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July 27, 2003 Page 10 In a situation where an elected official seeks reimbursement for criminal defense costs incurred by him, it is thus clear that that elected official should not take part in any voting on the matter. Additionally, that official should not even participate in the process leading to that decision. See attached Attorney General Opinion dated December 5,2002. When the official controls the conduct of the meeting at which such a decision is discussed and! or made, that official should turn over the control of the proceedings to someone else. The failure to do so could give rise to an argument of conflict of interest, lead to an appearance of impropriety, and arguments that the manner in which the official governed the proceedings did not allow for reasonable and proper consideration of the issues. In this case, it is therefore our opinion that the Council should decide any reimbursement issue. If the Mayor seeks to have the City reimburse him for the costs and reasonable attorney's fees incurred by the Mayor in defending the charges brought against him under Minn. Stat. ~ 471.87 and Minn. Stat. ~ 609.43(2), the Mayor should submit an itemized statement from the attorney that shows all attorney's fees and costs incurred. The Mayor should not take part in the decision or the discussion process. The Council Member who is deemed to be the Acting Mayor in the Mayor's absence should conduct that portion of the meeting in which the discussion occurs.8 4. Standard for Determining Reimbursement Minn. Stat. ~ 465.76 indicates that a municipality may pay for an officer's criminal defense costs when the charges arise out of conduct that can be said to be the "reasonable and lawful performance of duties" for the municipality. Only one case decided under that statute gives direct guidance on the issue. As noted earlier, Kroschel indicated that the unintentional violation of a criminal statute, or statute of a criminal nature, could be found to be arising out of the reasonable and lawful performance of the duties of the city. In that case it involved allegations of a violation of the Open Meeting Law. Certainly taking part in meetings, and making decisions as to whether meetings are opened or closed, is part of the performance of the duties of an official of a city. The issue really becomes one of what is reasonable under the facts and circumstances surrounding the question. This may not really differ whether one were to look at Minn. Stat. ~ 465.76, Minn. Stat. ~ 466.07, or Minn. Stat. ~ 317A.521. Remember that under 317A.521, the nonprofit corporation has to determine that the officer acted in good faith, did not receive any improper personal benefit, did not have reasonable cause to believe that the conduct was unlawful, and reasonably believed that the conduct was in the best interests of the corporation. 8 In the first instance, it would be our opinion and advice that the Mayor declare himself to have a conflict on this issue due to his pecuniary interest in the outcome. In the event that the Mayor, or any other official under similar circumstances, were to fail to do so, then it is for the municipality to decide in the first instance whether the disqualifying conflict of interest is present. In multiple Attorney General Opinions, the Attorney General's Office for the State of Minnesota has stated this to be the procedure which is followed. See,~, Op. Att'y Gen. 90e-5 (Feb. 25, 1954).