Commissioner: Board's e-mailing violated law

  • Article by: KEVIN DUCHSCHERE
  • Star Tribune
  • March 23, 2011 - 1:59 PM

To those public agencies or boards thinking they can skirt the state's Open Meeting Law by gathering electronically at their computers rather than around a table in front of the public, the state's administration commissioner has one word for you: Don't.

According to an advisory opinion issued Wednesday by Commissioner Sheila Reger, the governing board for the Metro Gang Strike Force broke the law in April when a quorum of the board conducted official business via e-mail.

Can you even have an official meeting by e-mail?

"Minnesota courts have not ruled definitively on this issue," Reger said in her opinion. "However, given the facts here [and related court decisions] ... the conduct of the Advisory Board constituted a meeting, which was required to be public, and as such is impermissible under" the Open Meeting Law.

While the ruling doesn't have the force of law and won't result in a penalty, Reger's opinion helps clarify a gap in Minnesota's statutes and offers state courts a toehold in the event of future such conflicts.

It also dovetails with judicial rulings nationwide updating sunshine laws to reflect abuses made possible by 21st-century technology, University of Minnesota media ethics Prof. Jane Kirtley said.

"Most state laws don't even contemplate e-mail exchanges, so courts are having to extrapolate from the language of the statute as to what the legislature would have intended," she said.

The question to ask, she said: "Was this [e-mail] exchange about a matter of business that, if it were being conducted in a face-to-face meeting, would be subject to the Open Meeting Law?

"If the answer is yes, you don't want officials to do an end run around the law."

The electronic exchange occurred April 8, when Minneapolis police Deputy Chief Rob Allen got a question from a Star Tribune editorial writer about a Strike Force trip to a gangs conference in Hawaii.

The anti-gang unit, which since has been disbanded and is under investigation by the FBI, was being scrutinized at the time by the legislative auditor for improper procedures.

Allen, a board member, sent e-mails to other members suggesting that they issue a news release defending the trip.

Seven members (or representatives) of the 13-member board responded. West St. Paul Police Chief Bud Shaver, who chaired the board, proceeded with the news release.

In May, Star Tribune attorney John Borger asked Reger to determine whether the Strike Force had violated the Open Meeting Law.

Shaver told Reger that Allen had simply alerted board members to "a matter of high importance." The news release was issued under his routine authority as chair, he said.

In her opinion, Reger said the exchange would have been OK if it had been limited to Allen and Shaver, but the board crossed the line when a majority of its members were consulted, she said.

Neither Allen nor Shaver could be reached for comment. Borger applauded the ruling.

"It makes clear that government officials need to do their discussing, deliberating and decision-making in public," he said. "The presumption should always favor public access and oversight, and the convenience of e-mail communication should not overwhelm the necessity for that kind of public oversight."

Kevin Duchschere • 612-673-4455

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