A Sentinel Analysis

FAIRMONT — Have Fairmont’s elected officials developed an open meeting law problem?

The question has popped up in the past month as the City Council has wrangled over the future of the City Attorney’s Office. The main target of suspicion is at-large Councilman Tom Hawkins, who denies any wrongdoing.

A pair of council members — Randy Lubenow and Ruth Cyphers — are viewed as Hawkins’ backers. The three constitute a majority, given that five people serve on the council.

At an April 15 council work session, Mayor Debbie Foster and Councilman Bruce Peters both questioned whether Hawkins had pre-arranged an outcome in the City Attorney matter. Hawkins told both of them they were wrong.

The council unanimously agreed at that meeting to weigh the benefits of in-house counsel versus contracting for legal services.

A week later, the aforementioned majority of three expressed dissatisfaction with the City Attorney during her job evaluation. The end result was that the city and its attorney are parting ways.

Minnesota’s open meeting law exists to prohibit actions being taken in secret, making it impossible for the public to be fully informed about a public body’s decisions or to detect improper influences.

The law also affords the public an opportunity to present its views to a public body.

The law provides a civil penalty of up to $300 for intentional violation. A person who is found to have intentionally violated the law in three or more legal actions involving the same governmental body forfeits the right to serve on that body for a time equal to the term the person was serving.

Another penalty can be the political repercussions when those who violate the law are forced to face voters again.

A violation of the open meeting law includes “serial communication,” in which public officials hold private communications (in person, in letters, by phone or via email) and reach decisions prior to any public meeting taking place. For some city leaders to suggest this about their colleagues is not a common occurrence. In Fairmont, none have done so — at least in such a public fashion — in the past 20-plus years. Until now.

Peters said it is common knowledge that Hawkins is telling people around town that he has three votes in his pocket. Foster accused Hawkins on two fronts. The first involved his use of the word “we” in reference to actions taken by Hawkins in the City Attorney matter. When Hawkins told her she was wrong, she called his actions “bold,” because the things he was doing did not make sense without knowing he had majority support on the council.

In an effort to obtain a better understanding of the divisiveness that has taken root at City Hall, the Sentinel on April 25 submitted a government data request to the city. The newspaper asked for the following: “All emails, within the past month, among the mayor, council members and city administrator related to the City Attorney position, her job performance and any plans to fill her position.”

The city fulfilled the request April 26.

Among the things that emerge from the emails is an effort by Hawkins to direct traffic in the City Attorney matter, trying to create and schedule his agenda, to both examine whether to stop using in-house counsel and how to move ahead with legal representation for the city after the separation agreement with the City Attorney. A question that emerges from reading the emails is why Hawkins believes he has the power to act. No single City Council member has any authority without the consent of a majority of members.

The emails also clearly show a high level of frustration among other city leaders, with one going so far as to write: “There has to be a way to nicely say that everything [Hawkins] has touched has gone to hell. How will be able to work together as a council[?]”

That email was sent from Councilman Wayne Hasek to Foster on April 24. Foster tries to buck up Hasek with words of encouragement. She writes: “Each of us needs to be accountable to the community during council meetings. All of the other stuff that is going on will take care of itself. I have to believe that!!”

It all began April 4, when Hawkins told his fellow council members that he and Lubenow went to visit City Attorney Libby Bloomquist. The pair told her they would propose to the council on April 22 that the city change from in-house to contract service for legal matters, thus eliminating the need for her services. (Hawkins told his colleagues about all this in an email sent to Humpal. Hawkins asked Humpal to forward the information to other council members and the mayor. This form of communication among city leaders is not considered an open meeting law violation, but rather a way to share information.)

Other council members reacted quickly, seeking a better understanding of what was happening since they had been blindsided by the duo’s actions. Peters asked for a work session, a meeting at which the council could discuss the City Attorney matter to gather information but not vote on the issue. He made that request April 5. Later that day, Peters found support from Lubenow, who said he did not know enough about what the City Attorney does to make a decision regarding her position. (Yet, on April 22, Lubenow joined Hawkins and Cyphers in expressing “dissatisfaction” with Bloomquist, leading the council to opt for a separation agreement with her.)

As his fellow council members, the mayor and city administrator worked on setting up a work session, Hawkins sent this email to Humpal on April 8: “Taking a different approach. Will talk to Libby first and then update you. Don’t schedule a work session yet.”

Hawkins then shifted away from wanting to schedule a vote on in-house counsel versus contract services. Instead he wanted a performance review of Bloomquist on April 22.

The mayor and other council members still wanted a work session. Hawkins did not. On April 12, he also told Humpal and Foster that he would not meet with them to discuss the entire process that had transpired and was continuing to unfold. Hawkins then wrote to Humpal: “Also, I just thought of the fact that you were given no direction from the council to research anything for the city attorney position. Please stop any more research until directed by the council as a whole.”

While the City Council is the city administrator’s supervisor and can direct his activities, the administrator remains in charge of the day-to-day operations of the city. Nothing prohibits the administrator from providing the council with information he believes is relevant to its decision-making. In addition, several other city leaders did not object to Humpal putting together data on the city’s legal representation. No single council member has the power to tell the city administrator — or any other city employee — what to do or what not to do.

From that point, the council did hold a work session April 15, with emotions erupting among the group. When the tension eased, the council had forged a compromise: to study whether it would be better to have in-house counsel or contract for legal services. It seemed as if Bloomquist’s job was safe for the time being.

Then came a new twist.

For years, it was standard practice for the council to hold closed session reviews of the city administrator and City Attorney, then offer a public review of its evaluation at the next council meeting, several weeks later. This practice allowed the employee being evaluated time to develop a response, Humpal told the council in an email. He also said it keeps the process open to the public. Why? When a public body goes into closed session, people — public and press — may be inclined to leave the meeting. If the meeting is then re-opened, no one would be around to hear a report from the closed session. But this is exactly the change Hawkins wanted to make for the April 22 performance evaluation of Bloomquist. And he got his way when the council approved the agenda for the meeting.

Sentinel reporter Judy Bryan stuck around anyway. When the council re-opened its meeting, Foster reported that three council members were dissatisfied with Bloomquist’s performance, while three others, including herself, were satisfied.

As a group, the council had decided to draft a separation agreement with Bloomquist. Bryan quickly learned that Foster, Peters and Hasek had supported Bloomquist, meaning Hawkins, Lubenow and Cyphers did not. This moment confirmed for many involved, and throughout Fairmont, that the fix was in.

That perception was heightened on April 24, when Hawkins wrote this email to Humpal: “I already have a plan to proceed to get interim legal services. I have motions already prepared for the next meeting (May 13) to have that done by a couple councilors. We can handle this. You will be involved when we do the analysis to determine what permanent legal services we need. No need for you to proceed on this issue.”

Hawkins was responding to a suggestion by Humpal that he (Humpal) begin looking for firms that may be interested in providing civil legal services to the city. Humpal also suggested contracting with the Martin County Attorney’s Office for prosecution services.

This issue of how the city will now proceed riled Hasek, prompting him to write to Foster: “I see Tom [Hawkins] has a plan with a couple councilors. I wonder who that is? Probably one [of] his soldiers. I would like somebody else to do it. He already has too much power. He is running the council and may as well be Mayor.”