By Beth Finch and John Cairns Law, P.A.

The information in this document is not and should not be considered legal advice as to any particular Minnesota Open Meeting Law issue that a charter school may be dealing with.

My observation about charter schools is the strong inclination to uphold the law which clearly is good. However, the tension lies in the ability to be effectively moving the organization forward and remain in compliance with Open Meeting Law.  At times, charter school boards need to be much more operational especially in the early years or when faced with important decisions such as a facility change. I have observed that the misinterpretation of the Open Meeting Law can hamper the process needlessly. Hopefully we can dispel some of the typical pitfalls.

What are the basics board members must know about Open Meeting Law?

The law applies to state and local multimember governmental bodies, including committees and subcommittees.  Board of director meetings must comply with Chapter 13D governing open meetings.

A charter school shall publish and maintain on the school’s official website:

  • the meeting minutes of the board of directors and of members and committees having board-delegated authority, for at least 365 days from the date of publication;
  • directory information for the board of directors and for the members of committees having board-delegated authority; and
  • identifying and contact information for the school’s authorizer.

a charter school must include identifying and contact information for the school’s authorizer in other school materials it makes available to the public.

*Per the Minnesota Department of Education

Potential Open Meeting Law Pitfalls

Social Gatherings

In part, individuals join boards due to the social component. Some charters oppose any opportunity to gather the board in order to not violate Open Meeting Law. However, they could be missing the opportunity to build engagement and retention with their board.

For example, hosting an annual holiday or summer party is permissible as long as published on the annual board calendar and there is not an agenda, discussion of board business or potential board action.

No need to discourage board members gathering for drinks or dinner after the board meeting. It would be permissible under the following two conditions:

  1. If less than a quorum of board members participate in gathering.
  2. If a quorum attends, could simply sit at different tables to avoid a full-quorum discussion.

As recently cited by Minnesota  House Research: The law does not apply to chance or social gatherings of members of a public body. However, a quorum of a public body may not, as a group, discuss or receive information on official business in any setting under the guise of a private social gathering.

Electronic/Telephone Communication

Given the limited capacity of a single site school, charters rarely have the expertise on staff to assist with areas such as human resources and/or facilities. Some boards feel ANY phone or email communication is not permitted to support the school; all communication should be within the committee or at board meeting. However, in order to move processes forward, charter school board members often need to connect to prepare, discuss or clarify details.

Sending emails to fellow committee members in preparation for an upcoming committee meeting is not in violation of Open Meeting Law unless it is a quorum. A non-quorum of Board members can discuss board matters without a board or committee in session.

Best Practice: If there is an email dialogue with a quorum of the board, it cannot be to gain consensus on a potential board vote or policy. The following are guidelines for email correspondence with a quorum of the board:

  1. Board member only responds back to Board Chair. (i.e. RSVP)
  2. Board Chair emails in small, non-quorum groups.
  3. Legal counsel can query the board gathering the responses. 

Composing Minutes

Although minutes are not an Open Meeting Law requirement, according to MN Charter Law the agenda and minutes for Board meetings are required to be posted externally or on website. However, wanted to emphasize that minutes should not reflect detailed description of board discussion, including individual perspectives and opinions.

Best Practice: Minutes should include the following: attendees and non-attendees, date/time/location, list of topics discussed/ actions made and list of material reviewed. Other than the previously mentioned components, detailed minutes are not best practice.

Video Teleconferencing

Charter school boards may use teleconferencing as long as a phone line or call-in feature is available for the public and directors.

Best Practice: A phone line should be available for public to join a meeting.  Board members calling-in on Skype can exercise right to vote.  Remote Board member counted for quorum with ability to make/second motions or vote only if at least one member of the board is present at the meeting location and there is sound and video (i.e., board present and remote participant(s) can see each other).

Retreats

An annual board retreat is a recommended practice but what If a disruptive parent or teacher wants to attend the board retreat? Suggestion is to create school policy in advance of board retreat identifying purpose, objectives and guidelines.

Best Practice: The Open Meeting law has no guidance on this situation. A school policy that defines who may attend or who may speak at a Retreat is the best course to follow.

Conference Participation

If a quorum of board members want to attend the same conference, this is permissible as long as they do not convene to discuss board business.

Best Practice: Board members might take extra precaution and attend breakout sessions in non-quorum groups.

Notice for Full Board and Committees

The following parameters are correct parameters for board meeting notice:

Best Practice:

  • Emergency Session Notice – None if Board chair/ED determine a decision needs immediate attention (usually based on an opinion of counsel). Email/phone notice must go to any media representative who has given school written notice of desire to be informed.
  • Special meeting – Notice to be posted not less than 3-days before a special meeting.
  • Regular meeting – Annual calendar of regular meetings is best; if meeting time or place is changed, same notice as a special meeting.

Closed Meeting

As a general rule, having closed meeting as a standard part of board agenda is considered best practice. Otherwise, in preparation for a closed meeting, Board must give advance notice, site issue to be discussed and applicable state statute.

Best Practice:

  1. If a closed session is to be held, at least 10 days before the regular meeting or at least 3 days before a special meeting, the agenda must be altered to state the reason for the meeting. This would include identifying any staff person performance issues that are going to be discussed. If the reason is evaluation of a staff person, that person must be given the right to appear at the closed meeting. Most attorneys would advise that the employee’s counsel may also attend.
  2. Audio or visual recording of the session is required and must be kept for at least 4 years. For government building acquisition or sale, recording must be kept for 8 years.
  3. No action may be taken.
  4. Following adjourning of closed session, Board chair would reopen current session with a general discussion of the topic discussed. Following that, any board member can make a motion to take appropriate action. The action must be voted upon in Open Session as the first item discussed. If the closed meeting is at the end of the agenda, the next regular board meeting should commence with a general discussion of the topic discussed and vote if appropriate.

 

The information in this document is not and should not be considered legal advice as to any particular Minnesota Open Meeting Law issue that a charter school may be dealing with.