Open Meeting Law upheld in Motley case
An opinion from Minnesota Department of Administration Commissioner Matthew Massman ruled that the Motley City Council complied with the Open Meeting Law when they closed a meeting on March 21.
The Staples World asked for the opinion from the Information Policy Analysis Division (IPAD) because the council closed the meeting for the discussion of a separation agreement with their city clerk, citing “attorney-client privilege,” but they refused to give a specific reason for that privilege.
The advisory opinion confirmed everything that the Staples World challenged, but information that was not part of the original meeting closure was sent to the commissioner several weeks after the opinion was requested.
In the Motley City Council’s response to the commissioner, their city attorney, Adam Ripple of Rinke Noonan, wrote: “Issues had arisen with the clerk working for the City of Motley. Her attorney had threatened litigation.”
That was the first time the Staples World had heard that bit of news. When we objected to the closed meeting, we specifically asked if there was any pending or threatened litigation and the council’s labor attorney Pamela Steckman of Rinke Noonan told us no.
The commissioner’s opinion agreed with that, saying “Neither the attorney nor the council indicated there was any pending or threatened litigation when asked ... The council provided the commissioner with additional information that was not available to the Staples World when it requested this advisory opinion.”
We wondered why, if there was threatened litigation, the council would not disclose it at their meeting, especially when they were asked that exact question. Why would their attorney bring it up only after reading the Staples World’s documentation in the request for an opinion?
The commissioner’s opinion included some guidance for what the council did wrong: “It would have been helpful for the council to include the fact that there was threatened litigation” in the closed meeting notice.
Indeed, if the council had told us there was litigation when we asked, we would have said “thank you,” let the matter drop and gone home. But their attorney stood her ground, basing the closed meeting on a generalized “attorney-client privilege” that does not exist under the open meeting law.
The attorney-client privilege has to have specific grounds, not just because an attorney shows up. Attorneys give advice in open meetings all the time, they are not required to go into closed meetings to discuss the law. They especially should not go into closed meetings to help the council make a decision on an issue, that is the whole purpose of the Open Meeting Law.
“The opinion’s conclusion that the meeting was properly closed is based on information that was provided to IPAD but not to you. Although the opinion mildly chastises the council for not providing this information, I think that part should have been expressed in much stronger terms,” said Mark Anfinson, an attorney specializing in media, communications and First Amendment law. “How can the public and media properly determine if officials are complying with the Open Meeting Law if they don’t provide the facts that support the decision to close a meeting?”
The opinion goes on: “The commissioner encourages public bodies to make the required statement clearly and unequivocally.”
The council did make a statement clearly, that they did not have litigation pending. That “litigation” was only brought up many weeks after we asked about it.
Finally, “The commissioner opines that public bodies should make the statement on the record in open session, prior to closing the meeting.” Which is exactly the provision we were challenging.
“The opinion will have considerable ongoing value around the state, because the ‘guidance’ noted in the opinion about what information officials can and should provide when they propose to close a meeting is far more important than the conclusion that this particular meeting could be closed,” Anfinson noted. “The opinion is also an important reminder to government bodies in your area about your commitment to insuring that the public access laws are followed.”
Although the commissioner’s final opinion said that the council complied with the Open Meeting Law, the Staples World feels vindicated because we forced them to comply with the law, which is the only thing we wanted in the first place.
Brenda Halvorson, general manager
Mark Anderson, editor
Dawn Timbs, reporter