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IIII9) 300 hanover building, 480 cedar st.,saint paul, minn. 55101
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information
for municipal officials
335a.5
Revised: August, 1978
------ --- --- PROCEDURAL REQUIREMENTS FOR ADOPTION OF STATUTORY CITY
ORDINANCES AND RESOLUTIONS - NOTES AND FORMS
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CONTENTS
Page
Procedure 1
Amendment 1
Repeal 1
Resolutions 1
Adoption by Reference 1
Codification of Ordinances 2
Distinction Between Ordinances and Resolutions 2
Effect of Passage of Ordinances and Resolutions in
Derogation of Council Rules 3
Effective Date 3
Suggested Forms 4
Drafting provisions 4
General Ordinance Form 4
Amending Ordinance Form 5
General Ordinance Adopting by Reference . . . . . . 5
Procedure and which then states that the ordinance so des-
cribed is repealed. Repealing ordinances must also
M.S. 412.191, Subd. 4 contains the procedural meet all the requirementsset forth in M.S. 412.191,
requirements for the enactment of ordinances in Subd, 4.
all statutory cities. It provides in part that all
ordinances must be: (1) enacted by a majority Resolutions
vote of all members of the council, except where
a larger number is required by law; (2) signed The publication (or posting) of resolutions is
by the mayor and attested by the clerk; (3) pub- not required. (Davis v. Village of Madelia, 205
lished once in the official newspaper. Minn. 526 at 535, 287 N:W. 1, 1939; A.G. Op.
March 1, 1937.) In the Madelia case, the court
This section also requires proof of publication held that the requirements of signing, attesting and
to be attached and filed with the ordinance and publication of an ordinance do not apply to resolu-
the recording of the ordinance in the ordinance tions. Statutory cities have authority to publish
book within 20 days after its publication.To pass, official proceedings, including resolutions and
4n ordinance requires a majority vote of all of motions, under M.S. 412.191, Subd. 3, but such
the members of the council. A resolution may be publication is entirely voluntary.
passed by a majority vote of those voting on the
proposal. (See A.G. Op. February 2, 1942; A.G. A resolution enacted by a city council with the
Op. 471-6, January 19, 1945; A.G. Op. 396g-16, same formalities required for the enactment of an
October 15, 1957.) ordinance has the same effect as an ordinance.
(See A.G. Op, 477a-1, March 17, 1967.)
It is not required that there be several readings
of proposed ordinances (as in many charter cities) Cities may not, however, avoid the publication
ancj no specified time must lapse between intro- requirements for ordinances by legislating in the
duction of the ordinance and final passage. The form of a resolution. The Minnesota Supreme
statutes permit an ordinance to be introduced and Court has indicated that it will not be guided by
passed at a single meeting. Requirements for terminology in this field. See Steenerson v. Fon-
two or three readings with the lapse of a specified taine, 106 Minn. 225 at 227, 119 N.W.400 (1908)
time between readings are often included in by- stating that, "Where . . . the resolution is passed
laws, however. Under M.S. 412.191 , Subd. 2 the with all the formality of an ordinance, it thereby
council is authorized to regulate the mode of its becomes a legislative act, and it is immaterial whe-.
own procedure. ther it be called an ordinance or a resolution."
Conversely, if a resolution is in effect a legisla-
Amendment tive act, it must be adopted with all the formality
of an ordinance, including proper publication.
Amending statutory city ordinances requires (See McQuillin Municipal Corporations, vol. 5,
the same procedures which must be followed in 3rd ed. 1949,sec. 15.02.)
passing a new ordinance as set forth in M.S.412.191,
Subd. 4. If the ordinance to be amended is short Adoption by Reference
or numerous changes are to be made, the usual
and most desirable practice is to_repass the entire _ M.S. 471 .62 provides that cities may incor-
ordinance in its amended form, repealing the old porate in an ordinance by reference any statute
ordinance in a separate section of the new ordi- of Minnesota, any administrative rule or regula-
nance. If the amended ordinance is extremely long, tion of any department of the State of Minnesota
an amending ordinance may be passed which sets affecting the municipality, or any code. Any muni-
forth, in amended form, only the section or subsec- cipality stituated wholly or partly within 20 miles
tion being changed. An amending ordinance should of the limits of a first class city (Minneapolis,
be labeled as such and should state the ordinance St. Paul or Duluth) may also adopt by reference
and the section or sections being changed. To any ordinance of such first class city or of any
eliminate confusion, single word or single sentence contiguous first class city regulating the con-
amending should be avoided, and the entire section struction, alteration, repair, or maintenance
or subsection should be amended. or buildings or the installation of equipment.
(This authority to adopt first class city ordinances
Repeal by reference must now be exercised in conformity
with the uniform state building code law.)
Ordinances are repealed by passing another ordi-
nance which states in its body the title, number, All requirements of statutes and charters for
subject, and date of the ordinance being repealed, the publication or posting of ordinances are
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satisfied in such case if the ordinance incorpora- A notice that copies of the codification are avail-
ting thestatute, regulation, ordinance or code is able at the office of the city clerk must be pub-
published or posted in the required manner, and lished in the official newspaper for at least two
if, prior to such posting or publication, at least successive weeks.
one copy of the ordinance or code is marked as
the official copy and filed for use and examination A codification prepared according to this statute
by the public in the office of the municipal clerk is good evidence before the courts of the existence
or recorder (M.S.471.62). and regularity of the ordinances contained in it.
After three years from the publication, such a
This does not authorize any municipality to codification is conclusive proof of their adop-
adopt ordinances on subjects on which it does tion and publication. (M.S. 599.13.)
not have power by statute or charter to legislate.
Distinction Between Ordinances
The term "code" as defined by M.S. 471 .62 and Resolutions
means any compilation of regulations or stan-
dards or parts thereof that are prepared by any An ordinance may be defined as a law of local
government agency, including a regional or county application, enacted by a municipal council under
planning agency or any trade or professional powers delegated to it by the state and "pres-
association,for general distribution in printed form cribing a general and permanent rule for persons
as a standard or model on the subject of building or things within the corporate boundaries." (An-
construction, plumbing, electrical wiring, inflam- derson, City Government, 1925, page 366, quoting
mable liquids,sanitary provisions, planning,zoning, Cooley, Handbook of the Law of Municipal
subdivision, housing, public health, safety, or Corporations, page 164; McQuillin, Municipal
welfare. Corporations, 3rd ed,, vol. 5, section 1502.)
A number of ordinances in a typical city may deal
This statute does not authorize the city to enact with the organization and procedure of the local
an ordinance adopting by reference future amend- government: rules providing Tor the conduct of
ments of a code. (A.G. Op. 59-A-9, March 27, elections; the organization of administrative de-
1956; A.G. Op. 59-A-9, July 18, 1967.) If the partments and bureaus; the creation, powers and
city wishes to incorporate subsequent changes in duties of particular offices; the regulation of the
any codes which it has adopted by reference, it local civil service; and the conduct of public busi-
must do so in an amending ordinance after the ness generally. The largest mon of ordinances or
particular code has been changed. The same is by-laws deals with the direct regulation of persons
true when a statute is incorporated by reference. and property within the municipal limits - ordi-
(See A.G. Op. 59-A-11, Jan. 18, 1967.) nances...2n a wide variety of subjects, designed
in general to promote tj:e S f" v. health,morals,
This is only an optional method of adopting converyience. d anec nomic well-being of the
technical codes, and the council may publish the comry�un' of these deal with municipalipal
ordinance in full if it desires. Publication in full planning and platting, with zoning, etc.; others
has the advantage of making the complete code declare and prohibit nuisances, license and regu-
available to interested persons without the neces- late businesses such as beer taverns and intoxica-
sity of consulting copies on file in the municipal ting liquor establishments, or provide for the
clerk's office. The real advantage of passing an licensing and regulation of other kinds of busines-
ordinance adopting a code by reference is the say- ses and occupations or regulate the use of streets
ing in publication cost thus effected. and public places, etc. (See Anderson, supra,
pages 366-3 ; McQuillin, 3rd ed., vol. 5, sec-
Codification of Ordinances tion 15.04. Regulations whose violation may re-
sult in a fine o ent
M.S. 415.021 permits any city to revise and should be a opted only by ordinance')
codify and print in book, pamphlet, or news-
paper form,any general and special laws,ordinances On the other hand, administrative or temporary
resolutions, and rules of the city and may include action may be underta Pn hy,resolution or motion.
in the codification for reference any applicable Such action might include the appointment of
general or special laws. Codifying under this sec- personnel, orders of assessments under the local
tion is a sufficient publication of any ordinance improvement code, the declaring of holidays or
included in the code even if such ordinance has special events, the letting of contracts, making
not previously been published in a newspaper so appropriations, authorizing budget transfers, and
long as a substantial quantity of the codification the performing of a great number of other
is printed for general distribution to the public. routine actions in the conduct of the munici-
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r a
pality's administrative business, (See Anderson, There are a number of cases involving action
supra, pages 376-377; McQuillin, 3rd ed., vol. 5, expressly suspending rules (see County Court v.
sec. 15.07.) City of Grafton, 77 W. Va. 84, 86 S.E. 924, 1915)
and there is no doubt this action is ordinarily
Express statutory or charter provisions may valid; but it appears that when the council acts in
determine whether an ordinance or resolution derogation of a rule requiring several readings on
should be used in specific instances, but the an ordinance and its action indicates clearly that
general rules outlined above should be followed the council intended the vote to be the final
in the absence of any provisions in the law to passage of the ordinance, the rule is considered
the contrary. dispensed with or suspended for the action. Com-
monwealth v.Mayor of Lancaster, 5 Watts 152 (Pa.
In its traditional form a resolution begins with 1874); Schoenfeld v. City of Seattle, 265 Fed.
a "whereas" clause or clauses explaining the oc- 726 (D. Ct. 1020); cf. City of El Dorado v. Jacobs,
casion for the action,followed by the substance of 174 Ark. 98 294 S.W. 411 (1927), It has been
the resolution beginning with "Therefore, be it held, however, that where a statute does not it-
resolved" or some similar phrase distinguishing self provide the procedure, an ordinance adopting
the action from "The council ordains" enacting rules has all the force of a statute and cannot be
clause of the ordinance. In more recent practice, repealed, suspended or waived except by action of
the preamble is omitted and the material set- equal formality. Swindell v. State, 143 Ind. 153,
ting out the backgound or occasion is given as 42 N.E. 528, 35 L.R.A. 50 (1895); see also Blood
a separately numbered paragraph or section of the v. Beal, 100 Me. 30, 60 AtI, 427 (1905), holding
body of the resolution. that where rules and orders of the city council
provide that certain orders should not be passed
A formal resolution implies the reduction of the without a two-thirds vote of the whole member-
proposition to writing before the question is put ship and the number voting for a particular order
upon its passage. Where a resolution is required by was 10 out of 21, the order was void for want of
statute, probably a formal resolution is meant. the requisite number of votes. A reading of all
However, proceedings simply in the form of a the cases, however, indicates that this line of
motion duly carried and entered on record are decisions, if sound, is of doubtful application to
frequently held to be equivalent to a resolution the Minnesota situation. Under the Minnesota
and probably this is sufficient for most simple provisions cited at the beginning of this memoran-
administrative acts. dum, it seems doubtful in the light of these decis-
ions generally that a by-law or ordinance requiring
Effect of Passage of Ordinances and Resolutions two or more readings on ordinances could be
in Derogation of Council Rules given such effect that an ordinance passed without
complying with the rule is void.
There have been no Minnesota cases involv-
ing the effect of council action taken in derogra- Proceedings taking place at a council meeting
tion of council rules, but the decisions elsewhere which was not a regular or adjourned meeting or
generally indicate that an ordinance actually a- a duly called special meeting, were a nullity and
dopted by a municipal council in accordance not enforceable. (A.G. Op. 471e, Mar. 11, 1959.)
with-statute- is not invalid because its own rules
of procedure were not complied with. 56 Am. Effective Date
Jur. (2d), "Municipal Corporations", Sec. 156;
McQuillin, Municipal Corporations, (3d ed.), Statutory city ordinances cannot become opera-
vol. 4, sec. 13.42; Greeley v. Hamman, 17 Colo, tive or go into effect until they are published.
30, 28 Pac. 460 (1891); McGraw v. Whitson, Ordinances which are not published are void and
69 Ia. 348, 28 N.W. 632 (1886);City of Sedalia v. cannot be enforced. Publication must be made
Scott, 104 Mo. App. 595, 78 S.W. 276 (1904); in the official newspaper of the city. Before an
Ex parte The Mayor, etc. of Albany, 23 Wend, ordinance takes effect, it may be revoked or
280 (N.Y. 1840); Madden v. Smeltz, 1 Ohio. repealed by the city council by motion, resolution
Cir. Dec. 424 (1887); Hutcheson v. Storrie, 48 or ordinance. (Union Public Service Co. v. the
S.W. 785 (Tex. Civ. App. 1898); Bennett v. New Village of Minneota, 212 Minn. 92, 2 N.W. 2d,
Bedford, 110 Mass.433 (1872);Holt v. City Coun- 555, 1942; see also McQuillin, vol. 5, 3rd ed.,
cil of Summerville, 127 Mass. 408 (1879); South sections 16.76 - 16.78.) If an ordinance is void
Georgia Power Co. v. Baumann, 169 Ga. 649, because publication requirements are not met,
151 S.E. 513 (1929). The last three cases involve a council cannot later pass another ordinance
action taken in violation of provisions in the rules retroactively effective as of the date when the
requiring more than one reading. other ordinance would have been effective had it
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been published. (See State ex rel Charles v.Darrow, 4,. If prior ordinances are to be repealed, a
65 Minn.419, 67 N.W. 325, 1896.) section to this effect should be included. It is un-
wise to use a blanket repealer - that is to say, a
Ordinarily, statutory city ordinances expressly section repealing "any and all ordinances and
provide that they shall take effect from and after parts of ordinances inconsistent herewith." Such
the date of their publication. Even where all re- a section adds nothing to what the courts imply in
ference to an effective date is omitted, the rule every ordinance, for if two ordinances or sections
seems to be that a municipal ordinance takes thereof are inconsistent, the one later in time of
effect upon publication, in the absence of any passage ordinarily prevails. The better method is
further requirement governing the passage of to make a study of all prior ordinances and to re-
ordinances by the municipality. There are no peal each inconsistent ordinance specifically by
additional requirements for statutory cities. reference to number and title.
Ordinances may provide for a later effective
date than the date of publication. They can- 5. In statutory cities, an ordinance takes ef-
not, of course, fix an earlier one. (See McQuillin, fect upon passage and publication unless the ef-
vol. 5, sec. 15.39; Metropolitan Airport Corn- fective date is postponed in the ordinance itself.
mission v. McCabe, 271 Minn. 21, 1351 N.W. However, it is customary to include a section at
2d 48, 1965.) the end stating that "This ordinance becomes
effective from and after its passage and publica-
SUGGESTED FORMS tion."
Drafting provisions 6. Each ordinance should include a penalty
clause where a penalty is appropriate.
Ordinances must be in writing, but neither the
Constitution nor the statutes require ordinances 7. Each ordinance must be signed by the
to be written in any specified form but they mayor, attested by the clerk, and published once
must be suitably entitled and be substantially in in the official newspaper. It is customary to add
the style, "The City Council of ordains:" a statement at the end indicating the date on
(M.S. 412.191, Subd.4.) which the ordinance was passed and the date
when it was published.
The following rules are usually observed in
drafting an ordinance: 8. Since an ordinance normally requires techni-
cal legal knowledge, its drafting should usually be
1. Ordinances should be consecutively num- entrusted to an attorney. It is much easier to avoid
bered in the order of their passage. Each should legal mistakes in the first instance than it is to
have a title which states the subject to which the undo such mistakes after they have been made.
ordinance relates. Unlike some city charters,
the statutory city laws do not expressly require General Ordinance Form
that an ordinance contain one subject which is
to be expressed in its title, but they do say that ORDINANCE NO.
each ordinance shall be "suitably entitled."
(Insert the subject to which
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2. Each ordinance should have an enacting the ordinance relates).
clause which states that "The City Council of AN ORDINANCE
ordains." This clause should appear
immediately below the title. The City Council of _ ordains:
3. The body of the ordinance should follow Section 1 , (If words or phrases used in the ordi-
the enacting clause and should be arranged ac- nance need defining, it should be done in this sec-
cording to the topics or general rules which it tion)
covers, each topic or general rule being a section.
Sections should be arranged in logical order. If Section 2. (Each general provision should be
a section is long, it facilitates amendment of the stated in sections according to a logical order.)
ordinance to divide it into subdivisions. If words
or phrases have a peculiar meaning or are repeated Section 3. etc. (An ordinance may contain any
at numerous places throughout the ordinance, number of f sections and subsections.)
they should be defined in the first section.
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s
Section —. Repeal. (It is customary to repeal 19 —, AND ENTITLED "AN ORDINANCE
prior inconsistent ordinances in the following etc.
manner: "Ordinance No. —, adopted
19 —, and entitled "An Ordinance RELATING TO
etc." is repealed.")
Section 1. Ordinance No. (or Section
Section —. Penalty. (Where a penalty is appro- of Ordinance No. ) adopted , 19 _.,
priate, it is customary to state it in either of the and entitled "An Ordinance " is amended
following ways: to read:
Alternate 1. "Any person violating any provision Section (Repeat the ordinance, section,
of this ordinance shall, upon conviction, be pun- or subdivision as it will read when amended.)
ished by a fine not exceeding $500 or by imprison-
ment for a period not exceeding 90 days,or both, Section —. This ordinance becomes effective
plus, in either case the costs of prosecution." (from and after its passage and publication) (on
This is the standard penalty clause and provides , 19
for the maximum penalty authorized by law for
violation of a city ordinance. Passed by the council this day of
, 19 —.
Alternate 2. "Any person who violates any
provision of this ordinance shall, upon convic-
tion, be punished by a fine of not more than Mayor
$100." This is the maximum penalty for a petty
misdemeanor. In an arising under such a provision Attest:
there is no jury trial, and an appeal may be taken
only on questions of law.
Clerk
Section —. Effective date. (This is usually
stated in the following manner: "This ordinance Published in - _ on the day of
becomes effective from and after its passage and , 19
publication" or "This ordinance becomes effec-
tive on , 19 _.") General Ordinance Adopting by Reference
Passed by the council this day of , For purposes of illustration, the following
19 _. ordinance adopts the U.B.C. Housing Code by
reference. Other codes, as well as state statutes
and administrative rules or regulations of state
Mayor departments, may be adopted in the same man-
ner. (See League Memo, "Adoption of Statutes
Attested: and Codes by Reference", 335b.1)
Sample Ordinance Adopting the U.B.C.
Clerk Housing Code by Reference
Published in on the day of ORDINANCE NO.
, 19 —.
AN ORDINANCE RELATING TO MINIMUM
Amending Ordinance Form HOUSING STANDARDS FOR DWELLINGS AND
MULTI-FAMILY DWELLINGS AND ADOPTING
ORDINANCE NO. BY REFERENCE THE HOUSING CODE OF THE
INTERNATIONAL CONFERENCE OF BUILD-
AN ORDINANCE AMENDING ORDINANCE ING OFFICIALS.
NO. (or SECTION OF THE ORDI-
NANCE NO. ) ADOPTED , The city council of ordains:
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Section 1. Housing regulations. The Uniform by a fine not exceeding $500 and by imprisonment
Building Code Volume I l 1, Housing (19 — edi- fora period not exceeding 90 days.
tion) of the International Conference of Building
Officials, one copy* of which is on file in the Section 3. Effective date. This ordinance be-
office of the city clerk, is hereby adopted as the comes effective from and after its passage and
housing code of the city for the purpose of provid- publication.
ing minimum housing standards for dwellings
and multi-family dwellings in the city. Every pro- Adopted by the council this day of
vision contained in this code is hereby adopted —, 19 —.
and made part of this ordinance as if fully set
forth herein.
Mayor
Section 2. Enforcement and penalty. The city
engineer (or other official designated in the ordi- Attest:
nance) shall enforce the provisions of the ordi-
nance adopted by reference in Section 1 and shall
serve as the building official referred to in the Clerk
ordinance. Any person who violates any pro-
vision of the ordinance is guilty of a misdemean- Published in on the day
or and, upon conviction thereof, shall be punished of , 19 —.
*It is arguable that three copies may be required except in the case of the state building code. The phrase
"one copy" replaced the words "three copies" in the amendment made to the section by the state building
code act, Laws 1969, Ch. 850, Section 5; however, the title to that law, "An act relating to the adoption
of a state building code" may not be inclusive enough to cover the section on adoption of statutes and
codes by reference and it is arguable, therefore, that insofar as section 471.62 is concerned, the act does
not comply with the constitutional requirement that a law may cover only one subject which must be
embraced in the title. While this might be too technical a construction of the constitutional provision,
a council may wish to avoid any doubt when it adopts a code other than the state building code by filing
three copies instead of one in the clerk's office.
OCP:glb
9/78 - 6 -
. -• , L. INFORMATIONS 1VICE •
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Municipal:Reference-Bureau
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League of Minnesota Municipalities-,
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� Y''-'• 'icigal.i:ties:,;')Incl-',-..ii..fewer..,rentaia bi.biiograp2
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-. resolution and 10 n-motion `p In :thIs r co nrzectiox...youu find;
s rt3.ing� bg� .. _.
1 t J of,1Interest tehe ;enclosed. memorandura-s :Ion. the publlcatlors Tec .ire"erste
x irfor;4i?.Isge`ordinances a1rcl''resal.utioiis, on. they-:procedure in amending r
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-°} quolcssn44:. ,en on,the -•orocec ure t`a conduct meetings of the=village cQunei3..,,` n
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F, Tit general., as :they�►irst:;memorandum points out, ordinances ares.seal for
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• ,� re€Iuired for ordinance '-'1,�Resolutions- aid motions on the other hani,
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upon, it„ where.'as`, a ntotioi. is no•moire than.action of the>council appe ring
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ir. .T , Armstrong September•30, 1945
You will .see•,from the memorandum on ri.11$ge,`couno 11 voting that
the ge era _voting;requiremerts .are "the: same for resolutions _and motions °f " Rt`4 ,
Ji motion, of``course, s frequently thought of as purely:procedural`step - {
in•.the conduct of meetings of ss :counci3 or other: organizatiouit,:such,as .
describeo ins. the em andum onprocedure to c caiduct.meetings of a village :
caunril ;
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,et us. kno�r_ if` we have not•answered your inquiry satisfactorily.
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335f: Publication requirements for village ordinances and.r esolutions E�
3.•'35a: -Procedure_in amending ordinances in. villages. � � f�x
Village council voting tie votes and quorums. nK � -
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140b-3 Procedure to cond•uct meetings of the village council ,' z• 4� = `
"r E- _ g'`i�jr..F - .-. +l,X ' i 'h F ``f .:ry-A L'Z',:- },4* �T"'3l Et yt Ch ' $
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505f: Sewer' rentals bibliography.
505f: Litchfield ordinance`;establishing:r es, and charges for ;the3use3ofkthe�'sewer 4
system and- sewage disposal plant for he village of Litchfield. YC Y ,
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Page 2 February 10, 1972 . :
We hope this answers your question saris actc�rily.
Sincerely yours
Stanley G. .Peskar
Assistant-Counsel
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INFORMATION SERVICE
of 335A
Municipal Reference Bureau
and *555A
League of Minnesota Municipalities *555F
3300 University Avenue S.E., Minneapolis, Minnesota 55414
February 11, 1972
EFFECTUATION OF A TRAFFIC CONTROL DEVICE ORDINANCE BY
MEANS OF A RESOLUTION
Mr. Robert Pegg
City -st torney •
115 5th Avenue West
Alexandria, Minnesota 56308
Dear Mr. He
This letter is in response to your inquiry of February 9, concerning authority
to implement`an ordinance providing for traffic control devices by means_of
council resolution.
Though it is traditional for municipal penal _regulations to be by- ordinance,
your .municipal charter would, of coo se, control as to the type of legislation',
violation of which may result in a criminal penal.ity, which the council..ay erect.
An examination of our file Copy of your charter reveals that section ''5 controls
council procedure including enactment of ord;.na cos and resolutions. That part
of section 5iiacer the heading "Ordinances and Resolutions`' provides. that all
Legislation shall be by.-.ordinance or resolution and does.not specify the
situations in which either is appropriate. That portion of section 5 concerned
_ with emergency ency ordinances and resolutions likewise ,fails to distinguish
the situations in which either legislative device is appropriate. Though other
portions of section .5 provide .for differences in procedure, e.g. enactment of an
ordinance requires'publication, a _reasonable interpretation of the charter
could well be that ordinances and .resolutions are inzterchangable legislative
devices: and- that the difference in procedure was pro4ided so that: the council'
could _use its .discretion as to when legislation would best be accomplished by
ordinance, with the attendant publication and when the public interest would be
served by passage of a resolution. Such interpretation is constitutionally
supportable even though the council could not make an act a criminal offense
without providing some reasonable opportunity for the public to know that the
doingof the act might entail imposition of criminal sanctions. In a case
see/ as you mentioned, the placement of the signs in full view of the street ol
users is probably a better publication thancould be obtained by publishing ? `
a copy of the resolution in the newspaper.
In summary, I think the Alexandria charter puts your. city in a different category
with regard to effectuation of ordinances by means of a resolution,,,froze most
municipalities which provide" for the use of ordinances for legislative enactments
acid permit the use of resolutions in administrative or ministerialsituations.
- _ '(Over)
INFORMATION SERVICE
of
League of Minnesota Cities
480 Cedar Street,Saint Paul, Minnesota 55101
August 17, 1979
Ms. Ruth White •
Secretary
Mounds View Charter Commission
c/o City Hall
2401 Highway 10
Mounds View, MN 55112
Dear Ms. White:
Today I examined Chapters 4 - 12 of the proposed Mounds View City Charter and
am suhmitting these commentsfor the consideration of the commission,
As was the case in my few comments on the first three draft chapters, these
comments are almost entirely of a critical nature. Specific observations about:
the sections which seem satisfactory would unnecessarily lengthen this memo-
randum_: As a consequence, the comments are largely-confined to those sections
about which questions might be raised or which might conceivably be improved.
The Charter Commission might find itself in disagreement with particular com-
ments. This is to expected since such comments often reflect only the personal
views of the writer based upon his experience in the field of municipal govern-
ment. Furthermore, anyone commenting on a charter from a distance must do so with
a theoretical charter in mind and not from the vantage point of a local citizen
who is thoroughly familiar with the community for which the document was designed.
It should be noted too that because the Mounds View Charter is in some respects
identical with the League model charter, some of these comments do in fact criti-
cize the provisions of the model charter and suggest changes in it.
GENERAL COMMENTS
In most sections, the proposed charter carries out the modern drafting principle
that such a document should contain only broad fundamentals, leaving details in
the hands of the council . However, whenever the Charter Commission has inserted
language in more detail than the model charter or added provisions not contained
in the model charter, it might be worthwhile for the body as a whole to first
articulate the objectives sought to be secured by these additional or more detailed
provisions. Then, the body should consider carefully whether the proposed language
accomplishes the objective with a minimum of verbage and a maximum of leeway for
the council and staff to operate the city as changing circumstances may dictate
and with a minimum of uncertainty as to what the document intends. In some areas,
arguably Chapter 6, details have been included which could reasonably be left to
nrdinances or rules.
Ms: Ruth White
August 17, 1979
Page 2
This draft charter has been constructed in such a manner as to put maximum res-
ponsibility on the elected council and upon the citizens themselves. In a small
community with numerous interested citizens with substantial time available to
devote to public affairs such diffusion of power generally tends to work well .
However, Mounds View is a fairly large city (for Minnesota) and you may not have
the numbers of retired and other time generous persons to make such an arrangement.
function as you envision. Where no individual above department level has the .
power and responsibility to control city operations, department heads can become
extremely independent with their own constituencies.on the governing body and among
the electors. Overall city operations can then be adversely affected. You might
want to correspond or consult with Joseph Gerzin, chairman of the City of Ely
Charter Commission about this.
Implied in the previous comment is the observation that to the extent that a great
deal is expected of the council, every means available ought to be used to encourage
interested, capable, effective and cooperative people to serve in council positions.
Means of encouragement of course include provision of significant salary inducements
but probably more importantly should aim at minimizing impediments to effective col-
lective decision-making and the attendant frustration which will cause active people
to terminate public involvement.
Note ought also to be made that with rapidly increasing labor and postage costs,
provision for frequent notices and public hearings may constitute a substantial
expense to the city in addition to confronting the citizens with a surfeit of
opportunity for involvement in the decision making process.
SECTION BY SECTION COMMENTS
Section 4.01..
The last sentence of this section provides for an assumption of office of newly
elected officers at the first meeting following the election. Though this kind of
a provision may have the advantage of limiting "lame duck" legislation and admini-
stration, it might well raise numerous questions as to those rightfully exercising
the duties and powers of office in situations where election contests or other
cases of doubt have not been resolved. The idea for this kind of provision may have
come from examination of other charters. If so, you might want to contact the
communities from which this system is borrowed to determine its workability.
Section 4.02
This section allows an elector to file for city office during a seven-day period
thirty days prior to the city election. Is this a sufficient time so that all
citizens have a reasonable opportunity to file for office? Vacations, illnesses
and other events may interfere with filing during a one week period. As you are
probably aware, in the absence of such a provision, state law would allow two weeks
for filing.
Section 4.05
This section must have been intended to harmonize with M.S. 205.14, Subd. 3. I say
this because the charter provision makes no provision for breaking a tie vote or
4
Ms. Ruth White
` August 17, 1979
Page 4
Section 6.02, Subdivision 5
•
The first sentence uses the term "clerk" when "clerk-administrator" isused through-
out the rest of the charter to identify this office. Consistency is desirable.
Section 6.04
The last sentence of subdivision 2 appears ambiguous to me. . Maybe the ambiguity
in the charter will be adequately overcome by ordinances, regulations and practice
procedures. I would only note that the words "questions of major policy" are not
legally defined terms established by court decisions to a degree that words like
legislative, administrative and ministerial are so defined.
Section 7.04
This section puts the responsibility on the city staff to submit a proposed budget
to the council . I would only point out again that that diffuse responsibility
may lead to problems of compliance.
Subdivision 2 of that section provides for a summary of the budget "to be mailed
to residents of the city." How those residents and their addresses are to .be -
determined and what happens if some are missed is not mentioned. Though the courts
are likely to look on such a provision as directory and therefore as not invalidating
actions taken if imperfectly complied with, language like the following taken from
the local improvement code, Section 429.031, might be appropriate: "But failure
to give mailed notice or any defects in the notice shall not invalidate the proceed-
ings." You might also want to include language giving city officials some .reason-
able discretion in means of determining who are residents of the city and where
they might be sent mailed notice. In fact, you might want to reconsider the use of
the term "residents" since this term would seem to include persons not eligible to
vote, i.e. , aliens, children- and incompetents. -
Section 7.05
Unless the planning commission has some substantial staff or works very closely with
the clerk-administrator or finance officer, they may have considerable difficulty
producing yearly long term financial plans.
Section 7.10
Subdivision 2 of this section provides for mailing to residents of the city a de-
scription of each bond issue or other obligation planned. -Such a requirement in - ,
those terms might well terminate the ability of the city to borrow money on the
public market unless the language is modified in a way that bond counsel can assure
themselves that the requirements of the charter have been complied with completely
prior to the issuance of any bonds. In the absence of a legal opinion from recog-
nized
ecog-nized bond counsel that procedural requirements of charters and statutes have been
complied with prior to issuance, bonds are generally unsalable. The difficulties
of complying' are discussed in my comment on Section 7.04.
•
The requirement for a distribution of the summary of the opinion poll to as many
Ms., Ruth White
August 17, 1979
Page 3
certifying the results to the county auditor or -to the candidates after the period
for contest has passed.
The three day period for canvassing results of the election was obviously intended
to supplant the two day period prescribed by the statute and would be effective.
However, would it not be clearer to citizens and possibly avoid expense in litigation
if all the mechanism of M.S. 205.14, Subd. 3 were set out in your charter provision
with such changes as your charter cornission thinks necessary or if Section 4..05
were deleted with complete dependence on the state law.
Section 4.06
This provision on .special elections provides for published notice prior to the election
but no posted notice. It seems anomalous to require posted notice as well as pub -
lication
ub `'lication for regularly scheduled elections, while requiring only published notice
for a special election which citizens will have even less opportunity to anticipate.
Section 4.07`
The required thirty-seven day prior published notice of this special election to fill
vacancies in elective office would seem to be insufficient since filing would have
to be completed by thirty days prior to the election. This would give- even a shorter
period to potential candidates for their decision as to whether or not to run. T
say this on the assumption that all potential candidates might notread of the va-
cancy on theday of its first publication.
This section also calls for a special election to be held within forty-five days
after the vacancy occurs without any reference to the possibility that a regularly
scheduled election may be approaching. Some economies might be achieved byavoiding
a separate special election in those cases when a regular-if scheduled election is
to occur within say six months of the vacancy.
The last sentence of subdivision 2 would seem to make sense if you lengthened the
notice period required for special elections to forty-five days. Otherwise you
might as well take advantage of regularly scheduled elections which are to occur
shortly after a vacancy.
Section 5.08
As I indicated to the commission in my consultation with that body early in their
drafting process, the efficacy of such recall provisions- is not free from doubt.
in view of Jacobsen v. Nagel (mentioned on page 7 of the model charter comments) . Still ,
I think it- is useful to have such a provision in a charter where the objective of
the drafters is toobtain maximum responsiveness of the elective officers.
Section 6.01
The first sentence might read, "the council , as a body, shall he responsible for
the administration of the city." Note the demands on council members' time which
such a provision makes if it is to be done effectively_
Ms. Ruth White
•
August 17, 1979
Page 5
residents of the city as is feasible, is ambiguous and could also cause bonding
problems. It would be better to accomplish this objective by some method of
certain compliance, such as posting in definite places, or publication if cost
is not a major consideration for the commission.
The last sentence of this subdivision provides that the poll and distribution of
results isn't necessary where financing is undertaken pursuant to an emergency
ordinance under Section 3.06. However, your provision on emergency ordinances
provides that an emergency ordinance shall remain in effect for the duration of
the emergency and shall become void when the emergency no longer exists. This
could be construed to mean that the authority for issuing the debt or obligation
also terminates with the end of the emergency and such a contingency could also
make the bonds, notes or other obligations unsalable and thus this shortcut pro-
cedure unusable.
•
Section 7.12 •
The preceeding comment relates as well to the last sentence of this section.
In subdivision 2 there is a requirement that the city make a full report to the
residents of the city as soon after issuance of emergency debt certificates as
is feasible. Thetype of report or means of conveyance is not specified.. While
for most purposes specificity in the charter is unnecessary and binding, in the
area of bond issuance, specificity may avoid problems. -
Section 9.01
The last sentence of this section provides for essentially the same kind of public
hearing process for property acquisition as is required under earlier sections for
creation of the budget and issuance of obligations. In my judgement, this is
attempting to take public involvement a bit too far. Firstly, the application of
the section is not limited to real property. Thus, this section appears to require
such a hearing before purchase of a police car, a desk or a light bulb. Secondly,
even if the application of this section were restricted to purchases of real property,
the advisability of such a provision is questionable. Certainly, purchases of great
significance will have had to be anticipated in the city budget or will require
bonding to secure the funds. The public input and reaction can be obtained through
your hearings provision in other sections. Where minor easements and fee purchases
are acquired by negotiation, the existence of a provision such as this will sub-
stantially increase the expense of acquisition and delay action unduly. Moreover,
to provide for such an unusually large number of public hearings can only result in -
a discouragement of the electors from meaningful attendance and participation.
The principle is exemplified by the story of the boy who kept crying wolf.
Section 10.01
In the last sentence of this section the term "clerk" is used whenn"clerk-admini-
strator" is used in most of the other sections of the charter.
Section 11.06
This section spells out a specific notice requirement for public hearings required
III9111
IIlI
Mg
league of minnesota cities
September 4, 1979
Jeff Nelson
City Administrator
City Hall
2401 Highway #10
St. Paul , Minnesota 55112
Dear Jeff:
At your request, I called the city attorney in Duluth to discuss their recall
provision and its interpretation. The Duluth provision is not limited in its
terms to incidents of nonfeasance or malfeasance in office. However, on the
strength of the case Jacobsen v. Nagel and as recommended by the city attorney,
the city council in that recent case involving former councilor Thomas Agnew,
permitted a recall election only in circumstances where malfeasance arguably
was involved. In that case, the petition alleged fcurreasons for the recall ,
three of which related to matters of judgment and quality of performance. How-
ever, an election was called only to decide whether there should be a removal
for violation of a charter provision which prevented interference by individual
councilors with departmental operations. This one involved a statement that a
particular employee should be dismissed. Since the charter prohibited this
activity, the city attorney's office advised that an election should be permit-
ted on this issue with the electorate sort of functioning as a jury to make the
determination.
The election resulted in a recall , and though a couple of avenues of litigation
were commenced and later dropped, they were ineffective in giving us case law
confirming the power of the council to decide whether reasons stated for recall
on a petition are sufficient,is a matter to be judged by the council . Neither
did they resolve the question whether conviction of a crime that amounts to
nonfeasance or malfeasance is a prerequisite to recall .
Thus, there presently exists a good deal of uncertainty as to the extent of
powers conferred upon the citizenry by a broadly drafted recall provision.
We hope this answers your question satisfactorily.
Sincerely?
"4416,
Stanley 7Peskar
General Counsel
300 hanover building, 480 cedar street, saint paul, minnesota 55101 C6123222-2861
SGP/rj
Encs.
CHAPTER 6
Administration of City Affairs
Section 6.01 . The City Manager. The City Manager shall be the chief
administrative officer of the City. The Manager shall be chosen by the Council
solely on the basis of training, experience and administrative qualifications.
The choice shall not be limited to inhabitants of the City or state but all
candidates shall be citizens of the United States. The City Manager shall be
appointed for an indefinite period and be removed by the Council at will , provided,
however, that if removed at any time after three years of service, the City
Manager may within fifteen days after said removal demand written charges and a
public hearing on the same before the Council ; but pending and during such hearing
the Council may suspend the City Manager from office, with or without pay. Such
public hearing shall take place within thirty days after the demand for the same
and the written charges shall be furnished to the City Manager by the Council
at least ten days before the hearing. During the suspension absence or
disability of the City Manager, the duties of this office shall be performed
by some properly qualified person designated by the Council as acting Manager.
Section 6.02. Powers and Duties of the City Manager. Subject to the
provisions of this charter and any regulations consistent therewith which may
be adopted by the Council , the City Manager shall control and direct the
administration of the City's affairs. The powers and duties of the City
Manager shall be:
(a) To enforce this charter and the laws, ordinances and resolutions
of the City;
(b) To appoint with the consent and approval of the Council all
department heads and subordinate officers as set forth in Section 6.04 in the
City charter; to appoint all other employees; to remove for cause, with the
consent and approval of the Council , all permanent employees;
(c) To exercise control over all departments and divisions of the
City administration created by this charter or which may be hereafter created
by the Council ;
(d) To attend all meetings of the Council , with the rights to take
part in the discussions but having no vote; but the Council may at its discretion
exclude the City Manager from meetings at which removal of the City Manager is
considered;
(e) To recommend to the Council for adoption such measures as may be
deemed necessary for the welfare of the people and the efficient administration
of the City' s affairs;
(f) To keep the Council fully advised as to the financial condition
and the needs of the City, and to prepare and to submit to the Council the annual
budget;
(g) To perform such other duties as may be prescribed by this charter or
required of the City Manager by ordinances or resolutions adopted by the Council .
Section 6.03. Departments of Administration. The Council may create such
- offices, departments, divisions and bureaus for the administration of the City's
affairs as may seem necessary, and from time to time alter the powers and
1
Section 6.03. Departments of Administration. The Council may create such
offices, departments, divisions and bureaus for the administration of the City's
affairs as may seem necessary, and from time to time alter the powers and
organization of the same. It may enact in the form of an ordinance such admin-
istrative code from the City as may seem necessary and may amend the same from
time to time.
Section 6.04. Subordinate Officers. There shall be a City Clerk, City
Treasurer, City Attorney and such other officers subordinate to the City Manager
as the Council may provide for by ordinances. The City Attorney shall be appointed
by the Council . The City Clerk shall be subject to the direction of the City
Manager and shall have such duties in connection with the keeping of the public
records, the custody and disbursement of the public funds, and the general
administration of the City' s affairs as shall be ordained by the Council . He
may be designated to act as secretary of the Council . The Council may be ordinance
abolish offices which have been created by ordinance, and it may combine the duties
of various offices as it may see fit.
Section 6.05. Purchases and Contracts. The City Manager shall be the
chief purchasing agent of the City. All purchases on behalf of the City shall
be made, and all contracts let, by the City Manager, provided that the approval
of the Council must be given in advance whenever the amount of such purchase
or contract exceeds $5,000.00. All contracts, bonds, and instruments of every
kind to which the City shall be a party shall be signed by the Mayor on behalf
of the City as well as by the City Manager, and shall be executed in the name
of the City.
Section 6.06. Contracts. How Let. In all cases of contracts for the purchase
of merchandise, materials, equipment or for any kind of construction work undertaken
by the City, which requires an expenditure of more than $5,000.00 unless the Council
shall by an emergency ordinance otherwise provide, the City Manager shall advertise
for bids by at least one week' s published notice in the official newspaper. Contracts
and purchases in excess of $5,000.00 shall be let to the lowest responsible bidder
as determined by the Council . The Council may, however, reject any and all bids.
Nothing contained in this section shall prevent the Council from contracting for
the doing of work with patented processes, or from the purchasing of patented
appliances.
Section 6.07. Further Purchase Regulations. Further regulations for the making
of bids and the letting of contracts may be made by ordinance, subject to the
provisions of this charter.
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league of minnesota cities
August 31 , 1979
Duane McCarty
Charter Commission
8060 Long Lake Road N.E.
Mounds View, MN. 55432
Dear Mr. McCarty:
This is a follow-up to our phone conversation of August 29, concerning
initiative and referendum provisions in city charters. As we discussed,
the provision in Sec. 5.05 of the LMC Model Charter, which excepts certain
ordinances from the initiative and referendum processes would not have the
effect of eliminating the possibility of citizens' petitions for local
improvements pursuant to M.S. Ch. 429, or petitions under any other statute.
This model provision simply provides that there are certain subject areas
within which ordinances may not be adopted by initiative or repealed by
referendum.
The discussion on page 7-8 of the yellow pages of the model charter, notes
some of the policy reasons for this type of limitation. As we discussed,
there are also some legal limits on the sorts of things which may be made
subject to the initiative referendum process.
M.S. 410.20 provides for the inclusion of initiative and/or referendum
provisions in charters. This statute specifically limits the initiative and
referendum to ordinances. In construing this statute, the Minnesota Supreme
Court has held that this means ordinances of a "legislative" character only,
rather than "administrative" or "quasi-judicial " ordinances. Oakman vs.
City of Eveleth, 163 Minn. 100, 203 N.W. 514; Housing and Redevelopment
Authority of Minneapolis vs. City of Minneapolis, 293 Minn. 227, 198 N.W.
2d 531 ; Denney vs. City of Duluth, 295 Minn. 22, 202 N.W. 2d 892.
The enclosed opinion of the Attorney General , A.G. Op. 858, Aug. 5, 1970
(LMC-335E) discusses in some detail the question cf what constitutes a
"legislative" action and thus is properly subject to initiative and referendum.
I hope this will be of some help.
Sin " `
rely,
/ '
C
Peter Tritz
Assistant esearch Director
5(.20 r, nover wilding,, 480 cedar street,, saint r au:l, minne. ora 55- 111 C61 21 222-2381
PTismr
•
,, O .D•IL:.".' E IV. -PETIT ON: Ordinance requiring city to lease
and ultimately purchase particular swimming pool is not legislative
in character and not proper subject of initiative petition.
•
August 5, 1970
85
ef/F.6
Mr. Winston C. Johnson
Faribault City Attorney
216 Security Building
Faribault, Minnesota
•
Dear Mr. Johnson;
-. In your letter to Attorney General Douglas M. Head you present
•
substantially the following
FACTS
Chapter XII of our city charter contains provisions
relating to proposing ordinances by initiative proceed-
• ings. On June 17, 1970, two petitions for proposed
ordinances were filed with the city recorder.
On June 26, 1970, our city recorder certified that each
of the two petitions contained the requisite number of
eln l 4 fi czr4 signatures. On June 30. 1970, at a special
meeting the Council adopted Resolution No. A3229 refus-
ing to adopt the ordinances without a special election
and directing me to seek a formal opinion from your
• office.
The two proposed ordinances may be summarized as follows:
ORDINANCE :# 1
•
An ordinance directing the city to lease,
option to buy, and operate White Sands
Swimming Pool during the 1970 swimming
season and further directing the city to
purchase White Sands Swimming Pool from
t
Mr. Winston C. Johnson - 2
August 5, 1970.
White Sands Beach, Inc. , should federal
and/or state financing become available
for at least 50% of the purchase price.
ORDINANCE # 2
An ordinance directing the Planning
Commission to prepare and submit an
interim comprehensive plan by September
1, 1970, and directing the mayor to for-
ward said plan to the State Planning
Agency and the Department of Conserva-
tion along with an application for federal
and state funds to assist with the pur-
chase of White Sands Swimming Pool.
you ask substantially the following
QUESTION
Are the proposed ordinances proper subjects for
initiative petition under chapter XII of the Faribault
City Charter?
OPINION
It is well settled in Minnesota that the direct action right
known as initiative extends only to proposed ordinances which are
legislative in character. Oakman v. City of Eveleth, 163 Minna
100, 203 N.W. 514 (1925) ; Anderson v. City of Two Harbors, 244 Minn,
498, 70 N.W. 2d 414 (1955) . Consequently the crux of the issue
herein presented is whether the proposed ordinances are legislative
as opposed to administrative in character.
In Op. Atty. Gen. 858, July 27, 1967, copy enclosed, the
guidelines set forth in Oakman v. City of Eveleth, supra, were
4 . y
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Winston C. Johnson - 3 August 5, 1970
summarized as follows;
"The proposed ordinances must be general in nature
and lay down some permanent and uniform rule of law
for the guidance of the municipality and its people;.
it must enact a law and not administer a law already
made. On the other hand, if the proposed ordinance
merely executes an existing law and is one that calls
• for investigation and the exercise of discretion and
business judgment, it is the exercise of an adminis-
• trative function and the electors are not entitled
to have the proposed ordinance submitted to a vote
of the people. " (Emphasis added)
Also in Op. Atty. Gen. 858, July 27, 1967, this office said
of a city council resolution calling for the construction of . a.
storm sewer:
"Such a resolution and similar resolutions for other
local improvements such as a resolution to grade,
gravel, oil or pave a street or a portion of a street,
or a resolution which calls for the planting of trees
in certain portions of the city, cannot be classified
as general legislation which establishes a permanent
and uniform rule of law regarding the installation
and maintenance of public improvements for the guidance
of the municipality and its citizens. . and there-
fore, the electors of the city. . ,ara not entitled
to have the resolution submitted to them by way of
referendum. "
In DOOIin v. Cita Council of Fitchburg; 242 Mass. 599, 136
616 (1922) , cited in Oakman v. City of Eveleth, supra, the
court said: "a direction to an officer to sign a specified contract
with a named person to do a defined thing for a specified price is
not a legislative act. "
Mro Winston C. Johnson - 4 August 5, 1970
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Ordinance # 1 provides for the operation by the city of a
swimming pool. Chapter XV of the Faribault City Charter, which
lists certain general powers of the city, provides in part;
"SECTION 113. With or in addition to all other rights,
powers and privileges given by the constitution and
general laws of the state, the city of Faribault shall
have power:
(1) INSTITUTIONS FOR PUBLIC WORK, AND RECREATION. To
acquire by purchase, condemnation or otherwise, and to
establish, maintain, equip, own and operate. .places
of recreation. . .and all other public buildings,
places, works and institutions necessary for the good
of the city. " (Emphasis added)
The power of the city to enter into a lease for the operation of
a swimming pool with the ultimate goal of purchasing such a swim-
ming pool is thus within the general powers of the city as con-
tained in Chapter XV of the city charter.
Therefore, the proposed ordinance directing the city of
Faribault to enter into the above-mentioned arrangement with White
Sands Beach, Inc. , would not enact a new law or confer any additional
power on city officials; rather it would direct the city to exercise
an existing power and administer a law already made. Furthermore,
the proposed ordinance is not a general law but a specific and
detailed plan directing the city to negotiate with a certain company,
by a specified time, at a stated price. The subject matter of such
Meir. r?inston C. Johnson - 5 August 5, 1970
a proposed ordinance calls for investigation as well as the exer-
cise of discretion, and business judgment on the part of city offi-
cials if the best interests of the city are to be served. See
Op. Atty. Gen. 858, July 21, 1967, copy enclosed. in our opinion;
therefore, Ordinance 4 1 is not a proper subject for initiative
.petition.
Ordinance #. 2, as noted above, directs the Planning Commissi•)n
to take specific action. Ordinance #A317 of the City of Faribault
established the City Planning Commission and Subdivision 5 of that
ordinance provides in part,
•
"It shall be the function and duty of the planning com-
mission to prepare and adopt a comprehensive city plan
for physical development of the. city, including. proposed .
public buildings, street arrangements and improvements,
public utility services, parks, playgrounds, and other
similar developments, the use of property, . . .and ether
matters relating to the physical development of the city.°
Therefore, Ordinance # 2 likewise does not enact a new law or confer
additional powers. Rather, it directs the city to exercise exist-
ing powers in a particular manner within a- specified time. it is
our opinion that Ordinance $ 2 is not a proper subject for initiative
petition for the reasons stated in our discussion of Ordinance # 1. -
The legislative-administrative distinction used in determining
the proper subject matter for initiative and referendum petitions
was described by the court in Oakman, supra, as a necessity for
the practical administration of municipal affairs. The court said
c
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Mr. Winston C. Johnson - 6 August 5, 1970
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of administrative matters,
"Ll} f such matters are not to be met and handled as
a part of the daily routine of business of a munici-
•alit , but must be submitted to the •eo•le to make
a law for each controversy that may arise; we are
drifting from the ideals of representative government.
In fact the theory of initiative and referendum was
directed at supposed evils of legislation alone and
as said in Hopping v. Council of City of Richmond,
170 Cal. 605, 150 Pac. 977, ' to allow it to be invoked
•
to annul or fle13y executive conduct would d,.. ..1est+oy the
efficiency necessary to the successful administration
of the business affairs of a city. In many cases it
would entirely prevent the exercise of the executive
power necessary to carry out the acts determined upon
by the..legislative department. ' " 163 Minn. 100, 106-
107.
While an ordinance calling for the acquisition of a specific swim-
ming pool in a particular manner is not the proper subject for an
initiative petition for the reasons outlined above, a generic ordin-
ance on the acquisition of municipal swimming pools might well be.
Such an ordinance would have to be truly generic, that is, provide
general authority to the council broad enough to encompass alterna-
tives to the particular swimming pool here under consideration and
the particular manner for its acquisition; the administrative dec-
isions must be reserved to the council for it to decide in the pub-
lic interest.
Your question is therefore answered in the negative.
Very truly yours,
DOUGLAS M. HEAD
Attorney General
BYRON E. STARNS, JR.
DMH:BES - fee Assistant Attorney General
,
INFORMATION SERVICE
of
League of Minnesota Cities
480 Cedar Street, Saint Paul, Minnesota 55101
100A
Council Role in Recall >/*140A
•
September 4, 1979
Jeff Nelson
City Administrator
•
City Hall
2401 Highway 410
St. Paul , Minnesota 55112 '
Dear Jeff:
At your request, I called the city attorney in Duluth to discuss their recall
provision and its interpretation. The Duluth provision is not limited in its
terms to incidents of nonfeasance or malfeasance in office. however, on the
strength cf the case„Jacobsen v. Nagel and as recommended by the city attorney,
the city council in that recent case involving .former councilor Thomas Agnew,
permitted a recall election only in circumstances where r:alfeasance arguably
Was involved. in that case, the petition alleged fan-reasons for the recall ,
tree of which related to matters of judgment and quality of performance. How-
ever, an election was called only to decide whether there should be a , oval
' for violation of a charter provision which prevented interference by individual
ccunci i ors. wi th departmental operations. This one involved a statement that a
particular employee should be dismissed. Since the charter prohibited this
activity, the city attorney's office advised that an election should be permit-
ted on this issue with the electorate sort of functioning as a jury to make the
determination.
The election resulted in a recall , and though a couple of avenues of litigation
were commenced and later dropped, they were ineffective in giving us case law
confirming the power of the council to decide whether reasons stated for recall
on a petition are sufficient is a matter to be judged by the council . Neither
d i d they resolve the question whether conviction of a crime that amounts to
nonfeasance or malfeasance is a prerequisite to recall .
Thus, there presently exists a good deal of uncertainty as to the extent of
powers conferred upon the citizenry by a broadly drafted recall provision.
•
We hope this answers your question satisfactorily.
Sincerely,
Stanley G. Peskar
General Counsel
SCP/rj
QUESTIONS REQUIRING LEGAL ADVICE
1. Can a Charter impose a percentage limit on the,increase from year to year of the
City operating budget (in addition to any other statutory limits)?
2. Can a Charter restrict or prohibit the issuance of Revenue Bonds to acquire or
construct industrial sites under the Minn. Municipal Ind. Dev. Act?
3. Can a Charter restrict or prohibit the conveyance of tax forfeited or City owned
lands to private interests for the purpose of promoting industry?
4. Can a Charter restrict or prohibit the establishment of development districts or
the issuance of bonds under the Development District Act?
5. What kinds of prohibitions and restrictions can or cannot a Charter place on General
Revenue Bonds, Revenue Bonds and General Obligation Revenue Bonds?
6. For what types of bond instruments can a Charter provide that voter approval be
obtained?
7. Can a Charter limit tax levies for bonds to actual principal, interest and debt
service costs plus any over-collection required by law?
8. Can a Charter require voter approval for Certificates of Indebtedness issued for
purposes other than to meet emergencies or disasters?
9. Can a Charter require voter approval for special assessments? If so, can the vote
be restricted to those assessed?
10. What kinds of restrictions and prohibitions can or cannot a Charter place on special
assessments?
11. Can the 35% Statutory requirement for initiating a special assessment proceedings
through petition be increased by a Charter?
12. Can a Charter limit levies for a special assessment to actual principal, interest
and debt service costs?
13. For special assessments, can a Charter require that assessment of unplatted or
undeveloped property be postponed or deferred until after platting or development
has occurred?
14. Can a Charter define legal benefit for purposes of special assessment?
15. What kinds of prohibitions or restrictions can or cannot a Charter place upon
improvement benefit districts, improvement bonds, improvement warrents and temporary
bonds?
16. Can a Charter specify the disposition of any over-collection on bonds after
statutory requirements are met?
5/16/79 NL
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league of minnesota cities
June 1 , 1979
Willard C. Doty, Chairman
Mounds View Charter Commission
3049 Bronson Drive
Mounds -View, MPS. 55432
Dear Bill :
This letter is in response to yours of May 23, containing questions about proposed charter
provisions. I will respond to them in the order in which you presented them.
First you asked whether a charter can impose a percentage limit on the increase from year
to year in the city operating budget. The answer would be a qualified yes. Though I
know of no Minnesota Charters which take this approach, it would be theoretically possible
for a charter to impose a limit on the operating budget, -to the extent that certain
activities, programs and expenditures are not mandated by state law. Of course, those
mandated state programs, such as Dutch Elm Disease Control , Building Code Inforcement, Metro
Planning Act Effectuation and the Local Conduct of Elections, as well as many, many more,
will have to be carried on and will almost certainly be interpreted to be free from any
limitations on operating funds which may be placed in the charter. In other situations,
where the program itself is not mandated, but where if it is undertaken, the way it is done
is controlled by state law, you may be in a more grey area. An example of this is the
requirement to employ licensed police officers and be subject to binding arbitration in
labor disputes involving police officers. Of course, even if it were determined that since
you are not required to employ police officers, law enforcement is not a mandated program
and therefore, no state law requires any local expenditure for law enforcement, with
overall limits on operating expenses, the mandated programs would probably eat up most or
all of the charter authorized operating expenses, thus, starving the non-mandated but
locally popular programs like law enforcement. Furthermore, to the extent that a charter
limit on operating expenses made it impossible to meet state standards such as in provision
of fire protection and construction and maintenance of highways, some state aids might be
lost.
For these reasons and because it would be very difficult to write into a charter a workable
limitation on city operating expenses , I would certai. • mend that this route not be
taken. I think the more traditional means o providin. .opular contro over •overnmenta
action are in. - cons rain1nj an. can se equa y e ective. R en I speak of
tradirtional methods, I mean the initiative, referendum and recall .
'� �� ) F-`F(rlcver f)lflidirlg, i [0 Cf::Cdar ,street .`:•i tsrit F3c1l.P ((It(I(lf;`;l7Y.r'. (.-15 � � i-1 i c
,
• Willard C. Doty, Chairman •
,_. June 1 , 1979 ,
Page 2
Next you ask whether a charter can restrict or prohibit the issuance of revenue bonds to
acquire or construct industrial sites under the Minnesota Municipal Industrial
Development Act. Though, again the answer is not entirely free from doubt, it appears
that the legislature in enacting Minnesota Statutes Chapter 474 was exemplifying a polic,
to make the device available to all Minnesota cities. In M.S. 474.03, the act provides:
"any municipality or redevelopment agency, in addition to the powers described elsewhere
by the laws of this state shall have the power to: 1 . acquire, construct and hold. .."
In M.S. 474.01 , subd. 5, the second paragraph reads: "It is also the purpose of this
chapter to permit the exercise of thesepowers by such units,.authorities and agencies,
in addition to any powers granted without regard to any limitations imposed by any other
law, to aid in the redevelopment of existing areas of blighted, marginal land and
substantial and persistent unemployment." Though sometimes the legislature uses the
language any other law or charter, if it is their intent to supercede all charter provisions,,.
sometimes they refer simply to any other law, on the basis that a local home rule charter
is in effect local law, and thus is encompassed within the term law. The scope and thrust
of the language appears quite plainly to have the intention of making this device very
broadly available. T it would be .m o inion that the charter. lana ,aa of the . p
menti iQ�ed i n question- 2, wou e i ne ec i ve.
In question 3 you ask whether a charter could restrict or prohibit the conveyance of tax
forfeited or city owned land to private interest for the purpose of promoting industry.
M.S. 465.026 authorizes the conveyance of city owned lands for nominal consideration to .
encourage and promote industry. Though again the matter is not entirely free from doubt,
I see nothing in this very simple provision expressing a state policy that this device
shall be available regardless of restrictions in charters, and it would be my opinion that
a charter restriction along these lines would be effective. CAgain, however, .I would only
comment that if you have elected trustworthy officials, there might times when that
kind of authority might be advantageous to the city and its citizen
As to tax-forfeited land, depending upon the way in which it was conveyed to the city,
there may not be any conveyance possibility for industrial purposes regardless of whether
or not the charter contains a restriction. Sae the enclosed Tax-forfeited Lands -
Conveyance To Municipalities For Public Use. {However, if the appraised value is paid for
tax-forfeited lands by the city, then a charter limitation would seem to add an effective
restriction. You will have to judge whether that is desirable or not.7
In question 4 you ask whether a charter can restrict or prohibit the establishment of
development districts or the issuance of bonds under the development district act. Again,
the answer is not entirely free from doubt, but the purpose sections of chapter 474 of
the Minnesota Statutes read to•ether with M.S. 472.04 ma well evidence a le•isla ' e
policy to over-ride any home rule char er imi a ions.
Question 5 asks the kinds of prohibitions and restrictions which a charter can place on
general revenue bonds, revenue bonds and general obligation revenue bonds. Perhaps it
would be useful to clarify that first term contained in your question I assume when you
are speaking of general revenue bonds you mean general obligation municipal bonds payable
from taxes and other general funds of the community issuing them.
WIl',ard C. Doty, Chairman
Page 3
June 1 , 1979
Minnesota Statutes' Chapter 475 is the general bonding authority for cities and provides
most of the information,which you are seeking in this question. M.S. 475.52 dealing
with bond issue purposes sets out a long list of authorized purposes and then adds that
a city may issuebonds to provide money for any other authorized corporate purpose except
current expense. In subd. 2 .of that same section, the statutes provide: "any city
governed by a home rule charter may issue bonds for any purpose innumerated in subd. 1 ,
unless forbidden by. its`charter, except that any such city may issue bondsforacquisition
of ambulençes, and related equipment nothwithstanding the provisions of its charter; and
for other. purposesas authorized by its charter." Thus it appears that a home rule
charter can limit';the: purposes for which bonds may be sold except as those purposes are' ,
set out in such other chapters and sections which contain an expression of the intent of
the legislature to establish a policy which cannot be over-ridden by home rule charter.
Examples of ;those. exceptions are discussed in answers to your earlier. questions.
'It appears that your home rule charter could set a to er net debt limit than that
established b . .475.53 :(§_g/q% of assessed value). ee orney enera -s pinion
49-A-51 , Apr 13owever, a 1 i y of doing this is questionable since
numerous cities have expressed an interest in seeing the statutory limit on net-debt raised
and in fact many of them have been exempted fromthe general statutory limit by special
law.
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As far as charter provisions varying the application of the election requirements before
issuance, contained in M.S. 475.58, part (5) under subd. 1 of that section permits a home
rule charter to expand the category of bonds to be issued which are, not subject .to-an
election, but the lan_,gj g_ he section apeeaarss_toprevent the charter from retiring
an elec '• 1 Od hose ca - aeries of bond issues which the section e ludes'f oil h•_ - ion
re iirrement. Seeenc osed the corresponsence and materia related to the restrictive
char er provision on issuance of bonds in the Gilbert City Charter.
In summarizing my response to question 5, I can only say that restrictive charter
provi ' • . • be unworkable and confusin• and increase the cost of issuin• ba
simpl,_becauicu on an• a• •itional ime required to check out and get legal
opinions on the efficacy of those charter restrictions.
In Question 6 you ask as to the type of bond instruments on which a charter may require .
voter approval before issuance. That quest' . i is +ar.tiall answered b the ans • the
last q,uastion, partially answered by the listing in ' . 8, .a xerox copy of which I
am including. And the remainder of the types of bond issues which may be issued without
an election is really impossible for me to list without a substantial research effort.
That list would, however, include water and sewer bonds issued under M.S. 444.075, perhaps
industrial revenue bonds, see the answer to question 4, and such other bonds as are
specifically authorized without an election by other sections of the Minnesota Statutes. .
In questio,n..,Zyou ask whether a charter may limy tax levies on bonds to actual principal ,
interest and debt service cost plus any over collection required by law. As far as I know,
the revenueaepartment would not look on"levies for other than these items as debt
retirement levies, qualifying as special levies and thus levies for other purposes would:`
not be debt retirement levies or bond levies, even under present law. Thus, I think a
charter provision could so limit tax levies for retirement of bonds.
gillard C. Coty, Chairman
. ,Page 4
" June 1 ,` 1978.
In question 8 ouwh whether the charter can require voter approval for certificates of
indebte ness ssu or purposes other than to meet emergencies or disasters. The
answer would seem to be'.that_ to the extent that the certificates of indebtedness provide
an additional borrowing mechanism beyond those already permitted by chapter 475,. the
charte r can also limit the conditions ,• - hich ' ‘ ch certificates are to be,i ss ed.
Thus, if you p •, . - or axan icipation certificates o estatutory
cities use, orpublic safety and highway equipment certificates similar to those available
in statutory cities, :the election requirement could be attached to this: authority.
However, there would seem to be no advantage in:providing se o tional financing devices
if an election is'to be;_..required :before issuance.
In questyou ask' whether a charter can require voter approval for special assessment
and whether the Vote can be-restricted to those assessed. The. nswer, to both: cgat.ions:
would ' ;aopear..pttjfs4. : M.S. 429.111 , contained in the chapter; on special> assessments. and
speaking to :t . - ssue:'provides any city operating under a home rule charter may proceed
either under this chapter or under its charter in making an improvement unless a ,home rule
charter or amendment adopted after April 17 1953 provides for making such improvements .
:under this chapter or under the charter exclusively. Thus, at least for those kinds of
' .;improvements contemplated by chapter 429 and not authorized exclusive of charter provisions
by other chapters of the Minnesota Statutes, a carter procedure for special assessments
on local improvements could be made exclusive. Again, the advisabilit or workability of
this approach is a matter that you ought to consider very carefully
•
In question' Q,you ask` the kinds of restrictions and prohibitions which a charter can place
on special assessments The answer would seem to be that any reasonable limits or
prohibitions which do not contravine the constitutional requirement that the assessment be,
no more than the benefit or other state policies established by statute or constitution,,.
would be effective.' It would not be possible for me to list all the kinds of restrictions
that might be placed by the charter.
Quest'. . 1 on thr- .f .. . . - ' e set' + for local im•rovemen the
answer l_js_yes, except as other statutory authorizations for special assessments which ,,til',
cannot be over-ridden by home rule charters, may prescribe different threshholds.
Que tion 12 the answer is yes. with the same qualifications'as in question _11 . J 0' t�.
ice
uestion i, ou. nnci'noi ent or deferra� of special a sessi on
4 �-r----�.>m � . is, the answer Ofild appear
00/to be yes, so long as the criteria for postponement or deferral are reasonable. However,..
care should be exercised to assure that local improvements are not made economically
unfeasible by such requirements. Again, the qualifications in my answers to question 11
applies.
In t on 14 you ask whether the charter can define legal benefit for purposes -of special
assessments. The answer is that theoretically this would be possible to the extent that •
the charter definition does not result in an assessment which exceeds te actual benefit:. - `
as demonstrated by the increase in market value from the improvement. However, any kind .
11
of definition set out in any charter or ordinance or procedural manual will almost certainly
be inadequate ,in certain cases. It seems not to be the kind of thing you would want to do
in a charter.7
Willard C. Coty, Chairman
. . Alum. 1 , 1979
Py. 5
Question 15 is mostly answered in answers nine ad ten. To the extent that you adopt a
charter process for assessments which excludes the application of chapter 429, to the
extent that the charter provisions are reasonable and not in contravention of the state
constitution or laws, the charter provisions will control .
Finally, in question 1. . - o - t - , - I . er c. f. le if the disposition of any
over collection on •onds after statutory requirements are met. The answer is. that to the
extent that the statutes do not dictate the disposition of these over—collections, the
charter may provide for any such disposition. I might simpp1y add that to my kno ledge
there is of normall '• e ' 'ca collection for retirement o obl '•ations.
Typically, w at minor excess there may be is provi •e. to reimburse the city for the
administrative costs involved in the project and bond issuance , on the assumption that 4.r
the improvement doesbenefit specific individuals and it is more fair to charge the .
true cost back to the individuals benefitted than to the community at large.
KYfinalcomment would be that the tenor of the questions posed seems to evince a
disposition on the part of the charter commission to very tightly circumscribe the
perogaT p� nn�.rarc Q the city. " I can only suggest tha . - .nuission review.
especially .. .es 2 and 3 ofie enclosed memo "Princi . es .nd Problems $ C ar er Making"
100a.7.
Though the case Jacobsen vs. Negel , 255 Minn. 300,96NW 2d 596 (1959) has weakened the
effectiveness of the recall provision, it is n a foregone conclusion that the present
Supreme Court would agree with that decision.(Thus, I think inclusion of a broad
initiative and referendum provision, together with a recall provision, might provide the
responsiveness and conservative perspective which you apparently seek for the council
of the city, without hamstriging governmental operation in overly detailed charter
limitation and restrictions
We hope these comments are of use to you.
Sincerely yours,
)6:.,4.,__
.AJZi:;,,
Stanley G. Peskar
General Counsel
SGP/smr
Enclosures