01-23-2006 K & G Memo on Holding Office

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MU210-4 It should be noted that this provision of Minnesota Statute Section 410.05 was amended on August 1, 2004. Prior to that, it read “[n]o person shall be disqualified from serving on a charter commission by reason of holding any other elective or appointive office other than judicial.” Minn. Stat. § 410.05, subd. 1 (2004). It would have been permissible in 2004 for a City Councilmember to also serve on the Charter Commission, even though Section 2.04 of the Charter existed. However, notwithstanding the recent statutory change to Minn. Stat. § 410.05, subd. 1, it is questionable whether the statutory change applies to an individual presently serving in the capacity of a council member and a charter commission member as the charter provision in question was adopted prior to the effective date of the statutory change that provided the authority for a city charter to prohibit such dual service in municipal office. The Charter provision in question should likely not be given any effect unless properly readopted. In addition, City Council members have served on the Charter Commission in the past. It is therefore questionable whether the intent of Section 2.04 of the Charter was to prevent Council members from serving on the Charter Commission. Based on the above past history and the new statutory language, it would be recommended that if the City would like to continue in the future to allow a Councilmember to serve on the Charter Commission, that it amend the Charter in order to make it clear that it does not apply to this situation. If the City does not wish to amend its Charter, another option may be to request an opinion on this issue from the Attorney General.