Iron Range Resources Board could be skirting state open meeting laws

“Liaison groups” meet privately to discuss IRRRB business and meet with project applicants
by Jon Collins
Legislative Correspondent
Mesabi Daily News
3/14/2010

Bob and Pat Tammen have attended a dozen or so Iron Range Resources and Rehabilitation Board (IRRRB) meetings since Bob’s retirement in 2004.

Natives of Soudan, Minn., Pat’s a retired teacher and Bob worked in the mines. They’re both active on Iron Range environmental issues and try to keep up with current events. Often, when board meetings are held at the state Capitol rather than at the headquarters in Eveleth, they’re the only citizens in the IRRRB audience who don’t have business before the board.

But in all the hours taken up by these IRRRB meetings, the Tammens can’t recall ever hearing about liaison groups — the private IRRRB sub-groups used to share information and hold informal, private meetings.

The Tammens aren’t alone. The last official mention of liaison groups came in item 4B for an advance agenda of a meeting at the state Capitol on a chilly Feb. 18, 2009 evening — that’s when the current liaison groups were to be appointed. The official IRRRB notes show no record of any liaison group discussion.

No notes are taken, no agendas are disclosed and the public is not welcome.

The five IRRRB liaison groups hear information from people proposing projects, meet with Iron Range Resources staff and hold “frank” discussions about issues important to the region.

Minnesota’s open meeting laws are some of the strongest in the country. They’re intended to ensure that the public’s business is done openly.

Board members say they’ve been careful to make sure they don’t violate open meeting requirements.

But court decisions around the state’s complex open meeting laws have ruled that similar government groups must usually comply with open meeting requirements.

Most members say that no decisions are finalized in the meetings, although some say the groups constitute a de facto decision-making body.

The Tammens also attend St. Louis County Board meetings; compared to those meetings, the IRRRB meetings seem to fly through with relatively little debate and discussion, they said.

“I have noticed that motions are seconded and passed,” Pat Tammen said. “It’s quick, quick, quick.”

Liaison groups hear and discuss projects

There are currently five liaison groups that have six members each, mostly made up of the Iron Range lawmakers who constitute the majority of the IRRRB.

The liaison groups discuss issues important to the economic development agency, Iron Range Resources: economic development, mining, public works, Giant’s Ridge and budgets. Each group has one designated alternate.

The groups never legally constitute a quorum, or decision-forging majority, of the 13-member IRRRB.

Iron Range Resources Commissioner Sandy Layman said liaison groups started soon after she was appointed in 2003.

“[Former] board chair Tom Rukavina developed the idea of board liaison groups,” Layman said. “Every board chair since has adopted the practice […] and has found them to be of value.”

Liaison groups aren’t defined in statute, but are purely a creation of the board, Layman said.

“Liaison groups, as the board knows them, are set up to be informal discussion groups to promote communications with the commissioner and her staff,” Layman said. “They’re unlike any sort of advisory group or committee because they’re informal in nature — no decisions are made, no minutes are taken.”

Most board members interviewed for this story agreed with Berman’s assessment that the groups don’t make any actual decisions, which could potentially impact whether they are subject to open meeting requirements.

IRRRB member and state Rep. Tom Rukavina, DFL-Virginia, said the groups are a byproduct of the strange animal that is Iron Range Resources — it’s the only state agency run mostly by legislators.

“There’s no way we could function as an agency to just go to a board meeting and have 50,60, 80 different projects thrown at us without at least trying to winnow them out at an earlier time,” Rukavina said. “I’m afraid that if we didn’t have these liaison groups, things would be delayed by months.”

Board member and House Majority Leader, Tony Sertich, DFL-Chisholm, said the meetings sometimes allow board members to hear the details of economic development projects in the region without airing all the companies’ finances in public.

“We sometimes get private financial data and other information that businesses are more willing to share in a private setting,” Sertich said. “But any decision we make ultimately is in a public meeting.”

Rep. Tom Anzelc, DFL-Balsam Township, said no official votes take place, although there is “give and take” between board members and IRR staff.

“I don’t know how they arrive at what ends up on the agenda, but matters that are debated and discussed here end up on the official agenda for an official board meeting, which is a public meeting,” Anzelc said. “But to everyone who is in the meeting, we know what the decision is.”

Current IRRRB Chair Sen. David Tomassoni, DFL-Chisholm, said the board consulted with the office of the Minnesota Attorney General to ensure the groups were meeting legally.

“There’s never a quorum in any of these meetings, never more than six people,” Tomassoni said, referring to a requirement of the open meeting law that says a decision-making majority of a government body must be present in order to constitute a public meeting. “It’s in accordance with the law — we’ve checked that.”

Ben Wogsland, spokesman for the Minnesota Attorney General’s office said the agency dispenses both formal and informal advice to state agencies, but that advice is private under lawyer-client privilege. The office of the Attorney General can’t even say whether advice was dispensed or not to the IRRRB. Layman said no records of any consultation are on file at Iron Range Resources.

Most board members interviewed for this story said they were very aware of open meeting law requirements and careful not to violate them. New board members are trained in open meeting requirements by staff from the office of Minnesota Attorney General, Layman said.

“It works out pretty good because it’s educational process more than anything,” Tomassoni said. “It’s not any kind of behind the scenes bickering or wrangling that goes on, it’s just a matter of finding out what proposals are and what the commissioner is going to bring before the board.”

Open meeting laws sometimes foggy

The goal of Minnesota’s open meeting law is to ensure the public is informed about the business done in their name by government officials, according to a 2008 report from state House Research.

The purpose of the law is to “prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed about a public board’s decisions or to detect improper influences.”

There’s even a state department called the Information Policy Analysis Division (IPAD) that educates state agencies and citizens about the open meeting and public data laws, as well as dispensing decisions about these issues using court documents.

IPAD Director Laurie Beyer-Kropuenske said the law is meant to apply to all subgroups of government bodies.

A 1983 court decision, Moberg v. Independent School District 281, coined the concept that the law only applied to gathering of officials that constituted a quorum of the body.

“In setting out the quorum rule of one more than a majority, they also said that serial meetings that were meant to forge a majority in advance of a meeting could still be a violation,” Beyer-Kropuenske said. “It can still be a violation of the open meeting law if the purpose is really to avoid public scrutiny and discussion.”

And there is some grey area around whether open meeting laws apply to groups that only make recommendations or give advice.

“Our advisory decisions have gone both ways, and the case law seems to have gone both ways too,” she said. “It’s not a crystal clear area of the law.”

But Mark Anfinson, media and first amendment attorney, wrote a 2006 article for the IPAD newsletter about court rulings on so-called “serial meetings.”

Anfinson wrote that if a board’s serial exchanges “involve topics related to their duties as board members of a public body, then the open meeting law likely would be violated if the members involved in the exchange attempt to ‘fashion an agreement’ on an issue.”

It’s also likely that if officials discuss or actively attempt to persuade one another on issues within their jurisdiction, or actively deliberate on pending issues, it would violate open meeting law, Anfinson wrote.

Mike Dean, executive director of Minnesota Common Cause, said open meeting laws are meant to ensure the public’s business is done in the light of day.

“These type of open meeting laws are critical for the public to see how public bodies are making decisions,” Dean said. “The public has a right to be concerned, and a right to demand that informational [hearings] be held in public in an open and transparent manner.”

Are liaison groups illegal?

Hamline University Law Prof. David Schultz said there’s no question that open meeting law applies to the IRRRB.

“This is clearly a public body in the sense that it’s making decisions that are allotting tax dollars and making public decisions that are going to affect economic development and a host of things on the Iron Range,” Schultz said. “If they’re having meetings without agendas, without minutes, that clearly goes against, if not the express language, clearly the spirit of those acts that are supposed to provide more openness and transparency in government.”

The argument that the board’s liaison groups aren’t subject to open meeting law because there’s not a quorum present doesn’t automatically erase a groups impact on the larger board, Schultz said.

“One of the things that you’re concerned about is that even if you don’t have a quorum, you still have enough people on the board that may be making policy decisions outside of a formal board meeting,” Schultz said.

A quorum of the IRRRB is seven people, while liaison groups consist of six people. The recent February IRRRB meeting is the only one of the board’s bi-monthly meetings where where all 13 members of the board were in attendance since May 2008, meaning a six-member liaison group could have potentially dictated the vote on an issue at most of those intervening meetings.

Layman said “no business” goes on in the groups and that “it’s a way of providing some of the board members with a level of information that helps them make informed decisions when they do need to make decisions.”

She said the liaison groups sometimes hear from representatives of projects that will eventually come before the full board. Rukavina said it allows the groups to “winnow” projects down, although Layman said it was more a process of providing “feedback.”

But a 1983 Minnesota Supreme Court decision ruled that the law still applies to purely informational meetings “on matters currently facing the body or that might come before the body.”

The argument that the board doesn’t make binding decisions is analogous to the courts’ rulings that serial meetings, even through one-on-one phone calls, violate the law, Schultz said.

“You don’t actually have to say, here’s a decision that we’re going to reach — the law precludes policy discussions that lead towards arriving at a final position on a matter,” Schultz said. “Even though they don’t formally say, ‘This is how we’re going to vote on Tuesday,’ if they’re having discussions outside of public view, which are leading to the eventual adaption of policy decisions, that’s illegal.”

Secrecy shifts IRR focus

Most current members of the IRRRB defend the liaison groups and contest that they don’t violate open meeting laws.

George Perpich was the first Iron Range legislator appointed to the board. He was there when money started to flow in from the taconite production tax in the late 1970s.

“There weren’t that many board members,” Perpich said. “All the meetings were held publicly.”

The IRR’s current management structure is more appropriate for business development than development that benefits the people of the Iron Range, Perpich said. But the entire political climate was different when the IRRRB was younger.

“Things were different in the sense that you didn’t have all those lobbyists,” Perpich said. “You didn’t have all those lawyers and consultants like you do now.”

Anzelc said he’s been critical of the liaison groups since he was appointed in 2007 because they discuss the people’s business, which is funded by taconite production taxes in lieu of property taxes, without the public’s knowledge.

“The public is not in the room when we are having discussions about terms and conditions of business loans,” Anzelc said. “I’m uncomfortable about having these discussions with people who are receiving the loans without the public participating.”

Anzelc said the groups’ private dealings with lobbyists and developers contribute to the economic development agency’s declining reputation, both in the legislature and in the eyes of some Iron Rangers.

“If you follow me into the union hall in Keewatin and I started talking to the miners, the ones who make the wealth — this really irritates me, the symbolism of this,” Anzelc said, “the chamber understands it, but the damn miners who make the wealth don’t understand it and don’t get it.”

Even citizens like Bob and Pat Tammen, who are often vocal, but active, critics of state agencies, have usually found the government to be helpful when they needed information.

“It’s disappointing that we do have that tradition of state agencies that are helpful to the public, [but] that we could have someone like the IRRRB trying to bypass the public,” Bob Tammen said. “They need all the input they can get, even from people who disagree with them — probably that’s the input that’s most important.”

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