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FINANCE AND COMMERCE APPELLATE COURTS EDITION MARCH 11, 1994 <br />Appellants commenced this action seeking a declaratory judg- <br />ment that respondents have either the duty or the authority to defend, <br />— or to reimburse them for costs and attorney fees incurred to defend, <br />an action alleging that appellants violated the open meeting law. <br />The trial court granted summary judgment for respondents. The <br />trial court also granted $500 in attorney fees for each respondent. <br />We.affirm the grant of attorney fees, but otherwise reverse and <br />remand, <br />FACTS . <br />Appellants were defendants in an actioni brought by an Afton <br />resident against the mayor of Afton and two city council members <br />'in both their personal and official capacities. Thuma v, Kroschel, <br />506 N.W.2d 14,16 (Minn. App.1993), pet. for rev. denied (Minn. <br />Dec,.14, 1993) (the Thuma action). This action is a derivative of <br />that action. <br />At all relevant times, appellant Jon S. Kroschel was the mayor of <br />the City of Afton; and appellants Suzanne Flinch and Nicholas <br />Mucciacciaro were members of the Afton City Council. Count I of <br />the Thuma complaint alleged that by holding a closed meeting <br />during which they deliberated and approved a contract for the repair <br />of the well in Afton Square Town Park, appellants violated the <br />Minnesota Open Meeting Law, Minn, Stat. § 471.705, subd. 1 <br />(1990). Count II alleged that the mayor's action in approving the <br />contract under "emergency powers" was ultra vires because the <br />mayor has no "emergency powers." Count III alleged that failure <br />to obtain two quotations for the emergency well -drilling contract <br />violated the Uniform Municipal Contracting Law, Minn. Stat. § <br />.471.345, subd. 5 (1990). <br />The Thuma complaint sought a "civil penalty" against each <br />individual defendant in the amount of $100 for each separate viola- <br />tion of.the open meeting law. It also sought to have appellants <br />removed from office because of multiple violations of the open <br />meeting law. It did not seek compensatory 'damages or punitive <br />damages and the city was not a party to the suit. <br />The trial court found that each appellant violated the open meeting <br />law on one occasion; that Mayor Kroschel acted ultra vires in <br />executing the contract without authority of the city council; but that <br />appellants had not violated the Uniform Municipal Contracting Act. <br />For the open meeting violation, the trial court imposed a $100 "civil <br />penalty" on each appellant pursuant to Minn. Star. § 471.705, subd <br />2.(1900y.. <br />On appeal, this coumaffirmed the ruling that appellants violated <br />the open meeting law: Tbuma Y. Kroschel 506 N.W.2d 14, 19 <br />(Minn. App.1993), pet. for rev. denied (Minn. Dec.14,1993). This <br />court concluded, however, that the trial court did not have jurisdic- <br />tion to decide the ultra vices issue on the merits. Id. at 21. <br />While the Thuma action was pending, appellants commenced <br />this declaratory judgment action againstthe city and the Minnesota <br />League of Cities Insurance Trust (MLCIT). Appellants assert that <br />respondent city was obligated to provide them a defense in the <br />Thuma action pursuant to either Minn. Stat. § 466.07 (1990) <br />(indemnification for municipal employee liability) or Minn. Star. § <br />465.76 (1990) (reimbursement to municipal employee for costs and <br />attorney fees incurred in the, defense of charges of a "criminal <br />nature"). Appellants also assert that respondent MLCIT, a self -in- <br />suring -pool operated for the benefit of Minnesota municipalities, <br />owes them a defense and reimbursement under the covenant issued <br />to the city by MLCIT. <br />Counsel for the city and MLCIT appeared at a first summary <br />judgment motion hearing but the hearing was canceled when ap- <br />pellantsadvised them that a stipulation for dismissal would be filed <br />because the city council had voted to reimburse appellants, Within <br />days, the council decision to reimburse appellants was rescinded,' <br />and the summary judgment motion hearing was again noticed. At <br />the rescheduled hearing, the city and MLCIT sought attorney fees <br />because their counsel had to appear twice to argue the same sum- <br />mary judgment motion. The trial court granted attorney fees in the <br />sum of $500 for each respondent. <br />At the hearing, the district court also granted summary judgment <br />in favor of the city and MLCIT, dismissing with prejudice <br />appellants' petition for declaratory relief. <br />We affirm the award of attorney fees to respondents, but reverse <br />the dismissal, and remand. <br />ISSUES <br />1. Does the city have a duty under Minn. Star, § 466.07 (1990) to <br />defend the Thuma action, or to reimburse for costs and attorneys <br />fees incurred by appellants to defend the action? <br />2. May the city under Minn. Stat. § 465.76 (1990) reimburse <br />appellants for costs and attorney fees incurred to defend the Thuma <br />action? <br />3, Is MLCIT obligated to provide coverage on behalf of the city <br />pursuant to.the terms of the covenant it issued to the city? <br />4. Did the trial, court abuse its discretion by awarding attorney fees <br />to each respondent in the amount of $5007 . <br />ANALYSIS <br />On appeal from summary judgment, this court must determine <br />whether any genuine issues of material fact exist and whether the <br />trial court erred in its application of the law. Offerdahl Y. Univer- <br />sity of Minn. Hasps. & Clinics, 426 N.W.2d 425,427 (1988). The <br />parties agree that there are no material facts in dispute and that <br />resolution of this case depends upon the legal determination of how <br />statutes are applied to undisputed facts. This court owes no <br />deference to the trial court's resolution of a legal issue. Queen v. <br />Minneapolis Pub. Schs., 481 N.W.2d 66, 67 (Minn. App. 1992). <br />"The object of all interpretation and construction of laws is to <br />ascertain and effectuate the intention of the legislature." Minn. Stat. <br />§ 645.16 (1990); accord Tuma v. Commissioner of Economic <br />Sec,, 386 N.W.2d 702, 706 (Minn. 1986). When interpreting a <br />statute, the court must <br />examine the language of the statute and, "[a]bsent a clearly <br />expressed legislative intention to the contrary, that legisla- <br />tive intention most ordinarily be regarded as conclusive." . <br />Swenson Y. Emerson Elec. Co., 374 N.W.2d 690,699 (Minn.1985) <br />(quoting Consumer Prod. Safety Comm 'n Y. GTE Sylvania, Inc., <br />447 U.S. 102, 108, 100 S. Ct. 2051, 2056 (1980)), cert. denied, 476 <br />U.S.1130 (1986). <br />I <br />The open meeting law requires that meetings of the governing <br />body of any city shall generally be open to the public. Minn. Stat. <br />§471.705, subd. 1 (1990), Any person who violates the open <br />meeting law "shall be subject to personal liability in the form of a <br />civil penalty in an amount not to exceed $100 for a single occur. <br />rence."' Minn. Star. § 471.705, subd. 2 (1990) (emphasis added). <br />This court, has already held that appellants violated the open <br />meeting law. Thuma; 506 N.W.2d at 19. We also affirmed that the, <br />violation was unintentional. Id. . <br />The Municipal Tort Liability Act peovides: <br />Indemnification required. [Subject to the statutory max <br />- \imums contained in -section 466.041, a municipality or an <br />- instrumentality of a municipality shall defend and indem. <br />nify any of its officers and employees, whether elective or <br />appo ntive, for damages, including punitive damages,, <br />claimed or levied against the officer or employee, provided <br />that the officer or employee: . <br />(1) was -acting in the performance of the duties of the <br />position; and <br />(2 was not guilty of malfeasance in office, willful neglect <br />of?duty, or bad faith. <br />Minn. Stat. § 466.07, subd.1 (1990) (emphasis added). <br />The trial court concluded that the duty of a municipality to defend <br />and indemnify' <br />'The claim here is for reimbursement of the costs of defense, not for <br />indemnification of the $100 civil penalty. Its employees under section 466.07 does not extend to the Thuma <br />action because that action, alleging violations of the open meeting <br />law, was not a claim for "damages" or "punitive damages." The <br />plaintiff in the Thuma action sought imposition of a "civil penalty" <br />under Minn: Star. § 471.705, subd. 2 (1990). The trial court con- <br />cluded that the "civil penalty" was not analogous to "damages," as <br />referred to in section 466.07, and the duty of the city to defend its <br />All opinions since 1989 can be faxed. Ca11883.4244 50 <br />