Minnesota Cities Magazine
More from Mar-Apr 2018 issue

From the Bench: City Officials Remain in Office Despite Open Meeting Law Violations

OPEN MEETING LAW
Forfeiture of office penalty

City Officials Remain in Office Despite
Open Meeting Law ViolationsSeveral city residents brought three separate complaints against the City of Victoria mayor, Thomas O’Connor, and three councilmembers, James Crowley, Lani Basa, and Thomas Strigel, claiming multiple violations under the Open Meeting Law, and seeking the imposition of monetary penalties and an order requiring the forfeiture of their public offices. The violations alleged included failures to provide public notice of committee meetings, participation in meetings that were not properly closed or recorded, and serial violations through email communication. The district court ordered the three complaints consolidated into one court action. After a six-day trial, the district court found that the four public officials had intentionally violated the Open Meeting Law multiple times, but did not order the forfeiture of any offices, ruling that the Open Meeting Law’s forfeiture penalty is not triggered unless there are findings of intentional violations in three or more actions.

The Minnesota Court of Appeals affirmed and refused to order the forfeiture of any offices. The Court of Appeals reasoned that the Legislature’s view of public policy was that a public official must be tried and told that what he or she did was wrong before subsequent violations can be added together to trigger the official’s removal from office. The Court of Appeals also noted that any forfeiture of office is unconstitutional unless the underlying conduct used to trigger the forfeiture rises to the level of “malfeasance or nonfeasance” within the meaning of the Minnesota Constitution. The Court of Appeals also upheld the district court’s decision to consolidate the three complaints and to deny the residents’ motion to compel additional discovery. Funk, et al. v. O’Connor, et al., No. A16-1645 (Minn. Ct. App. Nov. 13, 2017) (unpublished opinion). Note: The League of Minnesota Cities (LMC) filed an amicus brief in the city’s support. The Minnesota Supreme Court has agreed to review the Court of Appeals’ opinion.

Story - Minnesota Waste Management ActMINNESOTA WASTE MANAGEMENT ACT
Organized collection process

In 2014, the City of Bloomington began following the detailed process outlined in Section 115A.94 of the Minnesota Waste Management Act (WMA), for moving from an open system of waste collection, in which residents are free to contract with any licensed collector, to organized collection. The WMA defines organized collection as a “system for collecting solid waste in which a specified collector, or a member of an organization of collectors, is authorized to collect from a defined geographic service area or areas some or all of the solid waste that is released by generators for collection.” After complying with Section 115A.94, the City Council in December 2015 approved a five-year contract for organized collection with Bloomington Haulers, LLC, an organization of seven different waste collectors that were assigned defined geographic service areas.

Resident voters sought to invalidate the city’s organized collection ordinance through a charter-amendment petition, seeking to require voter approval for organized collection. The City Council rejected the petition, and the resident voters appealed. The district court affirmed the City Council’s decision, holding that Section 115A.94 establishes the “exclusive process” that cities must follow to implement organized collection of solid waste, and therefore pre-empts the proposed charter amendment that seeks to add a voter approval requirement that does not exist in Section 115A.94. The Minnesota Court of Appeals affirmed, ruling that Section 115A.94 “occupies the field of legislation regarding the process that a city must follow to establish a system of organized collection of solid waste,” and therefore, pre-empts a proposed charter amendment seeking to require advance voter approval of a city’s decision to establish organized collection. The Court of Appeals also noted that Section 115A.94 only pre-empts the process for establishing organized collection and does not preempt a city’s authority to decide whether to adopt organized collection. Jennissen v. City of Bloomington, 904 N.W.2d 234 (Minn. Ct. App. 2017). Note: The League of Minnesota Cities Insurance Trust (LMCIT) represented the city, and LMC filed an amicus brief in the city’s support. The Minnesota Supreme Court has agreed to review the Court of Appeals’ opinion.

GOVERNMENTAL IMMUNITIES
Qualified immunity

Ray Scott, the owner of a motel, sued the City of Beatrice, Nebraska; Mayor Dennis Schuster; and City Attorney Tobias Tempelmeyer, under Section 1983 of the Civil Rights Act, claiming that the city had violated his constitutional rights because the inspection and condemnation of his motel were conducted in retaliation for his business tax dispute with the city. Scott had engaged in a long-running dispute with the city and Tempelmeyer regarding the motel’s failure to pay lodging taxes. In November 2010, Tempelmeyer received photographs of the motel’s interior from the lessee of an adjacent commercial building. These photographs led to the motel’s inspection by the city’s chief building inspector and the city’s subsequent citation and condemnation of the motel for “fire and life safety issues” in violation of the International Property Maintenance Code.

The district court granted summary judgment for the city and Schuster and partial summary judgment for Tempelmeyer on Scott’s claim based on qualified immunity. But the district court denied Tempelmeyer’s motion for qualified immunity on Scott’s claim that the inspection and condemnation were conducted in retaliation for his exercise of his First Amendment free speech rights. Qualified immunity shields a government official from suit when his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The 8th U.S. Circuit Court of Appeals reversed and held that Tempelmeyer was entitled to qualified immunity on the First Amendment claim. The Court of Appeals reasoned that Scott had failed to show that a clearly established right exists to be free from retaliatory regulatory enforcement that is otherwise supported by probable cause. Scott v. Tempelmeyer, 867 F.3d 1067 (8th Cir. 2017).

ABATEMENT ACTION
Collector vehicle statute

The City of St. Paul issued an abatement order, requiring John Krenik to comply with Minnesota Statutes, section 168.10, subdivision 1e, which states that collector vehicles must be “screened from ordinary public view by means of a fence, shrubbery, rapidly growing trees or other appropriate means.” Krenik had covered his two collector vehicles with tarps and later constructed a portable fence across the front area where he parked the tarped vehicles, but the vehicles were still partially visible from public areas.

Story - Collector vehicle statuteThe City Council upheld the abatement order, concluding that the tarps and fence did not satisfy the statutory requirement. Krenik appealed, claiming that the statute requires only a partial screening to obscure the vehicles’ aesthetic qualities, and that the City Council’s decision was unreasonable, arbitrary, or capricious. The Minnesota Court of Appeals affirmed the City Council’s decision, concluding that the statute requires complete screening of collector vehicles and that the City Council provided sufficient reasons to support its decision. The Minnesota Supreme Court also affirmed, ruling that the statute’s plain language unambiguously states that an owner of a collector vehicle must completely screen the vehicle and its outdoor storage area from ordinary public view. The Supreme Court also ruled that the City Council’s decision was not unreasonable, arbitrary, or capricious because there was sufficient evidence in the record to support it. Appeal of Krenik, 903 N.W.2d 224 (Minn. 2017).

GOVERNMENTAL IMMUNITIES
Qualified immunity

Morgan Hansen’s dog, Conan, escaped from its backyard and ran down highway I-29 near St. Joseph, Missouri, obstructing traffic. Patrol Trooper Thomas Black unsuccessfully attempted multiple times to remove the dog from the roadway, and then eventually shot and killed him. Hansen sued Black under Section 1983 of the Civil Rights Act, arguing that Black had unreasonably seized her dog in violation of her Fourth Amendment property rights. Black filed a motion for summary judgment based on qualified immunity, which protects a public official from suit when his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The district court denied Black’s motion, reasoning that a jury could find that Black used excessive force to seize the dog, and that his actions were not objectively reasonable under the circumstances. The 8th U.S. Circuit Court of Appeals reversed, ruling that while an officer’s use of deadly force is always tragic, Black’s actions were objectively reasonable under the circumstances, and he is entitled to qualified immunity. The Court of Appeals also ruled that Black did not violate any clearly established right when he shot and killed an unrestrained, unsupervised dog that was creating a serious risk to public safety and had avoided numerous attempts to control him without force. Hansen v. Black, 872 F.3d 554 (8th Cir. 2017).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

Read the Mar-Apr 2018 issue of Minnesota Cities magazine

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