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