Advisory Opinion 05-013

Facts and Procedural History:

On February 17, 2005, the IPAD received a letter from Elroy Hanson, an attorney for the Wild Rice Watershed District Board (Board). In the letter that was dated February 14, 2005, Mr. Hanson requested that the Commissioner issue an advisory opinion on a matter relating to the Open Meeting Law, Minnesota Statutes, Chapter 13D. The Commissioner requested additional information from Mr. Hanson and the final items were received on March 8, 2005. Mr. Hanson submitted the $200.00 fee required by section 13.072.

The issue to be addressed in this opinion may have an effect on the parties hired by the Board to provide services. Therefore, the Commissioner determined that the service providers should be notified of the request for an advisory opinion. A letter dated March 9, 2005, provided notice to each service provider offering them an opportunity to comment on the issue outlined below. No responses were received.

The facts as presented by Mr. Hanson are as follows. The Board is subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law (OML). The Board has no employees; services are provided by contract. At its February 2005 regular meeting, one member of the Board's members moved to close the meeting for purposes of discussing the Board's contract with the Board's engineering firm. As attorney for the Board, Mr. Hanson advised the members of the Board that the meeting could not be closed unless there was statutory authority to do so. The Board did not close the meeting in February and determined that it would ask for an advisory opinion on the issue stated below. The Board has taken the position that the language does not apply to its service providers.

Issue:

Based on Mr. Hansen's request, the Commissioner will address the following issue:

Pursuant to Chapter 13D, may the Wild Rice Watershed District close an open meeting to discuss its contract with an independent contractor?

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Discussion:

The Board acknowledges that it is subject to the OML. See Minnesota Statutes, section 13D.01, subdivision 1 (b)(6). The Board purchases administrative, secretarial, accounting, engineering, legal and public relations services from what the Board characterizes as independent contractors. The Board wants to review its contract with one of the parties with whom it has a contract for services. The question before the Commissioner is whether the Board can close a portion of a meeting to conduct that review.

The OML requires that meetings of public bodies such as the Board be open to the public, unless the closure is authorized by statute. See section 13D.01, subdivision 1. There are several statutory provisions that require or permit a public body such as the Board to close a portion of a meeting. For purposes of this opinion, the Commissioner assumes that a discussion of contract terms includes an evaluation of the performance of those terms. Therefore, the provision at issue here is found in section 13D.05, subdivision 3 (a). It states:

A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. The public body shall identify the individual to be evaluated prior to closing a meeting. At its next open meeting, the public body shall summarize its conclusions regarding the evaluation. A meeting must be open at the request of the individual who is the subject of the meeting.

Whether this provision applies to a service provider requires the interpretation of the word individual. There is no definition of the term in Chapter 13D or Chapter 645 of Minnesota Statutes (provides general rules for interpreting statutes and rules). The Commissioner turns then to the common usage of the word individual. See section 645.08 (1).

As defined in The American Heritage College Dictionary, Third Edition, Houghton Mifflin Company, Boston 1997, individual means of or relating to an individual, especially a single human being. Utilizing this definition, the Board may close a meeting to evaluate the performance of a human being who is subject to its authority.

The next step in the analysis is whether the service providers are human beings. The first determination is whether the contract is with a human being or a business organization that is a legal entity separate and distinct from the human beings who own it. Examples of a separate legal entity are corporations and limited liability companies. Partnerships and sole proprietorships are examples where the human being who owns the business is personally liable for the business.

At the Commissioner's request, the Board has provided copies of documents that relate to each of the five services that are purchased by contract. Applying the steps outlined above leads to the following conclusions. When, as with the contract between the Board and Mr. Hanson, it is an employment agreement between the Board and Mr. Hanson as an individual and uses the words employ throughout, Mr. Hanson is an individual whose performance may be evaluated in a closed session of the Board. See section 13D.05, subdivision 3(a).

In contrast, the amended contract between the Board and JB Associates Limited, Inc. for administrative services specifically uses the phrase independent contractor and is between the Board and a corporation. An evaluation of the performance of JB Associates Limited, Inc. is not an evaluation of an individual and so there is no authority to close the meeting.

The Board did not provide a copy of the contract between it and the engineering firm, Houston Engineering, Inc. Assuming that Houston Engineering, Inc. is a business organization like a corporation as the term Inc. in its name would certainly imply, then an evaluation of the terms of its contract would not be an evaluation of an individual and so there is no authority to close the meeting.

In summary, the identity or status of each provider, the relationship between each provider and the Board, along with the terms of the contractual agreement will need to be evaluated to determine how the language in section 13D.05, subdivision 3(a) applies in a particular situation.

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Opinion:

Based on the facts and information provided, my opinion on the issue that the Wild Rice Watershed District Board raised is as follows:

Pursuant to Chapter 13D, the Wild Rice Watershed District Board may close an open meeting to discuss its contract with an independent contractor when that contractor is an individual human being. If the contractor is a business organization like a corporation, then the meeting may not be closed.

Signed:

Dana B. Badgerow
Commissioner

Dated: March 28, 2005

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