Advisory Opinion 07-025

Facts and Procedural History:

On October 5, 2007, IPAD received a letter dated October 3, 2007, from Michelle Gross, on behalf of the Communities United Against Police Brutality. In her letter, Ms. Gross asked the Commissioner to issue an advisory opinion regarding whether the Minneapolis City Council's Free Speech Working Group complied with Minnesota Statutes, Chapter 13D, the Open Meeting Law. Ms. Gross submitted the $200 fee required by section 13.072.

On October 17, 2007, IPAD, on behalf of the Commissioner, wrote to Barbara Johnson, President of the Minneapolis City Council. In its letter, IPAD informed City Council President Johnson of Ms. Gross' request and gave the Council an opportunity to explain its position. In a letter dated October 24, 2007, Lisa Needham, Assistant City Attorney, responded on behalf of the Council.

A summary of the facts as provided by Ms. Gross is as follows. In her opinion request, she wrote:

On January 17, 2007, the Minneapolis city council approved a City Service Agreement for the 2008 Republican National Convention. In the process of doing so, language was adopted that formed a Free Speech Working Group. . . .

In an effort to learn the dates, times and location of the meetings, I visited the Minneapolis City Council office. No notice for the August 8, 2007 meeting (or any prior meetings of this working group) was posted on the official city council bulletin board. . . .

[Recently] I spoke to [the City Coordinator who] stated You know, this meeting is not public. By this, I believe she meant that these meetings are not subject to the Minnesota open meeting law.

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Issues:

Based on Ms. Gross' opinion request, the Commissioner agreed to address the following issues:

Is the Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) subject to the requirements of Chapter 13D? If the answer to Issue 1 is yes, did the Free Speech Working Group comply with the notice requirements of section 13D.04, subdivision 1, regarding its meeting on August 8, 2007?

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Discussion:

Issue 1:

Is the Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) subject to the requirements of Chapter 13D?

Of relevance here, the Open Meeting Law applies to all meetings of any committee, subcommittee, board, department, or commission of a public body. (See section 13D.01, subdivision 1(c).) Meetings of these groups must be open to the public when the meeting requires or permits the group by law to transact public business. (See section 13D.01, subdivision 1.)

In her comments to the Commissioner, Ms. Needham wrote:

The Free Speech Working Group was created in light of the upcoming Republican National Convention. The City Council directed the City Coordinator to form a work group that would address free speech issues as they relate to the convention. . . The work group is comprised of the following members:

- the Mayor

- up to two members of the City Council

- the Chief of Police

- the Director of Civil Rights

- the City Attorney

- the Assistant City Coordinator, Emergency Preparedness Regulatory Services

- two representatives of recognized civil liberties groups such as the American Civil Liberties Union or the National Lawyers Guild.

Ms. Needham discussed that the work group was tasked with developing strategies regarding a number of goals; she listed those goals. She wrote, However, the work group does not possess any decision-making authority, nor does it transact any public business. Ms. Needham further stated:

. . . the Working Group is not tasked with the ability to make decisions on behalf of the City, but merely to develop and review strategies for addressing free speech concerns. Ultimately, any policy direction on the matter would come from the Council, and such a matter would be addressed in the public meetings of the Council and its duly appointed committees. Thus, the concern that the work group is designed to circumvent public scrutiny of City deliberations is unfounded. Next, as only two members, with one alternate, of the Council are members of the work group, no quorum of any council committee can be reached. Therefore the concerns that the work group constitutes a gathering whereby the members of the Council are discussing, deciding, or receiving information as a group are also unfounded.

A 1993 Minnesota Court of Appeals case addressed an issue similar to the one before the Commissioner. In Sovereign v. Dunn, 498 N.W.2d 62 (Minn.App. 1993), the Court found that a series of mediation sessions, in which less than a quorum of the Lake Elmo City Council members participated, were not a committee, subcommittee, board, department, or commission of the City of Lake Elmo for purposes of the Open Meeting Law:

Accordingly, we hold that a gathering of public officials is not a committee, subcommittee, board, department or commission subject to the open meeting law unless the group is capable of exercising decision-making powers of the governing body. The capacity to act on behalf of the governing body is presumed where members of the group comprise a quorum of the body. It could also arise where there has been a delegation of power from the governing body.

The Lake Elmo delegation did not constitute a quorum of the city council, nor did it exercise any authority on behalf of the council. . . . Though the mediation sessions produced a negotiated agreement, this agreement was presented to the city council in an open meeting with opportunity for public involvement.

Sovereign at 67-68.

In the present situation, the Free Speech Working Group is not capable of exercising decision-making powers of the governing body. Its stated purpose is to create a model for how the City can preserve the right to political speech and civic debate without disrupting community life during the 2008 Republican National Convention. The Work Group must report approximately every six months, and as needed, to the City Council's Ways Means/Budget and Public Safety and Regulatory Services Committees. In addition, because only two Council Members are part of the Work Group's membership, no quorum of the City Council exists. Based on the language in section 13D.01 and the Court of Appeals decision in Sovereign, the Commissioner does not believe that the Free Speech Working Group is subject to the requirements of Chapter 13D.

Issue 2:

If the answer to Issue 1 is yes, did the Free Speech Working Group comply with the notice requirements of section 13D.04, subdivision 1, regarding its meeting on August 8, 2007?

The Free Speech Working Group is not subject to the requirements of Chapter 13D. Therefore, it is not required to provide notice of its meetings.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Gross raised is as follows:

The Free Speech Working Group (creation of which was approved at the January 17, 2007, Minneapolis City Council meeting) is not subject to the requirements of Chapter 13D. The Free Speech Working Group is not subject to the requirements of Chapter 13D. Therefore, it is not required to provide notice of its meetings.

Signed:

Dana B. Badgerow
Commissioner

Dated: November 16, 2007

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