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Fargo balks at releasing audio from illegal private buyout vote, despite AG’s opinion

FARGO - Despite a demand by state Attorney General Wayne Stenehjem to release information on what he ruled was an illegal private vote on an $839,000 home buyout in June, the city will not do so yet.Mayor Tim Mahoney and City Attorney Erik Johnso...

Jessica Thomasson, director of Lutheran Social Services of North Dakota, speaks to the Fargo City Commission Monday, Oct. 10, 2016, explaining some of the expenses and procedures of refugee resettlement in the Fargo area.Dave Wallis / The Forum
Jessica Thomasson, director of Lutheran Social Services of North Dakota, speaks to the Fargo City Commission Monday, Oct. 10, 2016, explaining some of the expenses and procedures of refugee resettlement in the Fargo area. Dave Wallis / The Forum
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FARGO – Despite a demand by state Attorney General Wayne Stenehjem to release information on what he ruled was an illegal private vote on an $839,000 home buyout in June, the city will not do so yet.

Mayor Tim Mahoney and City Attorney Erik Johnson said city officials want to clarify a few things with the attorney general first because they believe his office has misunderstood the situation.

“Our attorney thinks he’s right,” Mahoney said. “They think we’re wrong. I think what we're going to do is have the attorney general’s team come over and visit with us. We’ll have a full discussion."

At issue is a confidential June 1 meeting the City Commission held to discuss negotiating strategy for the purchase of the historic home owned by Don and Mary Kinzler, which was then in the way of a dike. State open-meeting laws allow such meetings but requires all “final action” be taken in public.

The city said commissioners voted on an $839,000 deal in the private meeting, but simply as an instruction to negotiators. Later in the day, without any additional voting in public or private, the city announced the deal had been completed. The Forum requested Stenehjem’s opinion on whether the private vote was legal.

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The attorney general concluded in an opinion released Wednesday, Dec. 14, that commissioners did take “final action” behind closed doors in violation of open-meeting laws. The remedy, he said, is for the city to release the results and audio of the roll-call vote during the meeting.

The five-person commission was split in the private vote, as they were in a public vote a few days later on whether to release the audio tape from the negotiating sessions, with Dave Piepkorn and Tony Gehrig opposing the buyout. Piepkorn blasted the deal as unnecessarily generous in the next commission meeting, calling it a “disaster” that would set a dangerous precedent for future home buyouts.

On Wednesday and back in June, Johnson maintained that the private vote was not a final action. What commissioners had done was give the city administrator, who negotiated the deal with the Kinzlers, the authority to both negotiate and make the final decision, he said, and the city now wants to know if that’s illegal.

State law allows elected officials to meet behind closed doors in an “executive session” in only a few circumstances, one of which is to discuss negotiating strategies. This avoids tipping off the other side what a government entity will do.

On June 1, Fargo city commissioners entered such a session to discuss the purchase of a 121-year-old house belonging to Don Kinzler, a Forum gardening columnist. The house was in the way of a dike going through a portion of the Rose Creek Golf Course.

Wednesday’s opinion from Stenehjem noted that the executive session itself was not improper.

Commissioners ended the session and adjourned without taking any action. Later in the day, though, the city announced that it had entered into a purchase agreement worth $839,000 with the Kinzlers.

Mahoney told The Forum afterwards that commissioners had already approved the agreement June 1 and wouldn’t need to vote again at its next regular meeting on June 6.

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Johnson seemed to agree with him in a June 2 memo sent to commissioners in preparation for the June 6 meeting. “As you know, the City has already gave the City Administrator direction regarding the negotiations with the Kinzlers and, as a result, the City and Kinzlers have formed an agreement,” he wrote.

He added that all documents from the “closing” with the Kinzlers were attached. “These are submitted to you for receipt and filing – no other action is required.”

That is, there would be no opportunity to vote up or down on the agreement. It had already been approved. The commission voted on June 6 merely to “receive and file” the agreement.

Stenehjem’s staff, who listened to audio recordings from the meeting, also concluded the vote in the private meeting approved the deal: “The Commission passed a motion in the executive session accepting the formal offer, agreeing to pay the proposed $839,235 buyout.”

Though the city argued the June 1 vote couldn’t be “final action” because there wasn’t even a final purchase agreement for commissioners to vote on, Stenehjem disagreed.

“The vote taken in executive session was the only time the Commission voted to approve the amount offered and went beyond mere guidance given to a negotiator. Without a public vote, the public has no means of knowing how its elected representatives voted on the matters of spending public money,” Stenehjem wrote in the opinion.

The opinion gives city officials seven days to release the results and audio of the private vote. Johnson said the city would likely comply with the opinion, if Stenehjem’s office still feels the same after meeting with city staff.

According to records from the attorney general’s office, this is the third time since 2011 the attorney general has rapped the city for violating the same law on executive sessions. The city also violated other laws on those occasions and one other in 2008.

Related Topics: WAYNE STENEHJEM
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