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HomeMy WebLinkAboutOpinion RE Compatability of Offices 2016) 468078v6 AMB 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: 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 & Jim Ericson February 10, 2016 Page 2 468078v6 AMB MU210-4 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 2.04, 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/lrl/mngov/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 mad e 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. 3 Op. Atty. Gen. 358e-1, 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.”). 4 League of Minnesota Cities, Official Conflict of Interest Memorandum, Chapter V, Section D, available at http://www.lmc.org/media/document/1/officialconflictofinterest.pdf (last accessed October 22, 2015); see also Op. Atty. Gen. 358-E, Feb. 18, 1958. Jim Ericson February 10, 2016 Page 3 468078v6 AMB MU210-4 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: 1. 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 in light of previous Mounds View city council and charter commission interpretations allowing compatible service by council members on the charter commission.