Editor's note: This story has been updated since the original posting with a response from the city of Murdock.
MURDOCK — The lack of a roll call vote Wednesday during a virtual meeting when the Murdock City Council approved a conditional use permit for the Asatru Folk Assembly is murky territory under the state's Open Meeting Law.
The meeting was conducted via Zoom software, a remote network video service, but there was only an audio feed for the public to hear. The council was discussing and deciding on a permit for the group to use the former Lutheran church it purchased as a worship space.
The permit was ultimately approved on a 3-1 vote, but it wasn't clear Wednesday night who voted.
The City Council did not have its video feed turned on during the meeting. Only audio was available on a black screen, and there was no on-screen indication of who was speaking.
Several public viewers of the meeting commented in a chat feed that they could not hear well and did not know who was speaking or who was voting.
Murdock City Clerk Kim Diederich wrote in an email that they were advised by the person who set up the Zoom meeting that it was allowed to be audible only. Diederich wrote that it was their first time doing a Zoom meeting and it was trial and error.
"We apologize for the ineptness of it," Diederich wrote. "As far as the vote, all the members were present in the same room so (a) roll call vote was not needed, per our city attorney."
The legality of holding a vote without video or a roll call vote can be murky, according to Minnesota Newspaper Association attorney Mark Anfinson, especially in the era of pandemic town meetings.
“The real trick with this stuff is in context, like this one, is you can’t hold public officials accountable legally if they unintentionally or accidentally screw up the technology,” Anfinson said.
Anfinson said Minnesota’s Open Meeting Law is pretty clear that you can’t conduct a vote without identifying who voted unless the vote is unanimous. The Murdock City Council vote was 3-1.
That record of who voted would typically be known to the public right away, Anfinson said, but with the pandemic in full swing, the public might not be able to physically view the vote as it happens due to the unintentional misuse of technology.
What is an absolute right, according to Anfinson, is requesting the meeting minutes from the city, which must record who voted and how.
Diederich published the minutes of the meeting Thursday morning via Facebook. The minutes stated that council members Jim Diederich, Pat Thorson and Kelly Demuth voted yes to grant the the conditional use permit, while Steph Hoff voted no.
The issue with any legal challenge to the City Council’s vote relies on the intention of the officials to violate the law, according to Anfinson.
“The trick here is that you've got to first demonstrate, prove or establish that this was intentional, that it wasn’t a glitch or technological problem,” Anfinson said. “If you can do that, (the City Council’s actions) would have violated the law, but I’m not sure that the facts you have allow you to say it was an intentional effort to sabotage the public access.”