8.10. SR 03-21-1994 - Laserfiche WebLink

Home Browse Search

Evolution of open meeting law continues City officials concerned e Joel Jamnik 'Ille open meeting law is intended to promote the general public's ability to monitor and participate in local government activities. HislOrically, city officials have supported the goals of the law and for tJle most part., have not experienced significant problems with the law's enforcement. Reeent court decisions, however, indicate two very disturbing trends: the growth in politically motivated challenges, and the growth in attorney fees issues as part of an open meeting law case. The chief protagonist for open meeting law cases has usually been the media, and more particularly the local newspaper. Because of the law's importance lO their operations, reporters and editors are often more well-schooled in the open meeting law than local government officials. The same can probably be said for the data practices act, another prime media- government battleground. Enforcement of these laws is almost solely accomplished through private court actions. These often costly actions are not easily pursued by the media, and are even more difficult for the individual citizen. Recently, however, there has been a growth in nonmedia originated claims. Individuals, citizen groups, and public employee unions have all discovered the open meeting law as another weapon to be used against a local governing body. lbeir goal is usually not to receive monetary compensation-the fine imposed is $100 per violation payable lO the state. Rather, the effort is undertaken to directly or indirectly remove existing councilmembers, boardmembers, etc. Violation of the open meeting law by an incumbent will be used by election challengers. Additionally, in most cases the open meeting law claim is not brought until the plaintiff can allege at least three separate viola- tions, because the law conlains a C November 12,1993 ~ e>< e,) provision that allows a judge to remove from office any elected official who is found to have three or more violations of the law. That removal also renders the official ineligible for appointment or election to any other public office for the period of time equal to the remaining term of the office they hold at the time of the violation. Some of these actions have now involved claims for plaintiff's attor- neys fees. While the law regarding the authority of a judge to grant fees doesn't distinguish between the media company or private person as plaintiff, judges seem more inclined to grant attorneys fees when an individual citizen brings suit. Complicating this trend are questions about the defense of open meeting law claims. Are councilmembers required to defend these actions on their own, or can the city provide a defense for its officers? The Minnesota Supreme Court recently affirmed a lower court decision (Claude v. Collins) finding five open meeting violations for a mayor (totaling $500 in fmes) and proportionate plaintiff's attorneys fees of $700 per violation (totaling $35(0). However, the court also ruled that while the law may allow removal for three or more violations, it may not automatically require removal (the violations must be found to constitute malfeasance or nonfeasance). The court also held that the trial court did not abuse its discretion in determining the appropriate penalties for the violations and addressed the atlOrney fees issue in a footnote. That footnote states: Minn. Stat. * 471.705, subd. 2 creates personal liability for the $100 fines that may be imposedfor violation of the Minnesota Open Meeting Law. As was pointed out at oral argument, the true cost to defendants in these cases is often attorney fees. While we do not decide the issue, we note that a municipality "shall defend and indemnify" its officers and employees who have acted in the performance of the duties of their position and have not been "guilty of malfeasance in office, willful neglect of duty, or bad faith. " Minn. Stat. * 466.07, subd. 1 (1990). In the past, the duty to defend and indemnify was limited to tort claims and may not have applied to the defense of claims brought under the Minnesota Open Meeting Law. Op. Au'y Gen. 471-a (Apr. 29, 1983) (discussing Minn. Stat. * 466.07, subd. 1a (1982). The legislature has since removed the statute:r explicit reference to tort claims. The bottom line is that the court's decision implies that the mayor in this case will have to pay $500 (for the five violations), may not be removed from office because the violations did not rise to the level of misfeasance or malfeasance, and may have the city pay both the attorney's fees for the plaintiffs as well as his own defense costs. Legal scholars and legislators will no doubt continue the debate regarding the law and its enforcement. The League Policy Adoption Conference includes a session on the law with Mark Anfinson, Counsel for the Minnesota Newspaper Association. 0 Page 7