Southern Minnesota Municipal Power Agency v. Boyne

GARDEBRING, Justice

(dissenting).

I respectfully dissent from the majority’s conclusion today because neither the statutory grant of authority to the Southern Minnesota Municipal Power Agency nor the provisions of the state’s Open Meeting Law and Data Practices Act provide for such a result. At the heart of the majority’s analysis is a mistaken view of the essential nature of a municipal power authority.

The majority argument begins with the statutory language granting SMMPA and other municipal power authorities “any and all powers which might be exercised by a natural person or a private corporation in connection with similar property and affairs.” Minn.Stat. § 453.54, subd. 21 (1996).4 From this, the majority concludes that, because private corporations may have closed meetings and keep internal information secret, SMMPA may proceed in the same way. However, SMMPA clearly does not have all of the powers of a business corporation formed under the laws of Minnesota, nor does it conduct its business as a private corporation does. First, a municipal power *367authority authorized under chapter 453 is not created by private individuals for private ends. See Minn.Stat. § 302A.101 (1996). Rather, it can be formed only by the acts of other units of government — cities—which are authorized to join together to secure “an adequate, economical, and reliable, supply of energy.” Minn.Stat. § 453.51 (1996). No private business objectives are served by a municipal power agency, as is the requirement for a business corporation. See Minn. Stat. § 302A.011, subd. 8 (1996). Further, no one, including the majority, would argue that SMMPA can acquire capital for its busi-, ness purposes through the issuance of stock, as can a business corporation. See Minn. Stat. § 302A.401 (1996). While a business corporation is owned only by those who choose to invest equity, a municipal power authority is owned by all the citizens of the communities which join together to create it.

These differences illustrate a simple point — while SMMPA is like a private corporation in some respects, in other respects it is quite different. And it is those latter characteristics that make it subject to the provisions of both the Open Meeting Law and the Data Practices Act. A municipal power agency can be formed only by the actions of “two or more cities” and “is created and incorporated * * * as a municipal corporation and a political subdivision of the state, to exercise thereunder a part of the sovereign powers of the state." Minn.Stat. § 453.53, subd. 1 (1996) (emphasis added). Further, a municipal power agency is “deemed to be performing an essential government function.” Minn.Stat. § 453.54, subd. 1 (1996) (emphasis added). The majority chooses to overlook these critical characteristics of SMMPA — that it is a political subdivision of the state, exercising the sovereign powers of the state, performing an essential government function — things that surely cannot be said of a private corporation.

Furthermore, these statutorily-defined characteristics of SMMPA bring it squarely within the reach of both the Open Meeting Law and the Data Practices Act. The Open Meeting Law provides that:

Except as otherwise expressly provided by statute, all meetings, including executive sessions, of * * * the governing body of any school district however organized, unorganized territory, county, city, town or other public body,'* * * shall be open to the public.

Minn.Stat. § 471.705, subd. 1 (1996) (emphasis added). The Open Meeting Law does not define “other public body,” but surely a “political subdivision” created to exercise the “sovereign powers of the state” must be within the scope of that generic language. Thus, under the plain language of the Open Meeting Law, SMMPA is governed by its requirements and its meetings are required to be open to the press and to members of the public.

This result is .consistent with our understanding of the legislative purpose of the Open Meeting Law. We said in St. Cloud Newspapers, Inc. v. District 742 Community Schs., 332 N.W.2d 1, 4 (Minn.1983), that the statute has three objectives:

(1) “to prohibit actions being taken at a secret meeting where.it is impossible for the interested public to become fully informed concerning board decisions or to detect improper influences,” Lindahl v. Independent School District No. 306, 270 Minn. 164, 167, 133 N.W.2d 23, 26 (1965); (2) “to assure the public’s right to be informed,” Channel 10, Inc. v. Independent School District No. 709, 298 Minn. 306, 313, 215 N.W.2d 814, 821 (1974); and (3) “to afford the public an opportunity to present its views to the board,” Sullivan v. Credit River Township, 299 Minn. 170, 175, 217 N.W.2d 502, 506 (1974).

These objectives are surely as applicable to the efficient delivery of electrical power by a public entity as they are to the provision of education to Minnesota’s children. Indeed, this court has stated unequivocally that the Open Meeting Law must be construed broadly in favor of the public. Merz v. Leitch, 342 N.W.2d 141,145 (Minn.1984).

Moreover, public access to records and meetings of municipal power agencies such as SMMPA is critical because, unlike private business corporations organized under Minn. Stat. ch. 302A, the enabling legislation does not provide for any internal cheeks on agency authority. Chapter 302A requires that the *368directors of private business corporations act in good faith and in the best interests of the corporation. Minn.Stat. § 302A.251, subd. 1 (1996). Directors of private corporations are also personally liable for a breach of loyalty, acts or omissions made in bad faith or that involve intentional misconduct or a knowing violation of the law, or for any transaction from which the director derived an improper benefit. Id. at subd. 4 (1996). Absent application of the Open Meeting Law, there is no corresponding assurance of proper conduct among board members of municipal power agencies.

The analysis under the Data Practices Act is similar, though perhaps even stronger. The Data Practices Act, adopted by the legislature initially in 1974 to provide the public with information about governmental activities, regulates access to records maintained by governmental agencies. See Minn.Stat. §§ 13.01-.99 (1996). It provides that all “state agencies, political subdivisions and statewide systems shall be governed by” the Data Practices Act. Minn.Stat. § 13.01, subd. 1 (emphasis added). It further defines “political subdivision” to mean “any county, statutory or home rule charter city, school district, special district and any board, commission, district or authority created pursuant to law, local ordinance, or charter provision.” Minn.Stat. § 13.02, subd. 11 (emphasis added). Thus, SMMPA, which is by definition a “political subdivision” and a governmental “authority created pursuant to law,” is, by operation of its enabling legislation and the Data Practices Act, governed by that act. To argue otherwise is to ignore the plain meaning of both statutes, which this court should be loathe to do.

It is also significant to note that the legislature has specifically provided for exceptions to the application of these two important statutes, including entities that share the same kinds of competitive pressures identified by SMMPA as a reason for its exclusion from the statutes at issue here. For example, Minn.Stat. § 144.581, subd. 5 (1996), provides that meetings of the board of directors of a government-owned or operated hospital may close meetings to discuss specific marketing activity where disclosure of information would cause harm to the hospital’s competitive position. Significantly, the Open Meeting Law itself requires that it applies to all public bodies unless “otherwise expressly provided by statute.” Minn.Stat. § 471.705 (1996). The absence of such an explicit exclusion for SMMPA and similar organizations suggests that the legislature intended for the Data Practices Act and the Open Meeting Law to apply to them.

Finally, the majority notes that SMMPA has elected “for reasonable proprietary and business concerns” to close some of its board meetings to the public and prohibit public access to its records. This concern for SMMPA’s role in the electric utility market and its competitive position vis a vis other utilities, some of them private, is perhaps commendable, but ought not to influence the decision of this court. There are good and appropriate reasons for statutes such as the Open Meeting Law and the Data Practices Act, including to shed a little sunshine on the inner workings of government. Cities are not required to join together to form publicly-owned electrical utilities, but if they do, those publicly-owned entities should not automatically be entitled to a level of secrecy in doing business that other government entities are not accorded. If SMMPA is indeed conducting an essential government function, that is all the more reason to allow the public access to its operations.

I conclude that SMMPA is subject to both the Open Meeting Law and the Data Practices Act, and would therefore, affirm the court of appeals.

. Even the majority’s reliance on SMMPA's similarity to a chapter 302A corporation is flawed, since that chapter specifically provides some limitation on what a private corporation may do. "A corporation has [certain enumerated powers], subject to any limitations provided in any other statute of this state or in its articles." Minn.Stat. § 302A.161, subd. 1 (1996) (emphasis added). Thus, if SMMPA is simply an unusual kind of "private corporation” — one that is, ironically, not actually privately owned, but rather owned by a number of municipalities and authorized to exercise the sovereign power of the state — it could still be subject to the provisions of the Open Meeting Law and the Data Privacy Act.