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Preston Mayor claims open meeting law violated by council

Fri, Aug 15th, 2003
Posted in Features

When the Preston City Council meets tonight it will have one more issue to debate: the open meeting law.

In a letter to the Preston City Council dated August 11, 2003, Preston Mayor David Pechulis claimed that City Administrator Fred Nagels actions, in contacting individual council members for permission to retain attorneys Kennedy & Graven of Minneapolis, violated the Minnesota Open Meeting Law.

Kennedy & Graven had been hired previously to advise the city on zoning ordinance issues related to Heartland Energy & Recycling obtaining a conditional use permit. Recently Nagel wanted additional advice on how the city should proceed in issuing a building permit to the tire-burning company.

According to Pechulis, Nagel received permission to contact Kennedy & Graven by speaking individually with council members Mike McGarvey, Mike Gartner, Heath Mensink and Jerry Scheevel by phone or in person. Supposedly, the four agreed that Nagel should proceed and contact the attorneys.

Pechulis claims that this is a violation of the open meeting law, where the city council is taking action without holding a public meeting.

In his letter to the city council, Pechulis stated that he had discussed this matter with Preston City Attorney David Joerg who concurred with the violation of the open meeting law.

I am hereby making public record of the violation of the open meeting law by Fred Nagle, City Administrator, and the City Council and the illegal retainment of Kennedy & Graven, Pechulis wrote to the council.

But Joerg disputes Pechulis claim that he, as city attorney, concurred with the mayors assessment that the open meeting law had been violated.

In a disclaimer issued by email on August 12 to the city council and news media, Joerg wrote:

I did not concur or conclude that there has been a violation of the open meeting law. I stated that I had no first hand knowledge of the facts involved and therefore was unable to say whether there was or was not such a violation. I have not investigated the facts and have not been requested to do so. If I were requested to investigate the matter, I would not do so but rather refer the matter to outside counsel.

The Minnesota Open Meeting Law states clearly that meetings of public governing bodies must be open to the public. Even in emergencies, good faith efforts must be made to provide notice of the meeting. While the four council members in this instance did not physically meet, the individual contacts initiated by Nagel may be viewed as a serial discussion that is defined no differently than if all four had been together at a sit down meeting.

One legal observer told the Journal that they werent sure if Pechulis claim against Nagel and the council really constituted a violation of the Minnesota Open Meeting Law.

It could be construed as Employee (Nagel) asking for advice from a Supervisor (Council Members) on how to solve a problem, the person said.

The person also said that typically, serial communication is initiated by one elected official, then continued by the second official, and then by a third, until a quasi quorum has been achieved, thus violating the spirit of the open meeting law.

In this case, the city administrator initiated each call, the person said.

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