Amid ‘toxicity,’ meeting looms

FAIRMONT — The Fairmont City Council will face a lengthy agenda at its meeting Monday. Included will be votes on a separation agreement with the city’s in-house attorney, and a determination of who will handle the city’s current and future civil and criminal cases.

Actions by two council members — Tom Hawkins and Randy Lubenow — have pushed the issue of in-house counsel versus contracted legal services to the forefront of a sometimes heated debate among elected officials and Fairmont residents. Some have questioned why the two council members felt compelled to take such action on an issue that has never been discussed by the council during their tenures.

A petition to recall Hawkins is being circulated in the community.

There have been accusations of slander, open meeting law violations and even questions of bias on the part of the city clerk, who would verify signatures on the recall petition. One City Hall denizen referred to the atmosphere as “toxic.”

Understanding the organization of Fairmont’s leadership may clarify some actions, but it also might raise questions.

Fairmont is separated into four wards whose residents elect a fellow ward resident as their one representative on the council. These council members are Bruce Peters, Ruth Cyphers, Randy Lubenow and Wayne Hasek.

A council member at-large, elected by and representing the entire city, serves as the fifth member of the council and as mayor pro tem, presiding at council meetings in the mayor’s absence. Hawkins currently holds this seat.

The mayor, also elected by the entire city, is a non-voting council member unless there is a tie.

No council member has any authority, power or responsibilities outside of the City Council as a whole. In other words, a single council member is just like any other citizen. Only the council as a whole has any power.

The day-to-day city business is run by City Administrator Mike Humpal, who is in charge of all other city employees with the exception of the city’s in-house attorney, Elizabeth Bloomquist. Humpal and Bloomquist answer directly to the council. But, again, to the council as a whole.

What caused the contentious issue of the city’s legal counsel stems from an April 4 incident in which Hawkins and Lubenow informed Bloomquist, who has held the City Attorney position for 30 years, that they would be voting on soliciting bids for outside counsel at the council’s April 22 meeting. If the motion passed, her job would be terminated. Hawkins called the meeting a “courtesy” to forewarn Bloomquist of the situation.

The Sentinel filed two government data requests with the city — on April 25 and May 9 — asking for emails among the mayor, council members and city administrator concerning the City Attorney’s position and council agenda requests. The city complied by releasing dozens of pages of communications, which established a timeline for the narrative.

After Hawkins and Lubenow met with Bloomquist April 4, Hawkins and Lubenow stopped at Humpal’s office and informed him of the meeting. Hawkins later sent an email to Humpal about their conversation with Bloomquist, stating that changing to contracted counsel would be “effectively terminating her.” In a later email, he instructed Humpal the “move to contract services” should be put on the council’s April 22 agenda.

As other council members learned of the April 4 meeting, some suggested having a work session to discuss the matter. The council periodically holds work sessions to discuss a specific topic, such as the budget or the proposed community center. No official votes are held during these sessions.

On April 8, council members sent a flurry of emails to Humpal, who then forwarded them to the entire council, as is the recommended practice.

Hawkins told Humpal not to schedule a work session yet, adding that he “will talk to (Bloomquist) first.” When Humpal informed Hawkins that two council members had requested a work session for April 15, Hawkins recommended that it be held after the April 22 council meeting. Humpal wrote that the other council members wanted to discuss the matter prior to the April 22 vote on soliciting bids for outside council.

Hawkins said he agreed with having the discussion but wanted it delayed “until I talk to (Bloomquist.” He said “we” have a plan on how to move to contract services, and he would “inform you of our plans.”

Mayor Debbie Foster took umbrage with Hawkins’ use of “we,” stating that Hawkins’ and Lubenow’s actions were “wrong and unprofessional.”

“There has been a change on how we approach the issue,” Hawkins wrote and apologized for the lack of communication. “It was necessary based on the research I did and advice I received to advanced this process.” He then outlined the options: replace an at-will city employee (Bloomquist) or take the city’s legal services from in-house counsel to a contract position. He also requested the council do a performance review for Bloomquist before voting on contracted services.

“Councilor Lubenow prefers, and I agree, that there should be complete council input on how we choose to deliver city attorney services and doing a work session on April 15 would rush the process,” Hawkins wrote.

On April 10, Humpal emailed the council to inform them of an April 15 work session, requested by Foster, Peters and Hasek, to discuss the city’s legal services and that a closed council session would be held April 22 for Bloomquist’s performance review.

Hawkins responded saying the work session would be an “inappropriate time to have this discussion,” calling it “mean” and unfair to Bloomquist. He also called on Humpal, who had been researching the associated costs of how other communities handle outside legal counsel for criminal and civil issues, to “stop doing any more research until directed by the council as a whole.”

A couple of days later, Hasek emailed Humpal stating the council needed a work session “now more than ever” and felt that what had already been done to Bloomquist was “mean.”

On April 16 and 17, Bloomquist’s performance review was the topic. When there is a performance review for the city administrator or city attorney, the council goes into closed session at the end of its regular meeting. Traditionally, the results of the review are announced at the council’s next regular meeting, but Hawkins wanted Bloomquist’s results announced immediately after the closed session ended.

Humpal cited a League of Minnesota Cities’ memo stating that council’s must present a summary of the evaluation “at its next open meeting,” and Peters “strongly suggested” not to do the summary immediately after the review.

But Hawkins persisted.

“Stop negotiating the agenda,” he emailed Humpal. “You are out-of-bounds. When a councilor wants something on the agenda, you are obligated to put it on the agenda.” He said that a council member could make a motion to remove an item when the agenda is approved at the start of the meeting, something Peters tried but failed to do on April 22.

Hawkins also demanded that Humpal forward the email to the rest of the council immediately and cited his “research” showing that the next regular meeting can be the same meeting for the purpose of summary evaluation.

Immediately after the council’s meeting and closed session for Bloomquist’s evaluation on April 22, Foster announced that the council was split 3-3, with half very satisfied with Bloomquist’s job performance and half disapproving. Although it is a non-voting position, the mayor can weigh in on personnel matters.

Foster then announced that she, Humpal and a council member of Bloomquist’s choice would be meeting with Bloomquist about a separation agreement, a move that was approved by the whole council. Foster said later that Bloomquist had previously agreed that negotiating a separation agreement would be the best course, considering the recent events.

On April 24, Humpal emailed the council members that he wanted to begin the process of identifying interim legal services. He recommended criminal cases be handled by the Martin County Attorney and finding two or three firms to provide civil service. He would bring that information to the council.

Hawkins protested the offer.

“I already have a plan to proceed to get interim legal services. No need for you to proceed on this issue,” he wrote in an email to Humpal. He added he already had motions prepared for the May 13 meeting.

Foster asked Hawkins to share his plan and motions with Humpal and the rest of the council. She also wanted Humpal to continue researching options for city legal services.

“I am guessing a minimum of two to three months of service, up to six months,” Hawkins responded, adding that the council should do the research, not Humpal. He said he planned to offer two motions at Monday’s meeting which would result in formation of a committee, led by him, to do research and analysis to determine the best way to provide permanent legal services to the city. One motion would be to hire the county attorney to take over the city’s criminal matters. The second motion would have two parts: to have him (Hawkins) lead with a council member or the mayor to solicit a proposal from the county attorney on an interim basis, and to solicit offers of letters of interest from area attorneys for interim civil legal issues.

Hasek expressed concern that Hawkins was assuming too much power and “is running the council.”

“How will we be able to work together as a council?” he asked.

On April 29, Hawkins emailed Humpal, asking him to send the message to the rest of the council. Hawkins said he heard the mayor and other council members were “targeting” him for open meeting law violations and claimed his actions were “totally misinterpreted.” He also accused his fellow council members of slandering him and Lubenow publicly during the April 15 council work session.

Hawkins added that Humpal can continue to research legal services, as per the mayor’s request, but “I will not be using his research” if his motions pass.

On May 7, Lubenow emailed Humpal requesting he clarify to the mayor and council the role the Twin Cities law firm of Flaherty and Hood are playing in the recall petition on Hawkins. He expressed disappointment that he had to learn about it in the Sentinel and asked if the council would be able to question the law firm about the recall process, the basis for such a process and a cost estimate for their services.

“Furthermore I believe there is a huge conflict of interest having Patty Monsen (city clerk) verify the (recall petition) signatures since you have publicly stated you are for an in-house attorney and she has also and you are her supervisor. Who will be verifying the ‘official’ count of signatures on the petition? County Auditor? State Auditor?”

Lubenow was referring to the April 15 work session when Monsen and all other department heads and management staff at City Hall spoke of the advantages that in-house counsel was in the performance of their municipal duties.

Also, state law requires that petition signatures for a municipal issue be verified by the city clerk.

Humpal responded to Lubenow and the other council members that he spoke to Monsen by phone on May 3 about the possible recall petition, and Monsen mentioned she had questions where the city charter conflicts with state statues in the recall process. Humpal contacted the Coalition of Greater Minnesota Cities, of which Fairmont is a member, but was advised that the questions were outside the coalition’s scope. They directed Humpal to Robert Scott, an attorney with Flaherty and Hood, who agreed to review the charter. Scott is not representing the city, Humpal stressed, and estimated the cost for him to answer a few questions would be minimal.

“I am not an attorney, and under my responsibilities for day-to-day operations of the city and to assure I do not create situations that would cause the city to incur liability, I sought legal assistance,” Humpal wrote.

The City Council meets 5:30 p.m. Monday in council chambers at City Hall. The public may present questions or comments to the council at the beginning of its meetings. The meeting is also televised live over Fairmont cable channel 13 and is available afterward at www.fairmont.org

COMMENTS