City attorney: Red Wing recall doesn't pass muster

Apr. 28—RED WING — Not so fast, said Red Wing City Attorney Amy Mace.

At Monday's Red Wing City Council meeting, Mace gave her legal opinion on the validity of the claim of malfeasance, adding that the actions of the City Council members did not rise to the definition of malfeasance in the Minnesota Constitution.

The council had requested Mace's legal opinion to assist them in deciding whether to call a special election. A citizens group is collecting signatures on a petition to trigger a recount based on dissatisfaction with the council's handling of the firing of the former police chief, and allegations of an open meeting law violation.

Mace, in her analysis, said the definition for malfeasance means actions of a public official are "wholly illegal or wrong conduct," and cited examples such as commission of a felony, or involvement in bribery or using one's position for profit as actions that might warrant a recall.

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Furthermore, she said a case from 1994, Claude v. Collins, found that even if City Council members were found to have violated the open meeting law, that violation does not meet the malfeasance standard.

"No court has found that any member of the Red Wing City Council has violated the open meeting law," Mace said.

She went on to say that the open meeting law allows some kinds of meetings to be closed. Specifically, she defended the actions of council members concerning the closing of a series of meetings for a land purchase deal in 2019, an example that is listed on the petition against the City Council members.

She also said that because the city was discussing disciplinary action in the instance of firing Roger Pohlman, the former police chief, at a pair of February meetings, the meetings were rightly closed.

Since it would be wrong to authorize an election based on charges that do not meet legal standards set in statute, Mace said, it would be inappropriate for the City Council to do so even if enough valid signatures are collected.

Mace's opinion aside, the recall effort continues full speed ahead with the recall committee's attorney dismissing her legal analysis.

"She's wrong on a number of levels," said Greg Joseph, a Waconia-based attorney who is representing the Recall City Hall committee. "The first and most glaring point is that (the City Council has) an option of whether to put it on the ballot, which is not the case. You have to ignore the plain language of the charter to get to that position."

Joseph said the Red Wing City Charter is the key to the legal argument. For example, he noted that the case cited by Mace is regarding a statutory city, not a charter city, meaning its laws and definitions follow state statute to the letter. A charter city, like Red Wing, sets up its own recall rules.

Joseph said he's been involved in legal challenges where city councils have refused to set an election and won those cases, including recent examples against city councils in both Bloomington and St. Paul.

"These rights under city charter really do have teeth," Joseph said. "A recall election has meaning, and the rights people have under a charter matter."

One such right, he said, is clearly spelled out in the Red Wing charter, where it says if enough signatures have been certified on a recall petition, the City Council shall put it to a vote. Nowhere, he said, does it allow for the City Council to decide not to do so if the signature requirement is met.

While the charter does say the recall must meet a standard of "malfeasance or nonfeasance in office," Joseph said the city charter does not define those words, though even if the state's definition is used, the recall petitions outline instances that do meet that definition.

Meanwhile, George Hintz, one of the leaders of the recall movement, said the group is working hard to get enough signatures — 20% of those registered as of the last election in each ward or wards represented by a particular council member — the group is fighting some partisan misinformation in the community.

"We are receiving a little bit of pushback from our opponents, people who are in favor of the present City Council," Hintz said, adding that most of that opposition comes on social media.

He pointed to one person, whom he would not name, connected with the Democratic Party, who is advising people to engage with people canvassing for signatures in order to waste their time, then not sign the petitions.

"We're nonpartisan," Hintz said, refuting a claim made during the City Council meeting by one public speaker who tried connecting the recall movement with climate change deniers. "We may not agree on certain things, but we agree on this. We're focused on our City Council and straightening out our city government."

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Definitions in statute

Open Meeting Law

2020 Minnesota Statute 13D.05, sub. 2(b): A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open. A meeting must also be open at the request of the individual who is the subject of the meeting.

Definitions

2020 Minnesota Statute 351.14, sub 2: "Malfeasance" means the intentional commission of an unlawful or wrongful act by a state officer other than a judge in the performance of the officer's duties that is substantially outside the scope of the authority of the officer and that substantially infringes on the rights of any person or entity.