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HomeMy WebLinkAbout05 09 2016 Open Meeting Law Refresher PresentationOPEN MEETING LAW, DATA PRACTICES, CONFLICTS ETC………. OPEN MEETING LAW All meetings of the city, including executive sessions, must be open to the public and of any (1)committee (2)subcommittee (3)board (4)department, or (5) commission MN Statute §13D.01, subd. 1. Meetings Required to be Open to the Public What is a Meeting? Meetings are those gatherings of a quorum or more of members of the governing body or of a committee, subcommittee, board, or commission at which members discuss, decide or receive information as a group on issues relating to the official business of the governing body. Serial Communications Serial meetings in groups of less than a quorum for the purpose of avoiding public hearings or fashioning agreement on an issue may be found to be a violation of the statute, depending upon the facts of the individual case. Neighborhood Meetings A quorum or more of the public body should not attend neighborhood or other meetings related to official business (i.e. development, zoning, local improvement, assessment procedures, operations, etc.), unless notice of a public meeting has been given. Social Gatherings A chance meeting or social gathering will not be deemed a “meeting” under the Open Meeting Law, unless there is evidence that members of a public body attended an event and discussed, decided, or received information as a group on issues relating to the official business of the governing body. Availability of Materials One (1) copy of printed materials relating to the meeting’s agenda and distributed or available to members shall be available in the meeting room for inspection by the public. Notice of Meetings •A schedule of regular meetings is to be kept on file. •The same notice required for a special meeting must be given when a regular meeting occurs at a different time or place than what’s stated in the schedule of regular meetings. •Notice of the date, time, place and purpose of special meetings must be given three (3) days before the date of the meeting. •Emergency meetings (requiring immediate consideration of a matter) may be held upon good faith efforts to provide notice, including the subject of the meeting, to each news medium that has filed a written request for notice. •Notice requirements also apply to closed meetings. Discussion of Non-public Data Discussion of non-public data at an open meeting is permissible if it relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct body’s business. Closed Meetings •IDs of victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults; •Active investigative data and internal affairs data relating to law enforcement personnel; •Educational, health, medical, welfare, and mental health data that are not public; •Labor negotiations; •Preliminary consideration of allegations or charges against one subject to the public body’s authority; •Evaluation of the performance; •Attorney-client privilege; Closed Meetings -Continued •To determine the asking price for real or personal property to be sold by the government entity; •To review confidential or protected nonpublic appraisal data under §13.44, subd. 3; •To develop or consider offers or counteroffers for the purchase or sale of real or personal property; or •To receive security briefings and reports, to discuss issues related to security systems, to discuss emergency response procedures, to discuss security deficiencies in or recommendations regarding public services, infrastructure and facilities, if disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses. Procedure to Close •Different procedures depending on reason for closure•Record –unless attorney client privilege•Announcements on record before, after and during closed meeting. Penalties •A person who intentionally violates the law is subject to personal liability in an amount not to exceed $300.00 for a single occurrence. •The personal liability may not be paid by the public body. •A person who intentionally violated the law in 3 or more actions forfeits any further right to serve on the governing body or in any other capacity with the public body for a period of time equal to the term of office such person was then serving. •The court may award reasonable costs, disbursements and attorneys’ fees of up to $13,000.00 to any party in an action. The public body may pay the costs, disbursements, or attorneys’ fees incurred by or awarded against any of its members in an action under the law. City of Victoria •Decision to build public works building and city hall building and consideration of a new public library •Construed favorably to the public •Supreme Court case in 1994-public officials assumed to be aware of OML despite their level of public experience; intent refers only to intent to participate in meeting not intent to violate OML; amount of penalty should be assessed on factors relating to good faith belief based on training and experience (good faith only relevant re penalty) •Removal –3 violations –each one after being told were wrong (ie 3 separate law suits; not 3 meeting under 1 law suit) City of Victoria •Extensive testimony re lack of training –Court found irrelevant. •had opportunity to be trained and ask questions •OML isn’t that complicated •Reliance on staff and attorney reasonable but not complete insulation from violation. Here didn’t rely on specific advice, assumed they would intervene •Some violations responsibility of staff –notice meeting requirements; taping/recording •Court focused on what “really” happened on recordings versus what the minutes claimed happened City of Victoria –Issues •Notice –violations by council –but no penalty because of good faith reliance on staff •Taping -violations by council –but no penalty because of good faith reliance on staff •Identifying grounds –violation by council •Discussions at closed meeting beyond the announced topic –violation by council •Discussion at closed meeting of impermissible topics –violation by council •Serial meetings –extensive communication but in most cases no evidence of what was discussed. Some discussions were private not public business. But 4 proven violations –substantive discussions of city business by email – intentional violations –improperly fashioning an agreement with each other before the private vote City of Victoria –Committees •Some of the violations were related to committees •Real estate committee –2 council members and the city manager -Balance effective administration with public interest. Intent was to streamline process which is acceptable; but once started making decisions or filtering information in violation of OML •Personnel –borderline –manager ultimately responsible for decisions so no violation •Fines against individual defendants $1,200 to $2,250 •Costs and disbursements paid by city •Did NOT ask for attorney fees –could have been higher costs City of Victoria DATA PRACTICES ACT Data Practices Act Purpose: to balance the public’s right to know, individuals’ right to privacy, and government’s need to function. Law applies to all cities and most city-related entities including planning commissions. Public Data Minnesota Statutes §13.03, subd. 1 states in part: “All government data collected, created, received, maintained or disseminated by a state agency … shall be public unless classified … as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.” Quasi-judicial Decisions Quasi-Judicial Decisions In a quasi-judicial proceeding the Council body is judging whether the issue or application meets existing standards or criteria. Examples include: re-zonings, subdivisions, planned unit developments, conditional use permits, and variances. Quasi-Judicial Decisions Standards Courts look for in Quasi-Judicial Hearings: A full and fair hearing; Decisions made on substantial evidence in the record; and Findings based on the record. Quasi-Judicial Decisions Generally, courts will not substitute their own judgment for that of local officials when the local decision has a rational basis supported by sufficient evidence in the record. However, arbitrary decisions are subject to challenge in court based on: Ignoring adopted standards or criteria; Inconsistently application of adopted standards or criteria; Are unreasonable; or Are not supported in the record. CONFLICT OF INTEREST Prohibited Conflicts •MN Statute §471.87: “Except as authorized in Section 471.88, a public officer who is authorized to take part in any manner in making any sale, lease, or contract in official capacity shall not voluntarily have a personal financial interest in that sale, lease, or contract or personally benefit financially therefrom. Every public officer who violates this provision is guilty of a gross misdemeanor.” •MN Statute §412.311: “Except as provided in sections 471.87 to 471.89, no member of a council shall be directly or indirectly interested in any contract made by the council.” Exceptions •MN Statute §471.88, subd. 5: A contract for which competitive bids are not required by law. •MN Statute §471.88, subd. 2: The designation of a bank as an authorized depository for public funds, or as a source of borrowing upon certain conditions. •MN Statute §471.88, subd. 3: The designation of an official newspaper when it is the only newspaper complying with statutory requirements relating to designation or publication. •MN Statute §471.88, subd. 4: A contract with a cooperative association of which the officer is a shareholder. Exceptions -Continued •MN Statute §471.88, subd. 6: A contract with a volunteer fire department for the payment of compensation to its members or for the payment of retirement benefits. •MN Statute §471.88, subd. 13: Rental of space in a public facility at a rate commensurate with that paid by other members of the public. •MN Statute §471.88, subd. 15: Franchise agreement. An employee of a public utility may serve as a city council member during the term of the franchise agreement so long as the council member abstains from voting on official action relating to the franchise agreement and discloses the reason for the abstention in the minutes. Consequences of a Violation •Contract is void. •Applies to any contract in which official is “authorized to take part.” Therefore, it does not matter whether or not officer abstains from voting. Conflict in Non-Contract Situation Lenz v. Coon Creek Watershed District •The nature of the decision being made. •The nature of the financial interest. •The number of interested officials. •The need, if any, for the interested persons to make the decision. •Other means available. Examples of Non-Contract Situations •Improvement of Creek —No Conflict •Establishment of ditch that drained Commissioner’s land —Conflict •Renewal of liquor license located next to Town Supervisor’s land —Conflict •Church affiliation —No Conflict •Street Vacation —Conflict •Rezoning on your own property —Conflict Consequence of a Violation A disqualifying interest does not affect the result if the requisite majority without the interested official takes action. Actions for which a disqualified member votes are void where the vote of the member is necessary to make up the number of votes required to take the action. Disclosure •MN Statute §10A.07: If an official is required to take an action or make a decision that would substantially affect the official’s financial interests: •(a) Prepare a written statement describing the matter requiring action or decision and the nature of the potential conflict of interest; •(b) Deliver copies of the statement to the official’s immediate superior, if any; and •(c) If a member of the governing body, deliver a copy of the statement to the presiding officer of the body of service. GIFT BAN LAW What is Prohibited An interested person, lobbyist, or principal may not give a gift to a local official nor may a local official accept a gift from an interested person, a lobbyist or principal. MN Statute §471.895 -10A.071. Who is a Local Official •MN Statute §471.895: Elected or appointed official. •MN Statute §10A.01, subd. 22: One who is elected, appointed to, or employed in a public position in which the person has authority to make, to recommend, or to vote on as a member of the governing body, major decisions regarding expenditures or investment of public money. What is a Gift A “gift” means money, real or personal property, a service, loan, forbearance or forgiveness of indebtedness, or promise of future employment, that is given and received without the giver receiving consideration of equal or greater value in return. Exceptions •Political contributions. •Services to assist an official in the performance of official duties. •Services of insignificant monetary value. •A plaque or similar memento recognizing individual services. •A trinket or memento costing $5 or less. •Informational materials of unexceptional value under MN Statute 471.895 or less than $5.00 under MN Statute 10A.071. •Food and beverages given when the official appears for a speech or to answer questions as part of a program. •Gifts given to the members of a group, a majority of whom are not local officials, of which the official is a member. •Gifts from family members. •Other than the exceptions, all gifts, including meals and beverages, are prohibited.