Last week, the Minnesota Department of Administration (Department) issued Advisory Opinion 21-003 on the open meeting law and the pandemic meeting statute (13D.021). This statute has been the focus of a number of conversations recently as Minnesota has used it for the first time since it was created in 2007.
The Advisory Opinion states in part:
The Commissioner notes that there is currently not a mechanism in the OML for public body members to hold in-person meetings while limiting public attendance to electronic monitoring. Section 13D.021 permits telephone or electronic meetings of public bodies during a health pandemic or Chapter 12 emergency, meaning that a quorum of a public body that intends to gather in order to discuss, decide, or receive information related to public business under this section must do so via telephone or other electronic means.
The School Board did not comply with the OML when a quorum of the public body held in-person meetings on September 22, 2020, November 24, 2020, January 5, 2021, and January 26, 2021, while the public was limited to remote attendance.
In a conversation today with the Department, they affirmed that, for boards who are meeting under 13D.021, three board members could be in the meeting room — less than a quorum — and it would not be an “in-person” meeting according to the Advisory Opinion. Please note that this is a different conclusion than the one that the Department offered earlier.
For boards holding in-person meetings (with a quorum or more physically on-site), the public must have physical access to the meetings. To provide this access, the Department talked about overflow rooms or meetings in gymnasiums or auditoriums (where social distancing could be maintained). The Department acknowledged that 13D.021 does not give clear guidance to districts on what to do if the board is in-person and the safety measures (such as social distancing) cannot be maintained. Similarly, the Advisory Opinion does not address the health and safety issues surrounding social distancing, presumably because it was not asked to do so.
Many of you want to be back in the board room, working together face-to-face, being collaborative, and showing the public some sense of normalcy. However, as you transition back to the board room, boards may face challenges when trying to balance normalcy with the flexibility allowed by 13D.021, which did not anticipate the intricacies of a health pandemic in the 21st century.
