Kandiyohi County decision on new administrator made outside a public meeting

WILLMAR -- The Kandiyohi County Board of Commissioners may have violated the state's Open Meeting Law when members reached a decision -- outside a public meeting -- about who to hire as the new county administrator.

The county denies there was a violation but has referred the issue to its legal counsel with the Minnesota Counties Insurance Trust.

It was announced last month that the Kandiyohi County Commissioners have decided to hire Family Services Director Larry Kleindl as county administrator when longtime administrator Wayne Thompson retires later this year.

The informal decision was not made at a public meeting, and the discussion leading to that decision was not conducted at a public meeting.

That could represent a violation of the state's Open Meeting Law, according to Mark Anfinson, an attorney representing the Minnesota Newspaper Association.

A public body, like the board of county commissioners, cannot make a "collective decision" outside the bounds of a public meeting without violating the state law, Anfinson said.

The Minnesota Open Meeting Law requires public bodies to conduct business in public. The law contains limited and specific exceptions allowing a public body to have private discussions -- to evaluate employee performance or discuss labor negotiation strategy, for example. In no case is a public body allowed to make decisions in a closed meeting. A violation of the law is a civil matter, not criminal.

"Absolutely not" was Thompson's reply when asked if the county had violated the state law.

In a separate interview, Commissioner Richard Falk concurred. "Absolutely and unequivocally no," said Falk, who had served as chairman of the board until January.

Kandiyohi County Attorney Boyd Beccue told the Tribune that the County Commissioners had not requested his legal opinion on whether or not the Open Meeting Law had been violated. He said he did not want to respond to the Tribune's questions about the issue.

Thompson said there were no "prearranged meetings" to discuss the issue of hiring Kleindl and there's been no discussion between the commissioners and Kleindl about a contract or salary.

Thompson said county commissioners regularly come into his office -- anywhere from once a day to once a week -- to talk about various county projects in one-on-one conversations. He said that's how discussion about hiring Kleindl came about.

But Dr. Steven Schultz, a professor at Hamline University who specializes in government law and ethics, said the Kandiyohi County Board's action is "clearly a violation" of state law.

Schultz said the commissioners were "effectively carrying on a meeting outside of public scrutiny" and outside of "what the Open Meeting Law allows them to do." He said making phone calls and having a one-on-one meeting isn't a violation of the law, but having enough one-on-one meetings so that a conclusion is reached is a violation.

Public acknowledgment that a decision was reached makes the Open Meeting Law violation a "slam dunk," said Schultz.

"Once you've got the admission that a decision has been reached, it's pretty clear," he said.

Thompson said going public with the information about Kleindl was done to be "fair with the press." An announcement was made Jan. 18, but Board Chairman Dean Shuck said at the time that the decision had been made nearly two months prior.

In fact, Kleindl's anticipated appointment had been common knowledge among some Kandiyohi County employees and even employees from other counties. Thompson said he told the Kandiyohi County family service supervisors nearly two months ago that Kleindl would likely be appointed county administrator. At meetings with other counties, Kleindl was being congratulated, making for awkward situations.

Schultz said admitting that a decision was made without holding a public meeting is the clincher that the Open Meeting Law was violated.

But Thompson said there's been no official action taken yet by the board.

"We'll have discussion before we take official action," he said, adding that until a vote is taken "the whole thing could go out the window."

Anfinson said even with an official vote down the road, the commissioners have already made their decision, making the future vote merely ceremonial.

Falk said the county followed the same procedure that other local entities have used, including the Willmar School Board when it hired Kathy Leedom as superintendent. Falk said in that case the school board had reached a consensus before a vote was taken. (See related story.)

Thompson said he's been told of other local governments that reached decisions on hiring top positions in the same way that Kandiyohi County has done it. If Kandiyohi County has violated the Open Meeting Law through this process, he said, "then apparently we're all doing it wrong."