HomeMy WebLinkAbout06-09-92 Special CCMLAKE ELMO CITY COUNCIL SPECIAL MEETING
JUNE 9, 1992
Mayor Johnson called the special meeting of June 9, 1992 to
order. This special meeting was called for the purpose of
reviewing our options at this point in time in regard to the
purchase of property for the community drainfield.
We do not have a quorum here. We have absent from this
meeting three council members. 1. Dick Johnson is out of
town and has a legitimate reason, 2. Lee Hunt and 3. Todd
Williams, the final two, called city hall this afternoon and
I was notified at 4:10 this afternoon that they had previous
commitments and they could not attend the meeting.
I do not know of the legitimacy of their commitments, but
for the record, I am going to read into the record the
responsibilities of the city for a meeting whether a regular
meeting or a special meeting and the actions that are
available to the council as currently constituted not a
quorum for the purpose of making it known that this public
meeting which was called must be held, if for no other
reason then to adjourn the meeting, since it is easier to
hold the meeting and let concern citizens know who have been
notified that the meeting is not to be held for lack of a
quorum than it is to simply provide no information at all.
This meeting was called by myself on June 4th at 9:30 a.m.
and notification was provided to the council that the
meeting would be held at 7:00 p.m. June 9th.
Notification from the absent council members were not
received until 4:10 this afternoon. I read from the MN
statutes 412.191, subdivision 2, meetings of the Council.
Special meetings of the council may be called by the Mayor
or by any two members of the Council by writing, filed with
the clerk, who shall then mail a notice to all of the
members of the time and place of the meeting at least one
day before the meeting.
Council may preserve order at its meetings, compel the
attendance of members and punish non-attendance, and shall
be the judge of the election qualifications of its members.
In addition, the Council shall have the power to regulate
its own procedures.
Now our city council is governed by Roberts Rules, that is
our code stipulation that will be governed by Roberts Rules.
I read from Roberts Rules, Chapter 11, No. 39 with regard to
a quorum.
LAKE ELMO CITY COUNCIL SPECIAL MEETING JUNE 9, 1992 2
In addition from the statute with regard to a quorum.
The Statute 412.191, sub 1, states the majority of all the
members shall constitute a quorum although a smaller number
may adjourn from time -to -time. From Roberts Rules #39, a
board or committee of the whole or its variations, that is
quorum in boards and committees, a quorum will be
established by the by-laws. In all other committees and in
boards, the quorum is the majority of the members of the
board or committee unless a quorum is fixed differently. So
we know the majority of this council that is requires THREE
members to have a quorum.
Proceedings in the absence of a quorum. In the absence of a
quorum any business transaction except for the procedural
action noted in the next paragraph is null and void. But if
a quorum fails to appear at a regular or properly called
meeting, the inability to transact business does not detract
from the fact that the society rules requiring the meeting
to be held were complied with and the meeting was convened
even though it had to be adjourned immediately. The only
action that can be legally taken in absence of a quorum is
to fix the time to which to adjourn, adjourn, recess or take
measures to obtain a quorum. The first three of these
motions are governed by the standard descriptive
characteristics for them.
A motion that absent members be contacted during a recess
would represent a measure in the last category. Motions to
obtain a quorum are treated as privileged motions that take
precedence over a motion to recess. Such motions are out -
of -order, and another has the floor and so on.
The prohibition against transacting business in the absence
of a quorum cannot be waived even by unanimous consent and a
notice cannot be validly given. If there is important
business that should not be delayed, the meeting should fix
the timeframe, adjourn the meeting, and then adjourn. Where
an important opportunity would be lost unless acted upon
immediately the members present can at their own risk act on
the emergency with the hope that their action will be
ratified by a later meeting at which a quorum is present.
If a committee as a whole finds itself without a quorum you
can do nothing but rise and report to the assembly which can
then proceed as already described.
Manner of enforcement quorum requirements. Before the
presiding officer calls a meeting to order, itS his duty to
determine although he need not announce that a quorum is
present. If a quorum is not present, the chair waits until
there is one or until after a reasonable time there appears
to be no prospect of a quorum will assemble. If a quorum
cannot be obtained the chair calls a meeting to order
announces the absence of a quorum and entertains a motion to
adjourn or one of the other motions allowed as described
LAKE ELMO CITY COUNCIL SPECIAL MEETING JUNE 9, 1992 3
above. When the chair has called the meeting to order,
after finding that a quorum is present, etc.. that is when a
quorum is present.
Call of the house. In legislative bodies or other
assemblies that have legal power to compel the attendance of
their members and if you recall I read from 412.191 sub 2,
the second to the last sentence of that paragraph. The
council may preserve order at its meetings and compel the
attendance of members and punish nonattendance. The Call of
the House is a motion that unexcused absent members be
brought to the meeting under arrest. The Call of the House
is not applicable in voluntary societies. Assemblies in
which there may be occasion to order a call of the house
should adopt a rule that 1/3, 1/5 or some other number less
than a majority of the members or house elect are present.
When a quorum is not present this motion should take
precedent over everything except a motion to adjourn. The
rules allow the call to be moved while a quorum is actually
present for the purpose of attaining a greater attendance.
The motion at such time should rank only with question of
privilege. When a call of the house is ordered, clerk calls
the roll of the members then calls again the names of the
absentees in whose behalf explanations of absence can be
made and excuses can be requested. After this, no member is
permitted to leave, the doors are locked and sargent of
arms, chief of police or other arresting officers ordered to
take into custody absentees who have not been excused from
attendance in bringing them before the house. He does this
on a warrant signed by the presiding officer and attested by
the clerk. When arrested members are brought in, they are
arraigned separately. Their explanations are heard and on
motion can be excused with or without penalty in the form of
a payment of fee. Until a member has paid such a fee
assessed against him, he cannot vote or be recognized by the
chair for any purpose. After a call of the house has been
heard no motion is in order even by a unanimous consent.
Sue Dunn: Dave, wasn't there just a council meeting last
Tuesday. This is a special meeting. What is the subject of
this meeting? Do you have an agenda there?
Dave: That should have been posted by our clerk. We are in
session. This is a meeting in session. I won't entertain
any questions from the audience.
Those present then are myself, Dave Johnson, Councilman
Jess Mottaz. We have available to us four options. We can
adjourn to a specific time. we can adjourn period, we can
recess at which recess we would call the members who are
absent and ask for their reason or I can entertain a motion
for call of the house and have them arrested and brought to
the council meeting.
LAKE ELMO CITY COUNCIL SPECIAL MEETING JUNE 9, 1992 4
I would prefer that we would recess and call the absent
members and determine if they have a legitimate reason for
not attending this meeting.
Mottaz: Does that require action on the part of the clerk?
Dave: The clerk is suppose to, but the clerk too is absent
and I should point out that contrary to my order, and I
should point out that the mayor is the only one that can on
his own authority call a special meeting and similarly is
the only one that can call off a special meeting that he has
once called. The clerk on her own authority, even though
instructed by myself that we hold this meeting and
regardless of a quorum and that it was necessary in fact to
hold the meeting. Nonetheless, without communicating with
me, posted a sign on the door, which sign states "for lack
of quorum, the special meeting was cancelled 6-9-92."
Mottaz: You stated, there, on her own authority. She has
no authority.
Dave: She has no authority at all with regard to meetings
of this city council. None.
Sue Dunn: She would let you know if the other members are
available or not.
Mottaz: I don't think we know whether we have a quorum
until the meeting is called. I mean I could call and say I
cannot make tonight's meeting at 4 o'clock and at 7 o'clock
find out that I can make tonight's meeting and be here. So
we don't know whether we have a quorum or not for sure until
the meeting is called. The Clerk has absolutely no
authority to call a meeting or to call a meeting off. She
acted completely out of her authority.
Dave: In addition, I will say that we have some very, very
important business to discuss. We have and this also for
the record, a communication with our city engineer at which
he stated and under repeated requests from the council to
rectify his statements that he had direct communication with
Mr. Pete Schiltgen as to his desire or willingness to sell
land to the city for the purpose of constructing a community
drainfield for sewering of the old village. Upon
communication with myself, I called Mr. Schiltgen and was
informed by a member of his family that I should contact his
attorney. I stated that I felt it was necessary to talk to
Mr. Schiltgen since our city engineer had already talked to
Mr. Schiltgen's attorney.
LAKE ELMO CITY COUNCIL SPECIAL MEETING JUNE 9, 1992 5
As it turns out, Mr. Schiltgen called me and I asked
him if he was a willing seller of property over there and he
told me that the only thing he knew about this community
drainfield is what he had read recently in the Stillwater
paper and has had no communication on this whatsoever and
was not in fact a willing seller.
I make that point to emphasize the fact that our engineer
has stated we would have a start date for construction of
this project of August, 1992. Following my communication
with Mr Schiltgen, I talked to our city attorney, Jerry
Filla. He stated that the law requires if we must go to
condemnation Mr. Schiltgen's property at least three months
before we can gain control of his property and it does not
take a genius to recognize that if we began our activity
immediately we would in any case be beyond the completion
date of this project before we gain control of Mr
Schiltgen's property. My feeling was that this council
would have to meet since we promised the residents of the
old village that before we came to any final decision we
would have one more public meeting which would require
notice at least two weeks and then make a decision. That's
four weeks. so add to today a date four weeks and we are
off into October before we can gain control of this property
if we must begin legal proceedings to gain that control.
Time is of the essence. We must have direct communication
from Mr. Schiltgen and we must have on paper a written
statement that he is either willing or unwilling
participant. If he is unwilling, then we are going to have
to assess our options. One of which is to begin proceedings
for condemnation which at this point seems beyond the realm
of possibilities; or, two, determine if we can purchase
property from a willing seller, the White Hat restaurant,
and at what price we can purchase that property. That is
begin negotiations, or, three, cancel this idea altogether
this year.
Sue Dunn; is the city engineer coming tonight and the White
Hat deal, what is that.
Dave: He was suppose to, somebody must have called him and
cancelled his attendance.
I make these points to indicate that there is another
terrible thing sitting out there that although not as
directly as Mr. Schiltgen my feeling is this may also be a
problem for us. We had been given assurances also by our
city engineer that we would be able to gain access to an
easement or purchase agreement or some arrangement to take
care of our surface water drainage in the old village. That
to be small excavation of Mr. Schiltgen's property to the
east directly adjacent to the old village in such a manner
that water could properly egress through his property.
LAKE ELMO CITY COUNCIL SPECIAL MEETING JUNE 9, 1992 6
My conversation with him indicated and he stated again,.
that the only communication he has had on this is through by
reading the newspaper and then, secondly, that the only
thing he knows of is that perk tests were done on his
property and he does not know what the purpose of those perk
tests were, but he stated that he had no problem with the
city doing the perk tests. That makes me a little
incredulous, but none -the -less it also tells me that our
whole MSA project which relies on us taking care of surface
water may be out th window and down the tubes that is repair
of the streets, repair of our city water service pipes, to
people of the old village as well as our community
drainfield. I need, I suppose not, in present company, tell
you that this is the street part of it is the 100 percent
MSA funded project. I should also tell you that if you are
not aware we have an election coming up in 1992 and we have
a proposal to be voted upon Thursday in the U.S. Congress
for a constitutional amendment that will appear likely to
pass, or something to that effect, a law that will call for
a reduction in the federal budget and probably some tax
increases. That reduction in the federal budget will likely
be an across the board which means that state revenue
sharing will probably suffer and like manner if that suffers
sharing of revenues with the communities with the cites that
is already massively reduced from previous years likely to
be reduced even further and MSA funds may not be available.
I say this the reason for haste in taking action now is that
we have an opportunity to assist some people with the
assistance of state funds. If we don't take some action
very shortly, we may lose the whole works here. That was
the purpose of the meeting and the need for us to act
rapidly.
Sue Dunn: Could I get some history on that?
Dave: Excuse me, excuse me, be quiet or I will have you
removed. You will remove yourself unless you keep quiet.
Dave: I am going to make a motion to recess and I will call
our two absent council members and see if we can get a
quorum.
Those in favor, aye, motion carried.
We are in recess.
Sue Dunn: There are several different scenarios. You are
just looking at the one.
LAKE ELMO CITY COUNCIL SPECIAL MEETING JUNE 9, 1992 7
Mottaz: I don't think we can make a motion on this. I want
to request that the staff type out this entire tape and to
be made available to the other council members. I think we
should include the urgency of this. Other reasons that are
involved in this thing, but I think the urgency of this is
that our engineer who was suppose to be here and was told
not to come and our attorney who was suppose to be here and
was told not to come, should be informed by the council what
the council wants in terms of answers to some very key
important questions at the next meeting so we don't have to
wait until the next meeting and ask them for these things
and then have to wait for an additional two weeks for them
to come back with these answers. They will know now the
questions the council wants answered and they can come to
the very next meeting with those answers so we can move on
with this because I really think we are running a great risk
of loosing the whole project because there are so many
things tied together.
Dave: I think we also have to point out that our city
attorney will be leaving town on the 17th and will be gone
for a couple of weeks and that is an additional incentive to
get some action done here as quickly as possible so he can
communicate with any one in his office who would be left
behind to tackle this project as to where we're at, what the
history is and where we are going. Then we have a
communication from Mr. Hunt, who is the only one that I was
able to get a hold of. My understanding from the Deputy
Clerk, Sharon, is Mr. Williams will be occupied the rest of
the week and will not be able to attend the council meeting.
Mr. Hunt has stated that he will be able to attend the
council meeting at 5 pm on Thursday. Therefore, I would
entertain a motion.
Mottaz: I move that according to Roberts rules that we
adjourn this meeting to 5 p.m. Thursday, June 11th.
Dave: that's seconded, those in favor, aye, motion carried.
Meeting Adjourned.
CALL TO AN SPECIAL MEETING
6/04/92 (9:30 A.M.)
TO: CITY ADMINISTRATOR
|
. HIS NOTICE IS PROVIDED ACCORDING
TO MN. STAT"
471^705 (SUBO" IC) -NOTICE OF MEETINGS,
SPECIAL MEETINGS"
IT IS INTENDED
AS A WRITTEN
DIRECTION BY THE UNDERSIGNED FOR THE
PURPOSE OF FILES
AND NOTIFICATION
OF CITY COUNCILPFRSONS AND 'NEWS MEDIUM THAT HAVE FILED
A REQUEST' TO BE
NOTIFIED:
DATE AND TIME
OF MEETING: JUNE4, 1992 AT
7:00 P.M,
PURPOSE: NOT FEELING COMFORTABLE WITH STATEMENTS MADE BY OUR CITY ENGINEER THAT HE
HAD HAD CONVERSATIONS WITH MR" PETER SCHILTREN AND HAD GOTTEN ASSURANCES THAT MR"
SCHILTGEN WAS FAVORABLE TO THE PURCHASE OF A PORTION OF HIS PROPERTY FOR A COMMUNITY
DRAINFIELD: I HAD A TELEPHONE CONVERSATION WITH MR. SCHILTGEN LAST WEEK (AFTER INSISTING
THAT l HAD TO TALK TO PETE AND NOT HIS ATTORNEY) AT WHICH HE INFORMED ME THAT HE HAD NOT
BEEN NOTIFIED OR CONSULTED ON THIS CITY'S PROPOSAL TO CONSTRUCT A 9RAlNFIELD ON HIS
PROPERTY (HE STATED THAT HIS FIRST KNOWLEDGE OF THE PROJECT CAME FROM READING ABOUT IT IN
THE STILLNATER PAPER) NOR THAT HE AGREES TO THAT, HE STATED THAT HE KNEW ONLY THAT
BORINGS HAD BEEN MADE ON HIS PROPERTY TO TEST THE PERK OF THE PROPERTY BUT NOTHING MORE
AS TO PURPOSE. l TOLD HIM THAT OUR CITY ENGINEER HAD INFORMED THE COUNCIL THAT HE HAD
HAD DISCUSSIONS WITH HIM AND THAT HE (PETER) WAS IN GENERAL AGREEMENT WITH USING A CORNER
OF HIS PROPERTY FOR THIS PURPOSE" MR, PREW, OUR CITY ENGINEER NOW STATES THAT HE HAS HAI)
DISCUSSIONS WITH MR. SCHILTGEN'S ATTORNEY (AND IF HIS EXPERIENCE WAS LIKE MINE, A MEMBER
OF MR" SCHILTGEN'S FAMILY PROBABLY DIRECTED MR" PREW TO TALK TO HIS ATTORNEY EVEN THOUGH
OUR EXPERIENCE lS THAT ONE MUST TALK TO MR" SCHlLTGEN HIMSELF) AND NOT PETER SCH7LTG5N"
HOWEVER, IF YOU WILL RECALL, THE LAST TIME WE DEALT IN THIS MANNER, WE ASSUMED THINGS
BASED ON CONVERSATIONS WITH THE ATTORNEY THAT WERE NOT SATISFACTORY TO MR, SCHILTGEN.
BASED ON MR" SCHILTGEN'S RESPONSE (I.E. HAVING NO INFORMATION OF OUR INTENTIONS), IN
| HAT CONVERSATION, I TOLD HIM THAT THE CITY HAD OPTIONS AS TO THE LOCATION OF A
URA7NFIELD AND THAT HIS PROPERTY WAS NOT CAST IN STONE, I TOLD HIM THAT THE WHITE HAT
RESTAURANT HAD APPROACHED THE CITY WITH A STATEMENT OF WILLINGNESS TO SELL PROPERTY TO
THE CITY FOR THE DRAINFIELD PURPOSE AND THAT THAT OPTION WAS GENERALLY REFUSED BECAUSE OF
ANTICIPATED COST BUT THAT I WAS CERTAIN WE WOULD EXPLORE ALL OPTIONS.
YESTERDAY I HAD A CONVERSATION WITH OUR CITY ATTORNEY AT WHICH HE INSTRUCTED ME THAT
IF WE WOULD HAVE TO GO TO CONDEMNATION OF MR" SCHILTGEN'S PROPERTY (I.E. HE IS, IN FACT,
NOT A WILLING SELLER) THE QUICKEST THAT WE COULD GAIN CONTROL OF THE PROPERTY WOULD BE
ABOUT 3 MONTHS - THIS WOULD PUT US BEYOND THE DATE OF THE PROPOSED PROJECT COMPLETION OF
AUGUST, 1992. FURTHER, AND PERHAPS A GREATER FEAR, I AM NOT CERTAIN THAT WE HAVE A WRAP
ON THE SURFACE WATER EASMENT ACCROSS THIS PROPERTY! AT A MINIMUM, WE MUST ESTABLISH THAT
NE HAVE OR CAN GET AGREEMENT WITH MR" SCHILTGEN TO PURCHASE SOME PROPERTY DR CONSIDER OUR
ALTERNATIVES ~ TIME IS SIMPLY AGAINST US AT THIS TIME AND WE DO NOT WANT TO INJURE OUR
NEGOTIATING POSITION WITH THE WHITE HAT RESTAURANT IF WE MUST DR FIND IT IS SIMPLY BETTER
TO GO TO THE WHITE HAT RESTAURANT WITH THE EFFLUENT!
DAVID D" JOHNSDN,L-MAYOR
CITY OF LAKE ELMO
C.C. AND NOTIFICATION:
CITY ATTORNEY
CITY ENGINEER
THE LAKE ELMO CITY COUNCIL
WILL HOLD A SPECIAL MEETING ON
TUESDAY, JUNE 91
7:00 P.M.
City Hall
7:00 p.m. MEETING CONVENES
1. AGENDA
1992
2. Purchase of property
for community drainfield.
3. Other
4. Adj ourn