Winona Area Public Schools (WAPS) board members are slated to take a final vote on a change to the school district's open meeting policy, which could expose individual School Board members to legal liability, including the possibility of removal from office. The proposed policy amendment would add a legal citation asserting that any action taken during a meeting that violates Minnesota's transparency laws would nonetheless be valid.
The Minnesota Open Meeting Law (OML) requires that local elected bodies give official notice of meetings to allow the public the ability to track and observe government actions and deliberations. 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.
Establishing intent on the part of board members who violate the OML can be difficult, which is one of the reasons elected officials are rarely removed from office because of violations to the state's OML.
The addition to the WAPS policy of the legal citation, however, arguably appears to anticipate the possibility of illegal meetings in the future, producing questions about whether adopting it could make it easier to establish intent — which can trigger those consequences.
The citation included in the proposed policy refers to a Minnesota Department of Administration commissioner's opinion issued in 2012. The commission, part of the department's Information Policy Analysis Division (IPAD), provides written opinions on questions of the OML and Data Practices Act compliance among local governments. If 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 draft policy has to do with 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 stated that although the board had violated the OML, the action taken during the meeting was still valid and binding.
Some states have statutes that provide for potential reversal of action taken during an illegal meeting, but Minnesota does not have any such specific statutes, and court rulings and the IPAD opinion indicate that no such reversal possibility exists in Minnesota.
According to Minnesota Newspaper Association Attorney Mark Anfinson, adding that legal citation to the School Board's own transparency policy 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. "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 said the policy change had been recommended by the Minnesota School Board Association. Representatives of that organization have not responded to a request for comment from the Winona Post.
Board member Steve Schild, following an account of the upcoming OML issue printed in the Winona Post, made several statements about the policy change during the June 20 board meeting. He referred to a joint meeting held in May in which he, along with board members Ben Baratto, Jeanne Nelson, and Brian Zeller, met in joint session with the Bluffview Montessori School Board, without giving official notice of the meeting as required by the OML. "That was the result of a mistake," said Schild of the meeting. "It was an honest mistake."
Schild also said that the legal citation for inclusion in the board's transparency policy was simply adding to the "body of legal information." The proposed policy cites seven IPAD opinions, although dozens of such opinions have been issued on the topic of open meetings alone.
"I want to say to the public that I don't think that this board has done anything wrong in terms of open meeting stuff," concluded Schild, the only board member who commented on the proposed policy change at the last board meeting.