In late February, the St. Paul Port Authority Board of Commissioners met to select a new president.
The authority does a lot of things, but its most prominent role is to serve as the city’s economic development agency: It has worked on deals to renovate the closed Macy’s store in downtown; to secure a Major League Soccer franchise in Midway; and to find new uses for an old 3M headquarters.
The port had been looking for a new leader since Louis Jambois announced last fall that he planned to retire. By port authority standards, the meeting was a sell-out, attracting a large crowd to its downtown St. Paul headquarters.
But when the time came for the board to discuss on the appointment, there was no discussion at all.
As Nneka Morgan, the board vice chair who chaired the committee charged with finding a new leader, explained the process, a single sheet of paper was placed on the table in front of each board member. At Morgan’s insistence, the sheet was placed face down. Board members were instructed not to turn it over until she directed them to.
“We have had a closed process the entire time, so we had a very, very confidential process,” Morgan told the commissioners.
When board members were finally allowed to turn over the sheet of paper, they found information on a single person.
“We decided on the candidate in front of you: Mr. Lee Krueger,” Morgan said.
A motion was made. A board member asked a single question. And then Krueger was appointed unanimously. There was some applause, and even some cake. But no public comment.
It was quick, if not quite transparent. Though Krueger is a known entity, having served since 2012 as the authority’s senior vice president of real estate and development, wouldn’t the board want to interview the sole finalist presented to them, given that choosing a president is perhaps the board’s biggest decision?
Not really. “We were very supportive of Lee,” said port authority Board Chair Lee Melander. “And the response I’ve gotten from the community has been overwhelming, which to me indicates the selection of a successful candidate who has a tough and interesting job.”
What about interviewing other candidates?
Nope. “We empowered the selection committee to be our eyes and ears,” said Melander, who noted that the process used to select Krueger was the same one used to hire Jambois eight years ago. “We trusted their judgement and I can tell you, in fact, if there was an issue we would have had a lively debate.”
And it was all, at least according to the Minnesota courts, legal.
A handy guide to making your meetings secret
How, exactly, is that possible?
To explain that, we have to go back in time a bit. It turns out that Minnesota was an early adopter of what are collectively called open meeting laws. The state’s first such statute was enacted by the Legislature in 1957, aimed at giving the public a way to detect improper influence over elected officials, to assure their right to be informed, and to give them an opportunity to present their views.
Then, in 1973, the law was expanded to cover nearly all state and local boards, commissions, councils and committees thereof. And in 1983, the Minnesota Supreme Court ruled that the law is to be applied in favor of public access, with only limited exceptions.
But like most laws, how things work in the real world is a matter of both what the statute says and what the courts have ruled it means. Minneapolis attorney Mark Anfinson, who is writing a legal handbook on open meetings in Minnesota, said the sum of the law is about half of each. And figuring out whether a government entity followed the law — or not — requires a reading of case law as well as the statute.
But rather than parse legal precedents to explain how entities like the Port Authority are able to effectively get around the state’s open meeting laws, we thought we’d take a different approach.
In honor of national Sunshine Week, we present this handy guide — a simple, three-step manual for making decisions in secret, brought to you by Minnesota’s courts. In fact, if they so choose, those responsible for some of the state’s most high-profile job vacancies — superintendent of Minneapolis Public Schools or St. Paul Police chief — could use a similar template to make the hires mostly outside the public view.
1. Create a special committee
In 1988, the University of Minnesota was in need of a new president, so the board of regents decided that an advisory committee should be created to search for candidates and make recommendations to the ruling board. Professors, staff members and students were selected to serve but no regents were involved. A few early meetings were open, but then the advisory committee retired to secret sessions.
The Minnesota Daily, the school’s student newspaper, brought suit to force the meetings to be re-opened. They lost. The court of appeals found that since the advisory group wasn’t the decision maker — and because no decision makers sat on the committee — it wasn’t governed by the open meetings law.
“The presumption of openness is not absolute, and it may be outweighed by other concerns,” wrote Judge D.D. Wozniak, who went on to write that “the [Minnesota Supreme Court] has endorsed a balancing test between ‘the public’s right to be informed’ and its ‘right to the effective and efficient administration of public bodies.’”
The appeals court also said that the right of the public to be heard would be satisfied later in the presidential search — that its ruling should not be read to mean that an entire search process could be done outside the public eye.
“The regents cannot avoid public comment of a controversial matter by delegating the choice of a president to (the advisory committee),” Wozniak wrote.
The court was satisfied that the committee wouldn’t simply recommend a single finalist “thereby effectively closing the entire selection process” because university lawyers assured the judges that multiple finalists would be interviewed in an open meeting.
2. Make sure that search committee doesn’t include too many decision-makers
Even though the Minnesota Daily case suggested that the presence of members of a governing body on a committee might make it subject to the state’s open meetings law, that was changed five years later. In Sovereign v. Dunn, an appeals court ruled that just because a meeting attended by public officials discussed public issues, that didn’t necessarily make it governed by the open meetings law.
The case stemmed from discussions between officials from Lake Elmo and neighboring Oakdale over a land dispute. In an attempt to resolve disagreements, officials — both appointed and elected — from the two cities had a series of informal meetings. After a resolution was agreed to and approved by both cities, a local resident filed suit, challenging the decision and claiming that the Lake Elmo officials were essentially exercising a function of the government in the informal meetings and therefore subject to the state’s open meeting law.
Not so, ruled the state appeals court. “We hold that a gathering of public officials is not a ‘committee, subcommittee, board, department or commission’ subject to the open meeting law unless the group is capable of exercising decision-making powers of the governing body,” wrote Judge Daniel Foley.
And what about the concern that a government body might use a search committee as a tool to keep a process secret — or that the search committee might thwart open discussion and deliberation among the governing body by presenting a single “finalist?” That was also done away with due to the Sovereign v. Dunn ruling.
3. Make sure there is just a single finalist
After the truncated meeting that ended with Krueger’s appointment as president of the port authority, MinnPost filed a request for documents under the state Data Practices Act, which guarantees public access to most government records. The letter asked the authority to provide data about other potential candidates for the job.
During the Feb 23 meeting, Morgan was careful to present a single finalist to her fellow commissioners. While she and the other four members of the search committee interviewed many candidates — perhaps as many as eight — the port maintains that those interviews don’t trigger the DPA because the search committee is not “the appointing authority” and because those candidates were not considered “finalists” under the statute.
Since Krueger was the only finalist presented to the board, his is the only résumé that must be released under the law.
In response to the DPA request by MinnPost, port authority staff eventually released four résumés, including Krueger’s. But it did so without conceding that it was required to release the information.
(For the record, the other applicant resumes released by the port authority were: Todd P. Hurley, director of the St. Paul Office of Financial Services; Christopher Eng, vice president of public finance for Northland Securities; and Barbara L. Sporlein, deputy commissioner, Minnesota Housing Finance Agency.)
In fact, the port maintains that its search committee wasn’t governed by the state’s open meetings laws or the data practices act at all. Melander said the meeting where Krueger was hired wasn’t the place for public comment but was for board discussion only. “It’s a discussion that certainly the public can have down the line,” he said.
Was the search committee empowered by the board to essentially make the decision on the port’s new president? That was how Melander described the board’s charge to the commission. And other board members said the expectation was that a single name would be brought forward for approval.
In describing the work of her committee, in fact, Morgan didn’t shy away from using the language of decision-making: “…the person we have chosen…,” “…the selected candidate…,” “…we decided on the candidate before you…,” “…the reason we selected this candidate….”
And this: “This is the candidate we unanimously decided on at the committee.”
The fact that all of the interviewing, discussion and deliberation was done behind closed doors does not seems to matter, at least according to Minnesota’s courts — as long as the port authority staff and board carefully followed steps 1, 2 and 3.