A bill to ban local officials from signing nondisclosure agreements, or NDAs, has bipartisan support in a Legislature where that is a prerequisite to get anything done.
Its co-authors, Rep. Emma Greenman, DFL-Minneapolis, and Rep. Drew Roach, R-Farmington, describe HF 4077 as simple and much needed legislation. They’re confident it would pass if it received a floor vote.
Related: Why local MN officials are signing NDAs
But no such vote is in the hopper, after Republicans blocked the bill from moving out of a committee last week. That lack of movement came as business interest groups lobbied against it, arguing that nondisclosure agreements are a necessary tool for economic development.
Although the bill seeks broad prohibitions on local officials signing NDAs, it’s in response to several Minnesota municipalities using the tool to keep data center developments a secret. Residents from Farmington, Hermantown, Pine Island and other cities have organized in support of NDA bans, saying that secrecy allowed local officials to give unpopular projects a head start before opposition could form.
Considering how vocal Minnesotans have been in their calls for transparency, Roach called the no votes by his Republican colleagues in committee a frustrating setback.
“Unfortunately, when some members come to the Capitol I think they forget who they represent,” he said. “They end up listening more to, quote unquote, ‘stakeholders’ and ‘special interests’ and not the people that they came here to represent.”
The bill isn’t doomed yet, though, despite its path forward being arduous.
What makes passing the bill banning NDAs so complicated?
The bill no longer has the “most common sense path” available to it through the House, Greenman said.
This path travels through a committee to the floor, a road traveled by the bill once before. It stalled in the House Judiciary Finance and Civil Law Committee after unanimously passing out of the Elections Finance and Government Operations Committee weeks earlier.
From there, it made it on the General Register. Legislation parks on the register until it’s time to shine on the House floor, unless lawmakers intervene.
Rep. Peggy Scott, R-Andover, who co-chairs the judiciary committee, intervened on March 23, asking that the bill be re-referred for a hearing.
More than two weeks later, with an Easter/Passover break in between, the hearing commenced on April 9. During it, Scott placed the burden for finding out about local governments dealings firmly on the public. An NDA ban isn’t needed when residents already have the data practices act at their disposal to request information on the agreements, she said.
“What I’m encouraging here is for citizens to be more diligent,” she said before voting no on the bill. “And I know that’s hard. There are a lot of things in life to be watching for, but because I feel like you can already find out this information, I can’t support the bill today.”
She was referencing the Minnesota Government Data Practices Act, which would require local officials to disclose if they’ve signed NDAs upon request. But in practice, finding out about all NDAs and the projects they’re associated with would require residents in every municipality to repeatedly submit requests in order to bring details to light.
It’s wrong to expect the public to do that, Greenman said.
“What we’re creating is a regime where now the only way that people can find out about something is when they ask all the questions all the time,” she said. “It’s also a huge burden on the local government.”
What happens next for the bill?
After the bill stalled in committee, House Republican leaders indicated they wouldn’t revive it on the floor because it didn’t meet a deadline. Greenman and Roach see the timing of the re-referral and committee hearing as delay tactics to torpedo the bill.
“It’s a little disingenuous to say it didn’t meet deadline,” Roach said. “It was referred to the General Register on time. It was then re-referred and killed.”
Claims of unfairness aside, the chances of a revival lie in the Senate.
Related: Minnesota residents opposed to data centers look to legislators for moratoriums and transparency
“I’m hopeful that there’s still a pathway forward,” Greenman said. “I’m hearing the Senate may take it up in the next couple weeks.”
A bipartisan companion to the House bill passed through committees on its way to the Senate’s version of the General Register known as General Orders. With the chamber’s slim DFL majority, and Sen. Steve Drazkowski, R-Mazeppa, co-authoring the legislation with Rep. Erin Maye Quade, DFL-Apple Valley, the chance of passage appears stronger.
Passage would transmit the bill back to the House, where it could land back in the judiciary committee for another look. Based on the bill’s previous reception in that committee, it would face another steep climb, and failure to make it out of the committee could keep it from a floor vote.
Should all these paths run into dead ends, the bill’s content would have some last gasp options at being pulled into other legislation. Language from the bill could be included in an omnibus bill or in an amendment to a related bill, according to the Legislative Reference Library.
There is also the chance of another NDA bill succeeding if the Greenman-Roach bill doesn’t. This other bill, introduced by Sen. Grant Hauschild, DFL-Hermantown, and a different duo of bipartisan lawmakers in the House, is narrower in scope by limiting NDAs for data center projects.
SF 4548, which the Senate’s Judiciary and Public Safety Committee laid over Wednesday for possible inclusion in an omnibus bill, was initially even more narrowly focused on only elected official NDAs. An amendment expanded it to include municipal staff to avoid situations in which staff are unable to share details about projects with elected officials.
“As a city councilor or a mayor, I sure hope when I’m meeting with my staff I am fully aware of all the things that they are aware of when considering decisions that could impact that project,” Hauschild said.
Greenman and Roach plan to keep pushing for NDA ban legislation no matter their bill’s outcome this session. Roach, who said his push for NDA bans doesn’t mean he’s against data centers, heard his Republican colleagues argue that it takes local control away from local governments. He sees it as shifting more control back to the public.
“It actually gives local control back to the constituents in that community,” he said. “So it might call for some uncomfortable meetings, but I didn’t come here to be comfortable. I’m OK with standing on my principles, regardless of if it hurts somebody’s feelings or it makes people upset.”
