Mayor Jerome “Lefty” Kleis’ lawsuit against the City of Becker was thrown out by U.S. District Judge Ann Montgomery July 26.

 

June 1, Montgomery heard oral arguments from Becker city defendants  Adam Oliver and Tracy Bertram on defense of the council’s censure of the mayor.

 

During his tenure as mayor, Kleis has been critical of the operation of the city’s golf course, Pebble Creek. He has repeatedly spoken and asked questions about, and requested an investigation into, the management of the golf course.

 

His scrutiny of the course relates to what he alleged are “unauthorized, possibly fraudulent or illegal, expenditures of public funds or resources, as well as discrepancies in financial records.”

 

In December of 2013, the city council issued a censure against Kleis for what he alleges were “false reasons.” 

 

The censure purported to mandate that Kleis not have contact with certain individuals,  not discuss issues regarding the golf course with anyone other than council members, the city administrator, or the golf committee, not be allowed to serve on the golf committee and not be allowed to participate in any employment decisions regarding city employees. 

 

During the council meeting in 2013, Becker’s city attorney allegedly stated that “a censure is an extreme form of discipline [and] all alternatives should be explored first.”

 

One year later, in December 2014, Kleis introduced a resolution to lift the censure. Oliver withdrew from voting on the resolution because he said there were “personal issues involved.” 

 

The city council did not pass Kleis’ resolution and the censure remained in effect.

 

In May 2015, Kleis was interviewed about the golf course on a local radio station. That interview prompted the city council to hold an executive session, during which Kleis again discussed the course and its operation. Shortly thereafter, the city council issued a statement explaining there would be a resolution to censure Kleis again, that he should be censured for discussing the golf course on the radio, that there was a dispute regarding the golf course and the city council should authorize funds to enroll Kleis in a business accounting class. 

 

A few weeks later, one of the city council members apologized to Kleis for “trying to curtail [his] right to speak about the golf course.”

 

In September 2015, Kleis introduced a resolution to censure Oliver for violating Becker’s city code of conduct. 

 

The resolution did not pass.

 

In January 2016, the city council passed another censure against Kleis. This censure purported to mandate that Kleis not have contact with certain individuals without another city council member present, not telephone city staff, copy the mayor pro tem on any emails to city staff,  submit any data requests in writing or by email to Becker’s city clerk while copying the mayor pro tem on the request, strive to obtain data prior to public meetings rather than make requests during public meetings  and refrain from raising employment concerns during public meetings.

 

Kleis proceeded to bring the lawsuit forward in Minnesota state court in April, alleging that the censures violated his civil rights and liberties. 

 

First Amendment Claim

“To successfully plead a first amendment retaliation claim, a plaintiff must plausibly plead that he/she ‘engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against them that would chill a person of ordinary firmness from engaging in that activity.’”

 

Judge Montgomery compared other first amendment cases to Kleis-es and deemed no meaningful difference between the cases.

 

“Kleis was censured by his fellow council members because they disagreed with his continued criticism of how the golf course is operated,” the court memorandum read. 

 

“Although the censures went beyond expressing the council majority’s disagreement and purported to tell Kleis what he could and could not do, the significance of the gesture is greatly diminished because there is no enforcement mechanism. Indeed, Kleis continued to speak about the golf course and attempted to use the censure mechanism himself against Defendant Adam Oliver.”

 

That information led the court to the conclusion that Kleis “has not plausibly alleged that the censures against him ‘would chill a person of ordinary firmness’ from exercising his first amendment rights.”

 

Kleis also alleged the censures also violated his 14th amendment right to procedural due process. 

 

To state a claim for a violation of procedural due process, a plaintiff must plausibly allege that “he had a life, liberty, or property interest protected by the due process clause, he was deprived of this protected interest and the state did not afford him adequate procedural rights prior to depriving him of the [protected] interest.”

 

 Kleis also argued that he has protected interests in both his position as the mayor of Becker and his reputation.

 

The court memo read, “With regard to the former, Kleis remains the mayor. He alleges that the censures infringed his duties and impacted his abilities, but he fails to explain how unenforceable censures could deprive him of any protected interest he may have in being an effective mayor.

 

With regard to his reputation, “the loss of reputation must be coupled with some other tangible element to rise to the level of a protectible property interest.”

 

Kleis has also brought claims against Oliver and Bertram under Section 1983. 

 

“Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” To state a claim for relief under Section 1983, a plaintiff must allege sufficient facts to show the defendant(s) acted under color of state law and the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.”

 

Because Kleis’ Section 1983 claims are premised on a first amendment or due process violation, his claims fail for the reasons explained above.

 

Finally, Kleis moved for a preliminary injunction.

 

 One factor a court considers when deciding a motion for preliminary injunction is the movant’s likelihood of success on the merits. 

 

“All of Kleis’ claims lack merit,” the court said. “Therefore, he has not established a likelihood of success on the merits, and an injunction is inappropriate.”