Focus on New Laws: Pandemic Fix and Technological Updates to the Open Meeting Law

May 10, 2021

Changes to the Open Meeting Law will help as cities transition from fully remote meetings to in-person meetings due to COVID-19.

A new law has been enacted that, among other things, provides a pandemic fix to the Open Meeting Law by removing the cap from the medical exception. This means council members will be able to attend in-person meetings remotely more than three times for medical reasons during the COVID-19 pandemic.

Chapter 14, which was signed into law by Gov. Tim Walz on May 6, also includes technological updates and other changes to the Open Meeting Law. It is important to note that the changes in the law have various effective dates.

Medical exception changes

When (1) an elected official has been advised by a health care professional that they should not be in a public place for personal or family medical reasons, (2) a state of emergency has been declared under Minnesota Statutes, section 12.31, and (3) for 60 days after the removal of the declared emergency, the elected official is not required to make their remote location “open and accessible to the public.” However, this allowance is only allowed three times in a calendar year. This session law (which means this only applies to the current COVID-19 pandemic) removes this cap for the medical exception between Jan. 1, 2021 to July 1, 2021.

In cities that are holding in-person meetings, this will provide flexibility for elected officials who have medical concerns for themselves or their family members. They will be able to continue to participate in meetings from home without concern that they are violating this statutory cap through July 1. After July 1, remote participation under the medical exception is subject to the three-times-per-calendar-year cap.

For example, an elected official who has an unvaccinated child who is at high risk of contracting COVID-19 may feel uncomfortable with attending in-person city council meetings. If they would like to participate remotely from home (thus their location is not open and accessible to the public), they can do so as many times as they would like before July 1 as long as they meet the other statutory requirements.

After July 1, remote participation from home will be limited to three times for the rest of 2021 and only within 60 days of the lifting of the state of emergency.

If the state of emergency is still in place after July 1, this elected official can only participate remotely from home three times before needing to participate in person or from a location that is open and accessible to the public (e.g., public library, etc.).

If the state of emergency is removed before July 1, the elected official can still use the medical exception for 60 days after this removal and is unlimited until July 1.

Remote locations are not required to be disclosed under the medical exception starting Jan. 1, 2021. The effective date is retroactive for meetings that occurred on or after Jan. 1, 2021.

Location disclosure no longer required

Minnesota Statutes, section 13D.02 provides military and medical exceptions to the Open Meeting Law. When government entities are holding in-person meetings and there are elected officials who are unable to attend in person for one of these reasons, these elected officials do not need to make their remote location “open and accessible to the public” if they meet the other statutory requirements.

One of those requirements was to notice these remote locations. With this change in the law, there is no longer a requirement to include locations under the military and medical exceptions.

The effective date for this provision was May 7, 2021.

Journal of votes

At the beginning of 2021, there was an advisory opinion from the Data Practices Office that found meeting minutes did not satisfy the statutory obligation in Minnesota Statutes, section 13D.01, subdivision 4, to have a journal of votes. The law was amended to clarify that meeting minutes that include votes do satisfy this requirement.

The effective date for this provision is Aug. 1, 2021.

‘Interactive technology’ definition

Instead of varying technology defined terms throughout the Open Meeting Law (formerly “interactive television,” “other electronic means,” etc.), the law provides a new definition. “Interactive technology” means a device, software program, or other application that allows individuals in different physical locations to see and hear one another.

This definition only requires government entities to provide the ability for the public to hear and see, but does not require that the public actually be able to hear and see, for example, if someone has a bad internet connection. (It is important to note that there are other areas of the Open Meeting Law that may explicitly require hearing and seeing of elected officials, such as Minnesota Statutes, section 13D.02.)

The effective date for this provision is Aug. 1, 2021.

Free remote monitoring for the public

When government entities were previously holding remote meetings, the law allowed them to charge a member of the public for an additional connection to monitor the meeting. The law no longer provides this allowance.

With changes to technology, government entities agreed that there was no longer a need to charge the public for this. For example, cities do not need to charge for public attendance when a city meeting is held via Zoom or WebEx.

The effective date for this provision is Aug. 1, 2021.

Public comment periods

Before COVID-19, conducting a meeting under Minnesota Statutes, section 13D.021 for a health pandemic or declared emergency under Minnesota Statutes, chapter 12 was typically for a quick meeting to address things like tornado damage or frozen power lines.

Given the length of the current health pandemic, some government entities were holding a number of consecutive meetings remotely, which necessitated figuring out what to do with public comment periods.

The change in the law now requires that if it is the government entity’s practice to offer a public comment period at in-person meetings — to the extent practical — government entities must also allow the public to comment from a remote location during the public comment period of the meeting.

The effective date for this provision is Aug. 1, 2021.

Stakeholder involvement

The League, along with state agencies, counties, townships, and school districts, worked with open government advocates to address these issues.

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