Open Meeting Law

I wanted to follow up with a reply of my own to an earlier thread. Given that it's a little long, I figured I'd make this a posting of its own.

Our first anonymous commenter on that topic wrote,

What get me though with this Maplewood situation is why don't all of these people making open meeting violation claims actually file a complaint with the appropriate people? Note that the County Attorney is not the appropriate party since she only can handle felony cases and open meeting violations are simple misdemeaners. The complaint is supposed to be filed with the city prosecutor who will be required to farm it out to another city prosecutor in another city.

I dare say we have a case here of another self-proclaimed expert making erroneous claims (after humorously criticizing others for the same). :)

For a start, it is false that the county attorney "only can handle felony cases." While the county attorney is responsible for felony cases, they clearly may be involved in lesser charges as well. For example, on the Ramsey County Attorney's website, we read "The three prosecutors in the [Joint Domestic Abuse Prosecution] unit review all levels of domestic assault – from misdemeanors to felonies." It is absurd to think that a county attorney would be prohibited from prosecuting misdemeanors; wouldn't that mean that they would not be allowed to plea bargain a felony down to a misdemeanor, because then they would no longer have jurisdiction? Or that if they determined a case under investigation did not warrant felony charges, they would be forced to drop it entirely?

Moreover, according to the Minnesota Legislature document referenced by our original reader, open meeting violations are an issue of civil law, not criminal, so they are neither misdemeanors nor felonies. I don't know if this specific matter falls under the county attorney's purview, but clearly the county attorney does handle both civil and criminal matters.

I could be wrong, but I have the impression that open meeting law cases tend to be brought by individuals. Past open meeting law cases I'm aware of have included parents suing a school board for allegedly making decisions outside of public meetings about which schools in a district to close, for example. I don't know if this is so because of the law, or just because it's individual parties that have had the interest in pursuing cases.

According to that document on the legislature's website, the remedies for violations of the law are as follows:

The open meeting law provides a civil penalty of up to $300 for intentional violation. A person who is found to have intentionally violated the law in three or more legal actions involving the same governmental body forfeits the right to serve on that body for a time equal to the term the person was serving. The Minnesota Supreme Court has held that this removal provision is constitutional, provided that the violations occurred after the person had a reasonable amount of time to learn the responsibilities of office.

Given that the former city manager, the city attorney, and the outside consultant Prof. Schultz, all quite strongly and repeatedly warned the council about the law and its implications, and did so on the public record starting in the earliest days of the terms of Longrie, Hjelle, and Cave, it seems clear that these people know their responsibility to follow the law in this area.

The legislature's document continues:

A public body may not pay a civil penalty on behalf of a person who violated the law. However, a public body may pay any costs, disbursements, or attorney fees incurred by or awarded against a member of the body in an action under the open meeting law if the member was found not guilty of a violation. [emphasis mine]

So if suit is brought against the triumvirate and decided against them, they are personally on the hook for both the $300 and the cost of their defense -- and possibly the cost of the plaintiff's attorney as well. What might that come to? The legislature's document continues:

A court may award reasonable costs, disbursements, and reasonable attorney fees of up to $13,000 to any party in an action under the open meeting law. However, the following conditions apply:
• A court may award costs and attorney fees to a defendant only if it finds that the action was frivolous and without merit
• A court may award monetary penalties or attorney fees against a member of a public body only if the court finds there was specific intent to violate the open meeting law

Again, there have been multiple warnings about the open meeting law (all the way up to the city attorneys resigning because their warnings were repeatedly ignored), which I think would play into the question of intent against the gang of three's favor.

Finally, the document tells us:

The appropriate mechanism to enforce the open meeting law is to bring an action in district court seeking injunctive relief or damages. The statute does not provide for a declaratory judgment action.

So district court is where the action occurs, but it's still not clear to me who has standing to bring it (if it has to be individual citizens, or if for example the County Attorney could bring suit on behalf of the people).

In terms of “putting their money where their mouth is,” this may indeed be required. It may be necessary for interested parties – for example, a group of Maplewood citizens, or wrongfully terminated employees, or developers who suffered from decisions against them made behind closed doors, or what have you – to take the initiative and file a suit in district court. Three such successful legal actions could remove the mayor or councilor(s) from office before the expiration of their terms.

At the very least, the discovery process would no doubt turn up some very interesting records about what this council does behind closed doors. Given the evidence and testimony already on the public record, it's hard to imagine that a suit would be deemed frivolous.