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The Stillwater Area School Board violated the Minnesota Open Meeting Law when a quorum of the school board attending an Aug. 29 working group meeting, stated an advisory opinion from Alice Roberts-Davis, the Commissioner for the state’s Department of Administration.

The commissioner issues advisory opinions to public bodies or members of the public on questions relating to a public body’s duties under the Open Meeting Law (OML). Advisory opinions are not binding however, the opinion must be given deference by a court or other tribunal in a proceeding involving the meeting.

The meeting where the OML violation took place was the board’s Finance and Operations Committee, an advisory group made of three board members to provide consultation and perspective regarding district financial decisions before presentation to the entire school board. The group met at the district’s Central Services building Thursday, Aug. 29.

All three regular committee members attended, including Director Liz Weisberg, who is the committee chairperson, as well as Directors Mark Burns and Shelley Pearson. Additionally, Director Tina Riehle attended and sat in the audience.

Resident Carl Blondin requested the advisory opinion from the Commissioner of the Minnesota Department of Administration regarding the school board members’ conduct under the state’s Open Meeting Law.

In his request, Blondin indicated that “no notice was made pursuant to statute that this would be a regular meeting of the ISD 834 [school] board, nor was a notice made that a quorum of the ISD 834 school board would be present. This was not a properly noticed special meeting of the ISD 834 school board. This was not an emergency meeting of the ISD 834 school board. This was a committee meeting of a committee that the district informs the public of having only three [board] members, not a quorum. Yet, in spite of those facts, four members, a quorum of the ISD 834 school board, were present, and were able to receive and discuss, and in fact did receive and discuss information related to matters of public concern, deliberate on school business, and potentially take action to bind the board.”

In video of the meeting included with the opinion request, Riehle asks Stillwater Area Public Schools Finance Director Kristen Hoheisel a question.

“I got to be honest, you’re making me a little nervous because now I have four board members,” Hoheisel said.

“It’s open meeting,” Riehle responded.

“Yeah but you’re speaking,” Hoheisel said. “I’m just saying, I get nervous.”

At the meeting, Riehle discussed how an expenditure and programming form she made could help make board approval of expenses more efficient. In a later interview, Riehle said she attended the meeting to be available for questions about that form, which she designed to help the board maintain a sustainable budget. Riehle added she attended all legal trainings the previous school board went through prior to taking office.

The school board received a notice of Blondin’s request for an advisory opinion on Oct. 2, inviting the board to submit any comments by Oct. 16. Attorney Maggie R. Wallner responded on behalf of the school board.

In its comments to the Department of Administration, the school board stated, “it is undisputed that four school board members, a quorum, were present at the August 29, 2019, meeting. However, it was a regularly scheduled, properly noticed meeting that was open to the public. Therefore, it is the district’s position that no open meeting violation occurred.”

In support of its argument, the school board provided a copy of the Finance and Operations Working Group meeting calendar, which included the Aug. 29 meeting notice.

Although the Finance and Operations Working Group may have properly noticed its regularly scheduled meetings, Roberts-Davis stated in the advisory opinion that the school board did not provide notice that a regular or special meeting of the school board would also occur on Aug. 29.

“Each group identified in Minnesota Statutes, section 13D.01, subd. 1 is independently subject to the notice requirements of the OML,” Roberts-Davis stated. “Once the fourth school board member was present to discuss, decide, or receive information as a group relating to the offcial business of the school board, the committee meeting also became a meeting of the school board.”

The Commissioner noted that an important aspect of the “access to the decision-making process” is that the public knows which public body is meeting.

“If the quorum of the school board present at the August 29, 2019, meeting took a vote and unanimously agreed to an action, they would have bound the entire school board and circumvented the OML, as the public was only provided notice that a committee meeting was taking place on that date,” Roberts-Davis stated.

In its Oct. 2 notice to the school board, the Department of Administration states that “although the advisory opinion will not be binding on the ISD 834 School Board, a court must give the opinion deference. In addition, the opinion may offer some legal protection if the ISD 834 School Board chooses to act in conformity with the conclusion the Commissioner reaches in the opinion.”

In a response to the opinion, board chair Mike Ptacek issued a statement that the district received the opinion “that the Notice provided for School Board committee meetings is not sufficient under the Open Meeting Law to specifically inform the public that Board members, in addition to the designated committee members, may be present at committee meetings. In accordance with the Opinion, the School District will immediately revise its Notices on the School District website and in postings.

Ptacek continued in the statement that “under the current School Board, all committee meetings have been open to the public, including the August 29, 2019 Finance and Operations Committee Meeting, which was the subject of the Advisory Opinion. The School Board will continue to welcome the public to all of its meetings, including committee meetings.”

In a court case, the consequence for an intentional violation could include up to a $300 civil penalty. If a person intentionally violates the law in three or more legal actions involving the same governmental body, they forfeit the right to serve for a period of time equal to their term — four years for the school board.

When reached for comment, Blondin stated that it was not his intention to continue the violation into a lawsuit.

“I don’t want to sue the school district, I just want them to follow the law,” Blondin said. “I would like the board to acknowledge what they did was wrong, apologize and adopt a policy that no more than three board members attend a committee meeting unless then is a specific notice of a quorum.”

In a copy provided by Ptacek of the new meeting calendar of the finance and operations working group, the notice includes: “All meetings are open to the public. Also, Board members in addition to the designated working group members may attend the meetings; therefore, a quorum or more of board members may be present.”

Contact Alicia Lebens at alicia.lebens@ecm-inc.com

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