8.10. SR 03-21-1994
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AGENDA ITEM 8.10.
MEMORANDUM
TO: MAYOR & CITY COUNCIL
FROM: PAT KLAERS, CITY ~.~ .. I STRATOR
DATE: MARCH 16, 1994 . ~
SUBJECT: OPEN MEETING LAW
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There has been a lot of discussion recently at the State and City level on the
Open Meeting Law. In a widely publicized case, some councilmembers from
the city of Mton were sued because of alleged violations with the Open
Meeting Law. The citizens won this lawsuit. A great deal of the recent Open
Meeting Law debate has related to who should pay the attorney fees for the
councilmembers for defending themselves in this lawsuit. This debate has
spilled over to whether or not the League of Minnesota Cities should continue
to offer Open Meeting Law insurance to councilmembers, whether or not this
insurance policy and coverage should be adjusted in the future, or whether or
not the councilmembers are covered by the general League liability policy
even without this special Open Meeting Law insurance. Attached for your
information are some of the recent newspaper articles on this topic, an article
from the NPELRA newsletter, and articles from the League of Minnesota
Cities-Cities Bulletin.
As City Attorney Peter Beck will be at this Council meeting, I thought it
would be appropriate to receive a brief update from him on the Open Meeting
Law. Once everything gets resolved at the Legislature this year, I hope to
have an update provided by the City Attorney for the City Council and for all
of the City appointed Boards and Commissions which are obligated to follow
the Open Meeting Law. Additionally we will then evaluate whether or not
the City should purchase the League of Minnesota Cities Open Meeting Law
insurance. Current estimates are that this insurance would be $1,280 to
cover all City appointed and elected bodies.
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P.O. Box 490 · 13065 Orono Parkway · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425
Open meeting law bill gets
committee approval
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Joel Jamllik
The House Government Opera-
tions Committee on Tuesday passed
H.F.613 (Carruthers, DFL-Brooklyn
Center) a bill which would modify the
state open meeting law. As amended,
the bill represents an uneasy compro-
mise between the Minnesota Newspa-
per Association, the Minnesota School
Board Association, the Association of
Minnesota Counties, and the League of
Minnesota Cities.
The amended bill would clarify the
ability of local governments to pay for
any attorneys fees or costs imposed in
an open meeting lawsuit, except where
the court finds that the member was
guilty of malfeasance in office, willful
neglect of duty, or bad faith. Other
positive points include giving local
units authority to close meetings to
review applicants' qualifications prior
to the finalist stage of hiring, prohibit-
)
ing any fines or attorney fees for
nonintentional violations, and capping
plaintiffs' attorney fees at $7500.
The negatives are that the bill
would allow courts to award plaintiff's
attorney fees up to $7,500 and would
increase the maximum civil penalty
from $100 to $300 if the court finds the
violation was "intentional."
Complicating matters are several
open meeting law cases working their
way through the court system. The
court released one of the decisions the
morning of the hearing (see Afton court
decision, page 3).
We have not yet fully analyzed the
impact the recent court of appeals
decision will have on the amended bill.
Everyone involved in this issue will
have to quickly reexamine their
positions because the Senate must
consider the bill by the end of the
month for there to be any reasonable
prospect for passage. 0
· Open meeting law legal fees subject of court ruling
Tom Grundhoefer
The Minnesota Court of Appeals
ruled this week on who is responsible
for paying costs and attorneys fees in
open meeting law cases. The court said
the language in the League of Minne-
sota Cities Insurance Trust's property/
casually coverage requires LMCIT to
reimburse councilmembers for costs
they have incurred in defending open
meeting law cases.
"It's an outrageous misreading of
the coverage language," said LMCIT
Administrator Peter Tritz. "Based on a
clause in the 'conditions' portion of the
agreement, the court concluded that
because the city is legally permitted to
reimburse the councilmembers for
attorneys fees, the LMCIT has a
'concomitant duty' to reimburse under
the coverage agreement.
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March 11, 1994
"It's really tortured reasoning. The
court on the one hand said that LMCIT
has no duty to indemnify the
council members for the $100 fine
because the agreement excludes 'fines
and penalties' from its definition of
damages," Tritz said. "But, the court
completely ignored the coverage
language which says LMCIT only has a
duty to defend claims or suits seeking
damages. "
The court filed the decision March
8, 1994 in the case Kroschel v. City of
Afton and the League of Minnesota
Cities Insurance Trust.
LMCIT strongly disagrees with the
court's decisions in this case and will
immediately appeal the decision to the
Minnesota Supreme Court. Until the
Supreme Court rules on the matter, the
LMc.. - C.l"I'e~
!?(.,{ (/~ti'k
decision of the appeals court is without
force and effect.
While the issue is pending, LMCIT
recommends that cities not assume they
will have coverage under the standard
coverage agreement. But, we do
recommend that trust member cities
advise LMCIT claims personnel of any
open meeting law suits in their cities.
For those who have, or arc
considering purchasing, LMCIT's new
optional open meeting law defense cost
coverage, the Supreme Court action on
this issue will affect your city's
decision on the purchase of this
coverage. LMCIT will keep members
informed about new developments.
If you have questions, please call
Pete Tritz, Tom Grundhoefer, or Doug
Gronli of the LMCIT staff. 0
P 3 q. Page 5
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. TUESDAY, MARCH 8,1994""
, SAINT PAUL PIONEER PRESS
F 7A I:
Officials to be reimbursed for legal fees '
MARY R. SANDOK ASSOCIATED PRESS
Three Afton City officials found
to have violated. Minnesota's open
meeting law unintentionally, can
be reimbursed for their legal fees
stemming from the case, the state
Court of Appeals has ruled.
In a unanimous opinion to be
filed today, a three-judge panel
said that the city's insurance car-
rier must reimburse the three offi-
cials. The ruling reversed key
parts of a Washington County trial
court's decision.
Mayor Jon Kroschel and City
Council Members Suzanne Flinsch
and Nicholas Mucciacciaro spent a
total of between $56,000 and,
$80,000 defending themselves
against an Afton resident's law-
suit, according to estimates from
, attorneys involved in the case.
The appeals court rejected the
officials' claims that the city was
required to pay their .legal bills,
but said that the city could pay the
costs voluntarily. The court said
that the Minnesota League of Cit- .
ies Insurance Trust, under terms
of its policy with the city, had a
duty to reimburse them.
Pierre Regnier, an attorney rep-
resenting the city oJ Afton, said
the ruling "has much more of an
impact on the League of Minneso-
ta Cities Insurance Trust, because
it mandates the league to reim-
burse. them for their attorney fees.
"As far as the city is concerned,
the court affirmed what we ar-
gued all along:. there's no manda-
tory requirement of the city to
reimburse as they claimed."
The appeals court previously af-
firmed a finding that the three
officials unintentionally violate.
the open meeting law in June 1991
by holding a closed meeting dur-
ing which they approved a well
repair contract. Each official was
fined $100.
In the reimbursement case ap-
peal, the court said its ruling did
not address whether cities were
permitted to pay defense costs if
open meeting law violations were
found to be intentional.
, Richard Allyn, attorney for the
trust, said trust officials will de-
cide in the next few days what
their next step will be.,
c.... Da.n D:M..-......."
Jon' Erik Kingstad, MucciacCi.
aro's attorney, praised the ruling.
"The public interestis, if people
don't'get the assurance..that they
can receive a defense for keeping
offices that they legitimately won
in an election, a lot of people who
don't . have the financhll means
will simply be excluded from pub-
lic' offiCe," he. said. .
Age discrimination ruling. In
another case, the court held that
the Minnesota Human Rights Act
protects workers, no matter how
old, from' discharge based on age,
But it permits. exemptions for a
mandatory retirement age estab-
lished by law or an employer's
published retirement policy if it is
consistent with state law.
That ruling stemmed from a
case brought in Blue Earth County
regarding the firing in 1991 of two
employees - then ages 78 and 79
- by H&C Electric Supply Co.
An appeals court panel ruled
that the former employees -
John Hoerr and Willard Dorn _ i
can sue for age discrimination be
cause the company did not have a
mandatory retirement policy.
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MINNESOT A
PUBLIC
EMPLOYER
LABOR
RELATIONS ASSOCIATION
NEWSLETTER
~0
] VOLUME xm
e
,I
e
IN THIS ISSUE
PAGE
CURRENT EVENTS
Court Awards Employee $116,000 for Attempt to Enforce No-Smoking Ban
Supreme Court Determines Veterans Preference Act Not Applicable
to U of M . . . . . . . . . . . . . . . . . . . . . . . . . . . .
COURT DECISIONS
Court Holds City of Duluth Could Not Contract with Temporary Agencies 3
GRIEVANCE ARBITRATION AWARDS
Hennepin County - Seniority . . . . . . . . .
State of Minnesota - Just Cause for Discipline.
6
7
MPELRA AND ITS MEMBERS
~
MPELRA Conference Highlights
Hhen Does Employee Participation Become Illegal
Government Data Practices Act and the Open Meeting Law .
Uniform Baseline and Settlement Form. . . . . . . . .
1~ <#
15
WHERE TO SEND IT
Do you have information which
should be reported in the
MPELRA Newsletter? Please
send it to Lyne 11 e Hood,
Department of Human Servi ces,
444 Lafayette Road, St. Paul,
MN 55155.
REGISTER FOR CONFERENCE NOW
The annua 1 wi nter MPELRA Conference is
scheduled for Friday, December 17, 1993 in
Minnetonka. If you have not received
registration materials, please contact
Roxanne Casper, (612) 968-6254.
Affiliated With The National Public Employer labor Relations Association
~.
..~... "~'.'
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Government Data Practices Act
and the Open Me.eting L.inY
An extremely informat1ve d1scussion of'
the Open Meeting Law hnd related
pieces of legislation was presented by
Bernard E. Steffen of Barnu, Guzy and
Steffen, Ltd. The Minnesota Open
Meeting Law. which requ1res public
bodies to meet in public. was enacted
to further three purposes:
. to preven t pub li c bod i e s from
acti ng secretly wi thout ~he
public having an opportunlty
to detect improper 1nfluences;
. to assure tho pub11c's right
to be informed; and
e
to afford an opportunity for
members of the public to
present the1r v1ews.
Genera lly. the Open Meeti n{J Law is to
be construed in favor of public
access. The publi c body must use a
balancing test to determ1ne whe~her
this presumption applies in a speclfic
situation. The public body must
balance the "public's right to be
informed" and the "right to the
effective and efficient adm1nistration
of pub li c bod i e s . " Furtherance of
efficient administration is not an
adequate defense if procedures
foreclose public discussion
altogether. effectively permit the
final decision to be made 1n private.
or conceal improper influences.
.
If a public body violates the statute
by not ho 1 di ng an open meeti ng.
individual members of the body face
fines and removal from office. A
first violation results in the member
being personally subject to a fine not
to exceed one hundred dollars. If the
same person is found to violate the
law three times. the person "shall
forfeit any right to serve on
[theJ...governing body...for a period
of ti me equal to the term of offi ce
.
, -13:.-
such person was then serving." The
statute requires that in order for
there to be separate violations, the
violations must be unrelated.
The standard for determi ni ng whether a
person has violated the statute is
whether the i nd i vi dua l' s conduct is
intentional. If the person fails to
post notice of the meeting. the
standard is whether the act was willful
and deliberate.
The Open Meeti ng Law requi res that all
votes of members must be recorded in a
voting journal and that the journal
must be made available for public
inspection. The statutory provision
requi ri ng the body to record the ~
of members likely prohibits the public
body from taking secret ballots even if
the final overall tally is recorded.
However, whether the Legislature
intended to requ ire that pub 1 i c bod i e s
record individual votes has not been
1 itigated through the appellate courts
and the issue remains unsettled.
Much of the presentation and discussion
focused on what has probably been the
most difficult issue involving the Open
Meeting Law: those situations in which
both the Open Meeting Law and the
Minnesota Government Data Practices Act
apply to a particular situation. The
Minnesota Government Data Practices Act
provides that all data maintained by a
public body shall be accessible to the
public unless expressly classified by
law as not public or private. The
provision addressing personnel data
provides that all personnel data on
public employees is private unless
specifically listed otherwise.
In theory. there i~ no difficulty in
applying the Open Meeting Law
requi rements to meeti ngs whi ch di scuss
public data: public data must be
di scussed in an open meeti ng. However
in practice. the difficulty lies i~
determining whether information is
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MPELRA NEWSLETTER
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classified as "public" or "not
public." In particular. issues have
arisen regarding the language in the
Government Data Practices Act that
states that the following data is
public:
the existence and status of any
complaints or charges against the
employee. whether or not the
complaint or charge resulted in a
disciplinary action;
the final disposition of any
disciplinary action together with
the specific reasons for the
action; and data documenting the
basis of the action. excluding
data that would identify
confidential sources who are
employees of the public body; and
the terms of any agreement
settling administrative or
jUdicial proceedings.
"Final disposition" is defined as...
a final disposition occurs when the
state agency. statewi de system or
political subdivision makes its final
decision about the disciplinary
action. regardless of the possibility
of any later proceedings or court
proceedings. In the case of
arbitration proceedings arising under
collective bargaining agreements. a
final disposition occurs at the
conclusion of the arbitration
proceedings. Final disposition
includes a resignation by any
individual when the resignation occurs
after the final decision of the state
agency. statewide system. political
subdivision. or arbitrator.
The above provisions represent changes
made by the 1990 Legislature. These
legislative changes. which broadened
the definition of public data. were
tri ggered by the Mi nnesota Supreme
Court decision in Annandale Advocate
v. City of Annandal.e. In the
Annandale case. the City Council had
met to discuss an investigative report
involving the police chief. The City
held a closed meeting. discussed the
report. and passed a resolution
discharging the police chief. A
newspaper subsequently sought access to
the i nvesti gati ve report regardi ng the
alleged misconduct of the police chief.
The Minnesota Supreme Court held that
the report was private data under the
Government Data Practices Act because
there was no final disposition of the
cas~. Although the City Council had
made its final decision. the police
chief had the opportunity to use the
Veterans Preference Act procedure. The
Court held that this was true even
though it would have been possible that
the report wou 1 d never be re 1 eased if
the pol ice ch i ef and the City Counc 11
arrived at a settlement of the matter.
Therefore. the portion of the meeting
which discussed the contents of the
report were properly closed.
However. the Minnesota Supreme Court
held that the meeting should have been
open during the portion of the _eting
that did not involve discussions of the
..content of the report. The portion of
the meeting that should have remained
open included discussions concerning:
the fact that the report exi sted; the
fact that the City Council had
considered the report; the role the
report played in the dec is i on to
terminate the police chief; and the
terms of any settlement.
'"
The 1990 amendments to the Government
Data Practices Act were designed to
alter the result in the Annanda1e
decision. The statutory amendment
interprets the term "fina1 disposition"
as a final. decision. This
interpretation means that the
investigative report in Annanda1e would
have become public following the City
Council's final decision even though
the police chief had access to the
Veterans Preference Act procedure.
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MPEL.RA NEWSL.ETTER
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The 1990 Legi s 1 ature also adopted
statutory language to address the
conflicting requirements of the Open
Meeting Law and the Government Data
Practices Act where the public body
must discuss or consider data
classified as "not public." Formerly,
an open meeti ng coul d be temporari ly
closed while the body discussed
non-public data. The meeting would
then be reopened after the bOdy
finished its discussion of the
non-public data. The 1990 statutory
language requires meetings to remain
open in most instances.
e
The new statutory language provided
for a limited number of exceptions in
which a meeting may be closed. Two of
these exceptions specify that:
· a public body shall close a
meeting for preliminary
consideration of allegations
or charges against an
individual subject to its
authority. If the members
conclude that discipline of
any nature may be warranted,
further meetings or hearings
must be open. A meeti ng must
also be open at the request of
the i ndi vi dua 1 who is the
subject of the meeting.
· a publ i c body may close a
meeting to evaluate the
performance of an individual
who is sUbject to its
author i ty . The pub 1 i c body
shall identify the individual
to be evaluated prior to
closing a meeting. At its
next open meeti ng, the publi c
body shall summari ze its
conclusions regarding the
evaluation. A meeting must be
open at the request of the
individual who is the subject
of the meeting.
e
There are also two other narrow
exceptions to the Open Meeting Law:
one for labor strategy di scussions and
one for attorney-client discussions
regarding pending litigation.
The statute requires the public
employer to schedule a closed meeting
in a prior open meeting. This
precludes a public employer from
scheduling a future closed meeting
during a closed meeting. In addition,
this section only allows discussion of
labor negotiation strategy. The public
employer may not discuss any other
business a this meeting.
In the event the public employer wishes
to hold a closed meeting, it must take
a number of steps to comply with the
statute. One of the requirements is
that the proceedings of a closed
meeti ng shall be tape recorded at the
expense of the governing body and shall
be preserved for two years after the
contract is signed and shall be made
available to the public after all labor
contracts are signed by the governing
body for the current budget period.
Thus, these tapes do not have to be
released until all labor contracts for
the current budget period are signed by
the public employer. In the event one
1 abor contract is not signed, it
appears that the pub 1 i c emp 1 oyer wi 11
not have to make any tapes of 1 abor
negotiations available to anyone until
the contract is signed, even if the
contents of the tapes deal wi th 1 abor
negotiations for a different labor
contract.
The second narrow exception to the Open
Meeting Law allows closed meetings for
attorney-client discussions regarding
pending litigation. This exception had
been long accepted by the Minnesota
Supreme Court and was added to the list
of Open Meeti ng exceptions in the
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MPEl.RA NEWSLETTER
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statute. However, it woul d appear
that meetings may only be closed to
discuss strategy on specific
litigation. It almost never can be
extended for the mere request for
general 1 ega 1 advi ce or counsel. For
example, the Court of Appeals has
stated that the attorney-client
privilege is not available when a
governing body seeks to discuss the
strengths and weaknesses of a proposed
enactment which may give rise to
future litigation.
Uniform Baseline and
Settlement Form
e
Peter Obermeyer, Commissioner of Bureau
of Mediation Services, di scussed the
provision in PELRA, M.S. 179A.04,
Subd. 3(A), which requires completion
of a Uni form Settl ement Form (Form).
The Form is applicable to contract
negotiations between exclusive
representatives and all public
employers, other than townships. The
Bureau of Medi ation Servi ces (Bureau)
has been charged with developing the
Form and related instructions for
compliance with the statute.
Si nce the Conference, there have been
a series of developments regarding
this legislation. An issue was raised
whether the Form had to be included as
part of the rules established to
implement the legislation. The Form
was not initially included by the
Bureau as part of the rules. The
Attorney General determined that the
Form needed to be part of the rules or
detailed as to its purpose in the
rules. As a result, the initial rules
were withdrawn on September 13, 1993.
e
The Bureau has since gi ven noti ce of a
request for "opinions" under the
rul e-mak i ng procedures and the proces s
wi 11 begi n anew. The Bureau requested
opinions on the rules/Form in September
and October and conducted a general
meeting with labor and management
representatives in late October.
It is anticipated by the Bureau that
the new rul es and Form wi 11 be noti ced
to be adopted without a hearing (a
non-controversial adoption of rules) in
early December. If this does occur,
then the rules and Form would become
effective in early 1994.
The Form is not intended to be a report
of a public employer's labor costs or a
substi tute for the costi ng methods of
collective bargaining proposals by
labor or management. Its purpose is
limited to fulfilling the requirements
of the legislation, with the intent of
the legislation being to provide a
standard basis for public employers to
identify certain economic elements of a
collective bargaining settlement.
The Form must be presented to the
governing body of each public employer
at the time the governing body ratifies
a collective bargaining contract. In
addition, the Form must be available
for public inspection during normal
business hours within five calendar
days after ratification by the public
employer.
The Form is reproduced on the following
pages.
Instructions for the Uniform Baseline
and Settlement Form may be obtained
from the Bureau of Mediation Services,
(612) 649-5421.
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Evolution of open meeting law continues
City officials concerned
e
Joel Jamnik
'Ille open meeting law is intended
to promote the general public's ability
to monitor and participate in local
government activities.
HislOrically, city officials have
supported the goals of the law and for
tJle most part., have not experienced
significant problems with the law's
enforcement. Reeent court decisions,
however, indicate two very disturbing
trends: the growth in politically
motivated challenges, and the growth
in attorney fees issues as part of an
open meeting law case.
The chief protagonist for open
meeting law cases has usually been the
media, and more particularly the local
newspaper. Because of the law's
importance lO their operations,
reporters and editors are often more
well-schooled in the open meeting law
than local government officials. The
same can probably be said for the data
practices act, another prime media-
government battleground.
Enforcement of these laws is
almost solely accomplished through
private court actions. These often
costly actions are not easily pursued
by the media, and are even more
difficult for the individual citizen.
Recently, however, there has been
a growth in nonmedia originated
claims. Individuals, citizen groups,
and public employee unions have all
discovered the open meeting law as
another weapon to be used against a
local governing body. lbeir goal is
usually not to receive monetary
compensation-the fine imposed is
$100 per violation payable lO the state.
Rather, the effort is undertaken to
directly or indirectly remove existing
councilmembers, boardmembers, etc.
Violation of the open meeting law by
an incumbent will be used by election
challengers. Additionally, in most
cases the open meeting law claim is
not brought until the plaintiff can
allege at least three separate viola-
tions, because the law conlains a
C November 12,1993 ~
e><
e,)
provision that allows a judge to
remove from office any elected official
who is found to have three or more
violations of the law. That removal
also renders the official ineligible for
appointment or election to any other
public office for the period of time
equal to the remaining term of the
office they hold at the time of the
violation.
Some of these actions have now
involved claims for plaintiff's attor-
neys fees. While the law regarding the
authority of a judge to grant fees
doesn't distinguish between the media
company or private person as plaintiff,
judges seem more inclined to grant
attorneys fees when an individual
citizen brings suit.
Complicating this trend are
questions about the defense of open
meeting law claims. Are
councilmembers required to defend
these actions on their own, or can the
city provide a defense for its officers?
The Minnesota Supreme Court
recently affirmed a lower court
decision (Claude v. Collins) finding
five open meeting violations for a
mayor (totaling $500 in fmes) and
proportionate plaintiff's attorneys fees
of $700 per violation (totaling $35(0).
However, the court also ruled that
while the law may allow removal for
three or more violations, it may not
automatically require removal (the
violations must be found to constitute
malfeasance or nonfeasance). The
court also held that the trial court did
not abuse its discretion in determining
the appropriate penalties for the
violations and addressed the atlOrney
fees issue in a footnote.
That footnote states: Minn. Stat. *
471.705, subd. 2 creates personal
liability for the $100 fines that may be
imposedfor violation of the Minnesota
Open Meeting Law. As was pointed
out at oral argument, the true cost to
defendants in these cases is often
attorney fees. While we do not decide
the issue, we note that a municipality
"shall defend and indemnify" its
officers and employees who have acted
in the performance of the duties of
their position and have not been
"guilty of malfeasance in office,
willful neglect of duty, or bad faith. "
Minn. Stat. * 466.07, subd. 1 (1990).
In the past, the duty to defend and
indemnify was limited to tort claims
and may not have applied to the
defense of claims brought under the
Minnesota Open Meeting Law. Op.
Au'y Gen. 471-a (Apr. 29, 1983)
(discussing Minn. Stat. * 466.07, subd.
1a (1982). The legislature has since
removed the statute:r explicit reference
to tort claims.
The bottom line is that the court's
decision implies that the mayor in this
case will have to pay $500 (for the five
violations), may not be removed from
office because the violations did not
rise to the level of misfeasance or
malfeasance, and may have the city
pay both the attorney's fees for the
plaintiffs as well as his own defense
costs.
Legal scholars and legislators will
no doubt continue the debate regarding
the law and its enforcement. The
League Policy Adoption Conference
includes a session on the law with
Mark Anfinson, Counsel for the
Minnesota Newspaper Association. 0
Page 7