As the use of electronic communications escalates, all school leaders—superintendents, administrators and board members alike—must consider the legal implications of sending emails or text messages to conduct public business.
The use of emails and text messages by school officials and board members to communicate with each other may raise a question about whether a “meeting” has taken place under the Minnesota Open Meeting Law and whether they have arrived at a consensus outside of a lawfully-noticed school board meeting.
A 2009 advisory opinion from the Department of Administration discussing the circumstances when email communications among a quorum of board members or a committee of board members may be an Open Meeting Law violation is particularly instructive.
In the opinion, the Commissioner addressed an email sent to board members of the Metro Gang Strike Force, which was established by the legislature to establish “multijurisdictional task forces and strike forces to combat gang and drug crime.” Following an inquiry from the Minneapolis Star Tribune about an editorial the newspaper was preparing, a Minneapolis deputy police chief sent an email with an attached letter to all 13 Strike Force advisory board members as “a matter of high importance” and asked them to review the letter. The email stated “[t]here is some critical information that I think can help prevent further issue with [task force] operations if we act quickly enough.” The deputy police chief’s letter raised several issues and stated “I would like the board to consider issuing a statement similar to” a paragraph he drafted and included. At least seven advisory board members responded to the deputy police chief with comments about the letter and sent copies of their responses to all board members. Later that same day, the advisory board chair issued a press release containing substantially the same content as that proposed in the letter attached to the email sent by the deputy police chief and emailed the board members about the action that had been taken.
The Open Meeting Law requires that “[a]ll meetings, including executive sessions, must be open to the public.” Minn. Stat. § 13D.01. Although the statute does not define “meeting,” the Minnesota Supreme Court has described the “quorum rule” as follows:
“Meetings” subject to the requirements of the Open Meeting Law are those gatherings of a quorum or more members of the governing body . . . at which members discuss, decide, or receive information as a group on issues relating to the official business of that governing body.
Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983).
Applying the quorum rule to the facts of the case, the Commissioner found that the advisory board’s actions violated the Open Meeting Law, and rejected arguments that the press release was part of the advisory board chair’s day-to-day duties and that he was merely disseminating information to board members.
In support of the opinion, the Commissioner stated that “[s]even of the  Advisory Board members, more than a quorum, expressed their opinions to all other Board Members about whether the Board should act, what action it should take and who should act on the Board’s behalf. . . . Here, a quorum of the Advisory Board, in addition to receiving information, commented on and provided direction to the [chair] on a matter relating to the official business of the Board.”
The Commissioner acknowledged that Minnesota courts have not ruled definitively on the issue, but concluded that the actions of the advisory board constituted a “meeting” that was required to be public under the Open Meeting Law. The Commissioner did say that it would have been permissible for the deputy police chief to send his email and suggested letter only to the board chair, and for the board chair to have issued the press release “without consulting a quorum of the Board.” The Commissioner also stated that “one-way communication between the chair and members of a public body is permissible, such as when the chair or staff sends meeting materials via e-mail to all board members, as long as no discussion or decision-making ensues.”
In summary, emails or text messages from the superintendent or the school board chair to other board members do not violate the Open Meeting Law if the recipients do not respond. However, a “meeting” occurs when a majority or quorum of school board members use email or text messages to discuss, or express approval or disapproval of, matters that are before the board or likely to come before it.
To avoid an Open Meeting Law violation, school officials and board members should never use “reply all” or engage in back-and-forth exchanges of viewpoints in emails or text messages to other board members.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Greg Madsen is an attorney and shareholder at Kennedy & Graven, Chartered, who practices education and employment law, and is certified by the Minnesota State Bar Association as a Labor and Employment Law Specialist. For more information, please contact him at (612) 337-9305 or http://www.kennedy-graven.com.
© Gregory S. Madsen (2020). Used by permission.