DOCS-#229901-v1-OTSEGO_COUNCIL_MEMBER_TRAINING_2024
Dave Kendall, City Attorney
Legal Tips for Elected Officials
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Overview
Open Meeting Law
Data Practices Act
Gift Law
Conflict of Interest
Land Use
Social Media
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OPEN MEETING LAW
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Open Meeting Law
Purpose
Prohibit actions from being taken at a secret meeting where public cannot detect improper influences
Ensure the public’s right to be informed
Gives the public an opportunity to present views
A meeting exists when a quorum of the City Council is together and:
Makes a decision concerning city business; or
Discusses city business; or
Obtains information on city business
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Notice
How much is required?
Regularly scheduled meetings on your adopted meeting schedule require no additional notice
Special meetings require mailed and posted notice at least 3 days before the day of the meeting
Emergency meetings require as much notice as possible. However, what constitutes an “emergency” is narrowly defined and this provision is rarely used.
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Exceptions
Must be closed to discuss:
Allegations or charges against an employee
Data that is certainly not public
May be closed to discuss:
Employee performance
Attorney-Client privilege
Purchase or sale of property
Security data
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Atypical Violations
Serial communications of a quorum of committee members in any format will constitute a meeting and is prohibited
Email
Phone Calls
Letters
Chance or social gatherings are not considered meetings
However, Council Members may not use the guise of a private or social gathering to discuss official business
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Closing a Meeting
Start at open meeting
Announce basis for closing meeting
Describe subject to be discussed
Close by majority vote
Record closed meeting
Except for meetings closed for Attorney-Client privilege
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DATA PRACTICES ACT
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Overview of Data Practices Act
Information you create or receive as an elected official or employee is considered government data
All government data is public unless it is classified as nonpublic or protected nonpublic, or with respect to data on individuals if it is classified as private or confidential
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GIFT LAW
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Gifts
“An interested person may not give a gift or request another to give a gift to a local official.”
Local Official is elected or appointed official of the City
Including Commissions and Boards
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Interested Person
A person who has a direct financial interest in a decision that a local official is authorized to make
Including anyone who may provide goods or services to a city, such as engineers, attorneys, financial advisors, contractors, or sales representatives
Every resident of the City and anyone doing business within the city or hoping to do business in the City is potentially an interested person
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What is a “Gift”?
Money, property, loan, forgiving a debt, or a promise of future employment without the giver being paid equal value
Exceptions:
Lawful campaign contributions
Services to an official in the performance of official duties
Services of an insignificant monetary value
Plaques or mementos recognizing service
Trinket or memento costing no more than $5.00
Informational material of unexceptional value
Food if you appear to make a speech
Gifts given because of membership in a group, a majority of whose members are not local officials
Gifts by family members
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Gift Law Recommendations
If you want the item or service, pay for it at fair market value
If you want to attend the event, pay for it and the lunch
If the gift is more general, have the City accept the donation on behalf of the City
Contact City Attorney with any questions
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CONFLICTS OF INTEREST
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Conflict of Interest
Occurs when a council member has a personal or financial interest in a decision about which he/she is authorized to make as a council member
With limited exceptions, a council member may not have a personal financial interest in a sale, lease, or contract with the City.
Any council member who has a personal financial interest in a non-contract action is disqualified from participating in the action
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Statements that Indicate Bias
If a councilmember expresses an opinion prior to the issue being before the council
Avoid any appearance you have prejudged the issue
If such statement indicating bias has been made, then a conflict of interest exists
A biased councilmember can make a council’s decision arbitrary and in violation of Constitutional Due Process
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What is NOT a Conflict of Interest?
There is no personal interest in adopting a zoning ordinance or amending a comprehensive plan amendments that affects all property owners
Church membership not a disqualifying interest
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What to do if a Conflict Exists
If you have an actual or potential financial or personal interest in a decision to be made:
Disclose the conflict
Abstain from voting
Do not participate in the discussion
Unless necessary, avoid even the appearance of a conflict
If you have any concerns, consult the City Attorney’s office
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Responsibilities of Public Office
The City Code of Ethics states in 1-10-2:
Public officials hold office on behalf of the public.
They are bound to uphold the Constitution of the United States of America and the Constitution of the State of Minnesota.
Public officials must carry out impartially the laws of the Nation, State, and City in fostering respect for all government.
They are bound in their official acts to the highest standards of morality, and to discharge faithfully the duties of their office.
Public officials shall be dedicated to fulfilling the responsibilities of their office.
They shall be dedicated to the public purpose, and all programs developed by them shall be in the community interest.
Public officials shall not exceed their authority or breach the law or ask others to do so.
They shall work in full cooperation with other public officials and employees unless prohibited from doing so by law.
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LAND USE
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Pyramid of Land Use
City has the most discretion at the bottom of the pyramid and the least at the top
Red: Administrative, no discretion
Yellow: Quasi-judicial, limited discretion
Green: Legislative or policy-making, so great deal of discretion
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Quasi-Judicial Decisions
Standards that courts look for in quasi-judicial decisions:
A full and fair hearing;
Decisions made on substantial evidence in the record; and
Findings based on the record.
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SOCIAL MEDIA
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Social Media Use as a Public Official
As an elected official, your communications are subject to different standards than a member of the public.
This includes your use of social media
The rules depend on what you post about, not which account you are using
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Social Media and the Open Meeting Law
Public officials discussing official business is a “meeting” under the OML.
Can be sanctions for meetings without proper prior notice
Social media presents a particular risk of “serial meetings”
Where two members discuss official business, then later one of the members talks about it with a third member
Even though there was never a time where a quorum discussed business at the same time, because the discussion involved three members it is still a “meeting”
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Social Media and the Data Practices Act
“Government data” includes anything produced by public officials acting on official business, regardless of source or origin.
Personal texts, emails, social media posts, etc. can become government data if discussing official business.
The texts, emails, or posts could then be subject to data requests, and disclosed to the public.
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Social Media and the Constitution
Electronic communications, including social media use, is “speech” that is protected by the First Amendment.
Government restriction on speech violates the First Amendment and can give rise to lawsuits.
Courts have held that “government restrictions on speech” can include an official account blocking an individual or deleting comments on social media.
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Constitutional Violations
In a recent Federal Court of Appeals case out of Missouri, Felts v. Green, the court held that the president of the St. Louis Board of Aldermen (similar to the city council) violated
the First Amendment by blocking an individual on Twitter for making posts criticizing his policies.
The city was liable for the violation even though the president later agreed to unblock the individual.
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What is an Official Account?
Constitutional violations occur when an official government account blocks an individual or deletes comments.
What makes an “official” account is currently an open question, with two cases currently undecided before the United States Supreme Court:
O’Connor-Ratcliff v. Garnier: A school board member in California created an official campaign Facebook page. However, after she was elected, the member continued to use the “campaign”
page for official business. Two parents made repeated posts criticizing the member’s policies and choices, and the board member blocked the parents. The 9th Circuit found that because
the page was “fairly attributable to the government” and the block was unconstitutional.
Lindke v. Freed: The city manager of a city in Michigan maintained a personal Facebook page originally created while he was in college, but occasionally posted about official actions
and city information. After a citizen made several posts on the page criticizing how the city handled the COVID pandemic, the city manager blocked the citizen. The 6th Circuit held
that the page was not an official government page because it was a privately made account that was not operated as part of the manager’s official duties as a government employee.
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What is an Official Account?
It is not clear how these cases will be resolved or how they will apply to city council members
However, courts have so far applied what is called a “functional approach”
A court will look to how an account has been used, not who owns it or what it is called
Your personal accounts could be an “official account” if you use it to discuss official business
The open question is currently how much official business is required to make an account “official”
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Can I Ever Block Someone?
There are limited times where it is constitutional to block a user or delete comments.
This must be done for violating clear expectations, and without regard to the viewpoint expressed
You cannot block someone for criticizing your policies, no matter how strongly you disagree or believe the criticism is incorrect
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Can I Ever Block Someone?
Generally, blocks that have been upheld involve threats, profanity or similar
For example, deleting harassment does not violate the First Amendment.
Each of these situations is extremely dependent on the specific facts involved. Please contact the City Attorney before acting to block someone on social media.
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Best Practices
Create an official account for public matters.
This will keep criticism away from you personal accounts
A designated official account has the least ability to block a user or delete comments
If you want to keep a social media account private, act to do so.
Do not discuss official business on the account
Set the account to “private”
Remember that people can screenshot and share any post
Assume that all social media posts will be made public
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QUESTIONS?
David S. Kendall, City Attorney
Campbell Knutson, P.A.
Phone: 651-234-6207
Email: dkendall@ck-law.com
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