Open meeting violation alleged: Maynard farmer challenges legality of Hawk Creek meeting

WILLMAR -- An estimated 75 people filled a meeting room April 15 in the Chippewa County Courthouse where the Joint County Ditch Authority voted 4-1 to replace a worn bridge on Hawk Creek with a new one, rather than install the less costly culvert...

WILLMAR -- An estimated 75 people filled a meeting room April 15 in the Chippewa County Courthouse where the Joint County Ditch Authority voted 4-1 to replace a worn bridge on Hawk Creek with a new one, rather than install the less costly culverts recommended by engineers.

Moments after the vote, the chairman of the ditch authority called it "the democratic way.''

The man who had led the unsuccessful call for the less costly alternative, Maynard area farmer Owen Gustafson, termed it "a sad day for taxpayers.''

The two will again have their say over the decision, but this time in a court of law.

A trial is scheduled next month in Willmar on a civil charge filed by Gustafson. He alleges that Jeffrey Lopez, a member of the Chippewa County Board of Commissioners and chairman of the Judicial Ditch 7 Authority, violated Minnesota's open meeting law.


Gustafson says that Lopez organized and conducted a meeting Feb. 16 in Willmar that violated Minnesota's open meeting law. It was held just nine days before the Ditch Authority was scheduled to meet to discuss an engineer's recommendation to install box culverts to replace the bridge in Lone Tree Township of Chippewa County.

After its start, the Feb. 25 meeting was cancelled due to a request to install a bridge, even though that option had not been mentioned in a notice to landowners about the meeting, states the complaint.

According to the civil complaint, Lopez invited four of the five members of the Joint County Ditch Authority to the Feb. 16 meeting in Willmar. Two of the members, Kandiyohi County Commissioners Richard Larson and Bruce Shuck, attended the meeting along with Lopez. Renville County Commissioner Gale Dahlager did not attend the meeting but sent a representative. Donna Halvorson, a Chippewa County Commissioner and Ditch Authority member, did not attend.

Others attending the meeting were also people who had been invited by Lopez, according to Gustafson. They included mayors and other elected officials from communities and townships along Hawk Creek, and city officials from Willmar.

Gustafson alleges in the complaint that the Feb. 16 meeting "focused on the decision of whether to pursue box culverts or a bridge'' for a portion of the system. The meeting was held without prior public notice as required by the open meeting law, the complaint states.

Gustafson said he is convinced that the discussion held at the meeting influenced the vote eventually taken on April 15. He considers that vote to be poisoned fruit, and would like to see the action undone.

Lopez said he has been advised by counsel not to comment on the civil action.

His attorney, Scott Anderson of Anderson, Ratwick, Roszak and Maloney of Minneapolis, said they have responded to the lawsuit by denying that any violation of the open meeting law occurred.


Anderson said that his client acknowledges inviting individuals to the meeting in Willmar. He also acknowledges not giving public notice of the meeting.

However, Anderson said the meeting in Willmar was not a meeting as defined by the Minnesota open meeting law. It was held as an educational session. Its main purpose was to get information on the new wastewater treatment plant to be built by the city of Willmar.

There was a quorum of three members of the Judicial Ditch 7 Authority, said Anderson, but that was largely coincidental. There was no business conducted or planned. "It was simply to get information from various entities,'' he said.

Among those who attended the meeting at the invitation of Lopez was Mel Odens, the public works director for the city of Willmar. Odens said he had been asked to attend the meeting to provide information on the city's plans for a new wastewater treatment plant.

Odens, who kept notes from the meeting, said the treatment plant was the topic for much of the meeting. He answered questions about its expected discharge, the timetable for its construction and what was being done to minimize its impact on the Hawk Creek system.

He said there was also general discussion about Hawk Creek and the bridges along it as well.

Anderson said there has not been a great deal of guidance from the courts on the obligations of the open meeting law, and that this case could help serve to better define it.

Attorney Mark Anfinson, who represents the Minnesota Newspaper Association in many cases involving the open meeting law and public access issues, agrees that there are ambiguities in the law. He said the facts that the Ditch Authority chairman called the meeting and a quorum of that board attended the meeting may tend to shift the needle in favor of Gustafson.


But Anfinson also noted: "This is no slam dunk.'' Court decisions have come from both ends of the spectrum on meetings held for informational purposes, he said.

In his court action, Gustafson asks only that Lopez be fined $300 and assessed attorney and court fees if found guilty of an open meeting law violation.

Even if the court should rule in Gustafson's favor, the open meeting law does not provide for a mechanism to invalidate any action that may have resulted directly or indirectly from a violation, according to Anderson and Anfinson.

Gustafson said he hopes that public awareness of the situation will help him in his cause of arguing for what he considers a more fiscally responsible policy toward bridge replacement along Hawk Creek. Engineers had estimated that the decision to replace a bridge with a new bridge rather than culverts increased the cost to the ditch system by more than $175,000.

The Ditch Authority has now called for replacing three of the 13 timber-frame bridges. Gustafson said that public officials in the watershed are beginning to see the bills for the bridge replacements. With 10 more bridges likely to need replacement in the years ahead, they are starting to pay attention, he said.

The crowd that attended the April 15 meeting was paying attention, as there were people with strong opinions speaking from both sides of the issue. Ditch Authority members Larson and Shuck from Kandiyohi County authored the motion in favor of bridges. Chippewa County members Lopez and Halvorson voted in favor of it, with Dahlager from Renville County casting the lone no vote.

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