Council discord arises over possible open meeting law violation

Controversy involving Brainerd City Council members is surfacing again.

Discord on the council has been brewing for more than two years and may go back as far as the 1980s.

Has the open meeting law been violated by two Brainerd City Council members? This is one question that has been brought up by two other council members.

Brainerd Mayor James Wallin and council member Lucy Nesheim put together a log of 11 items dating back to April 3, 2001, about possible conversations about city business between councilmen Bob Olson and Gary Scheeler.

Wallin and Nesheim claim in the document that Olson and Scheeler may have violated the open meeting law since the two sit on the Safety and Public Works Committee. The committee has three members and two members would make a quorum.

The Minnesota Open Meeting law states that meetings of all public bodies and their committees are open to the public, provided a quorum is present. Any public body that has a quorum must furnish a written notice of special or emergency meetings to the public. If there is no quorum then the public body can take no action and the gathering does not have to be publicized.

Mark Anfinson, attorney for the Minnesota Newspaper Association who specializes in media law, said if Scheeler and Olson discussed committee business during the time they were seen together that would violate the open meeting law. If they were not talking about committee business they would not be violating the law.

Wallin, who acknowledged giving The Dispatch the log, said in 2001 and in 2002 that Olson and Scheeler were seen by many people on several occasions talking about city business.

"They are well aware of the open meeting law," said Wallin. "They are elected officials and adults. They know the guidelines.

"We (Wallin and Nesheim) kept hoping that things would get better. It came to a time where enough is enough."

Wallin said he tried to get a hold of an attorney with the League of Minnesota Cities and another attorney to see what kind of case he had against the councilmen. He never received a phone call back.

Wallin said something had to be done. He said if he kept quiet about Olson's and Scheeler's meetings that he would be as guilty as he believes they might be.

Nesheim said situations where the two have been seen together has been a concern for a long time.

"It's the pattern that is disturbing," she said. "Many were preceding a council meeting."

Nesheim said one of the times she saw the two together was on H Street when the street was under construction and closed to traffic this past summer.

"I saw them go down H Street," she said. "And there is no way to go down that street unless talking about city business."

Nesheim said she didn't hear what they were talking about.

Olson and Scheeler do not believe they broke the open meeting law.

"If I were going to break the open meeting law I wouldn't go to a restaurant filled with 50 some people," said Olson. "This is strictly a vendetta against Bob Olson."

Olson said he and Scheeler were friends way before the two were elected to the council. Olson said he could not say one way or another what he and Scheeler were talking about on the instances listed in the document.

"I don't think we were (talking city business)," said Olson. "And if so, so what. I won't deny or say I did when I can't remember.

"I don't feel I violated any law."

Scheeler said he and Olson have run into each other and have had lunch, but said they never discuss city issues. He said they both know the open meeting law and know the boundaries.

"Yes it is ethical," said Scheeler of the two meeting. "I'm not going to destroy a friendship."

Scheeler said he is bothered by the false allegations and that the allegations were brought to The Dispatch before city council members and the city attorney had a chance to look at the document.

"I requested it to be on the agenda (tonight)," said Scheeler. "A one-time shot to talk about everything. No games. We have issues and these (allegations) are serious."

When Olson found out who put together the document, he said it did not surprise him.

"It's obvious. Nesheim despises me," he said. "She can't say Bob Olson without sneering. She's the rudest person I've ever met.

"And the mayor is so angry at me."

Olson said one of the reasons why he thinks Wallin is angry at him is the way the city sold a piece of property in the industrial park. Olson said Wallin tried to buy the property and Olson stopped him. Olson said Wallin could not buy the property because state statute states that council members cannot buy property owned by the city.

"I think Dan Vogt (city administrator) is also in on this but is staying undercover," said Olson.

Scheeler also was not surprised. He was, however, surprised that the two did not address the issues when they occurred.

"There is a lot of animosity" among council members, he said. "This is a Bob Olson issue and I'm being drug in. The issues they've encountered in the '80s. I've never had problems with any of them before."

Other former and current council members offered their opinions when asked to comment on the issue.

"They talked about city issues and I believe that with all my heart," said Debbie Olander, former council member. "Bob has hurt a lot of people. The way he treats people. People are afraid of standing up to him. How sad is that for the citizens of Brainerd?"

Olander said, however, she is guilty of breaking the open meeting law to a certain point. She said when she was on a committee with Scheeler that the two of them were at the Chaparral Restaurant together. She said the two decided to check out property at the Crow Wing County Fairgrounds for an issue they would be discussing with the fair board that day.

"I looked back at that and thought it was a violation," said Olander. "But I didn't intend to do that."

Brainerd Council President James Dehen, who chaired the Safety and Public Works Committee, said he has never felt like Olson and Scheeler had all the answers before the meetings. He said sometimes he feels left behind when things are added to the agenda. However, he said this is an issue with all the committee and city council meetings.

Dehen said council members try to avoid seeing each other outside of the publicized meetings so they do not give the impression to people that they are talking about city issues.

He added that a committee only offers recommendations to the city council, so it has no power to make decisions.

City Administrator Dan Vogt, who was quoted in the document Wallin and Nesheim put together, admitted that he saw Olson and Scheeler together a couple of times.

Vogt said that Wallin came to him some time last year when the number of instances began to add up.

"I had some concerns," said Vogt. "I didn't tell them anything. They were on their own."

Vogt, who commented several times during the interview that the subject made him uncomfortable, said discussions on the open meeting law occurred many times with council members.

"The council members knew that if they were on the same committee that they shouldn't meet together," Vogt said.

When asked if he believes the two violated the law, Vogt said, "It brings up the question. I don't know what they're doing or what they were talking about. I made the assumption because of the park."

The park discussion in the document reads, "On or about July 12, 2001, City Administrator Dan Vogt saw Gary Scheeler and Bob Olson driving in Bob's car toward Memorial Park about the same time the Safety and Public Works Committee was considering paving the parking lots at various parks. Park improvements approved by council July 16, 2001."

Former council member Mark O'Day said he never saw Olson or Scheeler together outside of city council meetings. However, he said, it is unethical for a majority of committee or council members to meet outside of a meeting because it is against the open meeting law.

Darrell Olson, a Baxter City Council member, was listed in the document. The document reads, "He saw Bob Olson and Gary Scheeler eating at the Country Kitchen in the spring of 2002. He mentioned to them that he thought that they couldn't be meeting together at which time they were making excuses and seemed flustered."

Darrell Olson said he did see the two together at the restaurant, but said he did not say what the document said he said. He said he talked to the two for as long as it took his wife to pay the bill. He said when he came up to them he put his hand on their shoulder and they jumped.

"I was joking with them and thanked them for eating in Baxter," said Darrell Olson. "(Bob) Olson introduced me to Gary (whom he never met before). It was small talk, but I never said that (what it says in the document)."

And then the plot thickens. While this story was being written, The Dispatch received another memo that indicated more discord.

Bob Olson wrote a two-page memo Dec. 6, 2002, to Scheeler and recently elected 2003 council members Mary Koep and Kelly Bevans regarding the pending election of the 2003 council president and vice president.

In the memo Olson wrote, "I sincerely feel that for the change to happen, the four of us must agree on who is to be the council president and vice president.

"The council president must appoint the most qualified alderman for the chairman position of both the Finance Committee and the Safety and Public Works Committee. And those two people must be willing to accept the challenge to govern and manage our city's affairs.

"I do feel that the four of us can work together and also work with the other three alderman. It is my opinion that the time is now and let us not blow the opportunity to bring about needed change. Let us agree with one another with the necessary four votes to elect a president and vice president."

Attorney Mark Anifinson, open meeting law specialist, said this memo from Olson does not violate the open meeting law since two of the four council members were not in office at the time of the letter.

Anfinson said the letter could cause concern, especially when Olson suggests that the four of them get together. He said if the four met privately after they were sworn in and made a decision regarding city business then the open meeting law would be violated, even if the decision was made by telephone or by memos.

He said if the four met in December, how the law works is more complicated since Koep and Bevans would not have been official city council members.

"However, if this came before a court that they got together secretly in December, it is in my opinion that the court would hold that they violated the law," said Anfinson. "But you need proof to say they violated the open meeting law."

Anfinson said there are three different types of penalties for violating the open meeting law: a civil fine for up to $300; attorney's fees; and removal from office if the person has three separate violations.