Advisory Opinion 06-027

Facts and Procedural History:

On September 11, 2006, IPAD received a letter, dated September 5, 2006, from David Slipy on behalf of the board of directors of LAGT, Inc., an organization based in Breezy Point, Minnesota. In his letter, Mr. Slipy asked the Commissioner to issue an advisory opinion regarding actions by the Breezy Point City Council (the Council) concerning an emergency meeting of the Council held on July 24, 2006. Mr. Slipy submitted the $200.00 fee required by section 13.072.

On September 13, 2006, IPAD wrote to Douglas Rach, Mayor of the City of Breezy Point. In its letter, IPAD informed Mr. Rach of Mr. Slipy's request and gave the Council, or any of its members, an opportunity to explain the Council's position. On September 26, 2006, IPAD received a response, dated September 25, 2006, from Steven R. Qualley, the attorney for the City of Breezy Point (the City).

A summary of the facts presented by Mr. Slipy is as follows.

At a regular meeting of the Council on June 5, 2006, it was decided that the City would issue a request for proposals (RFP) for building inspection services. The City had been receiving complaints about the services of the existing building inspector. An emergency meeting of the Council was held at 5:00 p.m. on July 24, 2006. The purpose of the meeting was to remove the City's building official and hire a new firm to fill that role.

At the July 24th emergency meeting, the contract with the existing building inspector was terminated and an interim building inspector was hired from the respondents to the RFP. The Council made the appointment permanent at its August 7, 2006, regular meeting.

Issue:

Based on Mr. Sliipy's opinion request, the Commissioner agreed to address the following issue:

Did the members of the Breezy Point City Council comply with Minnesota Statutes, section 13D.04, subdivision 3 when they held an emergency meeting on July 24, 2006?

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Discussion:

There is no question that the Council is required to comply with Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). Section 13D.01, subdivision 1 (b)(4) states that the provisions of the OML apply to a . . . statutory or home rule charter city. Breezy Point is a city and so its Council is covered by the OML.

There are several purposes for the OML. The Minnesota Supreme Court stated in Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) that:

The Open Meeting Law serves several purposes:

(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning [public bodies'] decisions or to detect improper influences ; (2) to assure the public's right to be informed ; and (3) to afford the public an opportunity to present its views to the [public body]. St. Cloud Newspapers, Inc. v. Dist. 742 Cmty. Schs., 332 N.W.2d 1, 4 (Minn. 1983)(citations omitted). These purposes are deeply rooted in the fundamental proposition that a well-informed populace is essential to the vitality of our democratic form of government. (footnote omitted)

Because the Open Meeting Law was enacted for the public benefit, we construe it in favor of public access. State by Archabal v. County of Hennepin, 505 N.W.2d 294, 297 (Minn. 1993); see St. Cloud Newspapers, 332 N.W.2d at 6 (stating that the Open Meeting Law will be liberally construed in order to protect the public's right to full access to the decision making process of public bodies ).

Prior Lake American at 735. With this background, the next step is to review the issue presented by Mr. Slipy.

There are three types of meetings that a public body can conduct: a regular meeting, a special meeting and an emergency meeting. As its name suggests, a regular meeting of a public body occurs at the same time and place on a regular or routine schedule. For example, a city council might establish its regular meeting time as the second Monday of each month beginning at 7:00 p.m. Section 13D.04, subdivision 1 states that the schedule of regular meetings must be kept on file at the primary offices of the public body. No other notice of a regular meeting need be provided.

A special meeting is conducted at a time or place other than the regularly scheduled meeting time or place. In fulfillment of the public's right to participate in its government that was noted in the Prior Lake American case, section 13D.04, subdivision 2 requires that notice of a special meeting be given either by posting notice on the principal bulletin board of the public body or on the door of the meeting room. Paragraph (b) of subdivision 2 requires that notice of special meetings be provided to those who have filed a written request for notice and that the notice be mailed or delivered at least three days in advance of the meeting.

To hold an emergency meeting, the public body is required to make a good faith effort to notify any news medium that has filed a written request for notice. The statute also defines an emergency meeting as:

. . . a special meeting called because of circumstances that, in the judgment of the public body, require immediate consideration by the public body.

Section 13D.04, subdivision 3(e).

There are no cases that describe the circumstances that fit this definition nor is there a further statutory definition of what constitutes an emergency.

One of the rules of statutory construction in Minnesota is to use the common meaning of words that are otherwise undefined by the Legislature. Turning to the dictionary, emergency means

1. A serious situation or occurrence that happens unexpectedly and demands immediate action. 2. A condition of urgent need for action or assistance.

The American Heritage College Dictionary, Houghton Mifflin Company, Boston 1997.

The Council argues that the number of complaints regarding the services of the building inspector justified an emergency meeting. Mr. Slipy argues that by issuing an RFP for building inspector services, the City was not in an emergency situation that would justify an emergency meeting of the Council. The complaints received by the City were not unexpected; the Council had issued an RFP in June and was planning to decide whether to change building inspectors.

The Commissioner must also consider the purpose of the Open Meeting Law's provisions as described in the Prior Lake American case. Applying the standards from that case to the concept of an emergency meeting leads to the conclusion that emergency meetings should be used rarely and for circumstances where public safety is jeopardized. Examples of emergency situations would include holding a meeting to respond to a natural disaster or to a health epidemic caused by an event such as an accident or terrorist activity.

While understanding that there had been problems with the performance of the building inspector, the aggregated complaints did not rise to the level of emergency stated above. The Council could have taken action at a special meeting following a three day notice that would allow the public to detect improper influences, be informed of the Council's actions and to contribute to the discussion of the issue.

Following the spirit of the Open Meeting Law that public bodies should act at open meetings with as much notice to the public as possible, it must be concluded that the July 24, 2006, emergency meeting of the Council did not comply with Chapter 13D.

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Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows:

The members of the Breezy Point City Council did not comply with Minnesota Statutes, section 13D.04, subdivision 3 when they held an emergency meeting on July 24, 2006.

Signed:

Dana B. Badgerow
Commissioner

Dated: September 28, 2006

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