This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Mankato Free Press Co.,

d/b/a The Free Press,



City of North Mankato, et al.,


Filed December 15, 1998


Amundson, Judge

Nicollet County District Court

File No. C1-96-100036

Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue South, Minneapolis, MN 55408; and

James H. Manahan, Manahan & Bluth Law Office, P.O. Box 287, 410 Jackson Street, Suite 500, Mankato, MN 56001 (for appellant)

Pierre N. Regnier, Shari L. Johnson, Jardine, Logan & O'Brien, 444 Cedar Street, 2100 Piper Jaffray Plaza, St. Paul, MN 55101 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellant challenges the district court's determination that private interviews conducted by respondents (city, city council, and individual city council members) with applicants for a city administrator position were not conducted for purposes of avoiding public hearings and therefore did not violate the Open Meeting Law. Respondents challenge the district court's denial of their motion to dismiss appellant's complaint and the district court's grant of appellant's amendment to its complaint. We affirm.


After the city administrator of respondent City of North Mankato (city) announced his retirement, the city sought a replacement. It retained the services of consultant Jim Brimeyer, who recommended a serial one-on-one interview process conducted by respondent city council, closed to the public, followed by a public meeting which would include interviews and selection. Brimeyer recommended private interviews because he believed that they would best foster candid answers by candidates. Brimeyer did not believe the interview process was a violation of the Open Meeting Law.

Respondents consulted with the city attorney regarding the proposed interview process's conformance with the Open Meeting Law. The city attorney opined that the process was legal. Respondents then adopted the advice of Brimeyer, and after narrowing the initial pool of 11 applicants, they interviewed five applicants. The interviews, which were closed to the public, including the news media, were conducted in separate rooms, where no more than one council member interviewed one applicant at a time. When one interview was complete, the applicant would then move to another room and be interviewed by another council member. The private interviews took place in the morning; the city council then adjourned for lunch, during which the interviews were not discussed. After lunch, the city council held a public meeting during which council members asked the applicants questions and then voted to make their final decision.

Appellant Mankato Free Press Co., owner of the Mankato newspaper The Free Press, filed a complaint alleging that respondents violated the Government Data Practices Act and the Open Meeting Law. The district court granted summary judgment to respondents. This court reversed, stating that respondents violated the law by failing to make public: (1) the list of finalists for the position and (2) the results of a straw vote to narrow the list of finalists. This court also remanded the case to the district court to determine the factual issue of whether the respondents' interview procedure was implemented for purposes of avoiding public hearings or fashioning agreement on an issue. Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 295 (Minn. App. 1997) (Mankato Free Press I). On remand, the district court determined that the private interviews were not conducted for purposes of avoiding public hearings. This appeal followed.


I. For Purposes of Avoiding Public Meetings

Here, because this court determined that the issue of whether respondents held private interviews for the purpose of avoiding public meetings was a factual issue that was improperly decided by summary judgment, the issue that was determined on remand was a question of fact. This court will not reverse a factual finding unless clearly erroneous. Minn. R. Civ. P. 52.01.

The Open Meeting Law provides, with few exceptions that:

all meetings, including executive sessions, of * * * the governing body of any * * city * * * and of any committee, subcommittee, board, department or commissioner thereof, shall be open to the public * * *.

Minn. Stat. § 471.705, subd. 1 (1996). The purpose of the law is to:

prohibit secret meetings that make it impossible for the public to become fully informed, (2) assure the public's right to information, and (3) give the public an opportunity to express its views.

Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 294 (Minn. App. 1997) (Mankato Free Press I). The Open Meeting Law is to be "broadly construed in favor of the public." Merz v. Leitch, 342 N.W.2d 141, 145 (Minn. 1984). The supreme court has clarified the definition of "meetings" subject to the purview of the statute, stating that they are

those gatherings of a quorum or more members of a the governing body, or a quorum of a * * * board * * * thereof, at which members discuss, decide or receive information as a group on issues relating to the official business of that governing body.

Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983). The "quorum rule," as it has been termed, may, as the supreme court itself admitted, "be circumvented by serial face-to-face or telephone conversations." Id. The supreme court clarified, however:

Of course, serial meetings in groups of less than a quorum for purposes of avoiding public hearings or fashioning agreement on an issue may also be found to be a violation of the statute depending upon the facts of the individual case.

Id. This court, in reviewing the district court's decision in Mankato Free Press I, stated that the effect of respondents' private interviews "is arguably at odds with the purpose of the Open Meeting Law." 563 N.W.2d at 295. However, it determined that Moberg defines a violation of the law "only if the process was designed to avoid public hearings." Id. Therefore, this court remanded the case for the factual determination of whether the private interviews were conducted for purposes of avoiding public hearings or fashioning agreement on an issue. Id.

Appellant argues that the district court erroneously determined that the private interviews were not conducted for purposes of avoiding public hearings. It asserts that respondents specifically chose the process in order to avoid public hearings. Appellant refers to the fact that the interviews were planned and coordinated interviews, as opposed to spontaneous conversations. Appellant also points to respondents' testimony that they believed that private meetings would better foster more candid responses from applicants, and that the Open Meeting Law would not have permitted the private interviews if a quorum of the city council had been present. Therefore, appellant argues, respondents conducted one-on-one interviews for the sole purpose of circumventing the law. Appellant contends that respondents' actions represent exactly the sort of subversions of the purpose of the Open Meeting Law that Moberg outlined as an exception to the quorum rule. We disagree.

Many of the same facts presented by appellant could be used to illustrate that respondents did not intend to subvert the law. They admit that they wanted to conduct the interviews privately, as that had been advised as the best process for getting candid answers from applicants. They were also advised that such a process would not violate the Open Meeting Law. They then sought the counsel of the city attorney, who, with the guidance of an unpublished order opinion from this court, advised that such an interview process would conform with the law. That opinion, while naturally not of precedential value, states that "individual contact between a member of the city council and an applicant who cannot vote on matters coming before the governing body does not constitute a meeting of the governing body," and therefore does not represent a violation of the Open Meeting Law. Northwest Publications, Inc. v. City of Apple Valley, et al., No. C7-91-332 (Minn. App. Feb. 27, 1992). The steps respondents took to confirm the legality of the interview process does not show manipulation of the law, as appellant claims, but rather, care to conform with the dictates of the statute.

II. Amendment of Complaint

In response to respondents' oral motion to dismiss appellant's complaint, appellant orally moved to amend its complaint to include a request for injunctive relief. Leave to amend pleadings "shall be freely given when justice so requires." Minn. R. Civ. P. 15.01. The district court is afforded wide discretion in deciding whether to grant amendments, and a reviewing court will not reverse its action absent a clear abuse of discretion. Fabio v. Bellamo, 504 N.W.2d 758, 761 (Minn. 1993). Amendments to pleadings are liberally permitted absent prejudice to other parties. Pichke v. Kellen, 384 N.W.2d 201, 204 (Minn. App. 1986).

Respondents argue that the district court abused its discretion by granting the amendment because the amendment served no legal purpose. See id. (amendment is properly denied where it legally serves no purpose). Respondents contend that because it was clear from the hearing that there was no violation of the Open Meeting Law, the amendment served no legal purpose. We disagree. Clearly, the amendment had the legal purpose of keeping the complaint from being dismissed for lack of justiciability.

Respondent also argues that granting of the amendment demonstrated an abuse of discretion because there is nothing to enjoin and because there is only an imagined injury. Neither argument has merit.

III. Dismissal for Non-Justiciability

Respondents argue that the district court improperly denied their motion to dismiss appellant's complaint for lack of a justiciable controversy. The district court's decision regarding dismissal of an action will only be reversed if there was an abuse of discretion. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

Because appellant initially sought only a declaration that the private interviews violated the Open Meeting Law, and did not seek penalties, respondents sought dismissal under Rupp v. Mayasich, 561 N.W.2d 555 (Minn. App. 1997). The complaint in Rupp was also seeking a declaration of violation of the Open Meeting Law. Id. There, this court held that because the Open Meeting Law's enforcement provision did not provide for enforcement through declaratory judgment, there was no justiciable controversy and therefore the complaint was properly dismissed. Id. at 558.

Rupp would dictate dismissal if the district court had not allowed appellant to amend its complaint to include a request for injunctive relief, thereby negating respondents' motion.