HomeMy WebLinkAboutCharter Update Memo to Council - June 2016MEMORANDUM
to: Mounds View City Council
from: Jim Ericson, City Administrator
re: Charter Commission Update
date: June 6, 2016
This brief report is intended to update the Council on a couple matters relating to the Charter
Commission,
MEMBERSHIP. As you may know, the Charter Commission has grown in membership with the
addition of former Planning Commission chairperson Jerry Peterson, and now newest member Don
Johnson. You may recall that Mr. Johnson testified before the Council in strong opposition to the
organized collection initiative. At the last Charter Commission meeting, Mr. Johnson spent some
time talking about how the "recall" process works, in the event there's a council member who's not
acting consistent with the will of the people. He may have made similar statements when he appeared
before the Council concerning the garbage issue.
JOINT MEETING. After receiving Scott's memo (attached) concerning a few charter issues, the
Council asked to have a joint meeting with the Commission. This was tentatively planned for the
June work session, but was delayed at the request of the Commission to gain consensus as to
availability. At the Charter Commission's last meeting, they agreed to meet with the Council at the
August work session. However, a check with the City Attorney's schedule indicates he is not
available. I'm checking to see if the September work session would work for all involved.
NEGATIVE CPI AND LEVY CAP. At the Charter Commission's last meeting, there seemed to be a
willingness to consider amending Section 7.03 of the Charter to address what happens in the event of
a negative CPI. Unfortunately, based on the opinion of the City Attorney, it would appear that the
Commission should be fully staffed for the Council to consider any revisions to the Charter.
COUNCIL MEMBERS SERVING ON THE COMMISSION. You may also recall that the City
Attorney advises against any Council Members seeking an appointment to the Charter Commission,
as it could be interpreted as a "conflicting office", which would mean that in accepting the
Commission position, you would be forfeiting the Council position. (See attached memo.) While
such a challenge would be unlikely, especially if the Charter Commission itself indicates that it would
not consider the two offices incompatible, the attorney reasons —why take that chance? If the Charter
Commission is open to Council members serving, Section 2.04 of the Charter should be revised,
however, no revisions can be made without a full complement of appointed members.
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis MN 554024458
(612) 337-9300 telephone
(612) 337-9310 fax
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Affirmative Action, Equal Opportunity Employer
DATE: February 10, 2016
TO: Jim Ericson, City Administrator
FROM: Scott J. Riggs, City Attorney
Andrew M. Biggerstaff, Assistant City Attorney
RE: Issues Related to Charter Commission Composition
Pursuant to your request for review of various questions regarding the active membership
numbers and the authority of the Mounds View Charter Commission (the "Commission") to act
when it lacks a full complement of its members, along with some other charter interpretation
issues, please note the following discussion and analysis. This memorandum includes updates to
certain points made in the memorandum provided to you on August 22, 2014, and specifically
addresses the following questions:
1) What acts, if any, may the Commission perform?
Answer: Few, if any, official acts can be performed by the Commission unless and until it
has a full complement of 11 members.
2) How many Commission members constitute a quorum for the purposes of convening a
meeting a
Answer: Six members must be present at any meeting to have a quorum.
3) What was the effect of the 1958 constitutional amendment and related statutory changes
as they relate to these issues?
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Mr. James Ericson
February 10, 2016
Page 2
Answer: Because that constitutional amendment and its subsequent statutory changes
were considered to be a reorganization rather than a substantive change, the Attorney
General opinions cited herein appear to still be valid.
4) How is a negative change in CPI treated under the charter provision related to levy caps?
Answer: Based on the plain language of the charter provision, a negative CPI must be
factored in which could result in a levy cap below two percent.
l . Authority to act without a full complement of members.
As presently constituted, the Commission is to be composed of 11 members, a number
apparently fixed by judicial order, and referenced in the Commission's Bylaws (the "Bylaws").
Based upon your August 20, 2015 email regarding this matter, the Commission currently is
operating with only three members, however, at recent Commission meetings, only two members
were present.
There is no case law directly on point regarding this matter, but based upon a review of opinions
from the Minnesota Attorney General and the statutory process for filling vacant commissioner
positions, it appears that a charter commission's ability to act is severely restricted when it lacks
a full complement of its body. Interpreting a since -repealed constitutional provision along with a
former version of Minnesota Statutes, Section 410.05, the Attorney General opined that a charter
commission may neither amend the charter nor approve a petition for amendment of the charter
when it lacks a full complement of its members, even if it does so with the approval of eight
members. Op. Atty. Gen., 58G, Sept. 28, 1950; Op. Atty. Gen., 58C, April 1, 1954. In reaching
this conclusion, the Attorney General noted that a simple and expeditious process existed for
filling commission vacancies by judicial appointment. The Attorney General further noted that
the requirement for a full complement of commission members to exist prior to commission
actions ensures that proposed amendments presented for review to the city council or the voting
public are the result of "studied consideration, discussion, debate and deliberate judgment of
fifteen resident freeholders of municipality." Op. Atty. Gen., 58G, Sept. 28, 1950. The Attorney
General opinion suggests that the important work of revising a charter demands substantial
participation by representatives of the affected community.
The former constitutional and statutory requirements have been replaced by a statutory
framework that includes a detailed process for filling commission vacancies. Minnesota
Statutes, Section 410.05. This statutory requirement for filling vacancies suggests a legislative
intent that a charter commission always contain a full complement of its membership.
Minnesota Statutes, Section 410.05 now also permits the setting of the commissioners for a
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Mr. James Ericson
February 10, 2016
Page 3
charter commission at a number between seven and fifteen. A home rule charter city must either
have the number of charter commission members set by a judge, city council resolution, petition
of voters, or it may be set forth in its charter. Minnesota Statutes, Section 410.05, subd. 1.
Whichever process is used, once the number has been fixed, commission membership cannot
drop without triggering the statutory process set forth in Minnesota Statutes, Section 410.05 for
fiRing the vacancy.
The reasoning and conclusions set forth in the cited Attorney General opinions that neither the
proposal of charter amendments nor approval of proposed charter amendments can be performed
in the absence of a full complement of commission members, when viewed in light of the
requirements of Minnesota Statutes, Section 410.05 for the filling of vacancies, appears to
continue to be valid,1
2. Authority to convene a meeting: how many members constitute a quorum?
The answer to the question regarding quorum requirements is related to the above conclusion.
The common law rule for the composition of a quorum is that:
... in the absence of charter or statutory provision applicable, to the contrary, a
majority of a definite body, or of the governing body of the corporation, as the
board of directors, the board of alderman, the council, etc., consisting of a definite
number, when duly met, constitute a quorum for the transaction of business, and
the vote of a majority of those present (there being a quorum) is all that is
requisite for the adoption or passage of an ordinance or by-law or motion, or the
doing of any other act which the body has the power to do....2
Notwithstanding the above -cited definition, the Minnesota legislature has delegated to charter
commissions the authority to draft their own rules of operation, including the setting of quorum
requirements. Minnesota Statutes, Section 410.05, subd. 2. The Commission bylaws provide
that the quorum is a majority of qualified and acting members. Bylaws, Art. I11, §3 (emphasis
added). It is not clear what the term "acting" means, but even if the Commission intended it to
mean only those who are participating in meetings, the Commission would not appear to be able
to set the quorum of the Commission at a number that constitutes less than the default rule
described above, i.e., a majority of the full complement of its members. If the Commission
could set the quorum requirement at a majority of those currently participating in meetings, then
' The League of Minnesota Cities has similarly concluded that the "commission should always contain its full
complement of members." League of Minnesota Cities, Handbook for Minnesota Cities, Part I Form and StrztctZne
of the Minnesota City, Chapter 4: the Home Rule Charter City, pg. 4-9 (last revised 10/31/2015).
2 4 McQuillan Mun. Corp. § 13:34 (3d ed.). Under this default rule, since the Commission is to be composed of
eleven members, six members would constitute a quorum.
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Mr. James Ericson
February 10, 2016
Page 4
a quorum of the current Commission membership would be two, and would conceivably drop to
a lower number if another member resigned. Such an outcome runs contrary to the above -
discussed implicit legislative intent behind the statutory requirements for setting the number of
members and the filling of vacancies. Thus, regardless of the number of commissioners
currently on the Commission, a quorum for the Commission should never fall below six
members. Cf. ,State ex rel. Peterson v. Hoppe, 194 Minn. 186, 260 N.W. 215 (1935) ("[w]here a
charter or statute provides that the vote of a majority of the members elected to the council shall
be necessary to pass a measure, the fact that there are vacancies in office due to death,
resignation, or other cause, does not diminish the number of votes necessary to pass such
measure.")
The legislative history of this statute further supports this viewpoint. Prior to the 1971 statutory
amendment, it was up to the judges of the district courts, and then the district courts themselves,
who were required to set the rules for charter commissions.' The change to allow charter
commissions to set their own rules did not provide any new authority that the judges or district
courts did not have. Instead, it simply shifted that responsibility onto the commission rather than
remaining on the judiciary. In other words, the common law rules stated in Hoppe are as
applicable to the charter commission's rulemaking authority as they were to the judiciary.
3. What was the effect of the 1958 constitutional amendment and related statutory changes
as they relate to these issues.,
Generally speaking, the constitutional amendment which was ratified in 1958 was seen as an
authorization for the legislature to "revise and consolidate provisions relating to local
government, home rule, and special laws."4 In large part, this amendment sought to streamline
the creation, maintenance, and operation of charter commissions.' Therefore, the general
consensus is that this amendment simply clarified and simplified existing law, rather than
substantively changing it. Because the cited Attorney General opinions critically rely on legal
analysis that would still be true under the current statutes, those opinions are still valid.
4. How is a negative change in the Consumer Price Index ("CPI") treated under the charter
provision related to lev. comps?
Based on the plain language of the charter provision, it seems clear that a negative CPI figure
must be calculated using standard mathematical principles which could result in a levy cap below
two percent. It is not uncommon for legislative enactments which rely on a function of CPI
3 See 1949 Minn. Law Ch. 210, sec. 1; 1971 Minn. Law Ch. 208, secs. 1-3.
a See State Constitutional Amendments Considered, maintained by the Minnesota Legislative Reference Library,
available at http:www.le�.state.mn.us/lrl/mnSov/constitutionalamendments#t (last visited, October 135 2015).
5 1957 Minn. Law Ch. 809.
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Mr. James Ericson
February 10, 2016
Page 5
calculations to include a statement that a negative CPI should be treated as something other than
a negative number for the purpose of the calculations. However, in this instance, the way that
the charter language was drafted and adopted does not appear to support a similar conclusion that
a negative CPI should be treated as something other than a negative number.
469537v6 SJR MU210-4
470 U.S. all Plaza
200 South Sixth Street
Minneapolis MN 55402-1458
(612) 337-9300 telephone
(612) 337-9310 fax
ggs@kennedy-graven.com
http J/www.kennedy-graven. com
Affirmative Action, Equal Opportunity Employer
MEMORANDUM
Date: August 22, 2014
To: Jim Ericson, City Administrator
From: Scott J. Riggs, City Attorney and Doug D. Shaftel, Assistant City Attorney
Re: Authority of Charter Commission to act in absence of a full complement of
members
Pursuant to your request for review of the active membership numbers for the Mounds View
Charter Commission (the "Commission"), please note the following discussion and analysis.
As presently constituted, the Commission (the "Commission") is to be composed of 11 members,
a number apparently fixed by judicial order, and referenced in the Commission's Bylaws (the
"Bylaws"). Based upon your August 7, 2014 email regarding this matter, the Commission
currently is operating with only five members, however, at the last two Commission meetings,
only three members were present.
The following questions .arise from your email regarding the Commission's authority to act when
it lacks a full complement of its members:
1) What acts, if any, may the Commission perform?
Answer: Few, if any, official acts can be performed by the Commission unless and until it
has a full complement of 11 members.
2) How many Commission members constitute a quorum for the purposes of convening a
meeting?
Answer: Six members must be present at any meeting to have a quorum.
Authority to act without a full complement of members
There is no case law directly on point regarding this matter, beat based upon a review of opinions
from the Minnesota Attorney General and the statutory process for filling vacant commissioner
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Mr. James Ericson
August 22, 2014
Page 2
positions, a charter commission's aty to act is severely restricted when it lacks a full
complement of its body. Interpreting a since -repealed constitutional provision along with a
former version of Minnesota Statutes, Section 410.05, the Attorney General opined that a charter
commission may neither amend the charter nor approve a petition for amendment of the charter
when it lacks a full complement of its members, even if it does so with the approval of eight
members. Op. Atty. Gen., 58G, Sept. 28, 1950; Op. Atty. Gen., 58C, April 1, 1954 (copies
attached . In reaching this conclusion, the Attorney General noted that a simple and expeditious
process existed for filling commission vacancies by judicial appointment. The Attorney General
further noted that the requirement for a full complement of commission members to exist prior to
commission actions ensures that proposed amendments presented for review to the Council or
the voting public are the result of "studied consideration, discussion, debate and deliberate
judgment of fifteen resident freeholders of municipality." Op. Atty. Gen., 58G, Sept. 28, 1950.
The Attorney General opinion suggests that the important work of revising a charter demands
substantial participation by representatives of the affected community.
The former constitutional and statutory requirements have been replaced by a statutory
framework that includes a detailed process for filling commission vacancies. Minnesota
Statutes, Section 410.05. This statutory requirement for filling vacancies suggests a legislative
intent that a charter commission always contain a full complement of its membership.
Minnesota Statutes, Section 410.05 now also permits the setting of the commissioners for a
charter commission at a number between seven and fifteen. A home rule charter city must either
have the number of charter commission members set by a judge, city council resolution, petition
of voters, or it may be set forth in its charter. Minnesota Statutes, Section 410.05, subd. 1.
Whichever process is used, once the number has been fixed, commission membership cannot
drop without triggering the statutory process set forth in Minnesota Statutes, Section 410.05 for
filling the vacancy.
The reasoning and conclusions set forth in the cited Attorney General opinions, that neither the
proposal of charter amendments nor approval of proposed charter amendments can be performed
in the absence of a full complement of commission members, when viewed in light of the
requirements of Minnesota Statutes, Section 410.05 for the filling of vacancies, appears to
continue to be valid.'
Authority to convene a meeting: how many members constitute a quorum?
The answer to the question regarding quorum requirements is related to the above conclusion.
The common law rule for the composition of a quorum is that:
1 The League of Minnesota Cities has similarly concluded that the "commission should always contain its full
complement of members." League of Minnesota Cities, Handbook for Minnesota Cities, Part I Form and Structure
of the Minnesota City, Chapter 4: the Home Rule Charter CiVJ pg. 4-8 (last revised 7/25/2007)a
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Mr. James Ericson
August 22, 2014
Page 3
in the absence of charter or statutory provision applicable, to the contrary, a
majority of a definite body, or of the governing body of the corporation, as the
board of directors, the board of alderman, the council, etc., consisting of a definite
number, when duly met, constitute a quorum for the transaction of business, and
the vote of a majority of those present (there being a quorum) is all that is
requisite for the adoption or passage of an ordinance or by-law or motion, or the
doing of any other act which the body has the power to do....
4 McQuillan Mun. Corp. § 13:34 (3d ed.). Under this default rule, since Mounds View's charter
commission is to be composed of eleven members, six members would constitute a quorum.
Notwithstanding the above -cited definition, the Minnesota legislature has delegated to charter
commissions the authority to draft their own rules of operation, including the setting of quorum
requirements. Minnesota Statutes, Section 410.05, subd. 2. The Commission bylaws provide
that the quorum is a majority of qualified and acting members. Bylaws, Art. III, §3 (emphasis
added). It is not clear what the term "acting" means, but even if the Commission intended it to
mean only those who are participating in meetings, the Commission would not appear to be able
to set the quorum of the Commission at a number that constitutes less than the default rule
described above, i.e., a majority of the full complement of its members. If the Commission
could set the quorum requirement at a majority of those currently participating in meetings, then
a quorum of the current Commission membership would be three, and would conceivably drop
to a lower number if another member resigned. Such an outcome runs contrary to the above -
discussed implicit legislative intent behind the statutory requirements for setting the number of
members and the filling of vacancies. Thus, regardless of the number of commissioners
currently on the Commission, a quorum for the Commission should never fall below six
members. Cf. State ex rel. Peterson v. Hoppe, 194 Minn. 186, 260 N.W. 215 (1935) ("[w]here a
charter or statute provides that the vote of a majority of the members elected to the council shall
be necessary to pass a measure, the fact that there are vacancies in office due to death,
resignation, or other cause, does not diminish the number of votes necessary to pass such
measure.")
SJR:jms
Enclosures
448566v2 SJR MU210-4
I�
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis MN 554024458
(612) 337-9300 telephone
(612) 337-9310 fax
sriggs@kennedy-graven. com
http ://www. kenne dy-graven. com
Affirmative Action, Equal Opportunity Employer
MEMORANDUM
DATE: February 10, 2016
TO: Jim Ericson, City Administrator
FROM: Scott J. Riggs, City Attorney
Andrew M. Biggerstaff, Assistant City Attorney
RE: City of Mounds View —City Council and Charter Commission Membership
Compatibility
This Memorandum is provided in response to your request for more information about the
compatibility of city council and charter commission offices, particularly, the following
question: may a Mounds View council member concurrently serve on the city's charter
commission? Please note the following discussion and response.
The Minnesota Constitution, Article 12, Section 5 holds that the legislature "shall provide by law
for charter commissions." Further, the legislature may require that commission members be
freeholders, provide for their appointment by judges of the district court, and permit any member
to hold any elective or appointive office other than judicial. Based on this, there is no
constitutional prohibition on city councilmembers concurrently serving on the city charter
commission. Instead, the authority to make that decision is left to the Minnesota legislature.
The Minnesota legislature has exercised just such authority by enacting statutes which
specifically address this constitutional mandate. In Minnesota Statutes, Section 410.05, the
legislature has prescribed the rules for the creation and operation of charter commissions. In
relevant part, that statute reads "[e]xcept as otherwise provided in the charter, no person shall be
disqualified from serving on a charter commission by reason of holding any other elective or
appointive office other than judicial." It is worth noting that this language was substantively
amended following a 1958 constitutional amendment which was categorized as authorizing the
legislature to "revise and consolidate provisions relating to local government, home rule and
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Jim Ericson
February 10, 2016
Page 2
special laws."1 Importantly, until 2004. Section 410.05 did not contain the "except as otherwise
provided in the charter" language, effectively prohibiting local governments from prohibiting
elective and appointed officials from serving on the charter commission. Regardless, based on
current law, no elected or appointed official (other than a judicial officer) is automatically
prohibited from serving on a charter commission, unless the charter provides otherwise. 2
The city charter includes a common provision that addresses incompatible offices. In City
Charter Section 2.041 the city charter provides that no member of the city council is allowed to
hold any municipal office or employment through the city, other than that to which they are
elected. This provision goes on to extend that provision for one year following expiration of the
members elected term.
Finally, it is interesting to note that the Attorney General previously opined that "the office of a
city official and the office of a member of the charter commission" are incompatible.3 Such an
opinion does not appear consistent with Minnesota statutes nor common charter appointment
practice and the Attorney General relied primarily on case law and public policy considerations
when making this determination, not an express prohibition contained in statute or charter.
Arguably, where the charter expressly provides that no member may hold more than one office,
the answer is more clear.
Based upon the above -referenced authority, it may not be entirely clear that a Mounds View city
council member is or should be prohibited from serving on the charter commission; however, the
primary reason for exercising extreme caution in this situation is that by accepting an
appointment to the charter commission, the council member may unwillingly forfeit their seat on
the city council. According to the Attorney General and the League of Minnesota Cities, the
effect of an individual assuming a second office that is incompatible with their first office is an
automatic resignation of the first office.4 Consistent with the foregoing, it appears clear that any
member of the city council who subsequently accepts an appointment to the charter commission
does so subject to the risk of a determination that the member has surrendered the council
member's right to hold office as a city council member. Thus, the logical conclusion is that no
1 State Constitutional Amendments Considered, a database maintained by the Legislative Reference Library of the
Minnesota Legislature, available at http://www.leg.state.mn.us/1rUmngov/constitutionalamendments.aspx (last
accessed September 15, 2015).
2 There is also some argument that appointment to the charter commission requires judicial acquiescence. One
option for the city may be to submit its proposed list of commission appointees to the chief judge of the district court
along with an explanation of the commission and city council's position on the incompatibility question. It is then
up to the chief judge to effectuate the appointments. If the chief judge does in fact appoint those individuals to the
commission, a tentative argument could be made that such action represents judicial approval of the commission's
argument that no incompatibility exists. Likewise, a tentative argument exists that the 2004 legislation did not affect
the prior interpretation of the charter commission and city council that the charter did not prohibit the appointment
of a council member to the charter commission since the legislation was adopted after the enactment of the charter.
s Op. Atty. Gen. 358e4, Aug. 22, 1946. (This opinion is useful in that it highlights and approves the notion that
serving as a charter commission member constitutes the holding of a municipal "office."),
a League of Minnesota Cities, Official Conflict of Interest Memorandum, Chapter V, Section D, available at
http://www.lmc.or/media/document/1/officialconflictofinterest.pdf (last accessed October 22, 2015); see also Op.
Atty. Gen. 358-E, Feb. 18, 1958.
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Jim Ericson
February 10, 2016
Page 3
city council member should seek appointment to the city council until either the city charter can
be amended to expressly allow for such appointments, or a clarifying Attorney General opinion
can be sought as to the following potential issues.
l . Incompatibility of office (city council member/charter commission member —review and
interpretation of previous Attorney General opinion).
2. Effect of 2004 statutory change and timing as to charter adopted prior to legislative
change.
3. Interpretation of Section 2.04 of city charter
council and charter commission interpretations
members on the charter commission,
n light of previous Mounds View city
allowing compatible service by council
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