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Jim Ericson <br />February 10, 2016 <br />Page 2 <br /> <br /> <br />468078v6 AMB MU210-4 <br />special laws.”1 Importantly, until 2004, Section 410.05 did not contain the “except as otherwise <br />provided in the charter” language, effectively prohibiting local governments from prohibiting <br />elective and appointed officials from serving on the charter commission. Regardless, based on <br />current law, no elected or appointed official (other than a judicial officer) is automatically <br />prohibited from serving on a charter commission, unless the charter provides otherwise. 2 <br /> <br />The city charter includes a common provision that addresses incompatible offices. In City <br />Charter Section 2.04, the city charter provides that no member of the city council is allowed to <br />hold any municipal office or employment through the city, other than that to which they are <br />elected. This provision goes on to extend that provision for one year following expiration of the <br />members elected term. <br /> <br />Finally, it is interesting to note that the Attorney General previously opined that “the office of a <br />city official and the office of a member of the charter commission” are incompatible.3 Such an <br />opinion does not appear consistent with Minnesota statutes nor common charter appointment <br />practice and the Attorney General relied primarily on case law and public policy considerations <br />when making this determination, not an express prohibition contained in statute or charter. <br />Arguably, where the charter expressly provides that no member may hold more than one office, <br />the answer is more clear. <br /> <br />Based upon the above-referenced authority, it may not be entirely clear that a Mounds View city <br />council member is or should be prohibited from serving on the charter commission; however, the <br />primary reason for exercising extreme caution in this situation is that by accepting an <br />appointment to the charter commission, the council member may unwillingly forfeit their seat on <br />the city council. According to the Attorney General and the League of Minnesota Cities, the <br />effect of an individual assuming a second office that is incompatible with their first office is an <br />automatic resignation of the first office.4 Consistent with the foregoing, it appears clear that any <br />member of the city council who subsequently accepts an appointment to the charter commission <br />does so subject to the risk of a determination that the member has surrendered the council <br />member’s right to hold office as a city council member. Thus, the logical conclusion is that no <br /> <br />1 State Constitutional Amendments Considered, a database maintained by the Legislative Reference Library of the <br />Minnesota Legislature, available at http://www.leg.state.mn.us/lrl/mngov/constitutionalamendments.aspx (last <br />accessed September 15, 2015). <br />2 There is also some argument that appointment to the charter commission requires judicial acquiescence. One <br />option for the city may be to submit its proposed list of commission appointees to the chief judge of the district court <br />along with an explanation of the commission and city council’s position on the incompatibility question. It is then <br />up to the chief judge to effectuate the appointments. If the chief judge does in fact appoint those individuals to the <br />commission, a tentative argument could be mad e that such action represents judicial approval of the commission’s <br />argument that no incompatibility exists. Likewise, a tentative argument exists that the 2004 legislation did not affect <br />the prior interpretation of the charter commission and city council that the charter did not prohibit the appointment <br />of a council member to the charter commission since the legislation was adopted after the enactment of the charter. <br />3 Op. Atty. Gen. 358e-1, Aug. 22, 1946. (This opinion is useful in that it highlights and approves the notion that <br />serving as a charter commission member constitutes the holding of a municipal “office.”). <br />4 League of Minnesota Cities, Official Conflict of Interest Memorandum, Chapter V, Section D, available at <br />http://www.lmc.org/media/document/1/officialconflictofinterest.pdf (last accessed October 22, 2015); see also Op. <br />Atty. Gen. 358-E, Feb. 18, 1958.