Change the Open Meeting Law to allow our public officials to discuss some issues online without fear

I’ve been digging deeper into the Minnesota Open Meeting Law (OML) lately, because A) my citizen engagement work with the City of Northfield (parking) and the Northfield Public Schools (technology); and B) my presentations (example here) to public officials on blogging and social media on behalf of the League of MN Cities (LMC).

It seems generally accepted under the current OML that there’s no problem with an elected official having a blog, a Facebook page, or a Twitter account when used for one-way communications.   When used as publishing platforms, these tools are no different than having an opinion column or letter to the editor published in a newspaper.

Rather, the concerns are when the interactive features of these online platforms are used: a discussion thread attached to a blog post; comments on a Facebook wall post; conversational tweets; a live web conference with audio and/or text exchanges; a live online chat. In these instances, the possibility exists that a quorum of a public body could end up participating, that this could be interpreted as a serial meeting under the OML, and if not handled properly, could be a violation.

Last week I spoke by phone with Susan Naughton, LMC staff attorney.  And yesterday, she was the main presenter for the LMC webinar: Shedding Light on the Minnesota Open Meeting Law that I attended. That page cited and has the entire Powerpoint presentation, plus a video archive of the webinar.

Here’s slide #38 from the Powerpoint.

LMC OML slide 38

I think this is overly cautious. In her remarks to me by phone, Susan indicated that two areas of concern under the OML for the interactive use of these online platforms are A) whether they can be included in the definition of what constitutes a ‘meeting’; and B) whether they can be consider ‘open to the public.’

The good news is that since the OML places considerable emphasis on the ‘intention’ of the parties involved when a meeting is held, a local unit of government can get an opinion ahead of time from its own attorney and from the State of Minnesota’s Information Policy Analysis Department (IPAD) on the type of meeting it wishes to hold.  Doing so would show that its intention was to not circumvent the law.

After getting these supporting opinions, I think the best way to conduct an online discussion with elected/appointed officials would be to A) announce it as a ‘special meeting’ as defined by the law; B) use time constraints on the meeting, for example, 8-9 pm for a live event or two weeks for a blog discussion thread; C) conduct the meeting like a Council Work Session, avoiding decisions, votes, or expressions of intention on how one plans to vote; and D) avoid any discussion of quasi-official business such around land use, property, licenses, etc.

I’ve found Northfield City Council work sessions to generally be more engaging and enlightening because of the open discussion among the councilors.  You’re more likely to hear what they’re thinking, wondering, questioning.  Opening up that type of exchange to a wider audience via online tools would be a genuinely helpful contribution to public involvement and engagement.

More good news: during the webinar, Susan announced that a bill to amend the OML was to be introduced in the legislature this week with the involvement of the MN Association of Townships. As soon as I find out more, I’ll post it here.


  1. Griff Wigley said:

    If you’re an elected or appointed public official with a blog and opt to allow comments on some or all of your blog posts, I think it’s best to put your comments on ‘moderate mode’ so that you have to approve all comments. That way, you can prevent an unannounced quorum of your colleagues from showing up. It would also be a good idea to put a time-limit on any blog post with a discussion thread, so that you don’t inadvertently approve a comment at some time in the future, forgetting to check whether the submission might constitute a quorum.

    February 14, 2013
  2. Kathie Galotti said:

    Thanks for this info, Griff. It should put to rest some of the qualms others have expressed recently.

    I am still mystified as to why some worry about elected officials having a blog but not at all about elected officials meeting serially with a superintendent.

    February 14, 2013
  3. Griff Wigley said:

    Kathie, just to clarify. Those who worry aren’t actually worried about an elected official having a blog but rather about the discussions/comments that can optionally be attached to an individual blog post.

    As for Northfield School Board members meeting with Supt. Chris Richardson before a board meeting, here’s the link to Board Member Rob Hardy’s post on the issue (I know you know about it but others here might not):

    On the Decision-Making Process

    February 15, 2013
  4. David Henson said:

    Thank you for the post Griff. I read that Open Meetings law as a way for special interests, the non-elected bureaucracy and unions to gain control over the pesky elected officials. The public elects these people as their representatives and the OML makes sure they are being baby sat by “the public” at all times … only that public is almost always made up of special interest groups who want to make sure their money is well spent.

    You can tell reading this law that the courts and everyone involved knows they are way over-stepping their bounds: the situations outlined are ambiguous, the penalties are weak and uncertain and the purpose is silly – don’t want any secret talk (like elected officials decided privately something crazy like state pensions are totally underfunded)

    I would recommend an open public discussion as to whether elected officials have a 1) right to free assembly 2) a right to free speech

    February 15, 2013
  5. Kathie Galotti said:

    Right. Last I heard, Rob was still waiting for the lawyers’ opinion that these apparent serial meetings
    were not in violation of the OML. I assume he’s still waiting….

    February 15, 2013
  6. kiffi summa said:

    Don’t get into a ‘hysteria’ criticizing the ML; its intent is nothing but in the public’s interest.

    for instance: it is the OML that insists that all papers, memos, maps,i.e. decision making tools, that a body uses during its deliberations must be available for the public during a meeting.
    That’s a good thing. And that is something that is regularly ignored during city council meetings; NOT deliberately I hope, but just not considered to be as important as it is. During the last CC work session, you can see the LWV observer, Jane McWilliams, get up and ask for a copy of the map that councilors were basing their lengthy discussion on .

    The first page of the OML statute also lists all those bodies which are subject to the constraints of the OML; this would include subcommittees of a public body like the EDA. That was not being followed, and was one of the major concerns that almost caused the shutdown of that group.

    The OML is not meant to limit public bodies’ discussion; only to make sure it is PUBLIC.

    February 15, 2013
  7. David Henson said:

    I disagree, elected representatives report to their voters not some mythical fourth branch of government sitting in the bleachers. OML limits discussion via threats and effectively neuters our elected representatives … I think it is time to get the hysteria started.

    February 15, 2013
  8. David Ludescher said:

    I have had 2 education seminars and some limited experience on the Open Meeting Law. The League’s main point is that only the brave and the foolish risk running afoul of its provisions. The 3 words to remember are caution, caution, and caution.

    My initial impressions are that the public is being under-served and perhaps ill-served because of OML. It limits my ability to communicate with my fellow councilors, even in an open and public manner, outside of a public hearing. Interestingly, it does not place the same restrictions upon my communications with city staff.

    As a result, city staff ends up with all of the councilors’ input, thoughts, and comments because that is the only place that we can safely express our thoughts. We are left with just the council meeting to try to work through the relative merits of the competing interests, and to try to develop a philosophy of governance.

    While meetings are extremely transparent, the council is often bogged down in discussing mundane and trivial matters because we don’t have the opportunity to discuss these matters (even in a public forum) outside the council chambers. And, important matters, like the public safety center don’t get enough public discourse because time is limited, and the majority of the council can stifle the minority in a request for public discussion and debate.

    If the OML offered the opportunity for some public discussion without the threats, both of these problems could be addressed, and we would have better and more open government.

    February 16, 2013
  9. kiffi summa said:

    David L: I would agree that there are a few instances where theOML may inhibit discussion but as in the law, ‘intent’ is a major consideration.
    If councilors could get together and discuss issues without the public witness, it may begin by being ‘ok’, but move into a discussion which should be heard by the public whom they represent.

    The example you give of the safety center is really not relevant because that ‘discussion’ went on for four years, and the problem was not that the majority stifled the minority, but that the minority gradually became ‘converted’.

    **** There is always a way for a councilperson who is in the minority to be heard; it is the public opinion that has limited input, as allowed by the council… witness your asking for a longer time for Don McGee to present his numbers, that being voted down, and then the staff later said that his information was too lengthy and not specific, when it was a single page, and each item was attached to a council action/date. ****

    February 16, 2013
  10. David Henson said:

    Kiffi, the discussions are not being heard by the “public they represent”, the discussions are being heard by activists, staff, lawyers and special interests. I voted for David L because he seemed trustworthy and I see no reason to limit his liberty to free association and free speech … In fact I see no constitutional basis to limit these. If he represents me well then I will vote for him again and if not, he can be voted out. The idea that he and other councilors cannot meet for coffee and discuss issues out side of a publically recorded meeting undermines representative democracy and harms all citizens.

    I never got to vote for anyone on the “the League” that now his apparent handlers.

    February 16, 2013
  11. kiffi summa said:

    David H. : we have a very different view of government, as I think you may have said before.
    I think it is the responsibility of citizens to listen to the dialogue of their LGU, as well as State and Nat’l reps, and give them feedback, input, tell them how they’re doing, etc.
    Voting at each election is just the beginning as far as I’m concerned.

    If by this:”I never got to vote for anyone on the “the League” that now his apparent handlers.” you mean the League of Mn. Cities, David L. will quickly learn that they (LoMC) are always speaking to their members/clients, not to the electorate; and one of their primary functions is as an insurance trust for cities… so does that tell you something about their POV?

    February 16, 2013
  12. David Henson said:

    Kiffi, honestly, listen to David (an elected official). Are you not troubled by the fact that “legally” he and the council can sit in a circle in central park playing the kids game Pass-it-On as long as staffers are in the circle relaying information but the council cannot have a private adult conversation on city topics?

    Do you think not limiting elected officials right to free speech and free assembly would lead to criminality? Understand this is the argument made by all non-elected authorities to limit freedom.

    February 16, 2013
  13. kiffi summa said:

    Sorry , David… I just don’t see the picture you present as accurate.

    I understand perfectly the many limitations that try, from various directions, to be imposed upon, or limit, freedom.

    The OML is not one to be afraid of, IMO.

    February 16, 2013
  14. David Henson said:

    I think the fact that newly elected officials are being cautioned with legal threats from non-elected persons is grotesque and deeply troubling. Most certainly what it is not is democratic.

    February 16, 2013
  15. Philip Spensley said:

    I believe that individuals on a committee, board, commission, council, FEWER THAN WOULD CONSTITUTE A QUORUM can meet to discuss…it is when a group reaches a quorum that the discussion must be public, it could be deemed that decisions are being made by a majority of voting members.

    February 18, 2013
  16. David Henson said:

    If I read the law correctly then elected bodies can meet wherever and whenever and can pass laws that are valid laws but can be fined $300.00 for doing so and might be removed from office after doing so three times. Seems like saying you have every right to do this but you can be punished for doing it because “some we” don’t like it … I don’t think the law has any teeth if it were just plain ignored.

    February 18, 2013
  17. Griff Wigley said:

    Here’s the bill co-authored by Senator Kevin Dahle: Senate File No. 527; Description: Open meeting law communications social media exception.

    I’ve stripped out the line numbers to make it a little more readable for our discussion here.

    A bill for an act relating to open meeting law; providing that certain communications on social media are not meetings under the law;amending Minnesota Statutes 2012, section 13D.01, subdivision 2.


    Section 1. Minnesota Statutes 2012, section 13D.01, subdivision 2, is amended to read:

    Subd. 2. Exceptions. This chapter does not apply: (1) to meetings of the commissioner of corrections; (2) to a state agency, board, or commission when it is exercising quasi-judicial functions involving disciplinary proceedings; or (3) to participation in social media forums by a member of a public body otherwise subject to this chapter, whether or not a quorum of the public body is participating, when participation is intended to augment traditional communication methods.

    The social media forum must be generally open to public participation. Simultaneous or serial participation by a quorum or more of members of a public body otherwise subject to this chapter in a forum or section of a forum that the members know is not open to general public participation is not exempt under this paragraph.

    Participation in a social media forum shall not replace any required public meeting or hearing and no vote of any entity otherwise subject to this section shall be taken by means of a social media forum.

    “Social media” means forms of Web-based and mobile technologies for communication, such as Web sites for social networking and microblogging, through which users participate in online communities to share information, ideas, messages, and other content; or (4) as otherwise expressly provided by statute.

    February 18, 2013
  18. Griff Wigley said:

    It appears pretty well-written to me. Main points:

    * certain communications on social media are not meetings under the law
    * participation is intended to augment traditional communication methods
    * participation must generally open to the public
    * no voting
    * required meetings can’t be replaced
    * no private online communications by a quorum or more

    What’s not to like about it?

    February 18, 2013
  19. Griff Wigley said:

    If this was in effect these past few months, it appears that it would have mean that:

    * a quorum or more of Northfield City Councilors could chime in on the Northfield Downtown Parking blog;

    * a quorum or more of Northfield School Board members could have participated in the Transformational Technology blog, webinar, and live chat;

    * a quorum or more of Northfield Park & Rec board members could have participated in the LoGro discussion about where to locate the skate park.


    February 18, 2013
  20. Griff Wigley said:

    It would seem that the new law would allow:

    * any local government elected or appointed public official could have their own blog, Twitter feed, or Facebook page and allow comments, including those by a quorum or more of their elected or appointed colleagues;

    * a local government body (council, commission, board, task force, etc) to have a group blog or Facebook page where any/all members could author blog/wall posts and add comments.

    February 18, 2013
  21. David Henson said:

    The Minnesota Supreme Court has held that actions taken at a meeting held in violation of the
    open meeting law are not invalid or rescindable.62

    This is taken from the OML link above. So I would think limiting voting in an amendment would be outside the law’s scope.

    February 19, 2013
  22. Jeff Ondich said:

    This looks quite a bit better to me. Here are a couple questions, in case Senator Dahle is following this discussion.

    Does “generally open to public participation” include a forum that requires registration or creation of an account to participate? (I would assume yes, but you never know.) What if the forum requires payment? (That one seems murkier. It might depend on whether the forum requires payment to read, or just payment to post.)

    Of course, if David H. is right that this law can and should be ignored, then my questions are moot.

    February 19, 2013
  23. Griff Wigley said:

    Jeff, those are good questions.

    Facebook and Twitter require registration to contribute but not to read, but neither charge a fee for those who do register.

    Some newspaper websites have paywalls (‘hard’ and ‘soft’) which can limit both reading and writing for the non-paying.

    I think it might be helpful to state something to the effect that “online venues which require payment for the public to participate are NOT considered generally open to public participation and therefore should be avoided” or some such language.

    February 19, 2013
  24. David Ludescher said:


    It seems to me that a better approach is to define a “meeting”, and then for the statute to provide what does not constitute a meeting.

    February 19, 2013
  25. Griff Wigley said:

    Rob, could you edit your blog post using the blockquote tag so that it’s clearer which words and sentences are yours and which are the school district’s attorney? It’s a little confusing right now, for example, you write “The attorney’s opinion adds nuance to this cautious interpretation…” and then follow it with:

    In the case of blogging, it would seem permissible as long as a quorum is avoided, which can be done by moderating comments on the blog and preventing a discussion among Board members in the comments thread.

    And who is the the school district’s attorney?

    February 19, 2013
  26. Griff Wigley said:

    David, I would agree that it might help to have ‘meeting’ defined. I’m not sure how I would do it. Got a suggestion?

    But for purposes of clarifying the law for online communications, it seems to enough to say that whatever a ‘meeting’ might be under OML, social media ain’t it!

    February 19, 2013
  27. Rob Hardy said:

    There are no direct quotes from the attorney’s opinion in my blog post. The words are my own, except where I quote the Supreme Court case and the IPAD opinion.

    February 20, 2013
  28. David Ludescher said:


    Carving out an exception for just “social media” doesn’t address why social media should be an exception.

    One suggestion is to define communication that doesn’t constitute a meeting. The reason “social media” shouldn’t constitute a meeting (usually) is because the object of the communication is not a majority of the councilors who make the decisions, but some other group. On the other hand, it is much, much easier to have a “meeting” electronically than it is in person or by phone, thus the dangers are much, much greater.

    February 20, 2013
  29. David Henson said:

    David L, how about an open meeting is one where elected officials choose or vote from presented options. An illegal meeting is one where elected officials think creatively about the future and bounce free form ideas off one another. I think this is a succinct way to capture the intent.

    February 20, 2013
  30. Griff Wigley said:

    The companion bill HF 653 was introduced in the House earlier this week. Description: Social media communications not considered meetings under open meeting law.

    Authors: Quam; Simon; Murphy, M.; Drazkowski; Winkler

    The language appears to be the same as Senate File No. 527.

    February 21, 2013
  31. David Ludescher said:


    The intent of the open meeting law is to prevent government from making decisions without public scrutiny. Without a definition of “meeting” and “open”, the League is always going to find any potential quorum of councilors as a meeting.

    The enforcement is also odd. As you note, the decision made in violation of the open meeting law remains valid (in spite of the illegality) and the councilor is punished individually. Huh??

    While I would concur that most “social media” is generally not done with the intent of violating the prohibition against secret votes, the introduction of the term “social media” adds another element of vagueness to an already vague statue. It would be much better to state why some kinds of communications (electronic or otherwise), don’t violate the “open” or “meeting” requirements.

    February 22, 2013
  32. David Henson said:

    David L, of course you are right that meeting should be defined in an open meeting law. But the public scrutiny angle sounds better than reality. I think any reasonable person would agree that more intellectual scrutiny might be applied to a topic in private than in the open – when the vested party (not the public) are packing the room. The more I learn about the open meeting law the more I believe it undermines representative democracy and is a factor in the hostility that is now commonly thought to pervade politics.

    February 23, 2013
  33. David Ludescher said:


    You make an interesting observation – that the open meeting law may result in less, not more, scrutiny of the “people’s business”. Controversial topics, like the funding for the new USBank building ( Safety Center) aren’t discussed behind closed doors; they aren’t discussed.

    February 25, 2013
  34. Griff Wigley said:

    Thanks for that link, Betsey. I was delighted to see Janalee Cooper quoted, as I know my buddy Bruce Morlan (a Bridgewater Township supervisor) has been working on this issue for a long time.

    What your reaction to the concerns cited by Rep. Rick Hansen, echoed by Mark Anfinson, a lawyer for the Minnesota Newspaper Association:

    “There’s too much room to allow members of a public body to deliberate, discuss and decide an issue outside of a public meeting,” he said. “You don’t want your council meetings, your town board meetings to be ceremonial.”

    I can see why stating how you’re going to vote on an issue outside of a public meeting is generally a bad idea but that can be done now via traditional means (newspaper column, TV/Radio comments, etc).

    If the online deliberations are public (eg, a blog discussion thread), I don’t see why it would be bad for a public official to state in a public meeting, for example, “I wrote at length about this on a blog comment last week but here’s the short version…”

    February 27, 2013
  35. Jane McWilliams said:

    If, as you say, the online deliberations are public, Griff, I don’t see it as a problem. Nor, do I think it a problem if a public official says how they will vote. What the public deserves to hear and know is what the official thinks and why – including how they will vote. Could be that a public conversation online might change that official’s mind!

    Is the issue what is a meeting? If four councilors converse publicly online and agree to vote a certain way – is that a meeting and is their agreement official?

    February 27, 2013
  36. Kathie Galotti said:

    Jane–absolutely right: “What the public deserves to hear and know is what the official thinks and why…”

    This is exactly why I have a problem with our current school board (minus Rob) who come into the meetings all voting unanimously with very, very little comment. Some of the members don’t offer any opinions ever.

    I don’t care if they meet serially with the superintendent or not, UNLESS they continue to use those meetings, as they overwhelmingly seem to be doing, to get him to tell them how to vote.

    Minus Rob again–he blogs his ideas and reaches out to parents and taxpayers. I don’t always agree with Rob, but I respect the fact that HE respects the process.

    February 28, 2013
  37. Griff Wigley said:


    I advise local elected officials to generally avoid stating how they plan to vote on an issue via any online venues. The reason is that there’s a benefit to keeping an open mind until the last minute, being willing to be influenced by your fellow elected officials, citizens who might speak at open mic, or unforeseen events.

    But one can certainly state how you’re currently thinking, why you’re leaning one way and not the other, how you’ve considered alternative viewpoints and what about them you thus far find unconvincing.

    This way, you get the best of both worlds: thoughtful online deliberation in public, while being open to being influenced both online and face-to-face.

    February 28, 2013
  38. Griff Wigley said:

    Jane, under current OML, the issue indeed is what constitutes a meeting.

    “If four councilors converse publicly online and agree to vote a certain way” as you wrote, the fear is that that COULD be interpreted as a serial meeting that’s not announced, not open to the public, and therefore illegal, for which the public officials could be punished under the law.

    So the current Bill in the legislature seems to clear this up. Your online scenario would NOT constitute a meeting, and no vote could be taken.

    February 28, 2013
  39. Griff Wigley said:

    Kathie, many elected/appointed officials are reluctant to speak publicly at an official meeting about their rationale for how they’re thinking or plan to vote. Best example: Supreme Court Justice Clarence Thomas who spoke 4 words recently, his first utterance in 7 years!

    My hope is that by changing the OML, the culture will gradually change to where public deliberation online is expected, that people who run for office who DON’T have the belief in or skill/habit of doing it regularly won’t get elected.

    February 28, 2013
  40. Kathle Galotti said:

    Saying what you think and saying how you will vote are distinct. Any school board member could (as Rob has so eloquently modelled) talk about the issues that are of top concern to them without revealing what their vote will be.

    And yeah, Clarence Thomas is not my ideal for a role model–for just about anything.

    February 28, 2013
  41. Kathle Galotti said:

    Ummmmm, Clarence Thomas has never served as an actual role model of how to behave–either while on the Supreme Court or otherwise.

    February 28, 2013
  42. Kathie Galotti said:

    Clarence Thomas is in no way my idea of a person to be emulated.

    February 28, 2013
  43. Jane McWilliams said:

    Your advice, Griff, to public officials – to keep an open mind until they hear all the evidence – is of course, sound. Saying how they’re leaning is good strategy, if not always completely frank. There may be times when a public official might be quite certain how they will vote – and no public arguments will sway them, however.

    Glad to know the bill under consideration will clarify the responsibility of public officials to the public in public online discussions. Perhaps the more citizens are engaged in discussions of public policy within the earshot (eyeshot?) of public officials, the less sway special interests may have on the policy decisions.

    February 28, 2013
  44. David Ludescher said:


    The situation that Jane describes is now and SHOULD remain an open meeting law violation (unless the meeting was noticed and an agenda was provided). That situation is no different than four councilors meeting at the Rueb. A meeting doesn’t become “public” just because it is online.

    The new problem created with online communications is that there could be a “meeting” without any councilor realizing the possibility exists. With traditional communication, such as in-person, letter, and telephone, I know who is receiving my communications.

    March 1, 2013
  45. Griff Wigley said:

    Agreed! But he’s the best example of the worst behavior.

    March 1, 2013
  46. Rob Hardy said:

    David L.: The statute (13D.06) says “Any person who intentionally violates this chapter shall be subject to personal liability…” Is it an intentional violation if, as you say, the public official doesn’t realize that the possibility of a meeting exists? Wouldn’t it have to be proved that you intended to evade the law by intentionally engaging in decision-making with a quorum of the public body?

    March 1, 2013
  47. David Henson said:

    a) If a person has been found to have intentionally violated this chapter in three or more actions brought under this chapter involving the same governing body, such person shall forfeit any further right to serve on such governing body or in any other capacity with such public body for a period of time equal to the term of office such person was then serving.

    The laws focus on “a person” seems odd as I would think a “quorum of people” would be required to violate the law together thus a court would have to remove a group of people not a person … like over half the elected city council in Northfield for example. I wonder if this has ever actually be done … seems highly unlikely.

    March 2, 2013
  48. David Ludescher said:


    If I understand the law correctly even unintentional violations are subject to personal consequences.

    Thus, the practical problem, under the Open Meeting Law, is that the public official is always on the defensive. There is no incentive to try to carry on a public debate outside of a recognized meeting.

    March 2, 2013
  49. Griff Wigley said:

    Today’s Nfld News: Proposed bill would take Northfield public meetings discussion online

    Minnesota Newspaper Association attorney Mark Anfinson said it’s “entirely sensible” to update existing law to reflect the advantages that come with modern technology. And in theory, Anfinson supports such attempts. But Dahle’s bill, even with amended language that came after a hearing this week before the Senate State and Local Government Committee, doesn’t ensure the debate remains public and in some areas is dangerously vague, Anfinson said. For example, the bill says that no vote can be taken via social media, but that’s not the only part of the political process the open meetings law seeks to ensure remains public, he said.

    “The vote by itself isn’t all that useful to people,” Anfinson said. “What you want to see is the deliberative process. That’s the essence of the open meeting law. The courts have repeatedly recognized this.” The bill also says the online discussions cannot be the primary or sole means of deliberation. But Anfinson questions what that means. “Does that mean that 49 percent of the time the discussions can be held online?” he asked. “How do you measure that? It’s impossible.” Whether it weakens the public meetings law is not the only matter of debate. Anfinson is not convinced that giving citizens another forum for discussion and feedback will increase engagement.

    March 23, 2013

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