Why the reappointment of Minneapolis’ city attorney almost became a thing

MinnPost photo by Peter Callaghan
Susan Segal is sometimes called on to issue legal opinions on questions facing the mayor and the city council.

The renomination of Minneapolis City Attorney Susan Segal will officially go before the city council’s Enterprise Committee … eventually.

But while the committee waits for that to happen, it held a public hearing this week to see what residents think about Segal keeping her in the job she’s held since 2008.

Most of those who showed up on Thursday thought Mayor Jacob Frey’s decision to renominate her was a good idea. Illustrative of the support was John Turnipseed, the executive vice president of Urban Ventures, which works with at-risk youth. He told the committee he’s never endorsed a city attorney before. “Most of my life I, and people that I know, didn’t have a good relationship with the city attorney’s office,” Turnipseed said Thursday. “But Susan has changed that.”

Mary Moriarty, the chief public defender for Hennepin County who often goes up against Segal’s municipal court prosecutors, praised Segal’s work on criminal justice reform, while Jolene Jones, president of Little Earth of United Tribes, said Segal was the first city attorney the tribal organization had a working relationship with. “She has engaged our community,” Jones said.

Saanii Hernandez, vice president of the Women’s Foundation of Minnesota, praised Segal’s work combating sex trafficking. And Javier Morillo, president of the Service Employees International Union Local 26, touted Segal’s successful defense of the city’s mandatory paid leave and a local minimum wage ordinances.

Even Former Council Member Elizabeth Glidden made an appearance, coming back to city hall to urge support for Segal’s reappointment. “I haven’t always agreed with Susan,” said Glidden. “But sometimes the beauty of how we come to respect someone is when you look at the body of their works as a whole and you see all the work they have done. I have all the respect in the world for her as a lawyer and a person.”

What’s not to like?

But there were a few people who don’t think reappointing Segal is such a good idea — opinions largely based on some of the city attorney’s past legal opinions and on the way path that the nomination did (and then didn’t) make its way to the council.

Segal is sometimes called on to issue legal opinions on questions facing the mayor and the city council. While officials can ignore those opinions, it would put a strain on the city attorney to defend actions that went counter to her legal advice. With controversial decisions, then, the council has often gone along the city attorney’s opinion while being accused of using Segal as cover.

It was a trio of Segal’s opinions that was the focus of opposition on Thursday. Chuck Turchick complained about an opinion issued by Segal years ago that former Police Chief Tim Dolan did not act improperly when he failed to take action in police discipline cases after disputing the facts gathered by the Civilian Review Board.

Dave Bicking, who co-founded Citizens United Against Police Brutality, disagreed with a Segal opinion from 2016 that said a charter amendment proposed by Bicking — to require police officers to purchase their own liability insurance — should not be placed on the ballot because the subject matter was preempted by state law. The district court later agreed with Segal’s analysis.

Bicking also pointed to a controversial opinion Segal produced in 2012 — that the council’s approval of state legislation that used city taxes to pay for a big chunk of the Vikings stadium did not violate a city charter provision that capped stadium funding at $10 million. (Our Revolution Twin Cities has also made replacing Segal one of its priorites for the new council.)

A procedural flaw 

Bicking further argued that since the matter isn’t legally before the council the hearing shouldn’t have been held. In fact, it was Bicking who pointed out the procedural flaw in how the nomination was handled by the city’s executive committee, a flaw that has required the scheduling of a revote.  

Under the Minneapolis city charter mayors appoint a list of department heads that are listed in the charter. Those appointments then go to the executive committee, which is chaired by the mayor but also contains four council members.

Nominations must be forwarded to the city council by the executive committee. But when Segal’s appointment reached the committee on Feb. 20, there were only four members present. Two voted to send her nomination forward, and two abstained. The city clerk erroneously thought those two votes were enough to move the nomination; only later did he remember that the executive committee is required by charter to have at least three votes on any matter.

Rather than cancel Wednesday’s public hearing, though, City Clerk Casey Carl recommended that it go ahead since public notice had been posted. But because the Enterprise Committee didn’t really have Segal’s name before it, it couldn’t vote on her nomination. Instead, it kept the public hearing open until a special meeting can be held next Wednesday at 1:15 p.m. By theory, another special meeting — this one on Monday — will have been held and officially and legally and actually sent Segal’s name to the committee.

Got it?

Council vice president and executive committee member Andrea Jenkins, who missed last week’s meeting, said she would vote yes on moving the nomination forward, so if, as expected, Mayor Frey and Council President Lisa Bender vote yes again, there will be three votes.

Interest in the nomination is high among council members. While there are six council members on the Enterprise Committee, four additional council members attended, as did Frey.

Comments (6)

  1. Submitted by Michael Friedman on 03/02/2018 - 12:07 pm.

    Role regarding body cams?

    There are people I strongly respect who are on both sides of this debate.

    The question which I believe needs to be asked of Ms. Segal directly is:

    In past years, have prosecutors under your supervision, when reviewing evidence, come across case files in which body police body camera footage should have been recorded (per policy) and wasn’t?

    And then the follow-ups:

    What have you directed your staff to do in such circumstances, if anything, so as to best ensure maximum MPD compliance with city legislated goals for body camera compliance? What can further be done through the efforts of your staff?

    The 13th ward Council Member might best be motivated to inquire.

  2. Submitted by Kathie Noga on 03/02/2018 - 12:30 pm.

    City Attorney

    Various communities out there are asking people to oppose her being re-appointed for various reasons, including some of her stands concerning civil rights issues. Face book continually has information on the full scope of her problems with several different communities in Minneapolis. I would say if they do reappoint her, it might be good to get a second opinion.

  3. Submitted by Pat Terry on 03/02/2018 - 12:55 pm.

    Ridiculous

    I find it absolutely absurd that people are upset because the city attorney provided correct legal anaylsis.

    Bicking is mad because Segal opined that the police liability insurance provision was invalid, even though the court found the same thing. Would it have neen better if she had gotten the analysis wrong? He’s also mad about her opinion on the Vikings stadium funding, in which the courts – again – reached the same conclusion. This is basically “man who doesn’t understand the law is upset about woman who does.”

    Our Revolution is mad about her opinion on the $15 minimum wage going on the ballot, which the court also found was correct. Segal didn’t make the law. She is just interpreting it, and doing so correctly. Sorry, folks, but as attorneys its our job to tell people what the law says, not what they want to hear.

  4. Submitted by chuck turchick on 03/02/2018 - 11:10 pm.

    Non-rational opinion issued by Susan Segal

    Pat Terry’s comment does not address my concern. And for seven or eight years now, no City Council member has addressed it in a public forum, or publicly asked Ms. Segal for a clarification. My concern was that the city ordinance governing the Civilian Review Authority said that, for CRA-sustained cases, “the chief’s disciplinary decision shall be based on the adjudicated facts as determined by the civilian review authority board.” But Chief Tim Dolan routinely explained in writing that his no-discipline decisions in CRA-sustained cases were based on his “disagreement with the facts as adjudicated by the CRA board.” Ms. Segal issued an opinion to the CRA Board that the Chief’s explanations were not inconsistent with the ordinance.

    My argument was that no person who understands English, and certainly no attorney in the city of Minneapolis who is employed outside the City Attorney’s Office, including Pat Terry, believes that there was no ordinance violation by Chief Dolan. The opinion was either a mistake, or it was motivated by something other than what the ordinance clearly said, or it was non-rational. Ms. Segal emphatically told one Council committee a couple of years ago that none of her legal opinions are based on anything but her reading of the law. Plus she never has said this particular opinion was a mistake. Therefore I concluded it was non-rational. Not unreasonable, or an opinion I simply disagreed with, but not rational. Non-rational legal opinions surely are relevant in considering an appointment to be City Attorney.

    Through an Assistant City Attorney, Ms. Segal told me that her opinion was based on the following phrase in the ordinance, and the ordinance had to be read as a whole. Nonsense. Her reading would have made the phrase quoted above totally superfluous, and as every first semester law student knows, that would violate an elementary rule of statutory construction that Ms. Segal and Pat Terry surely know.

    This was one of the issues that concerned the CRA Board when it issued three annual reviews of Chief Dolan. Had the City Attorney — or a single member of the City Council — pointed out that the Chief was thumbing his nose at the plain language of the ordinance, we might well have avoided the transformation of the CRA — which I’m not saying was perfect; it had problems — into the current joint citizen-police officer form of civilian oversight. But the lack of faith in the current structure is so widespread that a former president of the City Council, when she was running for Mayor four years ago, said she would restore civilian oversight if elected.

    This particular non-rational legal opinion has nothing to do with what the law says, has nothing to do with following policies of the City Council (as Council President Bender suggested at the Executive Committee meeting that failed to recommend this reappointment), and has nothing to do with whether supporting the appointment indicates total agreement with every opinion Ms. Segal has ever issued (as then Council Member Frey suggested two years ago).

    If Pat Terry has any legal rationale for Ms. Segal’s opinion in this matter, I would love to hear it. I have been waiting and waiting to hear one.

    • Submitted by Pat Terry on 03/03/2018 - 08:53 am.

      Rational opinion

      I didn’t address your issue because it wasn’t immediately clear that it had been validated by judicial review. The point of my comment was not that Segal has a perfect record or even that she deserves re-appointment. It was that criticism of opinions of hers that have been deemed correct by the courts is pure idiocy.

      Nevertheless, I spent a few minutes digging around on the internet on your case. There was a legal challenge to this in 2010 and the court ordered Chief Dolan to appear.

      http://www.citypages.com/news/tim-dolan-minneapolis-police-chief-ordered-to-follow-statute-6543466

      I can’t find any follow-up on this specific hearing, but based on the subsequent history, I assume the judge was satisfied and the writ dismissed. Maybe you can let me know what happened because I assume you followed it.

      I also read the ordinance, which I find to be poorly written and toothless and which specifically gives the Chief discretion. I can’t find a link to Segal’s actual memo (maybe you can provide one) so I can’t speak to her rationale, but I find her conclusions to be both rational and correct. Again, based on the subsequent history and the lack of follow-up coverage, I assume the court did too.

      I also disagree with your interpretation of statutory construction re: particular phrases and the document as a whole. Its much more complicated that that and it really depends on the statutory language in question. You reference first-semester law students, and I think that is about the level of the criticism of Segal in these cases. I think people who actually practice law will be far less critical of her.

      Again, if you have an order from that hearing or Segal’s actually memo for me to link to, I will read and be open to reconsidering. But based on what I dug up, it seems to me that Segal was not only rational, but correct, and you are wrong.

      • Submitted by chuck turchick on 03/09/2018 - 01:41 pm.

        Rationality or rationalization?

        Pat, thanks, I totally had forgotten about that 2010 case. No opinion ever issued. The case was removed to federal court in 2012, and I don’t know what, if anything, happened there. That complaint, though, did not include Chief Dolan’s written explanations of basing his disciplinary decisions on his disagreement with the facts found by the CRA Board. It only referred to him claiming that there was “insufficient evidence” or the facts were “not that bad.”

        The City’s response in that case argued that the plaintiffs lacked standing and that the Chief had the discretion whether to issue discipline or not to issue discipline in CRA-sustained cases. You similarly refer to the Chief’s discretion. I don’t recall if the plaintiffs — I guess they were actually called “relators” — argued that the Chief had to issue discipline in those cases. If they were, that’s not the point I’m making. I’m only saying that whatever his decision on discipline was, according to the ordinance it had to be based on the facts found by the CRA. That was not a matter of discretion.

        Regarding the statutory construction issue, the City Attorney’s position was that this sentence of the ordinance had to be read as a whole: “The Chief’s disciplinary decision shall be based on the adjudicated facts as determined by the civilian review authority board, and shall not include a de novo review of the facts by the Minneapolis Police Department’s internal affairs unit or any other police officer, unit, or division.” Ms. Segal’s claim was that “shall be based on the adjudicated facts” had to be read in conjunction with “shall not include a de novo review of the facts.” But by her reading, the “shall be based on the adjudicated facts” phrase could simply have been deleted from the ordinance, and the ordinance would mean exactly the same thing. That does violate a basic principle of common sense and of statutory construction known as the Rule Against Surplusage.

        It is not complicated, as you and many lawyers would like us to believe. A basic purpose of rules of statutory construction is to give effect to the concept that statutes and ordinances are written in English for a reason: so that ordinary people can know what they mean without having to go to some expert who will divine the meaning of this “complicated” language. And one of the basic, common-sense ideas behind these rules is that the words in the statute can’t be read as if they weren’t there.

        If you are interpreting this ordinance as meaning the same thing whether the words “shall be based on the adjudicated facts as determined by the civilian review authority board” are in the ordinance or not, then you are the first attorney I know of who is not employed by the Minneapolis City Attorney’s Office who would make such a claim.

        Finally, the ordinance did have some teeth. It specifically said that the chief of police could be disciplined for not complying with the provisions in this portion of the ordinance. In fact, that’s my gripe. No Minneapolis elected official was willing to call for such discipline of the chief, in addition to not asking Susan Segal to explain the legal advice she gave the CRA.

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