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HomeMy WebLinkAboutMemo RE Charter Commission Composition 2016 469537v6 SJR MU210-4 Kennedy 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis MN 55402-1458 (612) 337-9300 telephone (612) 337-9310 fax sriggs@kennedy-graven.com http://www.kennedy-graven.com Affirmative Action, Equal Opportunity Employer & Graven C H A R T E R E D MEMORANDUM 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? 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? & Mr. James Ericson February 10, 2016 Page 2 469537v6 SJR MU210-4 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. 1. 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 Mr. James Ericson February 10, 2016 Page 3 469537v6 SJR MU210-4 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.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. 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 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 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. Mr. James Ericson February 10, 2016 Page 4 469537v6 SJR MU210-4 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.3 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.5 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 levy caps? 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. 4 See State Constitutional Amendments Considered, maintained by the Minnesota Legislative Reference Library, available at http://www.leg.state.mn.us/lrl/mngov/constitutionalamendments#t (last visited, October 13, 2015). 5 1957 Minn. Law Ch. 809. Mr. James Ericson February 10, 2016 Page 5 469537v6 SJR MU210-4 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.