Private talks: Opinions mixed regarding series of closed meetings for RTC development [UPDATED]Published 6:27am Monday, September 30, 2013 Updated 12:18pm Monday, September 30, 2013
It’s hard to know just what exactly goes on during closed city meetings, unless you are sitting in the room.
But at least one Fergus Falls City Council member would like to see more city business handled in open meetings, rather than closed sessions.
“The whole purpose of the council is to be in the public,” said council member Anthony Hicks.
The city council has met out of the public eye nine times in the past six months. Five times were regarding pending litigation for a development agreement with parcels A and B at the Regional Treatment Center and once during a special meeting for RTC redevelopment. Other closed meetings included labor negotiations, the city administrator review and pending litigation with the Minnesota Pollution Control Agency.
Based on the information reported to him, at least one of those meetings probably should not have been closed, according to an attorney who specializes in media law.
Hicks would like to see more council discussions available to the public.
“If people can see you at work in council chambers, then they can make their
decisions whether to reelect you or not,” Hicks said. “When it’s held behind closed doors, they really can’t go by anything.”
The meetings for the RTC parcels A and B were closed on the following dates: April 15, for pending legal action; May 6, for active litigation; June 3, to discuss a redevelopment amendment proposal (though it was not listed on the agenda); July 15, for Jeff Schlossman property default; and Aug. 19, to discuss the amended development agreement for parcels A and B.
The council approved an amendment to the development agreement for the parcels Aug. 19 during an open session. Schlossman had asked for an extension to the original agreement; he was in default of the agreement at the end of March.
A lawsuit had not been filed yet, but the city was in the process of pursuing legal action, according to City Administrator Mark Sievert.
“That’s not pending litigation,” said Mark Anfinson, Minnesota Newspaper Association attorney. “Pending means that it’s already been started. A public body cannot close a meeting to discuss an action yet to be taken. They can’t close a meeting to discuss that issue even if litigation is very likely.”
These particular meetings were closed to allow the council to have a discussion with attorneys to discuss its legal options, according to City Attorney Rolf Nycklemoe.
“It’s really kind of centered around what’s called the attorney-client privilege,” Nycklemoe said. “You’re allowed to have private conversations when it comes to litigation and other matters that may be gearing up for litigation.”
It’s just like any other person who is entitled to have private conversations with their attorney, he said, because “you don’t want to tip your legal analysis.”
Anfinson disagrees. The attorney-client privilege is much narrower for government officials doing official business than it is for private individuals, he said.
While Hicks understands that some of the “nitty gritty” legal issues need to be discussed in a closed meeting under the attorney-client privilege, he believes more of the general conversations could have been in front of the public.
“I think we had too many closed meetings about Jeff Schlossman,” Hicks said. “We spent a lot of time on it. I think there should’ve been more debate in council chambers rather than behind closed doors so that people got a sense of where the city council stood on the issue.”
The Minnesota Open Meeting Law permits closed meetings based on a limited attorney-client privilege. According to the law, in order to close a meeting under the attorney-client privilege exception, the governing body must give a particularized statement describing the subject to be discussed. A general statement that the meeting is being closed to discuss pending or threatened litigation is not sufficient, the law (13d.05 subdivision 3b) says.
“The possibility of legal action is just not adequate under the open meeting law,” Anfinson said. “That’s just not enough.”
Minutes for these closed meetings will not be released to the public, Nycklemoe said, since they are protected under the attorney-client privilege.
Choosing a developer in a closed meeting
The RTC also came up in a closed session June 12, during a lengthy special meeting focused on RTC redevelopment and proposals from two developers.
Historic Properties (which later formed Historic Kirkbride, LLC) was chosen following more than two hours of discussions, proposals, public comment and questions — and a 23-minute closed meeting which was not listed on the special meeting agenda. While it’s not illegal to enter into a closed session that isn’t listed on the agenda, “it’s probably prudent that they would’ve had it on the agenda,” Sievert said.
In the June 12 special meeting, the council went to a closed session to consider the sale of property. Members discussed the pluses and minuses of the proposals and reached a consensus to choose Historic Properties, said RTC adviser Kent Mattson, when the council returned to an open session.
The council passed a resolution (6-0, with council members Anthony Hicks and Randy Synstelien absent) to work with Historic Properties as the developer of the RTC.
The council is authorized to go into a closed session to discuss and evaluate offers regarding purchases of real estate, Nycklemoe said.
“It really had to close the session for the purpose of having a discussion amongst themselves as to which offer may be the offer that it should accept,” he said. “Ultimately, it is a sale of the real estate. They’re buying the real estate, and they’re going to develop it.”
According to Minnesota Open Meeting Law, a meeting may be closed to discuss certain issues relating to government property sales or purchases. It can close to develop or consider offers or counteroffers for the purchase or sale of real or personal property, the law (13d.05 subdivision 3c) says.
The boundaries of this law are a bit fuzzy, Anfinson said. In comparing two different offers, you’re going to end up with one developer in the end.
“Trying to pin down that there was a violation of the law in that context is pretty hard to do,” he said.
Minutes of the June 12 closed session will become available to the public once the property is transferred, Nycklemoe said.
“Oh, I’m sure that people like (media members) that have been following the RTC issue, they would’ve loved to have been in that closed meeting and heard all of that,” Sievert said. “No doubt.
“I think you can appreciate whether it’s, say, regarding litigation, or sale or purchase of property, or labor negotiations, is that if you had to discuss that all in public, you’re just tipping your hand.”
Still, the law has boundaries, Anfinson said, and you have to follow it whether it’s convenient or not.
“If you can’t stand the heat, get out of the kitchen,” he said.
Council member opinions
Randy Synstelien said he knows that there are only a handful of reasons in which the council is allowed to close a meeting. Like Sievert, he’s concerned about giving the other party the upper hand in negotiations.
“One of the reasons why we would close for the negotiations is to basically make sure that the public or taxpayers are getting their best bang for their buck,” Synstelien said.
The Schlossman property discussion needed to happen behind closed doors because it was “legal stuff,” said council member Scott Rachels. It was financial information that’s not public knowledge that was discussed at the June 12 closed meeting, Rachels said.
“I think the majority of the council members expressed their opinions of, ‘here was my position on why I selected this particular developer,’” Sievert said.
Nycklemoe agreed, saying the council discussed in the open session what they liked about certain aspects of the offers.
However, only three council members spoke following the closed meeting. The comments did not provide reasons why they chose one developer over the other but instead thanked them, noted that this step was a positive for the city, and they were excited to move forward.
“I think at this point in time, it’s the best choice for getting this thing redeveloped,” said council member Jay Cichosz on June 12.
City attorney, administrator comfortable with closing
Hicks, though absent from the special meeting, didn’t think it would hurt the public for the council members to give their points of view on the developers. He doesn’t take issue with the decision that was made, it’s just the process that is in question.
“It’s picking A over B,” Hicks said. “That debate could’ve been done in a more public arena.”
For the most part, the information the city has regarding the RTC redevelopment is the same information members of the public have, Nycklemoe said.
Both Nycklemoe and Sievert said they feel comfortable that these closed meetings were properly executed.
“First, it’s does (the council) have the legal authority to close the meeting, and then it’s up to them to do that,” Sievert said. “You can imagine, any time you can sit down and have some discussions behind closed doors, that discussion is probably going to be a whole lot different than it is outside in front of the public.”
The discussions during these meetings led to some important decisions, Nycklemoe said.
“It’s good public policy to close meetings to have these types of discussions so that matters can be discussed that center directly on the issue,” he said.
More closed meetings?
The city council might not be done with closed meetings in regard to the RTC redevelopment project. As Historic Kirkbride continues to work on the nuts and bolts of the project, the developers will need to come back and share that information with the council at some point, Sievert said. Some of that will be private data that the city will need to limit access to.
“I’m sure there’s going to be some meetings where the council is going to have a closed session on that because that’s going to be in regard to the negotiations for the sale of the property, or a continuation of what we’ve been doing so far,” Sievert said.
The city is usually pretty careful about closing meetings, he added.
Sometimes, it’s newer council members that will ask if a meeting may be closed for a situation that comes up which might be a little uncomfortable discussing in public.
“And if we can’t legally close the meeting, we say no,” Sievert said.
Gene Schmidt, of Friends of the Kirkbride, regularly attends city council meetings and thinks there are too many closed sessions, especially about the RTC.
“I think the normal discussion on it should be public,” Schmidt said. “We have no idea what’s said in there. They need more transparency, not less.”
It seems as though Hicks would be in favor of that. He’d like to give residents a chance to see the workings of the council process.
“Ultimately, we’re elected by the people,” Hicks said. “Ultimately, we’re answerable to the people.”
From a legal perspective, it’s essentially impossible to determine if a meeting is legal or not if you’re not allowed to sit in and hear what is actually discussed, Anfinson said.
“You always would hope that public officials would try to the maximum extent possible to deliberate issues in public meetings,” he said.
So, the council may continue to have closed meetings. Sometimes the law is just too vague to determine if they are legal or not.