Day 8: The Supplement

A few days passed before I could get an answer about the minutes that the Critical Area Commission was or was not keeping. When I got the "Final Report" of the Panel, I added this [the text of the Final Report will be put here, as soon as I figure out how to post a file, for the curious].

To: Open Meetings Compliance Board
via e-mail/W. Varga

Mr. Varga,

this replaces the email of August 1 -- a supplement to my Critical Area Commission complaint filed July 30. Please excuse any spelling errors as I am between deadlines.



After July 30, I attempted to find out how minutes were kept and when they would be available and I did not have all the information from the CAC by Aug. 1.

At the time all I has was from Mary Owens of the Critical Area Commission, who provided the following comment:

Commission staff do not prepare minutes from panel meetings. Our short time frame for reviewing amendments simply doesn’t allow it. ... There will be a Panel Report distributed tomorrow afternoon (after the morning Panel meeting) that summarizes the Panel’s discussions from both days ...

However, I did not receive a copy of the Panel Report until today (Monday 8/6). The report is attached. The question is whether it serves the purpose of minutes, and whether the procedures the CAC has used in the Report violate the law.

Minutes Requirements:

The Act requires that minutes be kept. It may be that a "Panel Report" generally satisfies the minutes requirements though not called "minutes."

Disclosures in Minutes:

The Act requires certain public disclosures when closed sessions are held by a public body; the information is to be included in the minutes of the next regular meeting of the public body.

In the case of this Panel, the closed "Legal Advice" session was held on July 30. The meeting was adjourned to be continued on August 1. Considering the breadth and depth of the Panel Report, it would be logical for the information on the July 30 closed session to be included. As far as I am aware, there was no closed session on Aug. 1. However, if there was, I believe it violated the Open Meetings Act. The CAC should clarify this question.

Panel Report:

The Panel Report contains no mention of the closed session held 12:15-12:45 p.m. on July 30. I need not repeat the minimum disclosure required under the Act.

I am under the impression, based on the Panel discussion following the closed session Monday, that more than a legal Q&A went on behind closed doors. The Panel Report gives me no information with which to try and reach a conclusion, and in fact if the Panel Report is taken at face value, the Panel never had a closed session.

As I understand it, the Panel Report is presented to the full CAC and is used in the full commission's deliberations. Information in the Report is used to determine how the full CAC votes. And I am told that it is rare for the full CAC to do anything but ratify the Panel recommendation. I believe it taints the CAC decision in this case (and in all others where unreported closed sessions formed part of a Panel meeting) for the full CAC to accept what is in fact a report created by an illegal process.

If the CAC thinks of each Panel Report as minutes, it broke the law by failing to detail the closed session.

If the CAC does not think of each Panel Report as minutes, it broke the law by failing to keep minutes and failing to disclose certain information about the closed-door session. It may also be breaking the law by failing to adopt minutes that comply with the Act and make minutes available to the public.

Of course, it is possible that CAC has some other procedure in place.

A brief search of the CAC Web site does not reveal any explanation of the minutes procedures CAC follows or how it makes them accessible. As a result, I can't figure out which of the two possibilites CAC abides by, or whether there's a third policy in effect. The OMCB has ruled that a Public Information Act request is not necessary to obtain documentation generated when a public body complies with the Open Meetings Act. Does the CAC wait until a PIA request arrives to release minutes? I do not know.

I have not received a reply to a email sent to Shirley Massenburg, CAC Administrator, asking for clarification on where minutes from the full CAC meetings are and how they are kept. They are not on the Commission's Web site; neither are the Reports; this appears to be very poor public policy.

I would appreciate if the OMCB could clarify this and perhaps make suggestions to the CAC on better ways to allow the public access to their proceedings.



-- Craig O'Donnell