Citizens chastise Fairmont City Council

FAIRMONT — About the only vote the Fairmont City Council seemed to agree on Monday was the motion to adjourn their meeting.

Issues concerning City Administrator Mike Humpal’s employment and removing the City Code requirement for the City Attorney’s attendance at council meetings drew a standing-room-only crowd, many of whom waited while the council went into an unplanned half-hour closed session.

In the end, by what has become the council’s standard 3-2 vote on many issues, the code change passed, but after repeated warnings from the city’s interim legal counsel, any action concerning Humpal was tabled to allow for the attorney’s review.

The council evaluated Humpal’s job performance during a June 24 closed session that spanned well over two hours. Mayor Debbie Foster read a brief statement of the results of that session.

“The City Council did not reach a consensus on any conclusions regarding the performance of Mike Humpal,” she said.

Even the agenda was not exempt from the division. Ruth Cyphers’ request to add a resolution concerning the city administrator to the agenda drew criticism and questions.

“If the council is considering taking any action with respect to the administrator, our recommendation would be that that resolution first be reviewed by legal counsel as there is potential for the city to incur liability if they take action and it’s not compliant with the charter or with the administrator’s employment agreement,” said Robert Scott, attorney at Flaherty and Hood, the city’s interim legal counsel.

Foster asked Cyphers about the content of the resolution so the attorney would have a better understanding.

“I can read it at the time in the agenda,” Cyphers said.

“Counsel has advised us not to do that, but if that’s what the majority of the council feels we need to do, just so it’s noted that it is not on the advice of our City Attorney,” Foster said.

Foster added that she asked Humpal to email council members to remind them to have any resolutions they wanted on the council agenda submitted to the City Clerk by Tuesday to give all council members, not just a few, a chance to review the material.

Randy Lubenow made a motion to approve the amended agenda, and Tom Hawkins offered a second.

“Why do you want to keep us in the dark on this resolution?” Bruce Peters asked Cyphers.

“I’m not keeping you in the dark,” Cyphers said.

The motion passed, 3-2, with Cyphers, Lubenow and Hawkins supporting it and Peters and Wayne Hasek dissenting.

When the council opened the meeting to public input, several residents offered their support for Humpal and expressed their disappointment with the council. A statement from Bob Gunther, the area’s representative in the Minnesota House of Representatives, drew rousing applause from those gathered.

“Right now, I don’t think there’s very many councilmen that represent the will of the people they represent,” Gunther said. “I have a lot of respect for Mike. The people in St. Paul say nothing but very, very positive things about him.

“Today, for every top 10 jobs we have open, there’s only 5.2 people to fill them. If you continue to act the way you acting now, these people (indicating city management staff), if there’s a job open to them, do you think they’re going to hesitate to leave? Not one second.”

Gunther said the council should pay attention to what the people want them to do, not what they or their friends want to do.

“That’s what you’re here for, not for you and your own self-gratification, but what the people of Fairmont want to do,” he said. “We are the talk of the whole area. I can’t believe what people are saying about you. It is really, really sad. I don’t think you give a big rip at all.”

Jodie Whitmore questioned how Lubenow could evaluate Humpal’s job performance after only a few months on the council and noted that Cyphers has never strayed from voting in support of Hawkins. Whitmore said Hawkins has told her the only reason he ran for council was “to get rid of Mike Humpal.”

“You said it to my face,” Whitmore said.

“That is a lie,” Hawkins said.

“Of course, you would say that,” Whitmore said. “You say you represent your constituents. You don’t. You have an opinion based on a few people in town. What’s next? You don’t have a plan. What are you going to do? Take over?”

She believes Fairmont is going in the right direction under Humpal’s leadership and cited the support the city administrator has received from city employees.

“I think it’s just a tragedy that you are treating this in such a flip manner,” she said, and her comments drew applause from the audience.

Leanne Zarling, who retired after many years at City Hall, became emotional when she gave her brief statement.

“I have never worked for anyone with more integrity or care for this community than Mike Humpal,” she said, and asked Hawkins, Lubenow and Cyphers to reconsider removing Humpal from his job.

Mary Blomstrom said it appears the council has an agenda, first getting rid of the in-house City Attorney and now seeming to be doing the same thing to Humpal.

“What’s the end game here? I’m just curious,” she asked, adding that she did not know Humpal or the council members. “In the unfortunate situation if Mr. Humpal does go, who takes over as city administrator?”

“That’s a really good question. I don’t know,” Foster said.

“I can sum it up simply. We’d be a ship without a rudder,” Peters said.

Whitmore again took to the podium and told the council: “We have every right to know what your agenda is on this. What is making you three get together with a plan that has nothing in place if you terminate him? You need to answer us.”

“I’m a city worker, and I’m embarrassed of the council. Not one of you have asked any of us how it’s going,” said an obviously upset Diane Theobald. “One member, about a year ago, said the goal was to fire Mike. I thought it was a joke. Never, never, did I think it would come to this.”

When it came time for Cyphers’ resolution to be presented, she passed out copies to the council members, City Clerk and City Attorney. Foster asked about copies of the page and a half resolution for the residents attending. The resolution contained language that would result in the suspension of the city administrator.

“Not until after it’s voted on,” Hawkins said.

“Don’t they have a right to see?” Foster asked.

“My understanding is it’s not public until it’s approved,” Hawkins said.

“But everything should go in front of the community before it is approved so they have some input,” Foster said. She asked Attorney Scott for his legal opinion.

“Generally, documents that the council is reviewing and voting upon must be made available to the public in order for their right to observe the public’s business,” Scott said as he quickly scanned the resolution. “It’s possible this resolution contains private personnel data, which would change that analysis.”

After examining the document more closely, Scott said the resolution did contain criticisms of Humpal’s job performance, which was private personnel data.

“Are you saying just giving it to them is fine, or should we be reading it out loud?” Hawkins asked.

“The council may discuss it, but this document can’t be publicly disclosed,” Scott said. “My advice would be to go into closed session. Obviously, you cannot vote on a resolution in closed session.”

Lubenow cited a portion of City Code involving dealing with removing the city administrator from the job. He then added that the council has to list reasons if they want to terminate the administrator.

Scott said the council, having just been presented the resolution, was essentially having another evaluation of the city administrator.

Foster questioned how Lubenow, who denied knowing about Cyphers’ resolution in advance, could recite City Code about the issue. Lubenow’s denial about advance notice drew laughter from the audience.

Foster asked Cyphers if she came up with the resolution on her own. Cyphers admitted she had help, but not from other council members.

Hawkins asked Scott if the council was required to discuss the resolution or if it could just read it, then vote on it.

Scott said he had not yet had time to read the entire resolution, but he had the gist of the document.

“This is a personnel action. My recommendation is that the council proceed carefully,” Scott said. “If you take any missteps, it can result in liability to the city. It is my recommendation that you involve our office. My recommendation to the council is not to vote on this tonight.”

Scott recommended that the council go into closed session if it wanted to discuss the resolution.

Lubenow’s request that Scott provide an estimate of the cost of legal services drew loud laughter from the audience. Scott said the billing rate is $140 per hour and the process could take “several hours.”

“I’m not sure that should even matter,” Foster said.

“This resolution is following what is in our charter about the removal of a city administrator,” Hawkins said.

“So you’ve read it already?” asked Hasek, eliciting laughter from the crowd.

Hawkins outlined what the charter stated, that the resolution allows for a public hearing for the administrator. After that, the council would vote again before it is final.

“So the public hearing could be enough to convince the majority of the council to keep him on as well,” Hawkins said. “That possibility is out there.”

“Wait a minute. How do you know that the council majority doesn’t already want to keep him on?” asked Peters, which again drew laughter from the crowd.

“I don’t know that,” Hawkins said. “That’s the process that’s in the charter.”

Foster questioned how council members could be sure that all the information in the resolution was accurate and correct and ready for a vote.

Lubenow said all of the information in the resolution was discussed during Humpal’s evaluation.

“I’m fine if you want to table this and have your lawyer look at this,” Lubenow said.

He then tried to claim that there was no hiring process when Humpal was hired more than 20 years ago, but Foster said none of the current council members were involved in city government then.

Foster asked if Cyphers still wanted to present the resolution, and Cyphers asked if she should read it aloud. Council members reminded her that the attorney advised not to do so. Cyphers claimed she couldn’t offer the resolution because she wrote it.

Hawkins made a motion to go into closed session to discuss it, and Lubenow seconded it. The vote was 3-2.

“I would like to remind us that our City Attorney said we should not do anything until counsel has reviewed this,” Peters said. His comment generated more applause from the audience.

After the 30-minute closed session, Scott again reminded the council that the resolution contained private personnel data and recommended taking no action on it until it could be reviewed.

Lubenow wanted assurances that the contents of the resolution be sealed data, and Scott affirmed that the information was confidential.

“I think the citizens of Fairmont have to decide this issue. They have to let us know,” Lubenow said.

In the matter of amending the City Code to eliminate the mandate for the City Attorney to attend council meetings, the council passed the change by a 3-2 vote, in spite of several residents cautioning them about the need for having counsel present at meetings.