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Nonfeasance is the "neglect or refusal, without sufficient excuse, to do that which is the officer's <br /> legal duty to do." Jacobsen. 06 N.w.2d at 573.1 The final question is then whether a charter <br /> commission member commits nonfeasance by voting in favor of a clearly unconstitutional charter <br /> amendment.2 The charter commission members arc sworn to "support the constitution of the <br /> United States and of this state and to discharge faithfully the duties of his office to the best of his <br /> judgment and ability.' Minn. Stat. § 3511.05: Minn. Cotist. art. 5, §6. Arguably, they have violated <br /> this oath by insisting upon an expenditure of taxpayer funds even though the purpose for which the <br /> expenditure is being made is clearly unconstitutional.' In practice. though.it is unlikely that a court <br /> would find that this by itself constitutes nonfeasance sufficient to justify removal from office. See <br /> Jacobsen, 96 N.W.2d at 573 (dispute over expenditures of public funds is political issue, not <br /> question of nonfeasance). <br /> My recommendation. in light of this somewhat confusing constitutional and statutory scheme, is to <br /> throw the issue back on thc district court without clearly describing the standard by which removal <br /> of a charter commissioner should be evaluated. Although the statute does not define the procedure <br /> by which a court may be prompted to initiate such a removal. the city could probably use the same <br /> procedure as is used for appointment of a commission, presentation to the court of a resolution of <br /> thc city council requesting such action. Minn. Stat. § 410.05, subd. 1 (1994). l think it would be <br /> best that an attorney draft the resolution on behalf of the city. <br /> Malfeasance "is not susceptible of an exact definition," but refers "to evil conduct <br /> or an illegal deed." Jacobsen, 96 N.W.2d at 573. Nothing in the charter commission <br /> members' activities has remotely approached this standard, <br /> 2 I am assuming that the amendment is indeed unconstitutional. <br /> ' I would be very careful about pushing rson argument <br /> 'bee r moved- from mdo not think we <br /> office simply <br /> want to establish a precedent that p <br /> because he or she votes for an unconstitutional measure. <br /> bh7G98669 <br /> WI 5-11 <br /> 3 <br />