The District 861 School Board approved a policy change last month that removes the requirement that mediation sessions that are closed to the public be audio recorded.
This policy change would present a violation of the Minnesota Open Meeting Law (OML), which explicitly requires any such closed meeting be audio recorded. Only closed meetings for the purpose of an attorney-client privilege session may be held behind closed doors and without any record. In this case, mediation sessions include a mediator, three board members as part of a standing board committee, and union representatives. Closed meetings, including those for mediation of disputes over multi-million dollar contracts, had been typically audio recorded and the recording released once a dispute was resolved.
In reference to the policy change adopted by the Dist. 861 school board, Minnesota Newspaper Association attorney Mark Anfinson wrote, “Standing committees of a public body are fully subject to the OML. Thus if a standing committee is working on business within the committee's jurisdiction, and a quorum of that committee is present, then the OML applies--just as it would for the full public body. Standing--or regular--committees are distinguished from ad hoc committees in this context.
The policy change came at the recommendation of the Minnesota School Board Association (MSBA), and MSBA Director of Legal & Policy Services Cathy Miller explained. She said that Minnesota Rules 5510.2810, subp. 5, makes the use of any recording devices prohibited during meetings closed for mediation. She said those mediation sessions are "provided for in PELRA (the Public Employment Labor Relations Act), not the Open Meeting Law," adding that mediators would refuse to continue if a recording device was present.
Anfinson said that an administrative rule, such as the one cited by Miller, can never trump state law. “The rule that the board evidently cites is, in my judgment, irrelevant,” he said. “Those are administrative agency rules, they never override a statute. They can’t.”
Mediation sessions often are held with a committee of the board—which MSBA attorneys have in the past opined would trigger the requirements of the OML. The mediation sessions have been audio recorded in the past, and have been made available to the public after a settlement has been reached. Often, mediation occurs during union negotiations; it is also a tool used to settle employee grievances.
School board members took a final vote on the change at the last regular meeting without discussion.