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861 policy change may be Open Meeting Law pitfall (06/19/2013)
By Sarah Squires
An update to the Winona Area Pubic Schools (WAPS) open meeting policy, which was included on the School Board's Thursday meeting agenda, could expose individual school board members to legal liability, including the possibility of removal from office. The policy change includes the addition of a legal citation that asserts that any action taken during a meeting that violates the state's transparency law would nonetheless be valid.

The Minnesota Open Meeting Law (OML) provides for government transparency, requiring that local elected bodies give official notice of meetings. Consequences for violations include fines and the possibility of an elected official being removed from office, but only when a court can identify at least three intentional OML violations.

District 861 School Board members Steve Schild, Ben Baratto, Jeanne Nelson and Brian Zeller in May met in joint session with the Bluffview Montessori School Board without giving official notice of the meeting, which would not appear to be consistent with the OML.

Establishing intent on the part of board members who violate the OML can be difficult, which is one of the reasons public officials are rarely removed from office because of violations to the state's OML. However, the addition to the policy of the legal citation included for approval in Thursday's agenda arguably appears to anticipate the possibility of illegal meetings in the future, producing questions about whether adopting it might make it easier to establish intent — which can trigger those consequences, including removal from office.

The citation refers to a Minnesota Department of Administration commissioner opinion issued in 2012. The commissioner, through the department's Information Policy Analysis Division (IPAD), provides written opinions on questions of OML and Data Practices Act compliance. When a person prevails in a commissioner opinion, he may sue the elected body and charge the government unit the cost of his attorney fees if he then prevails in court. The opinion referenced in the proposed policy update refers to a 2011 Olmsted County Regional Rail Authority Board meeting in which the board violated the OML by beginning its meeting 45 minutes before its posted meeting time. The opinion concluded that, although an OML violation had taken place, the action taken during the meeting was still binding and valid.

Unlike those of some other states, Minnesota statutes do not provide for the potential to reverse a government action when a vote was taken during an illegal meeting. Adding that IPAD citation to the School Board's own transparency policy, however, could be construed as suggesting an insufficient commitment to following the law, by attempting to ensure that any votes taken during a meeting that violates the OML will still stand, said Minnesota Newspaper Association Attorney Mark Anfinson.

"If they put this in their policy, it exposes them to the argument that they're not taking the law seriously enough because they knew their actions would still be valid," explained Anfinson.

Superintendent Scott Hannon echoed those concerns. "There may be some [boards] out there in other communities where that [policy change] might be construed as 'Geez, this is a way we can do something [during a meeting in violation of the OML] and we just get our hands slapped,'" he said. The policy update, explained Hannon, was one recommended by the Minnesota School Board Association (MSBA), which often provides legal advice and suggests district policy revisions. When a policy change is recommended by MSBA staff, Hannon said the district usually just assumes such change has been properly vetted by association attorneys.

The idea that the policy change could potentially be used to establish board member intent to violate the OML, said Hannon, was problematic. He said he would consult with board chair Mohamed Elhindi about removing the policy change from the agenda until the MSBA could be reached for answers: why add the citation, and — more importantly — would it create possible liability for board members regarding one of the only laws on the books that could get them kicked out of office?

"I think our board is very conscious of not wanting to violate the OML," Hannon said. "But it would be possible to have a board say, 'You know what? We're going to do this [during a meeting that doesn't comply with the OML] anyway, and we'll get cited for a[n] [OML] violation, but what's the harm?' We don't want to go down a road where that's a possibility."

Anfinson said the inclusion of the legal citation in the policy was "outlandish," and said it "exposes them to much criticism in the local media and the public for not being adequately committed to the law. Even if [the MSBA] suggests they put that in their policy as a routine addition in case there is a minor OML violation in the future, it still would allow someone to make an argument that they weren't sufficiently concerned about violating the law. The consequences could be devastating, eventually."

MSBA officials did not respond to a request for comment on Tuesday.  


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