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HomeMy WebLinkAbout1993.04.19 RESO 1993-0005STATE OF MINNESOTA COUNTY OF WASHINGTON CITY OF HUGO RESOLUTION 1993-5 FINDINGS OF FACTS CONCLUSIONS AND RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUGO REGARDING REIMBURSEMENT OF ATTORNEYS FEES INCURRED BY INDIVIDUAL COUNCIL MEMBERS IN DEFENDING AN OPEN MEETING LAW VIOLATION LAWSUIT WHEREAS, the current Hugo City Council is comprised of the following members: 1. Walter Stoltzman, Mayor; 2. Bernard Brunotte, Council Member; 3. Fran Miron, Council Member; 4. Debra Barnes; Council Member; 5. Jim Leroux, Council Member; and WHEREAS, four of the current members of the Hugo City Council were named as individual defendants in a case known as Sell Publishing Company, dib/a The Times, Plaintiff, vs. City Council of the City of Hugo; Walter Stoltzman; Thomas Jesinski; Bernard Brunotte; Debra Barnes; and Fran Miron, Defendants. Washington County District Court File No. CX -92-1447; and WHEREAS, plaintiffs brought suit pursuant to Minnesota Statute Section 471.705 alleging that the above-named individual council members had violated the Minnesota Open Meeting Law on February 24, 1992, and on March 14, 1992; and WHEREAS, Council Member Debra Barnes was alleged only to have violated the Open Meeting Law on March 14, 1992. The other council members were alleged to have violated the Open Meeting Law on both February 24, and March 14, 1992; and WHEREAS, by Order Granting Summary Judgment dated February 5, 1993, Gary R. Schurrer, Judge of District Court, ruled that a violation of the Open Meeting Law had occurred on February 24, 1992, but that no violation of the Open Meeting Law occurred on March 14, 1992; and WHEREAS, in the Memorandum attached to his Order, Judge Schurrer ruled ". . . that the closed meeting on February 24, 1992, does constitute a technical violation of the Minnesota Open Meeting Law. Defendants, with the exception of defendant Debra Barnes, who was not present on February 24, 1992, acted in good faith reliance upon the advice of the consultant hired to assist them. There was 1 no intent or improper motivation on the part of any of the defendants in closing the council meeting. However, good faith is not a defense to a violation of the Open Meeting Law. The Court may consider the parties' good faith when considering the penalty to be imposed pursuant to Minn. Stat. §471.705 Subd. 2. Because of the parties' lack of improper motivation and a good faith reliance upon the advice of their consultant, the Court feels a minimal fine is an appropriate penalty for the technical violation of this statute . . . . . . there is no evidence to suggest that any member of the Council intended to evade the Open Meeting Law • and WHEREAS, in his Order, Judge Schurrer completely exonerated Council Member Debra Barnes from any wrongdoing; and WHEREAS, each of the individual Council Members did incur attorneys fees in defending against said Open Meeting Law violation lawsuit. NOW THEREFORE, the City Council of the City of Hugo, upon the Motion of Council Member Jim Leroux and the second of Council Member Debra Barnes, and the unanimous vote of all members of the City Council, do hereby authorize and approve of the following: FINDINGS OF FACT 1. That 4 of the 5 current members of the Hugo City Council would have a personal interest in any decision as to whether or not Council Members should be reimbursed for their attorneys fees. 2. That the general rule in Minnesota is that Council Members who are interested in an issue which must be decided by the body upon which they serve, may not take part in that decision. 3. That the Minnesota Supreme Court has set out a five factor test in the case of Lenz v. Coon Creek Watershed District, 153 N.W. 2d, 209 (Minnesota 1967). That the Lenz test is designed to allow a public body to determine when interested members of that body may still make a decision, this Council determines that those factors apply to this case as follows: a. The nature of the decision being made. The nature of this issue is an important one for the City of Hugo. This case touches upon important public policy issues. It is important, therefore, for the City Council to address it at this point in time. Paramount in the Council's determination of this issue is the "chilling effect" that this type of lawsuit might have upon future Council Members if it is not decided. F In this case, individual Council Members incurred legal fees for attempting to perform their duties, in good faith reliance on the advice of an expert consultant. The Court's decision clearly demonstrated that there was no intent to evade the requirements of the Open Meeting Law. This particular decision is very important as it will affect the willingness of other qualified individuals to seek office in Hugo. If capable citizens face the prospect of incurring legal fees, even when acting in good faith, and upon the advice of an expert, they may decide not to seek office. This could be damaging to the City government. Similarly, if payment is made, citizens may think their officials are simply covering for themselves. This could undermine confidence in the City government. An erosion of confidence could also be damaging to City government. b. The nature of the pecuniary interest. The pecuniary interest in this case is direct. A vote on this issue could take money from the City Treasury and put it directly into the hands of the interested Council Members. Consequently, the City Council realizes that this is not a theoretical or possible conflict of interest. Instead, it is a direct pecuniary conflict of interest. Nonetheless, the actual dollar amount involved in this case for each individual Council Member is relatively small. Each Council Member seeks reimbursement of $ 689.25 (total costs equal $3,446.45). While we all recognize that no one wishes to pay any amount of money that they need not pay, this case does not involve thousands (or tens of thousands) of dollars as other similar cases sometimes do. The Council is cognizant of the fact that the dollar amounts involved in this case are not the type that would tempt the ordinary, reasonable and honest person to violate the law or their own moral conscience. C. The number of officials making the decision who are interested. In this case, 4 of the 5 City Council Members are interested in this decision. 3 d. The need. if any. to have interested persons make the decision. e. In this case, if interested Council Members are not allowed to vote on the issue of whether or not reimbursement should be made, then no decision can be made. A decision not to allow the Council Members to vote will be a vote to say that the City Council has been legally stymied from considering this important issue. This case does not present a case wherein a quorum of the Council would remain to decide the case in the absence of those interested. In this case, if the interested Council Members abstain from voting, the issue can not be decided. their selfish interests. In this case there is a means of review available to the City Council to insure that a neutral fact finder may review this case and determine whether any decision made by the City Council is proper. Specifically, Minnesota Statute 5465.76 provides for review by the District Court of any reimbursement which this Council may vote to be made to the individual Council Members. Minnesota Statute 8465.76 does not explicitly apply to the Open Meeting Law. However, pursuant to an Attorney General opinion dated December 31, 1992, the Minnesota Attorney General's Office stated "therefore, a City may provide reimbursement for defense of City Officials against whom sanctions are sought under the Open Meeting Law pursuant to the authority and subject to conditions of 8465.7611. 4. Through an analysis of the Lenz factors above, this Council is of the firm opinion that the 4 interested members of the City Council must vote on this issue. NOW, THEREFORE, based upon the foregoing Findings of Fact, and with the advice of the City Attorney, this Council makes the following: CONCLUSIONS 1. That the actions of each of the City Council Members in this case in attending the council meetings on February 24, 1992, and March 14, 1992, arose out of the reasonable and lawful performance of duties for the City of Hugo. The City Council 4 Members were required to attend the meetings. The meetings were for the purpose of hiring a new City Administrator. It was part of the lawful and reasonable duties of the Council Members to attend those meetings. 2. That based upon the decision of District Court Judge Gary R. Schurrer, the City Council adopts the following findings: (a) The actions taken by the individual Council Members were taken in good faith. (b) There was no intent on the part of any of the individuals involved to violate any clearly established legal duties. In fact, each of the Council Members were guided in their decisions by the advice of a professional consultant. That consultant advised the Council Members that there was nothing improper in closing the meeting on February 24, 1992. (c) The Council Members acted reasonably. The Council Members were engaged in normal Council Member activities. They were not meeting in such a manner as would put a reasonable Council Member on notice that they were violating the Open Meeting Law. (d) Similarly, the City Council Members were each attempting to faithfully perform the duties of their offices. Each had been informed that what they were doing was not only proper but required for them to fulfill their duties as Council Members. A City Administrator position needed to be filled. The City Council is the appropriate body to appoint a person to that position. The interested Council Members were attempting to faithfully perform the function of hiring a new City Administrator. 3. There is no evidence to suggest that any member of the Council intended to evade the Open Meeting Law in any way. In fact, the individual Council Members sought the advice of their independent consultant before agreeing to meet. The Court has noted a complete lack of improper motivation and a good faith reliance upon the advice of the consultant. Similarly, the members informed the public that they would be holding the meeting. This was not a "secret" meeting. It was only closed to the public. 4. The amount of legal fees sought to be reimbursed in this case is reasonable given the nature of the charge and the work done. The fact that the 4 Council Members agreed to be defended by the same attorney has lowered the overall defense costs that might have been incurred in this case. Judging from the legal fees charged in the recently publicized case from the City of Afton, Minnesota, this Council can only conclude that the legal fees sought to be reimbursed in this case are more than reasonable. 5 5. In addition to the above enumerated factors, this Council finds that public policy would be served by reimbursing the Council Members for the attorneys fees they have incurred. If these fees are not reimbursed, the case could have a "chilling effect" upon the ability of the City Council to maintain dedicated, informed, and conscientious Council Members in the future. If the general citizenry of Hugo believes that.even Council Members acting reasonably and in good faith will still be burdened by attorneys fees, for defending their actions, this would have a negative effect on the City's ability to function into the future. 6. This Council is also guided in its decision by the fact that the individual council members attempted to settle the case early on. After the suit began, they were advised, by their attorney, that the first meeting was a technical violation of the law. They were ready to admit that fact and move on. However, the Plaintiff insisted that the second meeting was also a violation. The bulk of attorney's fees were incurred in defending against the allegation of the second meeting. For that meeting, all council members were exonerated. 7. While through this document the Council is voting to reimburse all members, this body finds that Council Member Barnes should be fully reimbursed for her attorney's fees even if the District Court rules against reimbursement for the other four. Ms. Barnes was found to have not violated the Open Meeting Law. She should not be required to incur fees when she has done nothing wrong. NOW, THERE'F'ORE, be it resolved by the City Council, City of Hugo, Washington County, Minnesota, as follows: 1. That the attorney's fees incurred individually by Council Members Stoltzman, Barnes, Miron, Jesinski and Brunotte, shall be paid for by the City of Hugo. 2. That the attorney's fees incurred by Council Member Barnes shall be paid for by the City of Hugo and the District Court should consider paying her attorney's fees separate from the issue of whether or not the District Court approves of the reimbursement for the other four council members. 3. That pursuant to Minnesota Statute §465.76, this City Council shall seek judicial review of this decision through District Court Judge Gary R. Schurrer. The City Attorney is directed to prepare the necessary Petition for Review, and/or other necessary documents to perfect said review by the District Court. 4. That the City Treasurer of the City of Hugo, shall not release any reimbursement check to any City Council Member, unless and until this decision has either been approved by Judge 6 Schurrer or Judge Schurrer has declined to take jurisdiction over the matter. 5. The motion for the adoption of this resolution was duly made by Council Member T;w% Lemig , and was duly seconded by Council Member 6ern4ra $c:oaEL, and a role call vote being taken thereon, the following voted in favor hereof: Debra Barnes, Bernard Brunotte, James Leroux, Fran Miron, Wally Stoltzman and the following voted against same: NONE Whereupon said resolution was declared duly passed and adopted. Passed by the City Council for the City of Hugo, Washington County, Minnesota, this 19thday of April 1993. ATTEST: A OIL City,5Xerk &U&u -,--/ VII -I -I Walter L. S oltzman, Mayor 7