This month, the Duluth School Board composed a statement in response to the death of George Floyd in Minneapolis. Published as a commentary in the News Tribune and then posted on the School Board’s homepage, the words were as timely and welcomed as they were poignant and meaningful.
The statement’s creation, however, appears to have been in violation of Minnesota’s open-meeting laws.
Board Chairwoman Jill Lofald and Vice Chairwoman Kelly Durick Eder “crafted (the) statement and then (emailed) it to the board and asked them if they could support it,” Lofald said in a phone interview last week with the News Tribune Opinion page. The other School Board members then signed off with their support, also via email, she said.
Such emails amongst members of elected bodies, however, can only go one way without violating the law. Any back and forth of emails involving a quorum of elected officials is a clear violation of state statute, according to Mark Anfinson, an attorney for the Minnesota Newspaper Association and an expert on public-access and open-meeting requirements.
“It’s a form of conducting business,” Anfinson told the Opinion page. “That’s definitely School Board business, and what is allowed in the open meeting law in terms of emails is strictly one-way messages, which commonly will come from the superintendent to the members, saying, ‘Here is a bunch of information for our upcoming meeting, please read it.’ That’s perfectly OK. … It’s the exchange involving a quorum” that’s not OK.
“They shouldn't be doing this,” Anfinson further said. “The problem is once you go down that path, it’s so convenient to just shoot a few emails back and forth and come to consensus. It hardly ever stops at one instance. It’s so tempting.”
Lofald acknowledged the School Board has exchanged emails this way to formulate other joint statements. She cited as examples statements the board made in support of gun safety this summer and Mental Health Awareness Month in May.
Lofald said she consulted with the Minnesota School Board Association about using email between board members in a way that doesn’t violate state statutes meant to ensure open and transparent government. She said she was told that “as long as it was something that was an issue that didn’t need to be voted on,” it wasn’t a violation.
The association official who Lofald said she talked to didn’t return a phone message last week from the News Tribune Opinion page.
Regardless of any advice Lofald was given, the position is in error, according to Anfinson. He cited the state Supreme Court’s ruling in St. Cloud Newspapers, Inc. v. District 742 Community Schools, which made “clear that even if no voting occurs or is necessary, the (open meeting law) still applies,” he said.
School Board members owed it to their constituents to act quickly to put out their statement, Lofald said in explanation of why she pursued the exchange of emails rather than bringing the statement to a School Board meeting.
“This came together (in response to) the community. We got emails that said, ‘Where are you? Your voice, your lack of voice, is deafening,’” she said.
As violations of the open-meeting law go, this one wasn’t the most egregious. And the board’s statement was a timely contribution to a worthy public conversation.
“Our children are watching as we react to the death of Mr. George Floyd,” it read, in part. “We must remember that many in our community, especially our children, are grappling with the fear they have just because of the color of their skin, and it is critical that we as elected officials continue to commit ourselves to equity and justice in the systems in which we have power.”
Crafting and deciding on the statement was still public business, however, and it needed to be done in a public setting rather than via the secrecy of private emails. As Anfinson said, using any communication that avoids the public and the scrutiny of constituents is “an extremely dangerous precedent. … I don’t know if I’d call this trivial. I wouldn't call it the most serious violation that I've ever heard of, but they shouldn’t be doing it.”
The public’s business needs to be conducted in public. Always. We deserve to know, need to know, and have a right to know what our elected bodies are doing.