An old saying suggests it’s better to be safe than sorry.
But regarding this week’s closed session of the city council, it might’ve been better to be legal than safe.
The City Council convened a closed session on Tuesday before its regular work session to “meet with legal counsel to discuss pending/threatened litigation related to police facility financing and the adoption of Resolution 2012-076.” Resolution 2012-076 authorized the financing, via certificates of participation, of the facility.
At the City Council meeting where the vote took place, council candidate and attorney David Ludescher spoke against the financing and suggested that a lawsuit to block it may be imminent, although he did not say he would be the one to file it.
City Administrator Tim Madigan said that Ludescher had indicated to the city’s attorney Chris Hood that he planned to file a lawsuit last Tuesday. Ludescher then told Hood it may be filed Thursday, Madigan said.
To date, a lawsuit has not been filed.
State Open Meetings law is clear: If a government entity believes there is imminent threat of litigation, it has the right to convene in closed session with its attorney.
However, “imminent threat” is a term subject to interpretation, and it is our view that the city could’ve waited a little longer before circling its wagons with the flaps down.
In 2000, the city of Prior Lake had a similar issue with a contractor who threatened in a letter to the city to seek legal recourse if a conditional use permit wasn’t granted.
The city took that as an imminent threat and convened into closed session to strategize with its attorney. Sued by the local paper, the city’s decision was affirmed at both the district and appellate levels. But in 2002, the state Supreme Court overturned the ruling, noting that the attorney-client privilege exception to the Open Meetings Law is meant to be used rarely and must always be balanced by whether confidentiality is really necessary.
Attorney-client privilege exists to protect the client, not the attorney. In this case, the public already knew via comments made at a public meeting and in online forums that a lawsuit may be filed against the city (the “client”) and what the subject of that lawsuit would be.
Comments made at that same meeting by the city’s financial consultants and others indicate its defense: this method of financing is legal according to state statute.
We don’t begrudge the city its right to talk over sensitive matters with its attorneys behind closed doors, but we want to make sure that it’s really “sensitive” and not something most people in the community know about.
Since the 2002 Prior Lake American vs. Mader supreme court ruling, cities need to be more careful before invoking “attorney-client” privilege.
That includes the city of Northfield in this instance.