Op. Atty. Gen. 1035 (Cr. Ref. 170c) ( 1999 )

MINNESOTA STATE HIGH SCHOOL LEAGUE: Questions concerning the nature, governance
and powers of the League discussed. Minn. Stat. §§ lOA.071, 15.0575, l 18A.04, 118A.05,
128C.0l, 128C.10, 128C.15, 128C.22, 471.345, 471.705, 471.895 (1998).
1035
(Cr. Ref. 170c)
August 23, 1999
Judith Dutcher
Minnesota State Auditor
Office of the State Auditor
525 Park Street, Suite 400
St. Paul. MN 55103
Dear Ms. Dutcher:
In a letter to the Attorney General you have posed a number of questions concerning the
composition and actions of the Minnesota State High School League ("the League") as follows:
FACTS
The League is governed by a twenty-member governing board. Four of
the members are appointed by the governor. These members have, currently,
terms that run from January I to December 31, whereas the remaining 16
members have terms that run from August 1 through July 31.
QUESTION I
Are the starting and ending dates of the terms of all members of the
League's board of directors governed by Minn. Stat. § 15.0575?
OPINION
We answer your question in the negative. Prior to 1999. Minn. Stat.� 128C.0l , subd. 4
provided:
(a) The league must have a 20-member governing board.
Judith Dutcher
Page 2
(1) The governor must appoint four members according to section 15.0597.
Each of the four appointees must be a parent. At least one of them must
be an American Indian, an Asian, a Black, or a Hispanic.
(2) The Minnesota association of secondary school principals must appoint
two of its members.
(3) The remaining 14 members must be selected according to league bylaws.
(b) The terms, compensation, removal of members, and the filling of membership
vacancies are governed by section 15.0575.
Pursuant to that language, it seems clear that the terms of all members were to be governed by
section 15.0575 which provided for members' terms to end the first Monday in January.
In 1999, the legislature amended Section 128C.01 subd. 4 (b) as follows:
(b) The terms, compensation, removal of members, and the filling of
membership vacancies are governed by section 15.0575, except that the four-year
terms begin on August 1 and end on July 31. As provided by section 15.0575,
members who are full-time state employees or full-time employees cd' school
districts or other political subdivisions of the state may not receive any per diem
payment for service on the board.
Act of May 25, 1999, ch. 241. art. 9 § 37, 1999, Minn. Laws 1920, 1041.
This amendment was effective on May 26, 1999. Id., art. 9 § 55. Consequently, the
January term-ending dates as provided in section 15.0575 no longer apply and member terms are
to begin on August 1 and end on July 31.
FACTS
The League is prohibited by Minn. Stat. § 128C.10, subd. 2 from having
credit cards. Apparently, the League has arranged with certain hotels and airlines
to bill the League itself directly for expenses of its board members and employees
on a monthly basis rather than demanding payment from the officer or employee
at the time the service is received.
2
Judith Dutcher
Page 3
QUESTION II
Do these direct billing arrangements violate the statutory prohibition
against the League having credit cards?
OPINION
Based upon the information submitted, we answer your question in the negative. Minn.
Stat.§ 128C.10, subd. 2 states: "The League cannot have credit cards." That language does not,
by its terms, prohibit the League from engaging in credit transactions generally. Rather, it
merely prohibits the use of a particular type of credit instrument. The term "credit card" is not
specifically defined in Minn. Stat. ch. 128C. Thus, it must be assumed that the legislature
1
intended the term to be used in its commonly understood sense viz. "A card issued by a bank or
business authorizing the holder to buy goods or services on credit." The American Heritage
College Dictionary (Third Edition, 1997). 2 The facts provided do not indicate that the businesses
with which the League has established a credit relationship have issued to the League any such
cards.
Thus it is our opinion that the billing arrangements described are not contrary to the
prohibition of Minn. Stat.§ 128C.10. subd. 2.
FACTS
The League is expressly made subject to particular laws pertaining to units
of government. These include the Minnesota open meeting law (Minn. Stat.
§ 471.705),3 the Minnesota government data practices act (Minn. Stat. ch. 13), 4
and audit by the State Auditor. 5 The League is defined as a political subdivision
in Minn. Stat. § lOA.01, subds. 26 and 27 and also Minn. Stat. §§ 471.992 to
1
See Minn. Stat.§ 645.08(1) .
..,
~ See also US. v. Callihan, 666 F.2d 422. 424 (9th Cir. 1982) ("credit card" means small. flat
tablet upon which account number is printed, but does not mean the number alone).
3
See Minn. Stat. § 128C.22.
4
See Minn. Stat. § 128C. l 7.
5
See Minn. Stat. § 128C.12.
3
Judith Dutcher
Page 4
471.999 for the purposes of comparable worth reporting.6 There is, however, no
general pronouncement that the League is subject to other general laws applicable
to the activity of government entities.
QUESTION III
Is the League a "political subdivision" or otherwise subject to all laws
governing the school districts that created it? Specifically, is the League subject
to the uniform municipal contracting law set forth in Minn. Stat. § 471.345 or the
public investing law set forth in Minn. Stat.§§ 118A.04 and 118A.05?
OPINION
Except as to application of Minn. Stat. § 471.345 we answer your question in the
negative.
The League does not itself constitute a "political subdivision'' as that term is normally
understood. See e.g., Winberg v. University of Minnesota, 499 N.W.2d 799 (Minn. 1993)
(political subdivision is an entity empowered to levy taxes or cause taxes to be levied, with
authority for subordinate local government).
The exact nature of the League as it has evolved is, however, quite ambiguous. It is
generally identified as: "A nonprofit corporation that is a voluntary association of high schools."
Minn. Stat. § 128C.0 l . Its membership includes both public and private schools. To the extent
that the League is recognized as a bona fide separate corporation it would not normally be
considered subject to laws limited in application to units of government, notwithstanding
governmental membership and support, unless it is specifically made subject thereto. See e.g.,
Ops. Atty. Gen. 92a-30, January 29, 1986 (nonprofit corporation formed by counties to provide
mental health services not subject to open meeting law).
As you have noted, the League is also. for certain limited purposes, included within the
definitions of the terms "metropolitan governmental unit'" (Minn. Stat. § I0A.0 I, subd. 26);
"political subdivision" (Minn. Stat. §§ l0A.01. subd. 27 and 128C.15. subd. 3), and "state
6
See Minn. Stat.§ 128C.15.
4
Judith Dutcher
Page 5
agency" (Minn. Stat. § 128C.22). We are not aware, however, of any statute that makes the
League subject to all laws applicable to any particular type of government entity.
The uniform municipal contracting law, Minn. Stat. § 471.345 applies to "any county,
town, school district or other municipal corporation or political subdivision of the state ...." Id.,
subd. 1. Minn. Stat. ch. 118A dealing with deposit and investment of local public funds applies
to funds held or administered by "a county, city, town, school district, hospital district, public
authority, public corporation, public commission, special district [or] any other political
subdivision . . . .'' Minn. Stat. § l 18A.0l, subd. 2. As noted above, the League as a "nonprofit
corporation" does not generally fit within these categories of governmental units. Nor are we
aware of any statute that specifically makes the laws governing deposit and investment of local
public funds applicable to the League. Beginning with "the 1999-2000 school year", however,
the League will be required to follow the requirements of Minn. Stat. § 123B.52 and 471.345 in
purchasing goods and services. See Act of May 25, 1999, ch. 241 art. 9 §§ 38, 55, 1999 Minn.
Laws I 920, 2041; 2050.7
FACTS
The League· s board of directors has various subcommittees. including an
executive committee, a finance committee, and a committee-of-the-whole.
Pursuant to Minn. Stat. § l 28C.22, the League is subject to the open meeting law.
The League· s subcommittees should notice and hold open to the public all of their
meetings.
QUESTION IV
Are these subcommittees required to keep meeting minutes?
7
The exact date of constituting the beginning of the 1999-2000 "school year" for purposes of the
effective date of this section is not specified. Nor or we aware of a specific date that necessarily
constitutes the beginning of the school year in all districts. However. inasmuch as Labor Day,
September 6 is the earliest date upon which the 1999-2000 school year is permitted to begin (See
Minn. Stat. Ann. § 120A.40 (1999 Supp.)), that is likely the date upon which section 38 was
intended to take effect.
5
Judith Dutcher
Page 6
OPINION
It seems clear that such committees or, as you have termed them, subcommittees, are
required to maintain some form of minutes to the extent that they have been delegated any
authority of the board of directors. As noted above, the League is defined by Minn. Stat.
§ 128C.01, subd. I as a nonprofit corporation. Pursuant to Minn. Stat. § 317A.461, subd. 1, a
nonprofit corporation is required to maintain, inter alia, "minutes of meetings of .. . committees
having any of the authority of the board of directors for six years." Furthermore as you note, the
League is subject to Minn. Stat. § 471.705 (the open meeting law). See Minn. Stat. § 128C.22.
The open meeting law provides in part:
Except as otherwise expressly provided by statute, all meetings, including
executive sessions, of any state agency, board, commission or department when
required or permitted by law to transact public business in a meeting and the
governing body of any school district however organized, unorganized territory,
county, city, town, or other public body, and of any committee, subcommittee,
board, department or commission thereof, shall be open to the public, except
meetings of the commissioner of corrections. The votes of the members of such
state agency, board, commission or department or of such governing body,
committee, subcommittee, board, department or commission on any action taken
in a meeting herein required to be open to the public shall be recorded in a journal
kept for that purpose. which journal shall be open to the public during all normal
business hours where such records are kept.
(Emphasis added.) Thus the votes of members of committees or subcommittees of the League
are required to be recorded. It seems clear that, to be meaningful, such a record must also
include the substance of the matter being voted upon.
The scope of the open meeting law's application to committees and subcommittees of
covered bodies is somewhat ambiguous, however, in light of statements made in certain
Minnesota court decisions. In .Minnesota Daily v. University ol Minnesota, 432 N.W.2d 189
(Minn. 1988) the Minnesota Supreme Court concluded that the open meeting law did not apply
to the University· s Presidential Search Advisory Committee. The court determined that the
committee could not be considered a committee of the University's Board of Regents because its
6
Judith Dutcher
Page 7
membership was not chosen by the Regents and did not actually contain any Regents. However,
the court went on to indicate that the committee was only empowered to review applications and
make recommendations to the Board of Regents. This inability of the committee to actually
"transact business" on behalf of the Regents was identified by the court as another reason not to
apply the open meeting law to the Presidential Search Advisory Committee.
In Sovereign v. Dunn, 498 N.W.2d 62 (Minn. Ct. App. 1993), the Minnesota Court of
Appeals held the open meeting law inapplicable to discussions among two members of the Lake
Elmo City Council and certain representatives from the City of Oakdale concerning municipal
boundary disputes. The court noted that the two council members were not formally appointed
by the council to act as a committee of the Lake Elmo Council. Their "delegation" was created
informally without any council vote and they were given no ''powers." The court, however, also
stated that the informal group would not be covered by the open meeting law because it was not
•'capable of exercising decision-making power of the governing body." Id. at 67.
It is not clear whether these decisions were intended to preclude application of the open
meeting law to all "committees" that lack power to take final action on behalf of the governing
body, or only to those investigatory or advisory groups that are not formally established by the
governing body and do not include governing body members. However, in our view the plain
meaning of the terms "committee'' and subcommittee would include all formally established
subsets of the parent body officially delegated to perform a function, including fact gathering,
reporting or recommending action as well as taking action on behalf of the parent body. See e.g.,
The American Heritage College Dictionary (Third Edition, 1997) ("a group of people officially
delegated to perform a function").
In any event, it is clear that any committees exercising any of the powers of the League's
board of directors are required to keep certain minutes. We believe that any committee formally
established by the board, composed of board members and carrying out any defined mission
7
Judith Dutcher
Page 8
delegated by the board, should likewise maintain a record of members' votes pursuant to Minn.
Stat. § 471.705.
QUESTIONV
Is there any legal restriction on the League's ability to give free tickets to
employees, board members, past board members, or other groups or individuals
designated by the board?
OPINION
This question raises several issues concerning the giving or acceptance of "gifts" by
various individuals. First, it is important to recognize that the League is considered a lobbyist
principal. A lobbyist "principal" means an individual or association that:
(1) spends more than $500 in the aggregate in any calendar year to
engage a lobbyist, compensate a lobbyist, or authorize the expenditure of money
by a lobbyist; or
(2) is not included in clause (1) and spends a total of at least $50,000
in any calendar year on efforts to influence legislative action, administrative
action, or the official action of metropolitan governmental units, as described in
section 10A.04, subd. 6.
Minn. Stat. § 10A.01, subd. 28 (1998). According to the records of the Minnesota Campaign
Finance and Public Disclosure Board, the League is a lobbyist principal. As such the League is
generally prohibited by Minn. Stat. § lOA.071 from giving a gift to a public official, 8 employee
9
of the legislature, or local official of a metropolitan government unit. Providing free tickets to
athletic events would generally constitute a gift of entertainment. 10 Thus, they could not be
given to the officials described in section lOA.071 unless the gift would come within one of the
exceptions contained in subdivision 3 of that section. While none of those exceptions would
8
A ·'public official" for purposes of Minn. Stat. ch. 10A is defined by Minn. Stat. § 10A.01
subd. 18.
9
See definitions at Minn. Stat. § 10A.01, subd. 25-26.
10
See Minn. R. 4512.0100, subp. 3. Opinion of the Campaign Finance and Public Disclosure
Board, No. 287, January 23, 1998.
8
Judith Dutcher
Page 9
appear to apply in most cases, it is possible that the one set forth in subdivision 3(b)( 1)
(membership in a group) could apply in some circumstances.
It is possible that board members and certain League employees would be considered
"officials" in their capacity at the League. The definition of "official" includes officials of
"metropolitan governmental units." The definition of "metropolitan governmental unit" for
purposes of chapter 10A. includes the Minnesota State High School League. Minn. Stat.
§ l0A.01, subd. 26 (1998). However, despite the extreme breadth of section IOA.071
prohibitions, it does not seem reasonable to suppose that the legislature intended, by that section,
to prohibit a lobbyist principal from providing gifts to its own officers and employees, per se.
Nonetheless it would seem prudent for the League to avoid providing free tickets to its officers
and employees for purposes of their personal entertainment.
It is also possible that League officials, together with other possible recipients, could be
considered local officials pursuant to another gift ban set forth in section 471.895, subd. 2 which
provides:
An interested person may not give a gift or request another to give a gift to a local
official. A local official may not accept a gift from an interested person.
Under Minn. Stat. § 471.895, subd. l(d), "local official" means an "elected or appointed official
of a county or city or of an agency, authority, or instrumentality of a county or city."
'"Interested' person means a person or a representative of a person or association that has a direct
financial interest in a decision that a local official is authorized to make.'' Id., subd. 1(c ). While
the League would seem clearly to have a financial interest in decisions made by officials of
school districts, they are not included within the scope of the prohibition as defined above. We
are not aware of specific financial interests the League may have in the decisions of other local
officials, although it is clearly possible that they may exist, e.g., decisions concerning availability
and charges for League use of a city or county-owned facility. In such circumstances we believe
that gifts of tickets to such local officials would be prohibited.
9
Judith Dutcher
Page 10
Our office has consistently held that government agencies may not provide, absent
express statutory authority, gratuities or grants to private organizations or persons, including
employees. See e.g., Ops. Atty. Gen. 107a-3, January 22, 1980 (gratuitous employee bonuses);
476-B-2, May 11, 1949 (gift to veterans' organizations); 476-B-2, October 11, 1946 (donations
to Red Cross or Boy Scouts). As noted above, however, the status of the League is quite
ambiguous and, absent a specific statute, would not likely be bound by the legal limitations
imposed upon the governmental agencies. Rather, it would more likely be treated for this
purpose as a nonprofit corporation. In that regard the League should consider its constitution and
bylaws to determine whether such gifts would be authorized. We note, however, that Minn. Stat.
§ 128C.10, subd. 3, in providing an expense account for the League's executive director to be
used, among other things, "to entertain guests of the League," does suggest that some form of
League-provided gratuitous entertainment is contemplated by the legislature.
FACTS
The League is a statewide organization. Once a year the board has a three­
day retreat in which it holds workshops and a formal board meeting. This retreat
has been held at a facility that includes a golf course. Daily golf fees are included
in the cost of the rooms. Board members do not pay room charges directly, but
instead the room charges are billed to the League.
QUESTION VI
Is the League permitted to pay for expenses associated with such a retreat including the
room charges which incorporate golf "fees?"
OPINION
In general, hosting retreats and conferences for its officers and employees are considered
authorized activities of government agencies and private organizations. Cl St. Cloud
Newspapers Inc., v. District 7./.2 Community Schools, 332 N.W.2d 1 (Minn. 1983) (out-of-town
conference by school board subject to open meeting law). As such, the League would generally
10
Judith Dutcher
Page 11
be permitted to pay for the reasonable expenses associated with such activities. Board members
and employees are expressly authorized to be reimbursed expenses as authorized by the
Commissioner's Plan adopted pursuant to Minn. Stat. § 43A.18. subd. 2. See Minn. Stat.
§§ 15.0575, subd. 3; 128C.01, subd. 4; 128C.10.
While that plan authorizes payment of reasonable lodging expenses,11 it would not
generally allow for payment of personal recreational expenses such as golfing. However,
availability of recreational facilities such as swimming pools. exercise equipment, tennis courts
and golf courses to paying guests would not, in our view. render all or part of the costs of the
rooms. per se, non-reimbursable. Such a determination would need to be made upon additional
facts not provided; for example, whether the availability of the recreational facilities are
necessarily included in the room charges and whether or not their availability is the principle
reason for selecting the facility for the conference.
Best regards,
MIKE HATCH
Attorney General
State of Minnesota
KENNETH E. RASCHKE. JR.
Assistant Attorney General
AG:79029, V, .0
See Commissioner's Plan, July 1, 1997 through June 30. 1999 (Minn. Dept. of Employee
11
Rel.) Ch. 15.
11