Advocates of transparency in government in Minnesota are in a bit of a funk these days.
The measure, which has been on the books in one form or another for 61 years, requires most meetings of local and county governmental bodies in Minnesota to be open to the public, as well as other features that promote access by the citizenry, such as advance notice of sessions of public bodies and recordation of them. The Open Meeting statute, along with its documentary counterpart, the Government Data Practices Act, enacted 17 years later, constitute the stellar aspects of the state’s “Sunshine” laws aimed at promoting accountability of public officials, the decisions they make, and actions they take.
The Open Meeting measure revolves around the principle that meetings of public bodies, supported by taxpayer funds, are presumed to be open to the public. There are, to be sure, a number exceptions to the requirement of openness, but they are confined to explicit classifications of undertakings where secrecy is reasonably necessary to transact public business, such as personnel review disciplinary matters, strategies for labor negotiations, considerations of real estate acquisitions, internal security measures, and legal advice from counsel on pending or imminent litigation matters, among others.
Fines and forfeitures
But the state Supreme Court blew a whopping hole in the law last month in a case entitled Funk v. O’Connor. The litigation concerned a group of five combined lawsuits by citizen activists in the west metropolitan community of Victoria in Carver County challenging dozens of closed, “executive” sessions of the five-member City Council going back several years while considering about $7 million construction projects, including a new city hall and public works building, along with lack of public notice of the meetings and failure to properly record them.
Both a Carver County District Court judge presiding over the consolidated cases and a unanimous three-judge panel of the state intermediate appellate found a remarkable 38 violations of the law by the elected officials and imposed fines totaling $7,300 against the four Council members who were sued, including two still on the body, along with one of the leaders of the litigation, who unseated the incumbent mayor, one of the defendants in the litigation. But those tribunals at the trial and appellate levels refused to grant the relief most sought after by the challengers: invoking the provision of the law that requires removal from office of a three-time offender.
The potent, but rarely utilized three-strikes-and-you’re-out clause had been applied in one notable occasion in 1994 to remove the Mayor of Hibbing and two other officials in that Iron Range community who had committed only four transgressions of the law, which has been amended several times since then with nary an official believed to have forfeited public office due to statutory transgressions.
The victorious but dissatisfied Victoria victors took the case to the state Supreme Court. While the monetary fines were fine, they wanted the offenders subject to the forfeiture-of-office provision.
The critical issue before the judges in St. Paul was the appropriate remedy for these transgressions: namely, whether they warranted invocation of the three-strikes-and-you’re-out provision of the law, which removes a serial Open Meeting offender from office and bars return to that same position for a time period equivalent to the present term of office.
The remedy, an unusual and harsh one, is viewed by supporters of transparency as a means of deterring violations of the law and punishing the wrongdoers. They regard it as a necessary tool to enforce the statute because its other remedies are so weak that deviations from the statutory requirements can be done with little risk or recourse.
The fines, although required to be paid by the individual offenders, are relatively puny. Reimbursement to prevailing parties usually covered by the governing body’s insurance policy, is limited to $13,000, a trifle of the total legal expenses incurred in these cases, and any action taken at an improperly-closed meeting remains valid and cannot be rescinded despite the violation. Thus, there is little incentive, other than the threat of disqualification from office and the ensuing financial impact and reputational ignominy, to deter officials from going opaque, rather than open, in some controversial or volatile circumstances
But the disqualification is a two-edged sword. While draconian, the sanction is viewed by many jurists as so harsh that they are unwilling to impose it upon Open Meeting offenders, which is why it hardly ever occurs.
The members of the Supreme Court in the Funk case followed that practice, too, refusing to apply the forfeiture feature despite the serial statutory offenses.
The justices, in a unanimous ruling, held that the offenders could retain their positions. Pointing to the statutory language quintet of combined cases, the court ruling seems to suggest that the disqualification remedy does not come into play until and unless an offender has been found to violate the law in three lawsuits. Thus, the Victoria miscreants got away with 38 violations while, in some future cases, individuals who offend three times could lose their positions if sued separately for each violation.
The outcome creates a vexing dilemma: It allows serial Open Meeting offenses; favors a multiplicity of costly and time-consuming cases typing up judicial resources; and makes wrongdoers virtually bullet-proof from the most stringent and, perhaps, effective sanctions under the law. As one of the victorious claimants, the current Mayor Thomas Funk, observed, the Supreme Court ruling makes the Open Meeting Law “meaningless” and provides” no accountability” for elected officials by allowing them to operate “in secret.”
Review and revise
This perplexing posture cries out for legislative review and revision of the law. While the Victoria challengers won their case in establishing violations and imposing fines, it may have been a pyrrhic victory insofar as it allows serial wrongdoers to remain in office and avoid the rigors of the law.
The challengers in the Victoria litigation were rewarded for their efforts in another forum. The claimants and their attorney received the prestigious Peter S. Popovich Award from the Society of Professional Journalists for their tussle to hold officials to task — and transparency.
But the real losers in the Funk case may be the public and its surrogates, the media, which often struggle to overcome secrecy in government in reporting the news. By diluting the strongest sanction under the statute, the ruling makes this particular “Sunshine” law more opaque than open.
It will embolden officials inclined to do the public’s business in secret and discourage members of the public who would challenge their clandestine conduct.
Proponents of transparency in government can ruefully remark: “We got Funked.”
Marshall H. Tanick is a Twin Cities constitutional law attorney and past recipient of the Peter S. Popovich Award from the Society of Professional Journalists.
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