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| City may have violated Open Meetings Law |
By: SUZANNE ROOK, Managing Editor
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Posted: Wednesday, January 13, 2010 7:14 pm
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By SUZANNE ROOK
Managing Editor
UPDATE — Jan. 13 at 8 P.M.
NORTHFIELD — Five City Council members have now confirmed that they met individually with the city administrator to discuss withholding tax reimbursements from Waterford Township, an apparent violation of state Open Meetings Law.
Two, Betsey Buckheit and Jon Denison, said City Administrator Joel Walinski told them last week that he planned to meet separately with each council member to discuss an opinion by the city’s attorney on whether the city remains bound by an agreement with Waterford that requires Northfield to reimburse the township for taxes stemming from a 1980 annexation.
Three others, Mayor Mary Rossing and Councilors Jim Pokorney and Erica Zweifel, confirmed that they met in early January with Walinski. All four said they also discussed Walinski’s plan to meet with Waterford’s town board on Jan. 11 about ending the reimbursements.
The council on Tuesday is expected to consider stopping payments to the township.
Walinski insists he didn't break the law, and said he got approval from the city's attorney before holding the meetings, getting advice on what he could legally discuss during the sessions.
Councilor Rhonda Pownell could not immediately be reached for comment. Councilor Kris Vohs said he was unavailable at the time he was contacted.
The state Open Meetings law prohibits secret meeting by elected officials, assuring the public’s right to be informed.
In 1983, the state Supreme Court found that a quorum or more of members constitutes a public meeting. Serial meetings, the court said, gatherings of groups of less than a quorum in which agreements are made, are also a violation.
“It’s pretty clear some decision was made through the office of the city administrator,” said Minnesota Newspaper Association attorney Mark Anfinson, an expert in state Open Meetings Law.
“I don’t know how you come to this decision without holding a meeting or breaking the law,” Anfinson said of Walinski’s decision to hold a discussion with the Waterford town board.
Giving Waterford a heads up was the neighborly thing to do, Pokorney said.
Walinski said his discussions with Waterford were in keeping with an informal agreement with Waterford Supervisor John Dudley to notify him before the city took any action that could impact Waterford.
"I was being true to that and building a relationship with the Waterford Town Board," he said.
Rossing said Walinski's meetings were to apprise council members of its attorney's opinion on the Waterford agreement and was in response to a Jan. 4 council directive regarding uncovering potential issues related to the city's annexation agreements.
Buckheit, in her meeting with Walinski, expressed concerns about whether their conversation was a violation of the law. The administrator’s response, she said, was that sharing information only isn’t illegal.
But in retrospect, Buckheit believes that holding the discussions out of the public eye was unwise at best. As recently as Monday Buckheit spoke publicly about ensuring openness in city government.
“It doesn’t seem like this is happening,” she said of a promise of transparency. “I hope we will move information out to the council and the public in the next step.”
Fines for breaking the Open Meetings Law are $300 per violation, though attorneys fees can be awarded if the case goes to court. Violators can be removed from office if they are found to have violated the law in three separate law suits.
Check back for further updates.
— Suzanne Rook is the managing editor. She can be reached at srook@northfieldnews.com or 645-1113.
* * * *
By SUZANNE ROOK
Managing Editor
UPDATE — Jan. 13 at 7:35 P.M.
NORTHFIELD — Five City Council members have now confirmed that they met individually with the city administrator to discuss withholding tax reimbursements from Waterford Township, an apparent violation of state Open Meetings Law.
Two, Betsey Buckheit and Jon Denison, said City Administrator Joel Walinski told them last week that he planned to meet separately with each council member to discuss an opinion by the city’s attorney on whether the city remains bound by an agreement with Waterford that requires Northfield to reimburse the township for taxes stemming from a 1980 annexation.
Three others, Mayor Mary Rossing and Councilors Jim Pokorney and Erica Zweifel, confirmed that they met in early January with Walinski. All four said they also discussed Walinski’s plan to meet with Waterford’s town board on Jan. 11 about ending the reimbursements.
The council on Monday is expected to consider stopping payments to the township.
Councilor Rhonda Pownell and Walinski could not immediately be reached for comment. Councilor Kris Vohs said he was unavailable at the time he was contacted.
The state Open Meetings law prohibits secret meeting by elected officials, assuring the public’s right to be informed.
In 1983, the state Supreme Court found that a quorum or more of members constitutes a public meeting. Serial meetings, the court said, gatherings of groups of less than a quorum in which agreements are made, are also a violation.
“It’s pretty clear some decision was made through the office of the city administrator,” said Minnesota Newspaper Association attorney Mark Anfinson, an expert in state Open Meetings Law.
“I don’t know how you come to this decision without holding a meeting or breaking the law,” Anfinson said of Walinski’s decision to hold a discussion with the Waterford town board.
Giving Waterford a heads up was the neighborly thing to do, Pokorney said.
Rossing said Walinski's meetings were to apprise council members of its attorney's opinion on the Waterford agreement and was in response to a Jan. 4 council directive regarding uncovering potential issues related to the city's annexation agreements.
Buckheit, in her meeting with Walinski, expressed concerns about whether their conversation was a violation of the law. The administrator’s response, she said, was that sharing information only isn’t illegal.
But in retrospect, Buckheit believes that holding the discussions out of the public eye was unwise at best. As recently as Monday Buckheit spoke publicly about ensuring openness in city government.
“It doesn’t seem like this is happening,” she said of a promise of transparency. “I hope we will move information out to the council and the public in the next step.”
Fines for breaking the Open Meetings Law are $300 per violation, though attorneys fees can be awarded if the case goes to court. Violators can be removed from office if they are found to have violated the law in three separate law suits.
Check back for further updates.
— Suzanne Rook is the managing editor. She can be reached at srook@northfieldnews.com or 645-1113.
* * * *
NORTHFIELD — Four City Councilors have confirmed that they met individually with the city administrator to discuss withholding tax reimbursements from Waterford Township, an apparent violation of state Open Meetings Law.
Two of the councilors, Betsey Buckheit and Jon Denison, said City Administrator Joel Walinski told them last week that he planned to meet separately with each council member to discuss an opinion by the city’s attorney on whether the city remains bound by an agreement with Waterford that requires Northfield to reimburse the township for taxes stemming from a 1980 annexation.
Two other councilors, Jim Pokorney and Erica Zweifel, confirmed that they met in early January with Walinski. All four said they also discussed Walinski’s plan to meet with Waterford’s town board on Jan. 11 about ending the reimbursements.
The council on Monday is expected to consider stopping payments to the township.
Mayor Mary Rossing, Councilor Rhonda Pownell and Walinski could not immediately be reached for comment. Councilor Kris Vohs said he was unavailable at the time he was contacted.
The state Open Meetings law prohibits secret meeting by elected officials, assuring the public’s right to be informed.
In 1983, the state Supreme Court found that a quorum or more of members constitutes a public meeting. Serial meetings, the court said, gatherings of groups of less than a quorum in which agreements are made, are also a violation.
“It’s pretty clear some decision was made through the office of the city administrator,” said Minnesota Newspaper Association attorney Mark Anfinson, an expert in state Open Meetings Law.
“I don’t know how you come to this decision without holding a meeting or breaking the law,” Anfinson said of Walinski’s decision to hold a discussion with the Waterford town board.
Giving Waterford a heads up was the neighborly thing to do, Pokorney said.
Buckheit, in her meeting with Walinski, expressed concerns about whether their conversation was a violation of the law. The administrator’s response, she said, was that sharing information only isn’t illegal.
But in retrospect, Buckheit believes that holding the discussions out of the public eye was unwise at best. As recently as Monday Buckheit spoke publicly about ensuring openness in city government.
“It doesn’t seem like this is happening,” she said of a promise of transparency. “I hope we will move information out to the council and the public in the next step.”
Fines for breaking the Open Meetings Law are $300 per violation, though attorneys fees can be awarded if the case goes to court. Violators can be removed from office if they are found to have violated the law in three separate law suits.
Check back for further updates.
— Suzanne Rook is the managing editor. She can be reached at srook@northfieldnews.com or 645-1113.
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Is this the fine legal opinions of the non-Northfield legal option the city has now contracted with?
Whomever gave the advice doesnt even know rudimentary open meeting laws in Minnesota.
They wanted cheaper lawyers, well the lawsuits & fines with their new law firm is going to put the city in a real fine mess.
I see Ms Summa is on a rampage about this over at Locally Bought and Paid For. She wrote "Serial meetings are a violation of the open meeting law. Period>" As is often the case, she is wrong.
If you read the actual law at www.house.leg.state.mn etc., it actually says that "serial meetings in groups of less than a quorum held in order to avoid open meeting law requirements may also be found to be a violation, depending on the facts of the case."
The key words being "may" and "depending on the facts of the case". This paragraph references a court case of the Mankato Free Press vs the City of North Mankato in 1998, and states that the serial meetings held, which resulted in the law suit, were not held to avoid the law. I'm not sure of the details of this case, but clearly they had serial meetings, and clearly they were not in violation of the open meeting law, thus... serial meetings are not always a violation of the open meeting law. Period?
So serial meetings can be held under certain circumstances.
It seems that if Walinski met with councilors just to share information, maybe he wasn't trying to avoid the law. Just sharing information.
If he met with councilors to share information, and then asked their opinion, or how they would vote, and found out what the consensus would be, or tried to persuade some of them...that sounds more like an effort to violate the law?
Also, Walinski apparently met with Waterford, or had conversations with them? What did he tell them? Was he instructed to talk with them or did he do it on his own? On what authority did he meet with them or share information.
F&B: Interesting questions, and thanks for the quotation. From that, I found what I presume is your source, a paper by a legislative analyst with the MN House of Representatives:
"Minnesota Open Meeting Law"
http://www.docstoc.com/docs/14619997/Minnesota-Laws
And the actual law is here:
https://www.revisor.mn.gov/statutes/?id=13D
I guess that gives us some reading matter on the subject, but in the end it comes down to a question of what actually was discussed when Mr. Walinski met with the various councilpersons, eh?
Thank you Mr Enders. I agree, and also the point is, serial meetings are NOT automatically against the law as Ms Summa has stated. They MAY be against the law if they are part of an effort to avoid the law.
As you re-iterate, the question clearly hinges on the details of conversations between Walinski and City Coucilors. Does it also hinge on what exactly it was that Walinski said to folks at Waterford? Did he go to them and definitively say what the city was going to do, or likely to do? Or did he just go to them and "give them a heads up", that this issue was going to be discussed?
Did the mayor tell him to do all or some of this, or did he do it all on his own?
I think there is a lot of information that we don't have.
I couldnt disagree more with fairandbalanced. The presumption of the open meeting laws are that they are open unless they meet an exception.
Can you tell me an an example of a serial meeting that you think would not violate the principle of the open meeting law?
The Minnesota Supreme Court has
articulated three purposes of the law:
• 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
• To assure the public’s right to be informed
• To afford the public an opportunity to present its views to the public body
See Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002) (citing St. Cloud Newspapers, Inc. v. District 742 Community Schools, 332 N.W.2d 1, 4 (Minn. 1983)).
Chapter 13 does not specifically address the use of e-mail, but as discussed in a House Research Memo and information from the League of Minnesota Cities it is just as likely that the courts would analyze use of e-mail in the same way as it has telephone conversations and letters. That is, communication about official business through telephone conversations or letters by a quorum of a public body subject to the law would violate the law. Serial communication through telephone conversations or letters by less than a quorum with the intent to avoid a public hearing or to come to an agreement on an issue relating to official business could also violate the law. Also see Moberg, 336 N.W.2d at 518. The Commissioner of Administration stated in a July 9, 2008, opinion that an e-mail sent to all members of a city council was effectively "printed material" that should be available to members of the public and also suggested that the legislature revise the statute to recognize the use of electronic and other
types of communications. Minn. Dept. of Admin. Advisory Op. 08-15.
See:
http://www.lmc.org/media/document/1/meetings_of_city_councils.pdf
http://www.lmc.org/media/document/1/electroniccommunications.pdf
http://www.lmc.org/media/document/1/chapter07.pdf
The question does not hinge on what was said, the question hinges on the council and administrator have discussions that should have been held in public and violate the three purposes the Supreme has enumerated are the essence of the law.
Here is the opinion in the referenced case by fairandbalanced: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mn&vol=appunpub%5C9812%5C677&invol=1
https://www.revisor.mn.gov/statutes/?id=13D
Keep in mind when reading the House Research Document that it provides an opening "may" in limited circumstances. The statute itself above does not lay out what those circumstances may be or the exceptions.
If you can determine a basis for not violating the law on the actions of the city I would like to know what they are.
dapa2,
The basis would be that the burden of proof lies in establishing that the city councilpersons/administrator violated the law, not in proving that they did not.
Dapa 2: I think I already gave you an example of a serial meeting that was not against the law in my post.
Maybe you should look up Mankato Free Press vs. City of North Mankato in your free time and find out what the nature of those serial meetings were, which were not found to be in violation of the law. I'm curious, but don't have the time to go digging. I'm sure with your outstanding search skills and abilities, you'd find it much faster than I ever could.
That was the extent of my point, that apparently there can be serial meetings which are not against the law since there is at least one documented instance of such meetings being legal which you cannot dispute.
You're smarter than me, can't you come up with any examples? Play devil's advocate for once.
Also, if the statute meant that serial meetings are always against the law, why didn't the legislature just state that, as Ms Summa did? Instead they use the word "may", and state that it depends on the "facts of the case".
When it comes down to it, who cares? Can anyone be sure that a city council consensus was made as a result of an illegal meeting? Perhaps the city administrator was sharing information and trying to gauge council opinion before meeting with Waterford? There is nothing wrong with the administrator sharing information with the city council. The Summas cannot and will never give benefit of the doubt in any manner to the city. If they did, the shallow lives they lead as ineffective watchdogs would be over. Fairandbalanced, thanks for being the voice of reason here.
Uberstadt: I think what will come out of this is that having our city council members all meeting behind closed doors with the city administrator was/is, if nothing else, probably not the smartest political move.
My guess is citizens would rather see info like that shared at a work session or in a meeting. If they keep it up, they'll be subject to more and more criticism for the practice, whether or not it's illegal.
Word is that this type of behind closed doors practice is more common among the new administration than people might think.
I have one huge bone to pick with you uberstadt, I'm very disappointed. It's not "would be over", they are over!
Hard to be a watchdog when you can't admit in public that you're wrong. I think they call that narcissim, excessive admiration of oneself.
Who knows, dapa 2 may prove me wrong. Mankaot Free Press vs City of North Mankato may be a case about city councilors eating donuts in the city administrators office one at a time when they should only have been eating them at public meetings.
It's interesting that we have a councilor who admits on her own website that she "loathes" the states open meeting laws. At least she's honest. But why would you loathe a law that is designed to protect the rights of citizens to have access to the decision making process of their government?
Then this open meeting law violation issue comes up? Should we be surprised? If you loathe a law, are you more or less likely to adhere to it? Or doesn't it make a difference.
Let's go back a year or two. It's a city council meeting, and Jim Pokorney or Noah Cashman, no, better yet..Al Roder says that he loathes Minnesota's open meeting laws and that he longs for the free wheeling lawlessness of Iowa.
He goes on at length about how much more efficient the council could be if he and the Council and Mr Lansing could get more done behind the scenes instead of having to make the council meetings so long and contentious. Then let's say a week later we found out that Mr Roder was having serial meetings with councilors to discuss city issues.
Would Kiffi Summa have applauded and praised him for his honesty? I think we would have heard brazen demands for an immediate investigation followed by crucifixion and beheading.
I sincerely hope that we get further inquiry into what really did take place here.
This keeps getting more interesting. GO check out Betsy Buckheit's website. Read the comments posted regarding her blog where she says she "loathes" open meeting law.
Kiffi Summa and Jane McWilliams go on and on to praise Ms Buckheit's blog, and never make any comment about the fact that we have a city councilor saying she loathes open meeting law.
So we have Northfield's two most prominent and vocal League of Women's Voters members, and LWV observers, ignoring the fact that a city councilor loathes MN open meeting law?
Is this the stance then of the Northfield LWV? That it's ok for public officials to loathe this law? I thought the LWV were supposed to be champions of the MN open meeting laws among other things, and would have jumped all over anyone who would loathe these protectors of our rights. Or is it ok if it's your friend that does it?
How does the Northfield LWV feel about a council person expressing hatred for MN open meeting law?
If someone was running for office, and they said they "loathed" the Mn open meeting law, would you vote for them?
fairandbalanced the Mankato case was about city councilors interviewing a candidate for city administrator. While that case involves the use of round robin interviews to hire a city administrator, the Court noted that the open meeting law was enacted to benefit the public and must be construed in the public's favor. Mankato at 294, citing Claude v. Collins, 518 N.W.2d 836, 841 (Minn. 1994).
Further if you read in the footnotes you will find the following:
"Regarding the issue of the council members' purpose in using the one-on-one interviews, we recognize that they did consult with the city attorney before establishing the interview procedure. Respondents argue that the city attorney relied on an unpublished order opinion in which this court approved of a district court's determination that serial one-on-one interviews do not violate the Open Meeting Law even though the plan was adopted to eliminate the application of the Open Meeting Law. See Northwest Publications, Inc. v. City of Apple Valley, No. C7-91-332 (Minn. App. Feb. 27, 1991). We question the reasonableness of the city attorney's reliance here. This court did not affirm the district court on the merits of that case, but merely denied a petition for extraordinary relief on an emergency basis."
Unpublished opinions are not precedent and should not be cited.
The current situation in Northfield arguably fails the three purposes of the open meeting law articulated by the Supreme Court in St. Cloud Newspapers, Inc. v. Dist. 742 Community Schools, 332 N.W.2d 1 (Minn. 1983). This case should remind any elected official that the open meeting law requires that public business be conducted in public. This public business was not done in public and that is blatantly obvious.
From the LMC handbook the following guidance is presented, "The Minnesota Supreme Court has held that informational seminars about school-board business, which the entire board attends, must be noticed and open to the public. As a result, it appears that any scheduled gatherings of a quorum of a public body must have proper notice and be open, whether or not the public body takes or contemplates taking action. This includes meetings where members receive information that may influence later decisions, but excludes chance or social gatherings."
Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983) discusses the information aspect which you brought up and is also discussed in the LMC memo I posted previously which states, "The open meeting law does not define the term “meeting.” The Minnesota Supreme Court, however, has ruled that under the open meeting law, meetings are gatherings where a quorum or more of the council or other governing body or of a committee, board, department or commission of the city council or other governing body are present, and at which the members intentionally discuss, decide or receive information as a group on issues relating to the official business of that body."
Also as part of its discussion in Moberg, the Supreme Court directed members of a public body not to use serial meetings in groups of less than a quorum to avoid a public hearing or reach an agreement on a particular issue. "Legislative history suggests that the Open Meeting Law was enacted to prevent public bodies from dissolving into executive sessions on important but controversial matters and to insure that the public has an opportunity both to detect improper influences and to present its views." Moberg at 518. This is exactly what is at the heart of the Northfield council and staff actions.
There are really only a few exceptions listed under Chapter 13D the open meeting law and in my opinion the city staff and council were not covered by those exceptions under the open meeting law.
Your "may" is not part of the statute but a Memo on the open meeting law. The exceptions are listed and this is not one of them.
fairandbalanced should have read the whole sentence.
My blog stated that I had both new loathing and new respect for the open meeting law.
The loathing part is about the greater challenge cities and other gov't entities have in doing business. Unlike a private company, we cannot deliberate in private, build coalitions by lobbying each other serially out of the public eye, etc. Yes, business would be both easier and faster without the open meeting law.
However, I also have much greater respect for the open meeting law because most of the questions I field are questions about information - my commitment to trying to assure that citizens know what I know when I make my decisions and that they understand where the basis for our decisions comes from is paramount. So it's harder to act in public, but it is much more important that we do so.
Dapa 2: Thanks for looking that up. All I was trying to say was that there was an instance where serial meetings were found to not be against the law, thus serial meetings are not always automatically against the law.
I have no idea if they were violated in this instance, it seems most people feel there's a lot more we need to know before we decide.
Ms Buckheit:
Thanks, I read the whole sentence. You had new loathing for the open meeting law, you loathed it. Your words not mine. I brought this up partly because I think it becomes significant when all of a sudden there's a question about whether our city council, of which you are obviously a member, violated the open meeting law.
As an experienced attorney with a new respect for the open meeting law, how did you end up in a situation where there is at least to some people, an appearance that you may have violated the open meeting law?
The other reason I brought up your statement has very little to do with you. It has to do with the double standard that exists among certain people in town, and politics in general in Northfield.
If Al Roder, Jon Denison, Jim Pokorney, Scott Davis, or Noah Cashman said that they had loathing for the open meeting law, in any context, Kiffi Summa, and Jane McWilliams would have been all over it. They'd be blogging over at Locally Bought and Paid For, they'd be blogging on the LWV site.
This would have been the most outrageous thing that Northfield would have ever experienced, they would have been shocked and offended, and we, and whoever was foolish enough to say it, would have been hearing about it for years to come.
We would have heard cries of needing the League of Women Voters to look more closely at this, and maybe help educate the council about the details of adhering to these laws.
We would be told that this was an example of how this administration was trying to conduct the cities business behind closed doors and away from public scrutiny.
I thought it was really interesting therefor, when both of them were so complimentary of your blogging, but took no issue at all with your comment about loathing the open meeting law. I can think of no explanation.