Ruling: Thomson Township Board broke state open meeting law

The Thomson Township board of supervisors violated open meeting law in September when it used closed session to trim candidates for appointment to the board, the state Department of Administration ruled last week.

“The board did not identify any other provision within the (open meeting law) or any other statute that would permit it to close a meeting in this situation,” wrote commissioner Alice Roberts-Davis in her advisory opinion. “Therefore, the board did not comply with (open meeting law) when it went into a closed session to review applications for a board vacancy.”

The opinion had been sought by Pine Knot News editor Jana Peterson in a letter to the Department of Administration, which has oversight of data practices throughout the state, including open meeting law.

The newspaper financed the $200 review, and first reported the suspected violation of open meeting law with a story in its Sept. 23 issue.

“This was a situation we could not ignore, because it could have set a terrible precedent,” said Peterson, adding she was pleased by the ruling. “Applicants for a governing body like this must be evaluated publicly, not behind closed doors. In the future we hope the township and other local elected bodies will know better.”

In a statement supplied to the newspaper, Thomson Township officials fell short of accepting full responsibility.

“The town board believes very strongly in transparency and open meetings, and at the same time believes private data should be protected as provided under the law,” the board statement said, adding that the state reached “conclusions with which the town board does not entirely agree.”

The town board said it would “honor” the advisory opinion by conducting a special session this week to discuss how to proceed. Any results of the meeting scheduled for Thursday came too late to be included in this week’s Pine Knot. The newspaper has requested an audio recording of the closed meeting, but township officials had not complied by Wednesday’s deadline.

Last week, the board chose David Sunnarborg to replace former supervisor Jason Paulson, who resigned in August. Sunnarborg and two others emerged as candidates for interview on Sept. 8, the day the board went into closed session to reduce its applicant pool from six to three.

“The language (of open meeting law) does not allow a public body to close meetings to generally discuss personnel issues, such as hiring or appointment decisions,” Roberts-Davis wrote in her opinion.

Open meeting law limits boards to using closed sessions to evaluate the performance of an individual subject to its authority. Those individuals also must be named prior to the closed meeting.

In the township board’s instance, neither of those conditions were met. The agenda for the Sept. 8 meeting closed the session under the generic heading of “personnel.”

The ruling from the Department of Administration does not come with a penalty. It is an advisory ruling, aimed at making a governing body reflect on its behavior.

“It’s situations like this that the opinion process was designed for,” Minnesota Newspaper Association attorney Mark Anfinson said. “I suspect the opinion will cause the board to be a bit more careful in the future.”

Anfinson added the opinion has the effect of reminding other public bodies that open meeting law needs to be complied with.

“Inventing implausible interpretations of the law to justify a desire to make decisions in secret, as the town board did here, doesn’t fly,” Anfinson said.

In addition to Sunnarborg, Gary Bonneville and Eric Rish were also interviewed by the board. Those interviews were conducted last month in an open session of the board.

Meanwhile, Darla VanHeerde, John Bergman and Dan Belden were denied interviews and dismissed during the closed session at the heart of the state’s ruling.

At the time, township attorney William Helwig told the newspaper the township believed applicants were protected under federal data privacy law, arguing that identities remain private until applicants were evaluated and considered finalists for an appointment.

“‘Finalist’ means an individual who is selected to be interviewed by the appointing authority,” Helwig said in September. “The open meeting law allows a public body to close a meeting to evaluate an individual.”

The state’s open meeting law does not make a distinction between applicants for a public body and finalists. When the city of Duluth undertook recent appointments for its city council, all applicants appeared before the council in open, public meetings.

Publicly elected boards often appoint replacements in the event of a resignation or death of an officeholder. Appointments can be made in lieu of a special election or sometimes preceding one, depending on a municipality’s charter. In this case, Paulson had resigned after the filing period for November’s election. Sunnarborg will serve as an appointee through 2024.