If a city council committee of three members is meeting publicly, can a fourth council member walk in without separate notice, and what happens if a quorum then gathers?

Plain-English summary

The City Council of Ely has seven members. Its committees each have three. When a three-member committee meets with proper public notice, can a fourth council member drop in without triggering a separate notice requirement? The Ely City Council asked through attorney Laurence J. Klun.

The AG drew a careful line. Mere attendance, where the additional council member acts like a member of the public who happens to be present, does not violate the Open Meeting Law. The notice for the committee meeting is enough. The fourth member is in the same position as any citizen who came to observe.

But if the fourth member participates in the committee's discussions or deliberations, that creates a problem. The Minnesota Supreme Court in Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983), defined a "meeting" subject to the Open Meeting Law as a gathering at which members "discuss, decide, or receive information as a group on issues relating to the official business" of the body. Once a quorum of the council is together and discussing or deliberating, the gathering becomes a council meeting in substance, and the council meeting needs its own separate notice.

The Court of Appeals decision in Thomas v. Kroschel, 506 N.W.2d 14 (Minn. Ct. App. 1993), supported the distinction. In Kroschel, a quorum of the Afton City Council attended an Afton Planning Commission meeting. The court found no violation from their attendance at the meeting itself, but did find a violation based on a separate private discussion the council members held outside the meeting room. Attendance alone was not the problem.

For the follow-up question (what procedure could allow the additional members to participate?), the AG was less helpful. The Open Meeting Law's notice statute (§ 471.705, subd. 1c(b)) requires that notice of each special meeting specify date, time, and purpose. A generic continuing notice that "a quorum of members may, from time to time, attend committee meetings" does not satisfy these specifics. The AG could think of no mechanism that would satisfy the notice requirements absent a specific qualifying notice for each contemplated special meeting.

The practical lesson for Ely: schedule the committee meeting as posted, additional council members can come and watch, but those watchers must keep their mouths shut on city business. If the council wants joint deliberation, it has to be noticed as a council meeting in its own right.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Open Meeting Law has been amended numerous times since 1996, including the 1997 amendments that added § 471.705, subd. 1c notice provisions and the 2002 reorganization. Anyone applying this opinion today should pull the current Minn. Stat. § 13D.01-13D.07 (the Open Meeting Law was renumbered) and any subsequent court decisions.

Historical context: what the AG concluded

The framework was familiar Open Meeting Law analysis. The legal question was whether the additional council member's presence converts a noticed committee meeting into a council meeting requiring fresh notice.

The AG started with the Moberg definition: a "meeting" subject to the law is a gathering of a quorum at which members "discuss, decide, or receive information as a group" on official business. Three council members in a meeting of a three-member committee are a quorum of the committee but not of the seven-member council. When a fourth shows up, four members of the council are present at one place. That is a quorum of the council.

The question becomes: does the quorum's mere physical presence trigger a meeting, or does it take some additional activity? The AG read Moberg to require "discuss, decide, or receive information as a group." Mere presence as observers, without group activity, does not match the Moberg test. The fourth member is in the same observer position as a citizen attendee.

The AG noted that the Moberg court itself recognized that the distribution of written information to council members outside meetings is acceptable. Receipt of the same information in observer-mode at a properly noticed committee meeting is even less problematic. If members get the information as observers, "no information was actually received until the material was read, and no discussion occurred."

The breakdown happens when the additional members start participating. Discussion or deliberation among a quorum could lead to a consensus or preliminary decision by the council itself. Citizens may have chosen to skip the committee meeting expecting to attend the later full council session where committee recommendations are deliberated. If that deliberation happens preemptively at the committee meeting, the public's right to observe council-level deliberation is lost.

Thomas v. Kroschel fit this analysis. The Afton Council members attended a Planning Commission meeting and were found not to have violated the Open Meeting Law by mere attendance. They were found to have violated it by holding a private discussion outside the meeting room. The distinction was attendance versus deliberation.

For the second question (procedure to allow participation), the AG was candid that no specific mechanism exists. The statutory notice requirements for special meetings are specific. A continuing generic notice does not meet the date-time-purpose requirements of § 471.705, subd. 1c(b). The practical answer is: if you want the full council to deliberate on a topic, notice it as a council meeting.

Common questions

Q: Could the additional council member ask questions during the committee meeting?
A: Under this opinion, no. Asking questions is participation, not observation. It would convert the gathering into a council-level deliberation.

Q: What if the additional member just nods or laughs during the meeting?
A: The opinion does not address this granularity. Silent observation is fine. Active signaling that influences committee discussion may cross the line. Best practice is for the observing member to be invisible to the dynamic.

Q: Can a city set up the meeting room so observer-mode council members sit visibly apart, in the public gallery?
A: The opinion does not require this, but it would make the observation/participation distinction clearer. Some cities physically separate visiting council members from the committee table.

Q: Does this apply to school boards, county boards, and other governing bodies?
A: The Open Meeting Law and Moberg apply to all "local government bodies" and their committees. The same observation/participation distinction would apply, though specific facts may differ.

Q: What is the penalty for an unnoticed council quorum that deliberates?
A: The Open Meeting Law authorizes civil penalties against individual members, removal from office for repeated violations, and attorney fee awards. Specific consequences depend on the seriousness and pattern.

Q: Has the Minnesota Supreme Court since refined the Moberg test?
A: The court has had multiple Open Meeting Law cases since 1996. Anyone applying this opinion should check whether Moberg's definition has been updated or whether the legislature has codified a different definition.

Background and statutory framework

Minnesota's Open Meeting Law, then codified at Minn. Stat. § 471.705 (now Minn. Stat. ch. 13D), requires that meetings of public bodies be open to the public, with notice. The notice requirements distinguish between:

• Regular meetings: notice satisfied by maintaining a schedule at the body's primary offices.
• Special meetings: posting and mailed or published notice required, specifying date, time, and purpose.
• Committee meetings: subject to the same open-meeting and notice rules as the parent body's meetings.

The Moberg definition of "meeting" requires a quorum gathering at which members discuss, decide, or receive information as a group on issues relating to official business. Mere presence without group activity does not meet the definition.

The opinion is signed by Assistant Attorney General Kenneth E. Raschke, Jr., on behalf of AG Hubert H. Humphrey III.

Citations and references

Statutes:
- Minn. Stat. § 471.705 (Open Meeting Law)
- Minn. Stat. § 471.705, subd. 1c (1994) (notice requirements)
- Minn. Stat. § 471.705, subd. 1c(b) (special meeting notice contents)

Cases:
- Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983)
- Thomas v. Kroschel, 506 N.W.2d 14 (Minn. Ct. App. 1993)
- Sovereign v. Dunn, 498 N.W.2d 61 (Minn. App. 1993)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/63a5-19960828.pdf

Original opinion text

Open Meeting Law: City Council: Committees. Mere attendance by additional council member(s) at meeting of a council committee, held in compliance with Open Meeting Law, would not constitute special council meeting requiring separate notice, but such member(s) should not participate in committee discussions or deliberations, absent separate notice.

63a-5
(Cr. Ref. 125a-14, 161a-16, 471-e)
August 28, 1996

Laurence J. Klun
Attorney at Law
103 East Chapman Street
Ely, MN 55731

Dear Mr. Klun:

In your letter you present substantially the following:

FACTS

The City Council of Ely is composed of seven members. The Council has established several committees, each composed of three of its members. Meetings of the Council and all committees are held in compliance with the notice requirements of Minn. Stat. § 471.705, subd. 1c.

You then ask substantially the following questions:

QUESTION ONE

If a committee of three (3) Council members meets pursuant to notice under Minn. Stat. § 471.705, does a violation of the statute occur if a fourth or additional Council member attends the committee meeting?

OPINION

To the extent that the involvement of the additional member is limited to attendance at the committee meeting, we answer your question in the negative. However, we believe that a violation may be found if the additional member(s) participate in discussions or deliberations of the committee upon matters of city business within the council's purview.

Minn. Stat. § 471.705, (the Open Meeting Law) requires, with certain exceptions, that meetings of a local government body "and of any committee, subcommittee, board, department or commission thereof" be open to the public. Subdivision 1c of that section imposes requirements for notice to the public of the time and place of meetings of bodies covered by the Open Meeting Law. Our courts have defined a "meeting" subject to the requirements of the Open Meeting Law as a gathering of:

A quorum or more members of the governing body, or a quorum of a committee, subcommittee, board, department, or commission thereof, at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.

Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983) (emphasis added); Thomas v. Kroschel, 506 N.W.2d 14 (Minn. Ct. App. 1993). In the situation you describe, it is presumed that a meeting of a committee composed of three members of a seven-member Council is being held, pursuant to proper notice, open to the public. If one or more additional members of the Council arrive at the meeting, however, a quorum of the Council is then present. Thus, it may be argued that the gathering is in violation of the notice requirements of the Open Meeting Law unless there has been appropriate notice of a Council Meeting, in addition to the notice of the committee meeting.

[Footnote 1: In the case of "regular meetings" this requirement is met by maintaining a schedule of such meetings at the body's primary offices. Special meetings, and regular meetings held at a time or place other than that listed on the schedule are generally subject to posting and mailed or published notice requirements in each instance. Minn. Stat. § 471.705, subd. 1(c) (1994).]

It is also arguable, however, that notice of the committee meeting is sufficient to inform the public that information pertinent to city issues within the committee's subject area will be received and discussed at the stated time and place and no additional notice should be required. Our courts have noted that:

[3] Legislative history suggests that the Open Meeting Law was enacted to prevent public bodies from dissolving into executive sessions on important but controversial matters and to insure that the public has an opportunity both to detect improper influences and to present its views.

Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510, 517 (Minn. 1983). However, it has also been held that there needs to be a "balancing [of] the public's right to be informed" against the "effective and efficient administration of public bodies." Sovereign v. Dunn, 498 N.W.2d 61 (Minn. App. 1993).

In the circumstances you present, the public has been appropriately informed of the committee meeting and may choose to attend in order to observe committee discussions and the presentation of information to the committee, detect influences upon the committee's decisions and, where appropriate to the proceedings, present its views. It would not seem that the mere presence of an additional member of the Council would affect the right or decision of members of the public to attend the committee meeting. Indeed, any member of the public in attendance would be in the same position as a council member in the audience to observe and evaluate the operation of the committee in carrying out its duties.

Therefore, we do not believe that the principles underlying the Open Meeting Law are subverted if one or more council member, without prior notice, merely observes an event or proceeding which is open on an equal basis to all members of the public. Such "receipt of information" would seem even less troublesome than the distribution of written information, not available to the public, to members of a governing body as was sanctioned in Moberg where the court said:

The distribution of written questions and answers was functionally equivalent to receiving the information through the mail, which is permissible under our present holding. There was also no danger of forming a group consensus because no information was actually received until the material was read, and no discussion occurred.

336 N.W.2d at 517-18. (Emphasis added.)

The foregoing reasoning would not apply, however, in circumstances where the additional Council members participate in discussion or deliberations of a committee which is officially comprised of less than a quorum of the Council. In such a case, the additional members' involvement would go beyond mere receipt of the same information as members of the public who might choose to attend. Discussions and deliberations among a quorum or more of the Council could lead to the formulation of a consensus or preliminary decision by the Council itself. Such a process should take place in a properly called and noticed Council meeting rather than in a meeting represented as a committee meeting only. There may well be citizens who would forego attending a committee meeting, expecting to observe the full Council deliberations on the committee's recommendations at a subsequent Council meeting. To the extent that those discussions may have already occurred without prior notice, the public's rights under the Open Meeting Law would be subverted.

These conclusions would seem to be implicitly supported by the opinion of the Court of Appeals in Thomas v. Kroschel, 506 N.W.2d 14 (Minn. Ct. App. 1993). In that case, persons constituting a quorum of the Afton City Council attended a meeting of the Afton Planning Commission and were found to have violated the Open Meeting Law. However, the violation was not based upon their presence at the meeting, but upon the finding that they had conducted public business in a private discussion outside the meeting room.

QUESTION TWO

If the Answer to Question I is "yes," what procedures can be employed to correct this defect and allow additional Council members to "participate"?

OPINION

An open-ended question such as this does not lend itself to a comprehensive answer by means of an opinion of our office. The best we can say is that we are unaware of any specific statutory procedure which would permit a quorum of members, on an ad hoc basis, to discuss city business without specific prior notice. One possibility you have suggested is the posting and publication of a generic notice which would state that a quorum of members may, from time to time, attend, for example, committee meetings, and that such occasions will be considered "special meetings" of the Council.

As noted above, we do not believe any separate notice would be required if additional members merely attend a committee meeting. A notice such as the one in your example might, however, be helpful in alerting the public, to the extent they are interested, that Council members might also observe the committee proceedings.

However, such a notice would not satisfy the statutory requirements for notice of any particular special meeting of the Council for purposes of discussions or deliberations upon city issues by a quorum. Minn. Stat. § 471.705, subd. 1c(b) requires that notice of each special meeting specify the date, time, and purpose of the meeting. A continuing general notice of the sort you have described would clearly not satisfy these requirements. No other mechanism comes to mind which satisfy those requirements absent a qualifying notice for each contemplated special meeting.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General