You might have seen my story this week about The Daily Republic’s "lawsuit" against the city of Mitchell. I put quote marks around "lawsuit" because the word makes the situation sound more combative than it actually is. The newspaper isn’t looking to punish the city. All the newspaper wants is a judge’s opinion on an open-meetings issue, and an event that occurred at a Mitchell City Council meeting is the vehicle the newspaper is using.
It’s a long and complicated story, but it boils down to this: There’s a state law that allows public bodies to conduct closed-door, non-public meetings known as "executive sessions" for the purpose of "consulting with legal counsel or reviewing communications from legal counsel about proposed or pending litigation." The newspaper reads that law as saying that the only litigation that can be discussed in an executive session is litigation that is actually "proposed or pending." The city of Mitchell and its city attorney interpret the statute more broadly, believing that it allows public bodies to go into executive session for any litigation that a city attorney believes could be possible.
Stated another way, the newspaper believes there should be a limit on attorney-client privilege when the attorney and the client are both public employees. The city and its attorney believe they should have the same attorney-client privilege enjoyed by private individuals and their lawyers.
Why is this important? It’s quite simple: If public bodies are allowed to have unlimited attorney-client privilege, they can go into executive session to discuss anything they want, and the public will never be able to find out what they discussed, because the discussion will be considered "privileged." If there are limits on attorney-client privilege for public bodies, they will at least have to give a legitimate reason for going into an executive session and will be legally obligated to limit their discussion to allowable topics.
As I said above, an action by the Mitchell City Council last year is a great example for this debate to revolve around. According to what I was told by two city councilman, they went into executive session and were told by City Attorney Randy Stiles that he discovered a state law requiring a public election to repeal a park designation from publicly owned land.
Earlier, during a public meeting, the council had introduced an ordinance to repeal a park designation from an undeveloped parcel of city-owned land along the Highway 37 bypass. The land had been sought by a private company, but some in Mitchell wanted to keep the land for future use as a park or recreation area. It was a highly controversial issue with intense public interest but, had I not done some digging, the public might never have known about the state law requiring an election to repeal a park designation. The council might have gone forward with its ordinance to repeal the designation, without giving the public the right to vote. As it turned out, the council dropped the whole issue and the land remains undeveloped and designated as a park.
It’s acknowledged by everyone that there was and is no "proposed or pending" litigation regarding the parkland. The question, then, is whether it was legal or illegal for the City Council to discuss that issue in an executive session. If a judge says the meeting was legal, the next step might be an appeal to the state Supreme Court. If the Supreme Court says the meeting was legal, the next step might be asking the Legislature to change the law to more clearly limit executive-session discussions of litigation to that which is "proposed or pending."