Brooklyn Park hands its council members a code of conduct at orientation. One line in it says a council member must “[n]ever publicly criticize an individual employee.” Complaints about staff performance go “to the City Manager through private correspondence or conversation.” So an elected official can’t say in public that a staffer’s doing a poor job. Hold that thought.
Council member Maria Tran voted at a public meeting against reappointing a city coordinator to a committee, and said “I don’t think this job [is being] done very well.” The coordinator filed a complaint, an outside investigator substantiated it, and the council censured her, pulled her off every city commission, committee, task force, board, and association, and cut off city money for her travel.
She sued the city, the mayor, and four council members, and lost everything in district court. On October 5, 2026, the Minnesota Court of Appeals affirmed most of that. Open Meeting Law claim: gone. Defamation claim: gone. Minnesota Human Rights Act claim: gone.
Her First Amendment claim came back for the most lawyerly reason there is: nobody had decided it.
Tran v. Winston, No. A25-2236 (Minn. Ct. App. Oct. 5, 2026) (nonprecedential), is a small opinion. The question underneath it isn’t, and it’s still sitting there.
How one committee vote turned into a censure
In December 2023, Tran took her criticism of the coordinator to the city manager. At a public council meeting, she voted against his reappointment to a committee. She thanked him “for [his] service” and said she wanted “to see someone else come forward and take the challenge”. In January 2024, the coordinator complained to the city’s human resources director that she’d violated the code and “created a hostile workplace environment.” He read her vote as “call[ing] upon [him] to resign” and asked the council to “consider[] a motion of censure”. The city hired an outside attorney to investigate. The April 2024 report substantiated the complaint.
On May 20, 2024, the council went behind closed doors to review the report. Tran said she hadn’t meant to target the coordinator, and she agreed to take future criticism to the city manager, the city attorney, or other council members instead of the public. The council settled on a letter of reprimand.
On May 28, the mayor read a draft of that letter at a public meeting. Tran answered in public with more about her history with the coordinator, including her statement that he was the employee she’d filed a misconduct complaint against. Five of the seven council members then bumped the reprimand up to a censure.
On June 10, 2024, the council approved it, with a review every six months. Among its conditions, it restricted her communications with city staff, removed her “from her liaison appointments to, or her membership on, all City commissions, committees, task forces, boards, and associations”, provided that she “shall not represent the City in an official capacity at any City sponsored public event”, and barred “further expenditures of public funds” for her conference and event travel on the city’s behalf. That’s more than a stern letter.
In September 2024, Tran called a police officer about a permit application. On October 14, 2024, the mayor read aloud, at a council meeting, a letter signed by him and the four respondent council members expressing concern about her behavior and well-being. That letter is the center of the defamation fight.
Can a council close a meeting to discuss one of its own members?
Here, yes. The statute didn’t even give the council a choice. Minn. Stat. § 13D.05, subd. 2(b) (emphasis added):
A public body shall close one or more meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open. A meeting must also be open at the request of the individual who is the subject of the meeting.
Three rules packed into one paragraph. The first look is private. Once the members think discipline may be warranted, everything after that is public. And the person on the hot seat can throw the doors open just by asking. The rest of the closed-meeting exceptions are in our guide to chapter 13D.
Tran led with subdivision 1(a): “Except as provided in this chapter, meetings may not be closed to discuss data that are not public data.” The court didn’t buy it. Subdivision 1(a) builds its own escape hatch into its opening clause, and subdivision 2(b) is one of the exceptions it points to. The court needed one line: “It is a basic tenet of statutory construction that a more specific provision prevails over a more general one.”
I read this next part twice. Five of the six council members other than the mayor, who made the motion, voted to close the May 20 meeting, and Tran was one of the five. The statute’s third sentence let her keep it open. The opinion doesn’t say why she didn’t.
Her sharper arguments never got heard. On appeal she argued the May 20 meeting wasn’t a “preliminary consideration” because the council already had a full investigative report, and that a council member isn’t “an individual subject to its authority” because the code doesn’t give the council power to discipline members for what they say at meetings. Good questions. The second one especially. But she’d made different arguments in district court, and the court applied the old rule that you don’t get to try out a new theory on appeal: “Because the theories presented on appeal were neither presented to nor considered by the district court, we decline to review them for the first time.”
So whether an elected council member is “subject to [the city council’s] authority” under § 13D.05 is still open. This opinion didn’t touch it.
Why the defamation claims went nowhere
Tran pointed to three sets of statements: the censure letter’s line that she’d acknowledged her conduct wasn’t consistent with the code, the mayor’s remarks at the October 14 meeting, and the concern letter. All three failed, and two doctrines did the work.
Actual malice disposed of the censure letter. Because Tran is a public figure, she had to show “clear and convincing proof of actual malice”, which requires “that the defendant acted with willful or reckless disregard for the truth or falsity of the matter published.” On the censure letter, Tran conceded that “the Mayor indicated he interpreted Tran’s statement that she could have done better as an admission of a Code violation.” That concession ended it. The court agreed with the district court that the statement, “even if untrue, at most reflect[s] a misunderstanding”, which is “a far distance from the standard of ‘actual malice.’”
Then there’s fact versus opinion. If it can’t be proven true or false, it isn’t defamation. Here’s the test the court quoted:
[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.
At the October meeting the mayor said some behavior seemed “divorced from reality.” The court held that up against Capan v. Daugherty, 402 N.W.2d 561 (Minn. App. 1987), where saying someone “has mental problems, is not dealing with a full deck and needs help” was held to “specifically infer[] lack of mental competence,” which can be proven true or false. That was one factor, and the Capan plaintiff still lost: read in full context, the court held, the statements “were mere opinion”, and it affirmed summary judgment. The Tran court borrowed Capan for the specificity and verifiability points, and on those points it came down to word choice. “He never alleged that Tran herself was ‘divorced from reality’ or mentally ill. The mayor’s comments are rhetorical statements that would not be understood as representations of fact.” His line that there was “a safety concern here for us as a Council” was his subjective opinion, and nobody could verify it.
The concern letter got through the same way. It encouraged her “to consider taking a Mental Status Exam” and to “seek help in addressing any mental or emotional health challenges you may be experiencing,” and then added: “Whether you choose to do so is, of course, your choice.” The court read that as an acknowledgment “that the signatories are not experts in mental health and not certain as to what Tran is experiencing.” A handful of soft words did all the legal work in that letter.
The court also pointed out that the letter “neither used the word ‘dangerous’ nor alleged that Tran ‘intended to bring a gun to a Council meeting,’ as stated by Tran on appeal.” You can’t win a defamation case over words the other side never said.
Minnesota defamation law has more moving parts, the new anti-SLAPP statute among them. Our defamation guide has the full picture.
The question nobody answered
The district court threw out the First Amendment claim. The Court of Appeals found it had never actually ruled on the claim Tran was making.
Some of that’s on the pleading, and the court said so: “Neither Tran’s second amended complaint nor her summary-judgment submissions clearly articulate the nature of her First Amendment claim.” The complaint called the code overbroad and said it chilled speech. It also listed five “adverse action[s]” taken against her: the investigation report, the reprimand, the upgrade to a censure, the censure, and the concern letter. She asked only for “compensatory damages.” No declaration that the code was unconstitutional, no injunction against enforcing it. The court read it as a retaliation claim, based on that list and the summary-judgment briefing, and as a § 1983 claim, because seeking damages for a First Amendment violation by state officials necessarily runs through 42 U.S.C. § 1983.
Now look at what the defense briefed: “In their summary-judgment motion, respondents did not address the allegedly adverse actions taken against Tran and instead focused on the constitutionality of the code.” Tran answered that the censure and its “targeted sanctions and limitations” were “prohibited retaliation for engaging in protected speech.” The defense acknowledged that argument “for the first time in a footnote in reply”. A footnote. In reply. And the district court never addressed it: “The district court did not address Tran’s argument that the censure and accompanying restrictions constituted retaliation in violation of the First Amendment.”
So both sides argued about the code. The claim was about the censure. They were talking past each other.
The Court of Appeals wouldn’t decide whether the code is constitutional. Tran’s complaint went after what was done to her, not the code itself, and courts don’t answer constitutional questions they don’t have to. Footnote 5 is the line I’d hand to any city attorney:
The code may inform the reasons for the government action here, but the codification of the reasons is not dispositive of whether there has been a First Amendment violation.
Writing a rule down doesn’t make enforcing it constitutional. What counts is what the government did to the speaker, and why.
What does a retaliation claim take?
The court started from Nieves v. Bartlett, 587 U.S. 391 (2019): “As a general matter[,] the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” (I covered Nieves in its arrest setting in our piece on retaliatory arrests.) The elements came from the Eighth Circuit’s decision in Carroll v. Pfeffer, 262 F.3d 847 (8th Cir. 2001), as the opinion quoted it:
In order to establish the elements of a retaliation claim under 42 U.S.C. § 1983, [the plaintiff] must show that she was engaged in constitutionally protected activity, that [the] adverse action caused her to suffer an injury which would chill a person of ordinary firmness from continuing in that activity, and that the adverse action was motivated in part by [the plaintiff’s] exercise of her constitutional rights.
Run this record through those elements and nobody should pretend the answer’s obvious. Was a council member’s public criticism of a staffer’s job performance, delivered during a vote, constitutionally protected activity? Would losing every committee seat and the travel budget chill a council member of ordinary firmness? Was the censure motivated at least in part by the speech? The defense’s own answer, on the MHRA claim, was that the discipline happened “simply because [Tran] violated the Code.” The code violation was the speech. Whether the First Amendment lets a council punish a member for that is the whole question.
The employee-speech test I wrote about in our piece on public employee discipline is built for public employees. In the MHRA section of the same decision, the court held Tran wasn’t the city’s employee for purposes of the Minnesota Human Rights Act: she “receives compensation for her role, but the city does not exercise control over the means and manner of her employment and does not have the ability to discharge her.” That’s a ruling on the Human Rights Act’s definitions. It isn’t a First Amendment rule. Which test applies when a council disciplines one of its own? This opinion doesn’t reach it.
The Supreme Court answered half of this in 2022
The Tran opinion never mentions it, but the U.S. Supreme Court has already dealt with an elected body censuring a member. In Houston Community College System v. Wilson, 595 U.S. 468 (2022), a community college board censured an elected trustee after years of fights, including lawsuits he’d filed against the board. He sued under § 1983. He lost, unanimously.
Justice Gorsuch opened with history: “elected bodies in this country have long exercised the power to censure their members.” Then the doctrine. A retaliation plaintiff has to show a materially adverse action, and the Court said two facts cut against Wilson. He was an elected official, and “we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers–and to continue exercising their free speech rights when the criticism comes.” And the censure was itself speech by his colleagues. Here’s the sentence that decided the case:
As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory.
So a council can say, on the record, that a member behaved badly. Words get answered with words. That half has an answer.
The other half doesn’t. The Houston board didn’t stop at words either. It also made Wilson “ineligible for election to Board officer positions for the 2018 calendar year” and “ineligible for reimbursement for any College-related travel”. The Fifth Circuit had held those penalties didn’t violate his rights, and Wilson asked the Supreme Court to reverse that part. It wouldn’t, because he hadn’t filed a cross-petition, and it limited itself to “the Board’s purely verbal censure”. Then it fenced off what it wasn’t deciding: “Likewise, we do not address today questions concerning legislative censures accompanied by punishments, or those aimed at private individuals.” And it closed the same way: “Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment.”
Now set Brooklyn Park’s censure next to that. It pulled Tran off every commission, committee, task force, board, and association, restricted how she could communicate with city staff, barred her from representing the city at city events, and cut off public money for her travel. Call it what you like. It isn’t a purely verbal censure. Whether those were privileges of office, and whether losing them would chill a council member of ordinary firmness, is exactly the question Wilson left on the table. The Court of Appeals didn’t reach it, and it didn’t cite Wilson. That’s the open ground on remand.
What happens now
The court reversed summary judgment on the First Amendment claim and sent it back to district court “for further proceedings on that claim consistent with this opinion.” And it spelled out how little it was deciding:
The reasons for our decision are narrow. We merely conclude that the district court erred by granting summary judgment without addressing whether there are genuine issues of material fact about, or whether judgment was appropriate as a matter of law on, Tran’s pleaded and argued First Amendment retaliation claim. We express no opinion on the merits of that claim, including whether it could survive summary judgment.
It’s a do-over. The district court has to answer the question it was asked the first time.
The opinion’s nonprecedential. Under Minn. R. Civ. App. P. 136.01, subd. 1(c), it isn’t binding authority outside this case. Inside this case it is: the rule carves out “law of the case,” so on remand the district court works within what the panel decided. Elsewhere it “may be cited as persuasive authority.” And under Rule 117, subd. 1(a), any party that wants Minnesota Supreme Court review has to file its petition “within 30 days of the filing of the Court of Appeals’ decision.”
If you sit on a council, a school board, or any public body with a conduct code, here’s what I’d keep. A closed meeting under § 13D.05, subd. 2(b) is for the preliminary look, and once discipline may be warranted, the doors open. And a code that tells elected officials what they can’t say in public doesn’t enforce itself. Every time the body enforces it, that’s a government act against a speaker, and somebody may ask a court to justify it.
Brooklyn Park wrote down a rule: don’t criticize staff in public. Whether it can punish an elected member for breaking it is a question two courts have now managed not to answer. The district court’s up again.
Madgett Law, LLC litigates civil rights claims under 42 U.S.C. § 1983, including First Amendment retaliation, along with defamation and Open Meeting Law disputes in Minnesota state and federal court. If a public body has disciplined you for something you said, send us a message.
Sources: Tran v. Winston, No. A25-2236 (Minn. Ct. App. Oct. 5, 2026) (nonprecedential), slip op. at 1 (caption, panel, Hennepin County District Court File No. 27-CV-24-18053, disposition), 2–3 (code §§ 6.2 language), 3 (the vote and remarks; the January 2024 complaint; the April 2024 report), 4 (the May 20, 2024 closed meeting and closure vote), 5 (May 28 reading; upgrade to censure; June 10, 2024 censure conditions; six-month review), 5–6 (September 2024 call; October 14, 2024 concern letter), 8 (§ 13D.05, subd. 1(a) and subd. 2(b); specific-over-general), 8–9 (unpreserved “preliminary consideration” and “subject to its authority” arguments), 10 (defamation elements; actual-malice standard), 12 (fact-opinion line; actual-malice definition), 13 (statement 1 and actual malice), 14–16 (“divorced from reality”; Capan v. Daugherty, 402 N.W.2d 561 (Minn. App. 1987); “safety concern”; the Gacek test at 15), 17–19 (the concern letter), 19–20 (nature of the First Amendment claim; § 1983 at 19 n.4; the parties’ summary-judgment briefing), 21 (declining the code’s constitutionality; Nieves v. Bartlett quotation; n.5), 21–22 (Carroll v. Pfeffer elements; failure to address; remand; “The reasons for our decision are narrow”), 25 (council member not an MHRA employee), 26 (respondents’ stated reason for the discipline), Minnesota State Law Library archive. Nieves v. Bartlett, 587 U.S. 391, 398 (2019), Supreme Court of the United States. Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001) (retaliation elements), Caselaw Access Project. Capan v. Daugherty, 402 N.W.2d 561, 564–65 (Minn. App. 1987) (specificity; statements “mere opinion” in full context; summary judgment affirmed), Caselaw Access Project. Houston Community College System v. Wilson, 595 U.S. 468 (2022) (Gorsuch, J., for a unanimous Court), at 471–472 (the history and the board’s penalties, including officer ineligibility and travel reimbursement), 473–474 (the Fifth Circuit’s treatment of the nonverbal penalties; no cross-petition; question limited to the purely verbal censure), 475 (elected bodies’ long practice of censure), 478 (elected officials expected to shoulder criticism), 479 (censure did not prevent him from doing his job or deny any privilege of office), 480 (not addressing “legislative censures accompanied by punishments”), and 482 (“Our case is a narrow one”), preliminary print of the United States Reports, Supreme Court of the United States. Minn. Stat. § 13D.05, subd. 1(a) and subd. 2(b), Minnesota Office of the Revisor of Statutes. Minn. R. Civ. App. P. 136.01, subd. 1(c) (nonprecedential opinions not binding; may be cited as persuasive authority) and 117, subd. 1(a) (30-day petition for review), Minnesota Office of the Revisor of Statutes.
This article is general legal information about Minnesota and federal law, not legal advice, and reading it does not create an attorney–client relationship. It describes a decision in a case involving other parties; nothing here characterizes any party beyond the court’s own words, predicts how the district court will rule on remand, or addresses any reader’s particular facts. No outcome is promised or implied.