Risk Management and Loss Control
Open Meeting Law FAQ: Can Public Entities Hold Meetings Regularly Online?
Editor’s Note: This is an installment in an occasional series of questions MCIT receives from members regarding the Minnesota Open Meeting Law. Members can find other Open Meeting Law articles in the Resources section.
Q: During the COVID-19 pandemic and while the state of emergency was ongoing, many local government boards held their meetings completely online. Can a government entity continue to do this now, with board members, staff and the public participating and attending remotely? The government entity is seeking to cut travel time and costs, and to encourage attendance and participation in its meetings.
A: It may be possible, but only to a limited extent under normal circumstances and when all the statutory requirements for conducting remote meetings are met.
There are two sections of the Minnesota Open Meeting Law that allow nonstate public bodies to conduct meetings remotely. Each statute has different requirements. Failure to comply with all of the requirements of the particular statute under which the board is meeting means that the remote board member is unable to be counted as part of the quorum and participate in all proceedings.
The first, Minnesota Statutes, Section 13D.02 can be used for any meeting that would be covered by the Open Meeting Law, except a closed meeting held under Minnesota Statutes, Section 13D.03 for labor negotiations strategy.
The second, Minnesota Statutes Section 13D.021 is limited to circumstances when an in-person meeting or a meeting conducted under Section 13D.02 is not practical or prudent because of a health pandemic or an emergency declared under Chapter 12.
Absent extraordinary circumstances, Section 13D.021 typically does not apply. Instead, government entities must generally look to Section 13D.02 when board members request to attend meetings remotely.
Virtual Attendance Under Section 13D.02: Other Entity Meetings by Interactive Technology
Among the many statutory conditions for meeting remotely under Section 13D.02 are requirements that:
- At least one board member be physically present at the regular meeting location.
- Members of the public present at the regular meeting location be able to hear and see all discussion and testimony and all votes of members of the body, including those attending remotely.
- Entities give notice of the regular meeting location and any locations at which board members will be participating remotely via interactive technology.
- Remote locations must be open and accessible to the public.
Because of these requirements, it does not appear to be legally possible to move a meeting entirely online with only remote participation under this statute. At least one board member must be in attendance at the regular meeting location, and the public must be able to attend at the regular meeting location.
Furthermore, the interactive technology at the regular meeting location must be sufficient to enable the public attending from that location to hear and see all discussion, testimony and votes of members of the body.*
Boards considering having a majority of its board members participate remotely should keep in mind that if only one board member is designated to be present at the regular meeting location and that designated board member is unable to attend, another board member must take his or her place for the meeting to move forward.
If this is not possible, then all conditions for meeting remotely are not met, and the board members intending to join remotely may not be considered present at the meeting for purposes of determining a quorum and participating in all proceedings.
Additionally, boards should remember that entities must give notice of the regular meeting location and locations at which board members will be participating remotely. The only concession to this notice requirement is if the remote location is closed to the public under limited statutory exceptions.
As of print, the sole exception currently available to close a remote location is if the board member is serving in the military and at a required drill, deployed or on active duty. The exception for being advised by a health care professional against being in a public place for personal or family medical reasons does not apply unless a state of emergency has been declared under Minnesota Statutes, Section 12.31 or within 60 days of it ending. (Note: A bill is pending at the Minnesota Legislature that may remove this qualifier.) A board member cannot participate from a location that is not open and accessible to the public more than three times in a calendar year.
For most regular and special meetings, the notice of remote locations must be provided at least three days before the date of the meeting in the same manner as notifying for a special meeting. If this notice is not given, a board member could still participate in the meeting if he or she attends in person at the regular meeting location.
The minutes for a meeting conducted under Section 13D.021 must reflect the names of members appearing by interactive technology and state the reasons they are appearing remotely.
Members are also reminded that any time one or more board members are attending a meeting remotely, all votes must be conducted by roll call so that each board member’s vote can be identified and recorded.
Remote Meetings Under Section 13D.021: Meetings During a Pandemic or Chapter 12 Emergency
The above analysis may be different if the board is meeting under the narrow parameters of Minnesota Statutes Section 13D.021.
This section permits meeting by either telephone or interactive technology when the presiding officer, chief legal counsel or chief administrative officer for the governing body determines that an in-person meeting or a meeting conducted under Section 13D.02 is not practical or prudent because of a health pandemic or an emergency declared under Chapter 12.
Although Section 13D.021 has similar requirements for physical presence at the regular meeting location, it provides an exception where in-person attendance is not feasible due to a health pandemic or emergency declaration. It also allows the chief legal counsel or chief administrative officer to be physically present at the regular meeting location in lieu of a board member.
The notice requirements are slightly different when meeting under Section 13D.021. If telephone or interactive technology is used to conduct a regular, special or emergency meeting, the public body shall provide notice of the regular meeting location, of the fact that some members may participate by telephone or interactive technology and instructions for how the public may monitor the meeting electronically from a remote location to the extent practical. The timing of this notice is as described above.
Members should also keep in mind that if attendance at the regular meeting location is not feasible due to the health pandemic or emergency declaration and the public body’s practice is to offer a public comment period at in-person meetings, members of the public must be permitted to comment from a remote location during the public comment period of the meeting to the extent practical.
All votes must be conducted by roll call to identify and record each board member’s vote.
Further Information
Not every condition for conducting a remote meeting has been discussed in this article. MCIT members continuing to hold meetings with remote participation are encouraged to review the statutory section under which they are meeting and comply with all requirements. Members are encouraged to consult with their own legal counsel regarding how the statutes apply to a specific situation.
Members may find these other resources on the Open Meeting Law instructive:
- The Minnesota Department of Administration, Data Practices Office has a wealth of resources. Staff are available to answer Open Meeting Law questions, as well as questions about the Minnesota Government Data Practices Act.
- Resources about the Open Meeting Law, including Meeting Remotely Under the Open Meeting Law.
- The MCIT risk management staff is available to provide general risk management information about this law.