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CITY OFFICERS: REMOVAL: City charter may not provide for removal of council member by council. Grounds for removal of elected local official must amount to malfeasance or nonfeasance in office. Minn. Const. art. VIII, § 5; art. XII, §§ 3, 4. Minn. Stat. §§ 351.02, 351.14, 410.07, 410.20. • 59a-30 July 24, 1996 John B. Dean Attorney at Law Kennedy 8, Graven 470 Pillsbury Center Minneapolis, MN 55402 Dear Mr. Dean: In your letter to Attorney General Hubert H. Humphrey III you set forth substantially the following: FACTS The City of Richfield operates under a home rule charter adopted in 1964. Recently the Charter Commission submitted a proposed charter amendment regarding council member attendance at regular council meetings. If amended, Section 2.05 of the charter would read, in relevant part, as follows: Section 2.05 Vacancies. Subdivision 1. Existence (2)As soon as it is determined that a Council Member is ineligible because of any of the following reasons: . . . (viii) failure of a council member to attend six regular council meetings during a six-month period which would constitute non-feasance in office, the Council shall by resolution at a regular or special council meeting, declare 410 a vacancy on the Council to exist. [Underlined material is the amendment proposed by the charter commission]. You then ask substantially the following questions: QUESTION ONE Except in situations involving such matters as death, resignation or moving away of the elected official, does the city have authority, through the proposed amendment, to provide for removal from office, for any reason, without the vote of the electors of the city? OPINION Your question is answered in the negative. The specific situations which you mention in your question are all considered to create vacancies in elective office pursuant to Minn. Stat. § 351.02 (1994). These vacancies occur upon the happening of the specific event directly related to the officer's qualifications, ability, or willingness to hold the office in question. While a governing body or other authority might identify and declare the facts giving rise to these vacancies, for all practical purposes they occur automatically and are not based upon any removal action. However, nowhere in Minn. Stat. § 351.02 is the city given the ultimate authority to declare a vacancy for any reason not explicitly stated in the statute. Minn. Stat. § 351.02(3) does provide that an office becomes vacant upon the incumbent's"removal"from office, but does not set out the permissible grounds for removal from any particular public office. Thus the authority and procedures for removal must be found elsewhere in statutes or charter. C.f. Op. Atty. Gen. 475-h, April 30, 1985 (removal of transit commission appointees limited to circumstances expressly listed in statute). Article 8, § 5 of the Minnesota Constitution addresses the removal of"inferior"officers. It states: • The legislature of this state may provide for the removal of inferior officers for malfeasance or nonfeasance in the performance of their duties. This provision applies to elected municipal officials and has been interpreted to mean that such officials cannot 1 of 3 http://www.ag.state.mn.us/office/opinions/07,Vicid.#* '1 6/4/2003 5:58 PM