SPICER -- Spicer City Council closed Thursday's special meeting to talk with an attorney about threats of litigation from its city administrator. No action was taken after the closed session.
The City Council closed Thursday's special meeting to talk over threatened, but not filed, litigation from the attorney of City Administrator Andrea Aukrust.
An attorney from the League of Minnesota Cities participated in Thursday's meeting to advise the City Council on the matter.
City Attorney Barry Darval told the Tribune prior to Thursday's meeting that the City Council planned to discuss the threatened litigation during the closed session. He clarified that a lawsuit had not been filed by Aukrust's attorney.
The Tribune objected to the closure of the meeting because no litigation is pending, but the League of Cities attorney advised the council to close the meeting for the discussion.
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Attorney Patricia Beety of the League of Minnesota Cities' Insurance Trust said the League of Minnesota Cities had received claims from the city of Spicer in regard to Aukrust's threatened litigation. The claims were dated Oct. 8 and Oct. 28.
Beety said it was "appropriate and necessary" to close the public meeting so that the city can discuss legal strategies for the threatened litigation.
After an hour in closed session, Darval reported the council took no action. Beety also said that all questions regarding the threatened litigation would be answered by her.
Darval first notified the council of the threatened litigation during an Oct. 29 special meeting. At that time, Darval said he received the information from Aukrust's attorney but that a lawsuit had not been filed.
Darval also reported in the Oct. 29 meeting that Aukrust had requested a paid medical leave. Darval said a doctor gave Aukrust "medical directions not to return to work," but the city received limited information about her condition.
The City Council voted to place Aukrust on unpaid medical leave and requested she provide details of her condition to the city within 14 days. According to Spicer's personnel policy, the council can keep her on unpaid medical leave for up to 60 days.
As of Thursday, the city had not received an update about Aukrust's medical condition, Beety said. Beety also reiterated that Aukrust had not filed a civil lawsuit against Spicer.
Beety cited the state Supreme Court decision in Prior Lake American v. Mader as the standard for why Thursday's meeting could be closed within the bounds of the Open Meeting Law even though litigation is not pending.
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"It is important that the council have access to legal advice on these claims and to develop a strategy with respect to how to respond to these claims," Beety said.
Minnesota's Open Meeting Law contains an exception allowing a meeting to be closed if it is "permitted by the attorney-client privilege."
However, case law has narrowed that exception, according to Tribune attorney Mark Anfinson. Anfinson also cited the Prior Lake American case in his advice to the Tribune.
Anfinson said the Prior Lake case was a strong warning from the Supreme Court that mere threats of litigation are simply not enough to justify a closed meeting.
"In my judgment, this does not qualify under the Prior Lake American standard because there is a threat of litigation and that's all it is. And that doesn't do it," Anfinson said Thursday afternoon.
The Tribune stated its objections to closing the meeting in a letter faxed and e-mailed to Darval and other Spicer city officials Thursday afternoon. The objection was also noted in the official record Thursday evening when the City Council voted to close the meeting.
Meanwhile, the city awaits a report from a city-hired mediator regarding numerous personnel-related concerns in Spicer City Hall.
For the last month, the mediator has interviewed members of the city staff and City Council. Darval said he's not sure when the city can expect a report from the mediator.
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-- Tribune News Editor Susan Lunneborg contributed to this story.
