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Korrie Wenzel

KORRIE WENZEL: When in doubt, let sunshine sort it out

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opinion Grand Forks, 58203
Grand Forks Herald
(701) 780-1123 customer support
Grand Forks North Dakota 375 2nd Ave. N. 58203

An envelope is being pushed in East Grand Forks, and it’s one that could result in a step backward in government openness.

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Most everybody knows the story by now. A $510,000 development loan to Boardwalk Enterprises has gone unpaid for more than a decade. One of the guys involved in the business that received the loan, Dan Stauss, is the brother of East Grand Forks Mayor Lynn Stauss.

The mayor says he wasn’t involved in the deal, but because the brothers work together in another business venture, the ingredients exist to make this a contentious issue in the court of public opinion.

It’s the talk of the town, and even the mayor has acknowledged that some people feel he has a conflict of interest in the issue. So, as the city hires a lawyer and begins to chart its potential course, Mayor Stauss vows he has no conflict but still has excused himself from further official discussions of the issue.

Fair enough. That was the correct thing to do.

But we caution the East Grand Forks City Council on this issue, and remind its members that they are walking a fine line with their recent decision to discuss the issue in closed session.

Why?

First, because this is a public issue involving public dollars. And for that matter, these are public officials who, in the end, work for the public.

And second, because any decision like this could establish a precedent. And precedents are sometimes dangerous, ugly things.

History does indeed tend to repeat itself. A few years back at my last post as publisher at the newspaper in Mitchell, S.D., the City Council there went into a closed session to discuss removing the park designation from a piece of undeveloped public property. Obviously, the issue was a hot topic, and residents attended that particular City Council meeting with hopes of stating their case.

But council members excused themselves to a closed session upon the advice of the city attorney, who claimed any issue that could result in litigation could be discussed in closed session, whether or not actual litigation was a true and distinct possibility.

Under his reasoning, elected bodies have the right to virtually unlimited attorney-client privilege.

If true, that would mean the members of any elected body, ranging from town councils to township boards, could remove themselves from the public eye to hash out even the most basic of decisions and use the vague claim of “potentially litigious” as a golden ticket to do so.

Such a definition would mean that even changing the soda vendor at the swimming pool could be “potentially litigious” and therefore could be discussed behind closed doors.

Back in South Dakota, we — meaning the newspaper — took the issue to the state Open Meetings Commission and, unbelievably, lost. We weren’t satisfied, so we took it to court. After three years, we won.

A circuit judge agreed with our interpretation of state law, and declared the City Council may invoke attorney-client privilege only as justification for a closed meeting if the discussion is strictly limited to proposed or pending litigation or contractual matters.

Now, that’s just South Dakota law and a South Dakota judge’s opinion. It’s hard to say how a Minnesota judge would feel about East Grand Forks’ closed-door meeting Tuesday. Even I’m not sure what to make of it.

Mark Anfinson, a lawyer representing the Minnesota Newspaper Association, told the Herald that he isn’t aware of any court opinion on this kind of situation.

But he did note that a past Minnesota Supreme Court decision declared that “it’s nearly always improper for a public body to close a meeting based on the attorney-client privilege to talk about a decision that has not yet been made.”

Maybe it’s best to read that last sentence one more time. It really says a lot.

Meanwhile, the city of East Grand Forks issued a press release Wednesday afternoon that announced it has authorized its attorney to seek payment from Boardwalk Enterprises. In my view, that decision could have been made in front of an audience.

To be fair, it’s worth noting that council members say they are acting in the best interest of the city; they claim that it’s best to keep their cards close to the vest and not allow potential litigants to know their strategy.

For now, this really needs to be judged in the eyes of East Side residents, who have elected their leaders to act on their behalf and conduct their business. It’s important to emphasize that this is the public’s business. This really isn’t a private matter at all.

East Grand Forks residents should push and prod the council and other civic leaders to conduct this business in the bright, shiny light of openness.

Considering the drama already attached to the case, that really is the best way to proceed.

Publisher Korrie Wenzel writes occasional columns for the Herald. Email him at kwenzel@gfherald.com.

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Korrie Wenzel
(701) 780-1103
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