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Erik Burgess, Published January 15 2013

Bluestem tug of war could lead to legal battles

MOORHEAD – City officials here want it to host more community events, and Fargo school officials need it to be the home of the district’s long-standing summer theater program.

The tug of war over how the Bluestem Center for the Arts should be used could prompt legal battles, as both school and city officials have threatened to sue each other in the debate over how to run the south Moorhead arts facility.

In a letter that became public Monday, officials from Fargo Public Schools threatened to sue the City Council in Moorhead if its members continue to publicly complain about how the district is running Bluestem – a facility the city owns but the district now operates.

The letter is in response to similar legal action threatened by Moorhead in December, when some council members accused the district of not providing enough community-wide events at the arts venue, as required by the $5.5 million state of Minnesota grant that helped pay for it.

In the letter from the district, attorney Joseph Wetch Jr., of Serkland Law Firm in Fargo, says the council’s public complaints are “generating negative public perception” about the site, hindering the district’s ability to attract promoters and violating the district’s “right to quiet enjoyment” of the site as detailed in the lease.

Wetch says the district could pursue legal action to remedy the situation.

“It appears to the District that this relationship may now be in jeopardy,” Wetch wrote. “Recent comments by members of the Council as reported by news media … are of grave concern to the District.”

That letter was presented to the council on Dec. 21, along with another letter requesting, through Minnesota’s Data Practices Act, all council documents, emails and memos from the past two years discussing Bluestem, Fargo Public Schools and Trollwood – the district’s summer theater program.

Councilman Mark Altenburg said the council saw it as a “hostile act,” and he could not think of a time when a public body has served another public body an open records request.

“When you see them (information requests) in this context, generally it’s to prepare either for a lawsuit or it’s an attempt to intimidate the other board, and we’re not interested in intimidation,” he said. “We want to move forward. We want this relationship to improve.”

The district isn’t planning to sue, business manager Broc Lietz said Tuesday, but school officials felt they needed to respond to Moorhead’s legal threat.

“I don’t think by any means we have said ‘If you threaten to sue us, we will countersue you.’ We are simply saying both parties have protection under the lease,” Lietz said.

The legal saber rattling began on Dec. 17 when, in the process of approving the district’s 2013 budget for the Moorhead venue, the council was informed that if it did not find the budget appropriate, it could bring the district to court, arguing that it defaulted on the lease.

Because of the state grant, the City Council must approve the budget for the facility and ensure it is providing arts events available to the entire community, like concerts.

While combing through it, some council members scrutinized the budget, questioning whether the district was providing enough proof that regional arts events will be brought to the facility in 2013.

Altenburg said the council has been notified by some regional arts organizations that they have had trouble using Bluestem for an event.

“Every time we try to do something out here, we can’t, and we’re being held up,” the groups tell Altenburg.

Several members also complained that too much stage time in the prime event months, during the summer, is being reserved strictly for Trollwood and that students from outside the Fargo district pay more in tuition at Trollwood.

Lietz said the district is working to bring a wide variety of events to Bluestem. A concert at Bluestem was announced at noon on Tuesday, a May 10 show by bluegrass band Trampled by Turtles of Duluth, Minn.

“For someone to say it will only be Trollwood (using the site), then they weren’t watching the announcements that were unveiled at noon today,” Lietz said Tuesday.

The council voted 6-2 on Monday to have its city attorney, John Shockley, respond to the letter. Shockley said he didn’t believe Moorhead was violating the lease agreement and that it’s the city’s right to examine the venue’s budget.

“As public officials, you are certainly entitled to your opinions and public discussion,” Shockley told the council Monday. “The City Council and the city does not feel in any way its comments were adversely impacting the school district’s ability to use and enjoy the property.”

Lietz said the public nature of the discussion by the council could cause “lingering bad feelings” and hurt efforts to draw events to Bluestem, though he has not heard any promoters raise that concern.

“When you have a public meeting that is televised, open to the media and you have open public conversation about potential litigation against another party, everybody’s aware that that is something you are considering,” he said.

Lietz said the district has no desire to sue the City Council. The open records request was filed to assess what is driving the assertion that the district is in breach of contract, he said.

In response to that records request made by the district, city staff in Moorhead are planning to request all documents, emails and memos written by Fargo School District staff regarding Bluestem.

Councilwoman Brenda Elmer said Monday that receiving this information from the district will help ensure that the council regional arts groups are being given a fair shot at the venue.

“That responsibility is on us, not necessarily Fargo Public Schools, and the tools that we have to do that are through lease agreements and other formal agreements,” Elmer said.

The council will be asking for documents from the district starting on Jan. 1, 2011.

“I would like further understanding and insight from the last several months of the year where we didn’t see much use or activity by other groups out there,” Elmer said. “I want to better understand how they have been working to make that regional arts use.”

The district took over the management of the facility last year after the nonprofit that operated it and raised money to pay for the $15 million arts center folded, with the district taking on about $5 million of the group’s outstanding debt.

The district and the City Council are also still hashing out a new lease agreement for land abutting Bluestem to the south and west of the outdoor amphitheater, often used for overflow parking during Trollwood’s annual summer musical.

Fargo Public Schools is looking to lease 32.9 acres of a 50-acre parcel that was once contracted out to the Bluestem fundraising group before they dissolved.

Council members tabled a motion to approve the new lease on Monday, again citing concerns about the site being used for a broad variety of community events.

They will take up the issue again Jan. 28.

Readers can reach Forum reporter Erik Burgess at (701) 241-5518