Advisory Opinion 07-018

Facts and Procedural History:

On August 14, 2007, IPAD received a letter, dated August 13, 2007, from David Hvistendahl on behalf of his client, James Stengrim. In his letter, Mr. Hvistendahl asked the Commissioner to issue an advisory opinion regarding several issues related to compliance by the Middle-Snake-Tamarac Rivers Watershed District Board of Managers (Board) with the Open Meeting Law, Minnesota Statutes, Chapter 13D. Mr. Hvistendahl submitted the $200.00 fee required by section 13.072.

On August 28, 2007, IPAD wrote to Mr. Douglas Sorenson, Chairman of the Board. In its letter, IPAD informed Mr. Sorenson of Mr. Hvistendahl's request and gave the Board an opportunity to explain its position. The Board presented its position in a letter from its attorney, Jeffrey W. Hane, dated September 6, 2007.

A summary of the facts as presented by Mr. Hvistendahl is as follows.

The Board provided notice for a February 26, 2007, regular meeting in the local newspapers. The notice did not mention that a portion of the February 26, 2007, meeting would be closed.

Mr. Hvistendahl provided an audio recording and a partial transcript of the open portion of the February 26, 2007, meeting. The transcript states in relevant part:

The closed meeting now - uh - pursuant to the statute - we're going to close it for litigation (?) [sic] strategies and theories - uh - actually before we do that we're going to close it - uh - for the purpose of discussing offers and counteroffers for the purchase of sale of land in regard to Section 19 of Brandt Township of Polk County.

Mr. Hvistendahl also provided the approved minutes of the February 26, 2007, meeting. The minutes relative to closing the portion of the February 26, 2007, meeting state:

Mr. Jeff Hane requested that the meeting be closed pursuant to Minnesota Statutes 13D.05 (Subd. 3c) [sic] to develop or consider offers or counteroffers for the purchase or sale of real or personal property in section 19 of Brandt Township; and pursuant to Minnesota Statutes 13D.05 (Subd. 3b) [sic] for purposes of discussing legal theories and strategies regarding the PL-566 litigation, Agassiz Valley Water Resources Management project settlement agreement, and conflict of interest issues.

In his opinion request, Mr. Hvistendahl wrote:

During the closed portion of the February 26th meeting, the Board discussed two topics: (1) whether to make an offer to purchase certain real estate; and (2) certain pending litigation. The Board recorded only a portion of the closed meeting, only that portion of the closed meeting having to do with offers for purchase of real property. The Board shut off the tape, part way through the meeting.

Issues:

Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for a February 26, 2007, closed meeting, when the members knew in advance that a portion of the meeting would be closed to consider offers or counteroffers for the purchase of real estate? Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers' public statement given prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies comply with the notice requirements of Minnesota Statutes, section 13D.01? Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with Minnesota Statutes, section 13D.05, when they failed to record the entire closed portion of a meeting on February 26, 2007?

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Discussion:

There is no dispute between the parties that the Board is subject to the Open Meeting Law, Minnesota Statutes, Chapter 13D (OML). As provided in section 13D.01, subdivision 1(c)(3), the Board is required to comply with the OML.

Issue 1:

Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for a February 26, 2007, closed meeting, when the members knew in advance that a portion of the meeting would be closed to consider offers or counteroffers for the purchase of real estate?

Minnesota Statutes, section 13D.04, subdivision 5 states:

The notice requirements of this section apply to closed meetings.

It is not disputed that the February 26, 2007, meeting of the Board was a regular meeting. The notice requirements for regular meetings are in section 13D.04, subdivision 1, which states:

A schedule of the regular meetings of a public body shall be kept on file at its primary offices. If a public body decides to hold a regular meeting at a time or place different from the time or place stated in its schedule of regular meetings, it shall give the same notice of the meeting that is provided in this section for a special meeting.

The notice requirement for the closed portion of the February 26, 2007, regular meeting is governed by section 13D.04, subdivision 1. Even though the Board published notice of the February 26, 2007, regular meeting, section 13D.04, subdivision 1 does not require publishing notice of a regular meeting or a closed portion of a regular meeting. The only notice requirement for the February 26, 2007, regular meeting, including the closed portion of the meeting, was a schedule of the Board's regular meetings kept at its primary offices. Neither party provided information as to whether a schedule of the Board's regular meetings is kept on file at its offices; therefore, the Commissioner cannot determine whether the Board complied with the notice requirement for its February 26, 2007, regular meeting, including the closed portion of the meeting.

Issue 2:

Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers' public statement given prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies comply with the notice requirements of Minnesota Statutes, section 13D.01?

Minnesota Statutes, section 13D.01, subdivision 3 states:

Before closing a meeting, a public body shall state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed.

The Commissioner addressed the requirements to adequately close meetings in Advisory Opinion 06-020:

This subdivision requires that three things be done before a meeting is closed: (1) a statement be made on the record; (2) specific grounds permitting the closure of the meeting be given; and (3) a description of the subject to be discussed be provided.

The audio recording transcript of the February 26, 2007, meeting provided by Mr. Hvistendahl confirms that a statement to close the meeting was made on the record. Therefore, it is undisputed the Board complied with the first requirement to close a meeting.

The parties dispute the adequacy of the second and third requirements to close a meeting. The Commissioner further interpreted these requirements in Advisory Opinion 06-020:

According to The American Heritage College Dictionary, Houghton Mifflin Company, Boston 1997, specific means explicitly set forth; definite and grounds means the foundation for an argument, belief, or an action; a basis. Therefore, the Board needs to provide the definite basis for closing the meeting. The easiest way to accomplish this is to cite the statute that gives the Board the authority to close the meeting.

The final element to be considered is whether the notice that the Board has used describes the subject to be discussed. The Court of Appeals has provided direction on how this language is to be interpreted. In The Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. Ct. App. 2004), the Court was asked to decide if a statement that a meeting is being closed for a discussion of pending litigation under the attorney-client privilege met the requirements of section 13D.01, subdivision 3. In analyzing that statement used by Blue Earth County, the Court found that attorney client privilege provided the grounds and pending litigation identified the subject to be discussed, but did not describe the subject as required by the statute. The Free Press at 476 (emphasis in the original).

In his opinion request, Mr. Hvistendahl wrote:

The approved minutes [of the February 26, 2007, meeting] are inaccurate. The specific litigation was never mentioned, when the announcement was made to close the meeting.

In the Board's response, Mr. Hane wrote:

What likely occurred is that after Mr. Stengrim stopped tape recording, but prior to the beginning of the closed meeting on the purchase of land, a more specific notice was given to the public concerning which pieces of litigation would be discussed during the closed meeting.

Mr. Hane noted that the meeting minutes reflect the specific notice that was given to close the meeting and a majority of the Board members determined the minutes to be correct.

This presents a factual dispute that the Commissioner cannot resolve. If the February 26, 2007, meeting minutes reflect the statement that was made to close the meeting, the Board has complied with section 13D.01, subdivision 3. If the audio recording transcript reflects the actual statement to close the meeting, the Board has not complied because it did not provide the specific statutory authority to close the meeting nor describe the subject to be discussed.

Issue 3:

Did the members of the Middle Snake Tamarac Rivers Watershed District Board of Managers comply with Minnesota Statutes, section 13D.05, when they failed to record the entire closed portion of a meeting on February 26, 2007?

Minnesota Statutes, section 13D.05, subdivision 3(c) states:

A public body may close a meeting: (3) to develop or consider offers or counteroffers for the purchase or sale of real or personal property. Before holding a closed meeting under this paragraph, the public body must identify on the record the particular real or personal property that is the subject of the closed meeting. The proceedings of a meeting closed under this paragraph must be tape recorded at the expense of the public body.

In his opinion request, Mr. Hvistendahl wrote:

The purpose of a closed meeting is for the protection of the public at large. A court can review such a recording in camera, if certain actions are challenged in court under the Open Meeting Law. Given the particular facts at hand, it was particularly important that the entirety of the February 26th closed meeting be recorded.

In the Board's response, Mr. Hane wrote:

Chapter 13D specifies when a meeting must be tape recorded. See, e.g., section 13D.03, subdivision 2(a) ( the proceedings of a closed meeting to discuss negotiations strategies shall be tape-recorded , section 13D.05, subdivision 3(c) the proceedings of a meeting closed under this paragraph must be tape-recorded. ) (Emphasis added.)

While the Commissioner recognizes Mr. Hvistendahl's concern, the plain meaning of the statute supports Mr. Hane's comments. Section 13D.05, subdivision 3(b), which allows meetings to be closed if permitted by the attorney-client privilege, does not contain the same requirement to tape record meetings as is required by section 13D.05, subdivision 3(c). Therefore, the Board was only required to tape record the portion of the February 26, 2007, closed meeting when offers or counteroffers for the purchase or sale of property were discussed.

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Opinion:

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

The Commissioner cannot determine whether members of the Middle Snake Tamarac Rivers Watershed District Board of Managers complied with the notice requirements of Minnesota Statutes, section 13D.04, subdivision 5, for its February 26, 2007, regular meeting, including the closed portion of the meeting. The issue of whether the public statement given by the Middle Snake Tamarac Rivers Watershed District Board of Managers prior to closing a portion of a meeting on February 26, 2007, to discuss litigation strategies complied with the notice requirements of Minnesota Statutes, section 13D.01, is a factual dispute that the Commissioner cannot resolve. The members of the Middle Snake Tamarac Rivers Watershed District Board of Managers complied with Minnesota Statutes, section 13D.05, when they did not record the entire closed portion of a meeting on February 26, 2007.

Signed:

Dana B. Badgerow
Commissioner

Dated: September 26, 2007

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