Board members e-mailed each other to get agreement on a statement to preempt an editorial on Hawaii trip.
When a news story broke earlier this month about a trip to Hawaii by six Metro Gang Strike Force investigators, the group's governing board exchanged a flurry of e-mails about issuing a statement to preempt a newspaper editorial critical of the trip.
Rather than control damage, the e-mails violated the state's Open Meeting Law, according to several experts.
The Strike Force board had the electronic exchange despite warnings by an assistant attorney general in March that the board was subject to Open Meeting Law requirements and should avoid e-mailing "like the plague." The Star Tribune obtained a recording of his advice to the board.
The latest development comes as controversy builds around the Gang Strike Force over reports that cash and property it seized during drug busts was not properly inventoried, spurring a legislative auditor's investigation, currently underway.
Eight of the 13-member board, including some prominent local law enforcement officials, e-mailed each other. The Star Tribune obtained copies under the state Data Practices Act. The board's bylaws say a quorum for an official meeting is 51 percent.
Bud Shaver, West St. Paul police chief and chairman of the strike force advisory board, said the board acted properly.
"In my opinion, there was no violation of the Open Meeting Law," he said. "First of all, the topic at hand, a press release, required no vote or no action of the board. All that was done was consultation of several board members. The action of making a press release is within the authority of the chair to do so. It would also be considered an administrative duty."
He cited the board's by-laws, which say the chair can "act on the Board's behalf regarding routine, day-to-day matters."
Experts agree on violation
However, three experts said the e-mails were subject to the law.
Don Gemberling, retired director of information for the state Department of Administration, who routinely issued advisory opinions on the Open Meeting Law, said a quorum of the board sent e-mails.
"The whole idea of the Open Meeting Law is [when] you are going to have a quorum of a governing body get-together and talk about public business, there has to be a meeting held in the open." He said even though Shaver had authority to issue news releases, other members offered input, so it was covered by the law.
Mark Anfinson, Minnesota Newspaper Association attorney, said board members were "consulted in how to formulate the news release. ... Once a quorum became involved in that process, you had a meeting law issue." He added, "It is not a huge violation" but he said they "shouldn't be doing that."
Attorney Marshall Tanick, an expert on news media law, said: "Their response is nonsense. The question is whether a meeting occurred by virtue of the e-mails, and it did, regardless of whether any action was taken."
According to a recording of a March 18 board meeting at which members approved the Hawaii trip, John Gross, an assistant attorney general, told the board, "I guess my only advice to this board is to be very careful of what you include in e-mails and who you send them to, because these are open meetings."
Gross continued, "E-mails are potentially also open to the public, so if someone from the legislative auditor or from the media wanted to request these e-mails, they might be able to get 'em. ... Sometimes it's just unavoidable, but if you can, avoid it as much as possible, avoid it like the plague. ..." He declined to comment Friday.
Formulated a defense
The Star Tribune reported on April 5 that six Strike Force investigators traveled to Hawaii for an Asian gangs conference at a cost of $16,800.
On April 8, Minneapolis Deputy Chief Rob Allen e-mailed the Strike Force board, citing an inquiry by the newspaper's Jill Burcum, who was preparing an editorial on the trip. The editorial was published April 10.
Allen expressed concern that Lt. Jim Heimerl, the Strike Force's second in command, was being made a "scapegoat" because he authorized airplane tickets, when it was the board that approved the trip. Allen proposed the board issue a release defending the trip.
Seven board members e-mailed the group, backing the idea. They were Nick O'Hara, Ramsey County undersheriff; Dave Pecchia, Lino Lakes public safety director; A.J. Olson, deputy chief of the Metro Transit Police; Dave Bellows, Dakota County chief deputy sheriff; William Hutton, Washington County sheriff; Dave Thomalla, Maplewood police chief; and John Harrington, St. Paul police chief. Shaver ordered a news release sent.
Bellows said this week: "The media was looking for a pretty quick answer, so we were trying to accommodate the media." He said he did not "necessarily look at it as a violation." Thomalla said Allen "was looking for input on our reaction, and we were weighing in our opinion." Hutton said, "If we are in error, we would need to correct what we did wrong. But if we didn't, we'll proceed with the advice of our counsel."
Shaver said that because the board was created by a joint powers agreement he might ask the administration department whether it was covered by the Open Meeting Law.
Gemberling said that he believed it is covered. Laurie Beyer-Kropuenske, current director of the information policy analysis division for the administration department, said she didn't know if the board was subject to the Open Meeting Law or if Shaver was empowered to perform certain functions without a majority vote taken at an open meeting.
"I need to know more facts," she said.
Randy Furst • 612-673-7382