August 1, 2015
Mr. Chad Sterle, Attorney at Law
Grand Rapids City Attorney
502 NW 5th Ave.
Grand Rapids, MN 55744
Re: Legal Opinion Dated May 14, 2015
Dear Mr. Sterle:
Grand Rapids Voice is in receipt of your letter and legal opinion dated May 14, 2015, in response to our letter of request dated May 11, 2015. Grand Rapids Voice appreciates your prompt response to our letter and inquiry.
Upon reading your letter and legal opinion, it would appear that you and the City Council missed the point or our inquiry. Our inquiry provided information based upon the City Council Meeting held on March 9, 2015. In this meeting, certain queries were presented to the Council by Messrs. Ward and Niemala. The questions prompting our inquiry were not based upon the actual content of the concerns presented by Messrs. Ward and Niemala but to the general questions regarding the keeping of official records of official proceedings of the Grand Rapids City Council. These questions regarding the official record of official proceedings were prompted by the lack of detail in the treatment of the concerns presented by Messrs. Ward and Niemala. This lack of detail in the minutes prompted the correspondence between Mr. Niemala and the City Clerk, Ms. Johnson-Gibeau. Ms. Johnson-Gibeau informed Mr. Niemala that the minutes were a summary of the proceedings only but an audio recording was available and an ICTV video recording could be viewed at the ICTV web site. The correspondence between Mr. Niemala and Ms. Johnson-Gibeau prompted our inquiry regarding the existence of a full, complete, accurate and permanent record of official proceedings of the Grand Rapids City Council and the inquiry was not limited to the meeting on March 9, 2015.
We have read and reviewed your legal opinion and it is the position of Grand Rapids Voice that there are errors in your analysis of the issue. The following is a discussion of the issues we have taken with your legal opinion.
Minnesota Statute § 15.17 Subd. 1 states that full, accurate, complete and permanent records of official proceedings must be made and that the records be made on a physical medium of such quality to insure the permanence of the official record. Further, the full, complete and accurate record may be reproduced by defined methods that clearly and accurately reproduce such records and that the copies thus made may be substituted for the original. The original record may then be destroyed or otherwise disposed of in accordance with Minnesota Statute § 138.17. Copies of the original record are thus available for public review and scrutiny. The statutory language is clear that a full, complete, accurate and permanent record of official proceedings must be made and maintained.
Minnesota Statute § 365.55 directs the Clerk to keep full minutes of official proceedings. While Minnesota Statute § 365.55 mandates the preparation and maintenance of minutes of official proceedings, there is no language to state that the minutes satisfy or replace the requirement of a full, complete, accurate and permanent record in accordance with Minnesota Statute § 15.17. Minnesota Statute § 412.151 states that the minutes of official proceedings may be a summary of the official record if the proceeding summarized appears in the permanent record of the proceedings and that the portions of the record summarized in the minutes can accurately be identified from the description given in the minutes. Additionally, Minnesota Statute § 331A.01 Subd. 10 states that, when permitted, a summary of official proceedings, i.e. minutes, must clearly state that the material maintained and published is a summary only and that the full text is available for inspection.
In your legal opinion, you detailed at length the requirement of the preparation of minutes of official proceedings and the minimum requirements of the minutes prepared as presented by the State Auditor. We do not dispute the requirements of the preparation and maintenance of minutes of official proceedings. However, the minutes of official proceedings are summaries only and not a full, complete, accurate and permanent record of official proceedings as required by Minnesota Statute § 15.17 Subd. 1.
With respect to the audio recordings maintained by the Clerk and the video recordings made and maintained by ICTV, it is the position of Grand Rapids Voice that neither form of recording constitutes a full, complete, accurate and permanent record of official proceedings. As the audio and video recordings are made and maintained by separate entities, each type is discussed below.
Per the legal opinion you submitted to us, audio recordings are neither minutes nor substitutes for minutes. In addition, audio recordings do not satisfy the requirements of official records as set forth in Minnesota Statute § 15.17. Thus, even though made and maintained by the Clerk, audio recordings are not a permitted official record of official proceedings nor are they a substitute for official records of official proceedings.
As with the audio recordings, your legal opinion stated that these video recordings are neither minutes nor substitutes for minutes. Additionally, Minnesota Statute § 15.17 Subd. 1 states that a public officer must make and preserve records of official proceedings. This statute does not authorize the delegation of the making of and maintenance of the permanent record of official proceedings to third parties by agreement, contract or otherwise. The copy of the agreement between ICTV and the City of Grand Rapids submitted with your legal opinion does not confer upon ICTV or attempt to confer upon ICTV any statutorily supported authority to prepare or maintain official records of official proceedings. Further, Minnesota Statute § 15.17 Subd. 1 does not permit video recordings as means of making or maintaining an official record of official proceedings.
It is the position of Grand Rapids Voice that the City of Grand Rapids does not meet the statutory requirements of maintaining a full, complete, accurate and permanent record of official proceedings. Further, it is the position of Grand Rapids Voice that in the interests of transparency and for the public good and benefit, that the only full, complete, accurate and permanent record of official proceedings is a full, complete and accurate written transcribed record of official proceedings. Grand Rapids Voice submits that all official records of official proceedings be fully, completely, accurately and permanently transcribed and be available for public review and scrutiny.
As stated hereinabove, the actual concerns presented by Messrs. Ward and Niemala were not critical to our position regarding the preparation and maintenance of a full, complete, accurate and permanent record of official proceedings. These concerns were used as illustrative only. However, as you responded to the content of their concerns, we offer our reply to your response hereinbelow. For clarity, each will be presented separately.
Conflict of Interest
Grand Rapids Voice does not have an issue with any sitting City Council Member renting space in a City owned property in which to operate a business pursuant to Minnesota Statute § 471.88 Subd. 13. However, Minnesota Statute § 471.88 Subd. 13 is an exception to Minnesota Statute § 471.87 which states:
“Except as authorized in section 471.88, a public officer who is authorized to take part in any manner in making any sale, lease, or contract in official capacity shall not voluntarily have a personal financial interest in that sale, lease, or contract or personally benefit financially therefrom.”
In the matter involving Councilman Zabinski, the Councilman presented to the City Council a proposal whereby the City authorize the expenditure of taxpayer funds to materially alter public owned property to suit his specific business requirements in order to open a micro-brewery and restaurant from which he and others with an ownership interest would benefit financially. Any expenditure of taxpayer funds for the maintenance, modification, renovation or repair of City owned property must be approved by the City Council. Councilman Zabinski would be in a position to vote upon the proposal he presented to the City council. Even if Councilman Zabinski were to recues himself from voting on this proposal, he would be able to use his position to influence the vote of the remaining Council members. Further, the modifications proposed may, in fact, jeopardize the historical designation of the property in question said property being Central School. It is the position of Grand Rapids Voice that the proposal presented by Councilman Zabinski is far more than renting space in a City owned property and that this proposal violates Minnesota Statute § 471.87 and is not in the public interest. Grand Rapids Voice requests that any and all discussions regarding Councilman Zabinski’s proposal regarding modifying Central School to accommodate a specific business interest of his cease and that no further action on this matter be taken by the City Council.
Messrs. Ward and Niemala requested the status of the investigation of the City of Grand Rapids by the SEC for the possible misrepresentation of the City’s credit rating for a bond issue. To their concern, no response was given neither by Mayor Adams nor the City Council. It is the position of Grand Rapids Voice that any investigation by the SEC is a very serious matter and substantial penalties can be directed against the City, thereby the taxpayers of the City of Grand Rapids, should the SEC find against the City.
Mayor Adam’s belief and statement that no action by the SEC is anticipated is not a response to the question presented. Merely because the City has conducted an internal audit of the matter and has responded to the inquiries posed by the SEC along with Mayor Adam’s belief does not mean that the investigation has been terminated. Any formal investigation initiated by a Federal Agency remains open and active until such time as that Federal Agency formally terminates the investigation and informs all parties of its termination.
The belief and conclusion of the Mayor is immaterial and may well be viewed as misleading. If the Mayor does not have current information regarding the status of the investigation, a proper response would be that he had no new information. This would be an accurate response to the question. Grand Rapids Voice therefore, continues to request and answer to the queries posed by Messrs. Ward and Niemala on this subject.
Secretary of State Report
The Secretary of States annual report shows that the City of Grand Rapids has the sixth highest cost of government per capita of all cities in Minnesota with a population greater than 2,500. Messrs. Ward and Niemala asked Mayor Adams why the cost of Grand Rapids City Government is so high relative to other communities and for justification for such excess costs of government. Mayor Adams responded by saying, “We look at the numbers differently.” His response could be understood to mean that the numbers presented by the Secretary of State are false, inaccurate or misleading. No information or data to support the notion that the information in the Secretary of State’s report is incorrect has been proposed, presented or published by Mayor Adams or the City Council.
In your letter and legal opinion on this matter, referred to an article published by City Administrator, Tom Pagel, entitled “Local Units of Government are not Apples”. This article gives Mr. Pagel’s, Mayor Adam’s and the City Council spin on the cost of government in the City of Grand Rapids. His presentation did not address the question as to why the cost of government is sixth highest in the state in a community with falling per capita income, unemployment among the highest in the State, declining property values, a high City debt (reported to be in excess of $ 65 million) and numerous unnecessary expenditures of taxpayer monies.
The questions posed by Messrs. Ward and Niemala remain and it is the position of Grand Rapids Voice that a coherent, considered, accurate, detailed and forthright response be given. Spin and justifications for questionable expenditures is immaterial and misleading.
Mr. Sterle, please consider this communication in response to your letter and legal opinion dated May 14, 2015. We respectfully request that you review the legal opinion given in your communication and respond to this communication and our continuing position regarding full, complete, accurate and permanent records of official proceedings. We respectfully request your response on or before September 10, 2015.
Grand Rapids Voice
By: John Nelson
CC: City Council, Kim Johnson-Gibeau,