Various Docs - Laserfiche WebLink

Home Browse Search

nonfeasance as is required in art. 8, § 5 of the Minnesota Constitution? OPINION Your question is answered in the affirmative. Minn. Stat. § 410.07 provides that the charter commission "may provide for any scheme of municipal government not inconsistent with the constitution. . . ." If the charter provisions are inconsistent with constitutional provisions, the constitutional provisions are controlling. Op. Atty. Gen. 63A-1, March 29, 1938. The legislature has complete power to remove an elected official from office or to authorize such removal subject only to the limitations the constitution may impose on the particular office. State v. Oehler , 218 Minn. 290, 16 N.W.2d 765 (1944). The prerequisites of removal are set out in art. 8, § 5 of the constitution which provides that elective municipal officers may not be removed except for malfeasance or nonfeasance in office. Jacobsen v. Nagel , 255 Minn. 300, 304,'96 N.W.2d 569, 572 (1959). The art. 8, § 5 limitations on the removal of public officials from office apply regardless of whether those limitations are explicitly acknowledged in statutes providing for such removal. Claude v. Collins, 518 N.W.2d 836, 842 (Minn. 1994). Thus it is our view that removal of elected city officials pursuant to charter must be based upon malfeasance or nonfeasance in office. QUESTION THREE If the standard of art. 8, § 5 is applicable, does the city have authority, through the proposed amendment, to determine for itself what"acts" automatically constitute nonfeasance? OPINION We are not in a position to provide an absolute answer to your question. As noted above, Minnesota statutes authorizing removal of elected city officials pursuant to the charter, requires a vote of the electors. Thus no act of the officer could, standing alone, result in automatic removal for nonfeasance. See also, Op. Atty. Gen. 1926, No. 68, p. 75 (county board had no authority to declare a vacancy in office of coroner due to nonfeasance of the incumbent). Furthermore, while a charter could specify particular conduct which, as a matter of law, would support removal of an elected official for nonfeasance, it does not appear that the language of the proposed • amendment is necessarily sufficient in that regard. The proposed language may be interpretedto say that missing six meetings in six months constitutes nonfeasance per se without regard to the reasons the meetings were missed. Minn. Stat. § 351.14, subd. 3, which provides for removal of elected county officials, defines"nonfeasance" as "the willful failure to perform a specific act which is a required part of the duties of the public official."While that statute is not directly applicable to removal of city officials, its definition is consistent with the general rule that nonfeasance is the failure to do that which is the officer's legal duty to do, without sufficient excuse. Jacobsen v. Nagel, 255 Minn. 300, 304, 96 N.W.2d 569, 573; Claude v. Collins , 518 N.W.2d 836, 842. This principle would require a determination as to whether there was a valid reason to miss the meetings or at a minimum an unrefuted assertion that no legitimate excuse has been presented by the council member. In Op. Atty. Gen. 450-A-11, March 6, 1957, we addressed a situation where the elected county treasurer became ill and was absent from work for six months. We found no authority for holding that illness, even though protracted, constitutes non-feasance on the part of the officer warranting his removal from office. For similar reasons, it is our view that the missing of a number of meetings, standing alone, would not be held to constitute nonfeasance in office. Very truly yours, HUBERT H. HUMPHREY III Attorney General KENNETH E. RASCHKE, JR. • Assistant Attorney General 3 of 3 http://www.ag.state.mn.us/office/opinions/0... 6/4/2003 5:58 PM