Daily Republic wins judgment against cityJudge adopts newspaper’s interpretation of open-meetings law.
By: Seth Tupper, The Daily Republic
A judge has ordered the Mitchell City Council to refrain from using attorney-client privilege as a blanket justification for closed meetings, thereby resolving a lawsuit filed three years ago by The Daily Republic.
Circuit Judge Cheryle Gering’s judgment adopted the newspaper’s interpretation of state law. The newspaper successfully claimed that the open-meetings law does not allow a public body to close a public meeting for the sole purpose of conducting a private discussion — known as an “executive session” — with an attorney.
The judgment says the Mitchell City Council may only invoke attorney-client privilege as justification for an executive session if the discussion is “strictly limited to ‘proposed or pending litigation or contractual matters.’ ”
Korrie Wenzel, publisher of The Daily Republic, said he considers the judgment a victory.
“We’re happy with this decision. We felt the process, for whatever reason, was being needlessly delayed, so we are very appreciative that things finally moved forward,” Wenzel said.
The genesis of the lawsuit was a June 2, 2008, executive session conducted by the Mitchell City Council at the request of then-city attorney Randy Stiles.
After the executive session, The Daily Republic learned from two council members that the topic of the executive session was a state law requiring a public election to remove a park designation from public property.
Council members had been considering — against the wishes of some vocal opponents — removing the park designation from undeveloped public property near Mitchell Middle School. Council members had thought they could repeal the park designation themselves, but according to what two council members told The Daily Republic, Stiles said during the executive session that a public election on the matter appeared to be necessary.
In other words, The Daily Republic contends that Stiles took council members into a closed meeting to tell them the public was owed an election on the issue, rather than relating that information during the public portion of the meeting. There had been a group of people at the public meeting expecting to discuss the issue openly.
“We always have felt that what happened that night was wrong and we vowed to fight it — not necessarily for the newspaper, but for the Mitchell residents who were wronged at that meeting,” Wenzel said.
South Dakota’s open-meetings law contains five reasons a public body may choose to enter an executive session. The newspaper claimed the law does not contain a blanket provision for carrying out a privileged discussion with an attorney. The law does say a public body may enter an executive session to consult with an attorney or review communications from an attorney, but it adds that the subject must be limited to “proposed or pending litigation or contractual matters.”
The newspaper alleged that the Mitchell City Council’s executive session discussion had not included any “proposed or pending litigation” or “contractual matters.” Instead, the newspaper claimed, the council had wrongly gone behind closed doors to discuss a matter of public interest.
The newspaper first filed a complaint with the local state’s attorney, which is standard practice with open-meetings issues. The state’s attorney found enough merit to forward the complaint to the Open Meetings Commission, a panel consisting entirely of state’s attorneys.
The OMC found that no violation had occurred. The Daily Republic thought the OMC decision was wrong and filed a lawsuit in 2009 seeking an opinion from a judge.
“We felt the decision by the Open Meetings Commission was flawed and we didn’t want that decision to become precedent,” Wenzel said.
The lawsuit lingered in the court system until earlier this year, when newly elected Mitchell Mayor Ken Tracy declined to renew Stiles’ city attorney contract and the judge originally assigned to the lawsuit retired.
Talks of resolving the lawsuit began, and the city and newspaper agreed to a stipulation that not only forbade the City Council from invoking attorney-client privilege as a blanket justification for future executive sessions but also said the council must specify and record in its minutes the particular provision of state law under which every motion to enter an executive session is made.
The stipulation was forwarded to the new judge assigned to the case, who entered a judgment earlier this month that exactly reflects the stipulation.
Neither the stipulation nor the judgment includes an acknowledgment of wrongdoing by Mitchell’s city government. The documents only clarify what city government may not do at “future proceedings.”
Mayor Tracy, in an interview this week with The Daily Republic, declined to acknowledge wrongdoing.
He said the council thought when it entered the executive session that it had a legitimate reason for doing so, but he admitted there was reason to question the legality of the executive session and said it may never be officially determined whether the session was legal or illegal.
He expressed satisfaction with the resolution of the lawsuit and said he wants to limit city government to a stricter interpretation of the open-meetings law. It had been claimed by the city in earlier lawsuit proceedings, for example, that the phrase “proposed or pending litigation” could mean a lawsuit that had not been filed or threatened but was thought possible by the city attorney.
“I would like to avoid executive sessions if at all possible,” Tracy said. “To try to stretch that term of ‘pending litigation,’ I wouldn’t want to go there unless there’s something more certain than some ambiguous thing that you’re stretching to try to include.”
Wenzel, the newspaper’s publisher, said he still feels the city was in the wrong, but added that Tracy deserves praise for immediately helping to resolve the lawsuit after he took office this summer.
“It’s ridiculous that it took three years,” Wenzel said. “The mayor is on the ball, and we appreciate that.”
The park designation has never been removed from the public property over which the controversy bloomed, and there is now a dog park on part of the land.