Msc Correspondence & Term Limit Docs

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should indeed be considered an officer for the purpose of the constitutional restrictions on removal from office. The question remains. however, whether the constitutional language authorizing the Legislature to provide for the appointment of charter commission members by implication allows the Legislature to provide for their removal for other than malfeasance or nonfeasance. As noted. "Cw]here no tenure of office is fixed by law, and no provision is made for the removal of the incumbent, the power of removal is a necessary incident to the power of appointment." Parrish, 87 at 1125 In the case of charter commissions, the constitution does not fix a tenure of office. Furthermore. one could argue that the constitutional provision pertaining to charter commissions does not provide for the removal of members. Taken together. this supports the notion that the Legislature has an incidental power to remove or provide for the removal of those members. On the other hand,one could argue that there is indeed a provision for the removal of an incumbent member. namely the constitutional authority to remove a member only for nonfeasance or malfeasance. If so, the Legislature would not have the incidental power to remove commission members. In any event, assuming that the Legislature does have the power to provide for the removal of charter commission members for reasons other than malfeasance or nonfeasance, the issue is whether it used that power. The Legislature has provided: Any member may be removed at any time from office, by written order of the district court, the reason for such removal being stated in the order. When any member has failed to perform the duties of office and has failed to attend four consecutive meetings without being excused by the commission, the secretary of the charter commission shall file a certificate with the court setting forth those facts and the district court shall thereupon make its order of removal. . . . Minn.Stat. §410.05,subd. 2. This statute is far from clear. To begin with, it seems clear that a charter commission may not be removed entirely at will. since _the district court is required to state the "reason for. . . removal" in its order.. 1d. The next sentence of the statute unfortunately creates a conjunctive condition; that is, a member shall be removed from office if he or she fails to perform the duties of the office and has four consecutive unexcused absences from commission meetings. Id. (emphasis added). The problem is that because the court must state a reason for removal, the statute suggests that removal cannot be for no cause or for bad cause. Nonetheless, it is difficult to conceive of anything besides failure to perform duties or attendance that reasonably justifies removal. The only way to reconcile these sentences is to read them as stating that a court_nity remove a member who fails to attend meetings but does not fail to perform other official duties, or a member who fails to perform other official duties but does not fail to attend eti other official al a at a court o rt must remove a member who both fails to attend meetings and fails to perform If this is a correct interpretation, though, what the statute really describes is nonfeasance. DJG98n69 MU125-11 2