Municipal Law Alert, July 2011
In Polk County, two members of a three-person town board were prosecuted by the district attorney for violations of the open meetings law. The charges stemmed from the passing of an ATV ordinance. According to news reports, the agenda item stated, “ATV Use on Town Roads.” The topic generated controversy in the form of various town residents with distinctly opposing points of view. At the meeting, the board reviewed and passed an ordinance that had been prepared in advance by the town clerk, using other town ATV ordinances as models.
One of the local residents asked the Sherriff’s Department to investigate possible violations of the open meetings law. Two of the board members were charged with violations, and court proceedings ensued. One of the board members apparently negotiated a plea and paid a fine of $114.50. The other pled not guilty and, at trial, the court dismissed the case, finding that any violation that may have occurred was unintentional.
Regardless of the merits of the case discussed above, the incident raises two very important reminders about the open meetings law:
- Local government officials can be personally liable for discussing and taking action on items not on the agenda, or not sufficiently described on the agenda.
- The better the agenda item describes what will happen at the meeting, the less chance you and your city, village or town may be subject to attack for violating the open meetings law.
One of the main goals of the agenda requirements in the open meetings law is to make sure the public knows what will be discussed and what action their local government might take. The statute that sets forth this requirement does not create a black and white dividing line for how agenda items must be written. It merely says that the agenda must reasonably “apprise members of the public and the news media” of the subject matter of the meeting.
You don’t want to write a book about each agenda item. On the other hand, there are still some municipalities with agenda items that state something along the lines of “such matters as will come before the board.” Although a board member might argue that she’s done it that way for fifty years so it’s good enough, that kind of agenda item could get the board in hot water the next time a savvy local resident doesn’t like something the board does.
In the end, the ATV ordinance was enacted several meetings later. If the original agenda item had just said, “Discussion and possible action on Town ATV ordinance,” the town and the town board members would likely have been spared a lot of hassle and expense.
For further information on how best to write agenda items, see the article by Attorney Gary Bakke in the May 2010 edition of the Municipal Law Alert, which can viewed by clicking here.