, Planning Manager Page 8 of 33 PLANNING COMMISSION AGENDA MEMO To: Planning Commission From: Jared Johnson, Planning Coordinator Department: Community Development Subject: Potential Beekeeping Ordinance Discussion Meeting: Planning Commission - Feb 11 2025 INTRODUCTION: At the August 14th, 2024, Planning Commission meeting, a discussion was held regarding a potential beekeeping ordinance. The goal of the discussion was to get initial feedback from the Commission on if there was any interest in pursuing an ordinance. The Planning Commission expressed interest but would like to see more information on what surrounding communities are doing and how their ordinances compared. Staff has collected and compared existing ordinance information from the following ordinances:  Lakeville: https://codelibrary.amlegal.com/codes/lakevillemn/latest/lakeville_mn/0-0-0-8182 (11-35-3 Section F-2)  Rosemount: https://codelibrary.amlegal.com/codes/rosemountmn/latest/rosemount_mn/0-0-0- 15953 (11-6-7 Section M)  Eagan: https://library.municode.com/mn/eagan/codes/code_of_ordinances?nodeId=CICO_CH10PUP RCROF_S10.12ANFOEETRTRHO (10.12 Subd. 9)  Minnesota Hobby Beekeepers Association Model Ordinance: Model_Ordinance 2018_final.pdf DISCUSSION: An ordinance comparison table along with common terms is attached. Staff has summarized the table below which includes how the ordinances were outlined as well as common requirements. Ordinance Outline (breakdown by section)  Definitions  Permit requirements  Performance standards  Permit inspection and termination Common Requirements:  Permit Process: Annual permit reviewed by staff.  Zoning: Allowed in Agricultural and Single-Family Residential Districts.  Colony Density: Number of colonies allowed depends on lot size. Lots less than 0.5 acres can have a maximum of two colonies. Majority of single-family lots in Farmington are less Page 9 of 33 than 0.5 acres.  Colony Location: Only allowed in rear yard.  Setbacks: Varies from 10 feet to 20 feet from any lot line. Rosemount allows a minimum of 10 feet and Eagan has a minimum of 30 feet from and adjacent dwelling unit, deck, patio, swimming pool, or other outdoor living space.  Construction/Equipment: Colonies shall be kept in hives with removable frames and kept in good condition. Materials such as wax comb shall be promptly removed from the site to prevent robbing by other bees. Unused equipment shall be secured or stored indoors.  Barrier/Screening: If a hive is kept within 25 feet of a lot line, a flyway barrier is required in- between the hive and the lot line of at least 6 feet in height consisting of a wall, fence, or dense vegetation. Flyway barriers force the bees to fly upwards out of the hive.  Living Conditions: Each hive or colony shall be provided a convenient source of water. Hives shall be continuously managed to provide adequate and healthy living spaces to prevent swarming.  Behavior: If a colony exhibits aggressive behavior, the beekeeper shall promptly determine the cause and correct it. This includes requeening.  Nucleus Colony: For each colony allowed, there may be one nucleus colony in a hive.  Beekeeper Education: Applicants must demonstrate they have completed a full course on beekeeping.  Other Requirements: Fruit trees and other flowering trees may not be sprayed while in full bloom with any substance harmful to bees. If the beekeeper removes a swarm of bees from an undesirable location in the city, they shall be allowed to temporarily house the swarm for no more than 30 days.  Inspection: The city may inspect the property at any reasonable time to determine compliance with the ordinance.  Termination: Permits will terminate if expired, a transfer of ownership of the property, if a violation of the ordinance/permit requirements is occurring, or a public nuisance is declared. BUDGET IMPACT: Not applicable ACTION REQUESTED: Discussion only. Staff is requesting the Planning Commission to review and compare ordinances. Staff is looking for feedback from the Commission if they would like to pursue a draft ordinance and what standards they would like to see in such ordinance. ATTACHMENTS: Beekeeping Ordinance Comparison Page 10 of 33 Beekeeping Ordinance Comparison Lakeville Rosemount Eagan Minnesota Hobby Beekeepers Association (Model Ordinance) Permit Type/Fee Interim Use Permit, $500 fee Annual Permit, no fee found Annual Permit - $50 initfal fee, $25 renewal N/A Process Reviewed by Planning Commission (public hearing required), final approval by City Council Reviewed and approved by staff Reviewed and approved by staff N/A Zoning Districts Permitted Agricultural/rural or Residentfal Agricultural districts, Rural Residentfal, and Low Density Residentfal Agricultural or parcel zoned for single family detached dwelling N/A Colony Density • <25,000 SF – 2 colonies • 25,000-40,000 SF – 4 colonies • 40,000 SF-5 acres – 6 colonies • 5 acres or greater – 8 colonies • Less than 0.5 acres – 2 colonies • Between 0.5 acres and 1 acre – 4 colonies • Between 1 and 5 acres – 8 colonies • Larger than 5 acres – no restrictfon • <0.5 acres – 2 colonies • Larger than 0.5 acres but smaller than 0.75 acres – 4 colonies • Larger than 0.75 acres but smaller than 1 acre – 6 colonies • 1 acre but smaller than 5 acres – 8 colonies • Larger than 5 acres – no restrictfon • <0.5 acres – 2 colonies • Larger than 0.5 acres but smaller than 0.75 acres – 4 colonies • Larger than 0.75 acres but smaller than 1 acre – 6 colonies • 1 acre but smaller than 5 acres – 8 colonies • Larger than 5 acres – no restrictfon Colony Location Rear yard only Not allowed in front yard • Excluding agricultural lots or lots ten acres or more in size, no hives are allowed in front or side yards • Front entrance of hives shall face into the permit holders’ lot and not towards an adjacent lot • May not be located on a rooftop N/A Setbacks 20 feet from any lot line (may not encroach in any wetland buffer or easement) 10 feet from any property line, sidewalk, alley, or public right-of-way • 20 feet from any lot line • 30 feet from any adjacent dwelling unit, deck, patfo, swimming pool, other outdoor living space N/A Pa g e 1 1 o f 3 3 Beekeeping Ordinance Comparison Lakeville Rosemount Eagan Minnesota Hobby Beekeepers Association (Model Ordinance) Construction/ Equipment • Colonies shall be kept in hives with removable frames that are kept in sound and usable conditfon • Materials such as wax comb, shall be promptly disposed of in a sealed container or placed within a building or other bee- proof enclosure • Beekeeping equipment shall be maintained in good conditfon. Unused equipment must be protected to prevent swarming of bees • Colonies shall be kept in hives with removable frames • No wax comb or other materials that encourage robbing by other bees shall be left upon the property • All equipment shall be maintained in good conditfon. Unused equipment shall be secured from weather, potentfal theft or vandalism, and occupancy by swarms • Colonies shall be kept in hives with removable frames and kept in good conditfon • Beekeeping equipment shall be maintained in good conditfon • Unused equipment shall be stored indoors • Honey bee colonies shall be kept in hives with removable frames, which shall be kept in sound and usable conditfon • Beekeeper shall maintain their equipment in good conditfon, including the hives painted if they have been painted but are peeling or flaking, and securing unused equipment from weather, potentfal theft or vandalism and occupancy swarms • No wax comb, syrup for feeding honey bees, or other material that might encourage robbing by other bees are left upon the grounds of the apiary lot. Such materials shall be removed from the site and stored in sealed containers or placed within a building or other insect proof container Pa g e 1 2 o f 3 3 Beekeeping Ordinance Comparison Lakeville Rosemount Eagan Minnesota Hobby Beekeepers Association (Model Ordinance) Barrier/Screening Solid fence, wall, or dense vegetatfve barrier (min of 6 feet in height) shall be used to prevent direct line of flight into neighboring propertfes • If a colony is kept less than 25 feet from a property line, there shall be a flyway barrier of at least 5 feet in height consistfng of a wall, fence, dense vegetatfon, or combinatfon • General screening of the apiary shall be required from adjacent propertfes and right- of-way through a combinatfon of buildings, fencing, or vegetatfon. Additfonal screening may be required at the discretfon of the zoning administrator • If a hive is kept within 25 feet of a lot line or within 35 feet of an adjacent dwelling unit, deck, patfo, swimming pool, or other outdoor living space, a flyway barrier of at least 6 feet in height shall be established and maintained • Barrier shall be either a stone wall, solid fence, dense vegetatfon or combinatfon. If vegetatfon, the initfal plantfng may be 4 feet in height as long as it reaches 6 feet within two years of plantfng • Barrier shall contfnuously run parallel to the lot line for a distance of 10 feet in both directfons in front of each hive entrance side unless the barrier is installed to completely surround the hives • Barrier is not required if the lot abutting the property is undeveloped or zoned agricultural or ten acres or more in size • Hives may be visible from the street and the keeping of bees and harvestfng of honey may be conducted within an attached garage or detached accessory structure • If a hive is kept less than 16 feet from a property line, the beekeeper shall establish and maintain a flyway barrier at least 6 feet in height. This may consist of a wall, fence, dense vegetatfon or combinatfon thereof, such that bees will fly over rather than through the material to reach the colony. • If vegetatfon, the initfal plantfng may be 4 feet in height as long as it reaches 6 feet • The barrier must contfnue parallel to the lot line for 10 feet in either directfon from the hive, or contain the hive in an enclosure at least 6 feet in height • A barrier is not required if adjacent lots are undeveloped, zoned agricultural, industrial, or park Living Conditions • Each colony shall be provided with a convenient source of water • Hives shall be contfnuously managed to provide adequate living space to control swarming Convenient source of water shall be available within 10 feet of each colony • Each colony shall be provided with a source of clean water either through a boardman feeder or other non-stagnant water source. It shall be free of chemicals • All hive or colony debris shall be promptly cleaned and disposed of in a tfght-fitting waste container or stored indoors • Each hive shall be contfnuously managed to provide adequate and healthy living spaces to prevent swarming A convenient source of water is available to the colony as long as colonies remain actfve outside the hive Pa g e 1 3 o f 3 3 Beekeeping Ordinance Comparison Lakeville Rosemount Eagan Minnesota Hobby Beekeepers Association (Model Ordinance) Behavior If the colony exhibits aggressive behavior, the beekeeper shall take prompt actfon to address it. If requeening is required, queens shall be selected from European stock bred for gentleness and non-swarming characteristfcs N/A When a colony exhibits aggressive behavior, the beekeeper shall promptly determine the cause and correct it, including requeening N/A Nucleus Colony For each colony allowed, there may also be one nucleus colony in a hive structure not to exceed 9 5/8-inch depth ten-frame hive body, with no supers For each colony allowed, there may also be one nucleus colony in a hive structure not to exceed 9 5/8-inch depth ten-frame hive body, with no supers For each colony allowed, no more than one nucleus hive with no supers is permitted and in no case shall an aggregate total of one nucleus hive for every two colony hives that are permitted be permitted after the nucleus hives initfal summer season For each colony allowed, there may also be one nucleus colony in a hive structure not to exceed 9 5/8-inch depth ten-frame hive body, with no supers Beekeeper Education N/A Applicant must demonstrate they have completed a full course on beekeeping Proof of completfon of a beekeeping basics course (min of 8 hours) through the U of M Bee Lab, community educatfon program, or a local beekeeper club/associatfon within 12 months of the applicatfon or proof of three or more consecutfve years of actual beekeeping experience, established by evidence within 5 years preceding the applicatfon The beekeeper shall show they have had a complete course on beekeeping including but not limited to disease and mite management and swarm control Other Fruit trees and other flowering trees may not be sprayed while in full bloom with any substance harmful to bees If the beekeeper serves the community by removing a swarm of bees from locatfons not desired, they shall not be in violatfon if they temporarily house the swarm for no more than 30 days • If the beekeeper removes a swarm of bees from locatfons not desired in the city, they shall not be in violatfon if they temporarily house the swarm for no more than 30 days and notffies the city within 12 hours of acquiring the colony • Fruit trees and other flowering trees may not be sprayed while in full bloom with any substance harmful to bees • No queen bees may be reared for the purpose of sale to a third party or sold from the site If the beekeeper serves the community by removing a swarm of bees from locatfons not desired, they shall not be in violatfon if they temporarily house the swarm for no more than 6 months Inspection Property may be inspected at any reasonable tfme to determine/ensure compliance N/A Upon issuance of the permit and full set up of the first hive colony, the city may inspect to ensure compliance with the ordinance Property may be inspected between 8am-5pm once annually upon prior notfce and more often upon complaint without prior notfce Pa g e 1 4 o f 3 3 Beekeeping Ordinance Comparison Lakeville Rosemount Eagan Minnesota Hobby Beekeepers Association (Model Ordinance) Termination/Suspension Terminates once permit expires, violatfon of permit, or transfer of ownership of the property N/A • Permit is revoked if violates ordinance requirements or conditfons placed on the permit. In additfon, any fraud/false statements on the applicatfon or bees are causing a public nuisance • Permit is not transferable • After a hearing conducted by the designated city official, the city may order the removal of the bees and the lot is disqualified for permitting for at least 2 years unless a change of ownership of the lot occurs • If removal order is not complied with, the city may remove the bees and charge the costs to the beekeeper Common Definitfons: APIARY: The assembly of one or more colonies of honey bees on a single lot. APIARY SITE: The lot upon which an apiary is located. BEEKEEPER: A person who owns or has charge of one or more colonies of honey bees; or who owns or controls the property on which a honey bee colony is located whether or not the person is intentfonally keeping honey bees. BEEKEEPING EQUIPMENT: anything used in the operatfon of an apiary, including but not limited to: hive bodies; brood boxes; supers; hive frames; top and bottom boards, including any platiorms; beekeeping tools or supplies; and extractors. COLONY: an aggregate of honey bees, consistfng generally of one queen bee, worker bees, drone bees, or any combinatfon thereo f, and at tfmes including brood, comb, pollen and honey. HIVE: the receptacle intended for the habitatfon of a colony, which may be a “top bar” hive or a traditfonal multfstoried 8-10 frame hive that has one or more brood boxes, plus any honey supers as may be added. HONEY BEE: all life stages of the common domestfc honey bee, apis mellifera species. NUCLEUS HIVE: a hive receptacle or hive body that is nine and five-eighths inches deep, and holds three to five frames and a small quantfty of honey bees, which may include a queen, for partfcular beekeeping purposes, such as startfng a new colony, introducing of a new queen to an existfng colony, or rearing a new queen. SWARMING: the process where a queen bee leaves a colony with a large group of worker bees. Pa g e 1 5 o f 3 3 PLANNING COMMISSION AGENDA MEMO To: Planning Commission From: Tony Wippler, Planning Manager Department: Planning Commission Subject: Open Meeting Law Meeting: Planning Commission - Feb 11 2025 INTRODUCTION: Organizational matters are normally handled during the Planning Commission's February regular meeting. As part of these organizational discussions it is important to review the Minnesota State Statute as it relates to open meeting law. DISCUSSION: Included within the packet please find information regarding open meeting law as provided by the League of Minnesota Cities. As the Planning Commission is a publicly appointed commission, it must comply with open meeting law. BUDGET IMPACT: Not applicable ACTION REQUESTED: This is being provided for informational purposes only. ATTACHMENTS: Open Meeting Law Page 16 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 fall on the preceding Friday, or earlier. 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 17 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 18 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 19 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 20 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 21 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 22 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 23 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 24 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 25 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 26 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 27 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 28 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 29 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 X 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 30 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 Outlook, 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 city’s adopted records retention schedule. 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 31 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 32 of 33 RELEVANT LINKS: League of Minnesota Cities Handbook for Minnesota Cities 6/7/2024 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 33 of 33