Op. Atty. Gen. 63a-5 ( 1996 )

Open Meeting Law: City Council: Committees. Mere attendance by additional council
member(s) at meeting of a council committee, held in compliance with Open Meeting Law,
would not constitute special council meeting requiring separate notice, but such member(s)
should not participate in committee discussions or deliberations, absent separate notice.
63a-5
(Cr. Ref. 125a-l4,
161a-l6, 471-6)
August 28, 1996
Laurence J. Klun
Attorney at Law
103 East Chapman Street
Ely, MN 55731
Dear Mr. Klun:
In your letter you present substantially the following:
FACTS
The City Council of Ely is composed of seven members. The Council has
established several committees, each composed of three of its members.
Meetings of the Council and all committees are held in compliance with the
' notice requirements of Minn. Stat. § 471.705, subd. lc.
You then ask substantially the following questions:
QUESTION ONE
If a committee of three (3) Council members meets pursuant to notice under Minn. Stat.
§471.705, does a violation of the statute occur if a fourth or additional Council member
attends the committee meeting?
OPINION
To the extent that the involvement of the additional member is limited to attendance at
the committee meeting, we answer your question in the negative. However, we believe that a
Laurence J. Klun, Esq.
August 28, 1996
Page 2
violation may be found if the additional member(s) participate in discussions or deliberations
of the committee upon matters of city business within the council’s purview.
Minn. Stat. §471.705, (the Open Meeting Law) requires, with certain exceptions, that
meetings of a local government body "and of any committee, subcommittee, board,
department or commission thereof" be open to the public. Subdivision lc of that section
imposes requirements for notice to the public of the time and place of meetings of bodies
covered by the Open Meeting Law.1 Our courts have defined a "meeting" subject to the
requirements of the Open Meeting Law as a gathering of:
A guo_ 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 zrour) on issues relating to the official
business of that governing body.
Moberg v. Independent Sch. Dist. No. 281, 336 N.W.Zd 510, 518 (Minn. 1983) (emphasis
added); Thomas v. Kroschel, 506 N.W.Zd 14 (Minn. Ct. App. 1993). In the situation you
describe, it is presumed that a meeting of a committee composed of three members of a seven-
member Council is being held, pursuant to proper notice, open to the public. If one or more
additional members of the Council arrive at the meeting, however, a quorum of the Council is
then present. Thus, it may be argued that the gathering is in violation of the notice
requirements of the Open Meeting Law unless there has been appropriate notice of a Council
Meeting, in addition to the notice of the committee meeting
1. In the case of‘ ‘regular meetings" this requirement is met by maintaining a schedule of
Such meetings at the body’ s primary offices. Special meetings, and regular meetings
held at a time or place other than that listed on the schedule are generally subject to
posting and mailed or published notice requirements in each instance. Minn. Stat.
§ 471. 705, subd. l(c) (1994)
Laurence J. Klun, Esq.
August 28, 1996
Page 3
It is also arguable, however, that notice of the committee meeting is sufficient to inform
the public that information pertinent to city issues within the committee’s subject area will be
received and discussed at the stated time and place and no additional notice should be required.
Our courts have noted that:
[3] Legislative history suggests that the Open Meeting Law was enacted to
prevent public bodies from dissolving into executive sessions on important but
controversial matters and to insure that the public has an opportunity both to
detect improper influences and to present its views.
Moberg v. Indenendent Sch. Dist. No. 281, 336 N.W.Zd 510, 517 (Minn. 1983). _However,
it has also been held that there needs to be a "balancing [ot] the public’s right to be informed"
against the "effective and efficient administration of public bodies." Sovereign v. Dunn, 498
N.W.Zd 61 (Minn. App. 1993).
In the circumstances you present, the public has been appropriately informed of the
committee meeting and may choose to attend in order to observe committee discussions and
the presentation of information to the committee, detect influences upon the committee’s
decisions and, where appropriate to the proceedings, present its views. lt would not seem that
the mere presence of an additional member of the Council would affect the right or decision of
members of the public to attend the committee meeting. Indeed, any member of the public in
attendance would be in the same position as a council member in the audience to observe and
evaluate the operation of the committee in carrying out its duties.
Therefore, we do not believe that the principles underlying the Open Meeting Law are
subverted if one or more council member, without prior notice, merely observes an event or
proceeding which is open on an equal basis to all members of the public. Such "receipt of
inforrnation" would seem even less troublesome than the distribution of written information,
not available to the public, to members of a governing body as was sanctioned in Moberg
where the court said:
Laurence J. Klun, Esq.
August28, 1996
Page 4
The distribution of written questions and answers was functionally equivalent to
receiving the information through the mail, which is permissible under our
present holding. There was also no danger of forming a group consensus because
no information was actually received until the material was read, and no
discussion occurred.
336 N.W.Zd at 517-18. (Emphasis added.)
The foregoing reasoning would not apply, however, in circumstances where the
additional Council members participate in discussion or deliberations of a committee which is
officially comprised of less than a quorum of the Council. In such a case, the additional
members’ involvement would go beyond mere receipt of the same information as members of
the public who might choose to attend. Discussions and deliberations among_a quorum or
more of the Council could lead to the formulation of a consensus or preliminary decision by
the Council itself. Such a process should take place in a properly called and noticed Council
meeting rather than in a meeting represented as a committee meeting only. There may well be
citizens who would forego attending a committee meeting, expecting to observe the full
Council deliberations on the committee’s recommendations at a subsequent Council meeting
To the extent that those discussions may have already occurred without prior notice, the
public’s rights under the Open Meeting Law would be subverted.
These conclusions would seem to be implicitly supported by the opinion of the Court of
Appeals in Thomas v. Kroschel, 506 N.W.Zd 14 (Minn. Ct. App. 1993). In that case,
persons constituting a quorum of the Afton City Council attended a meeting of the Afton
Planning Commission are found to have violated the Open Meeting Law. However, the
violation was not based upon their presence at the meeting, but upon the finding that'they had
conducted public business in a private discussion outside the meeting room.
QUESTION TWO
If the Answer to Question l is "yes," what procedures can be employed to correct this
defect and allow additional Council members to "participate"?
Laurence J. Klun, Esq.
August 28, 1996
Page 5
OPINION
An open-ended question such as this does not lend itself to a comprehensive answer by
means of an opinion of our office. The best we can say is that we are unaware of any specific
statutory procedure which would permit a quorum of members, on an ad hoc basis, to discuss
city business without specific prior notice. One possibility you have suggested is the posting
and publication of a generic notice which would state that a quorum of members may, from
time-to-time attend, for example, committee meetings; and that such occasions will be
considered "special meetings " of the Council.
As noted above, we do not believe any separate notice would be required if additional
members merely attend a committee meeting. A notice such as the one in your example
might, however, be helpful in alerting the public, to the extent they are interested, that Council
members might also observe the committee proceedings
However, such a notice would not satisfy the statutory requirements for notice of any
particular special meeting of the Council for purposes of discussions or deliberations upon city
issues by a quorum. Minn. Stat. § 471.705, subd. 1c(b) requires that notice of each special
meeting specify the date, time, and purpose of the meeting. A continuing general notice of the
sort you have described would clearly not satisfy these requirements No other mechanism
comes to mind which satisfy those requirements absent a qualifying notice for each
contemplated special meeting.
Very truly yours,
HUBERT H. HUMPHREY III
Attomey General
KENNETH E. RASCHKE, JR.
Assistant Attorney General