03-15-94 CCM - Laserfiche WebLink

Home Browse Search

employees under section 466.07 did not extend to the Thuma action. We agree. Prior to 1987, a municipality had a duty to defend and indemnify Its employees against any "tort claim or demand." Minn. $tat. § 466.07 (1086). Section 466.07 was amended in 1987, however, to remove the word "tort" from that phrase. 1987 Minn. Laws ch. 79, § 2. As amended, section 466.07 provides that a municipality must defend and indemnify its employees against any claim for "damages, including punitive damages." Minn. Stat. `§ 466.07 (1990). Appellants argue that removal of the word "tort" by the 1987 amendment was intended to broaden a municipality's duty to defend and indemnify its employees. That may be true, but we are not persuaded that the duty was extended to reach this kind of case. The attorney general has specifically rejected that contention; Indeed, while the 1987 amendment deletes the reference to "tort," itspecifically incorporates the notion that the defense and indemnification requirements are directed to actions for "damages." As noted in [Op. Ally. Gen. 471-a (April 29,1983)], an action to impose sanctions under the Open Meeting Law is wholly unrelated to the establishment of monetary damages. Yii Thus, ►tcontinues to be our view that Minn. StaL § 466.07 does not expressly provide authority for defense and indemnification of officers charged personally with Open Meeting I.aw violations, ' Op. Att'y Gen. 471-a (Dec. 31,1992) (emphasis added). . One of the legislature's reasons for requiring indemnification of municipal employees for damage claims was to reduce the risk that employees would be burdened with damage awards. Hearing on S.F. No. 53 Before the Senate Judiciary Committee (Feb. 2, 1987).. We do not believe the $100 civil penalty under the open meeting jaw is the type of personal expense the legislature was concerned about when it enacted the indemnification law, or the 1987 amendment to it. Appellants also attempt to characterize the civil penalty in the open meeting law as punitive damages. As such, appellants argue, the city must defend them under section,466.07. We conclude, however, for several reasons, that civil penalties do not constitute punitive damages. First, punitive damages are allowed only where the harm complained of is the result of "deliberate disregard for the rights or safety of others." Minn. Stat. § 549.20, subd. 1(a) (1990). But a civil penalty is called for under the open meeting law even when, as here, the violation was unintentional. Thurna, 506 N. W.2d at 19. Second, punitive damages are awarded to a plaintiff; a civil penalty'is awarded to the government (in this case, the city). Appellants also argue that there is no rational public policy basis to maintain that a violation of the open meeting law is not entitled to defense by the municipality, while at the same time requiring a municipality to defend a public official or employee accused of unlawful discrimination, violations of civil. rights, sexual harass- ment, or police brutality. We conclude, however, that the wrongs referred to by appellants are directed against individuals (or groups of individuals) who, as victims, are allowed to seek compensatory and/or punitive damages for themselves, whereas an open meeting violation is more property viewed as a wrong directed at society as a whole. Thuma, as an individual plaintiff, could not seek damages as compensation for herself for an open meeting violation. Cf. Grossman Y. School Bd. of Indep. Sch. Dist. No. 640, 389 N.W.2d 532, 536 (Minn. App. 1986) (Complaint. alleging open meeting violations.must seek "civil penalty," not to exceed $100 to be paid to plaintiff himself, rather than "damages" of $100.). The whole purpose is deterrence. We hold that the city has no duty under section 466.07 to defend or reimburse appellants for costs and attorney fees incurred in defense of the Thuma action. Minn. Star. § 465.76 (1990) provides: If reimbursement is requested by the officer or employee, • the governing body of a home rule charter or statutory city or county may; after consultation with its legal counsel, reimburse a city or county officer or employee for any costs and reasonable attorney's fees incurred by the person to defend charges of a criminal nature brought against the person that arose out of the reasonable and lawful perfor- mance of duties for the city or county. (Emphasis added.) The trial court concluded that appellants are not entitled to rein bursement of their attorney fees under Minn. Star. §.465.76 becout (1) allegations of a violation of the open meeting law are not chargr of a "criminal nature," and (2) the allegations did not arise out of it lawful performance by appellants'of their duties. We recognize that a violation of the open meeting law is not criminal act and that the statutory penalty is a "civil penalty." Min Stat. § 471.705, subd. 2.. We also recognize that the safeguan normally afforded a criminal defendant are not applicable in dete mining whether a violation has occurred. Nevertheless, we do n believe the legislature required defense of officials in suits f damages under section 466.07 and permitted their defense, and section 465.76, against criminal charges that could result in incz ceration, yet intended to bar reimbursement of defense costs actions seeking a civil fine. The attorney general has opined that "the authority of cities reimburse officers for criminal defense may be construed to inclu as well defense of allegations of violation of the Open Meed Law." Op. Att'y Gen. 471-a (Dec. 31, 1992). We agree. 'I attorney general opinion goes on, however, to state a propositi with which we do not fully.agree--that in "virtually all cases would be required] that [the] officer not be guilty of the violatl charged If reimbursement is to be granted," Id. That is, if a violat: is found to have occurred, according to the attorney general cannot then be said that the allegation of violation of the bl meeting law "arose out of the reasonable and lawful performan of public duties. But it has been established in this case tl although appellants violated the open meeting law, the violation v unintentional. In such a circumstance, we find the condurt to within the "reasonable and lawful performance of publk I within the meaning of section 465.76. The violation was a) ... piy unfortunate misstep --a stumble --while the azppellants went about performance of legitimate public services. a We do not address, however, the question of whether the statute we allow payment of defense costs if the open meeting violation were wil or intentional. • .. r We conclude that the city may provide reimbursement pursuan section 465.76. Because the city council members who are disinterested in re bursement is less ttian a quorum the council must paresent reimbursement decision to a district court For approval. 3 Section 465.76 provides:.. [Ilf lessthana quorum of the governing body is disinterested, reimbursement shall be approved by a judge of the'district court. (That may be unnecessary, however, in light of our decisior MLCIT liability that follows in part III.) We remand to the dis court. M. Under the covenant issued to the city by MLCIT, MLCIT h duty to defend and indemnify city officials in suits arising from l errors and omissions in performing city duties, except that MLCIT's duty to pay on behalf of or to .indemnify a "covered party" other than the "city" shall not apply to any -" act, error or omission: d. For which the "city" is not authorized to Indemnify any person bav statute. (Emphasis added ) 4 The provision in its entirety reads: MLCIT's duty to pay on behalf of or to indemnify a "wvered( " than the "city shall not apply to any act, error or omission: - a.Which constitutes malfeasance in office; or b. Which constitutes willful neglect of duty; or c.Which constitutes bad faith; or d. For which the "city" is not authorized to indemnify any person by st or 1.- 51 All opinions since 109 can be faxed. Ca,'IM