HomeMy WebLinkAbout2019-08-05 TRANSCRIPT Matter to Remove Brian Amundsen 62-CV-19-49651
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STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
******************************************************
In the Matter of the Petition
to Remove Brian Amundsen
Court File No. 62-CV-19-4965
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TRANSCRIPT OF PROCEEDINGS
The above -entitled proceedings came on for
hearing on Monday, the 5th day of August, 2019, before
the Honorable John H. Guthmann, District Court Judge, at
the Ramsey County Courthouse, City of St. Paul, State of
Minnesota.
REPORTED BY: Lori Morrow, RMR, CRR, CLR, CBC
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APPEARANCES:
Appearing Pro Se:
Brian Amundsen
3048 Woodale Drive
Mounds View, Minnesota 55112
On Behalf of the City of Mounds View and its Charter
Commission:
Scott J. Riggs, Esquire
Robert A. Alsop, Esquire
David T. Anderson, Esquire
KENNEDY & GRAVEN, CHARTERED
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
(612) 337-9300
sriggs@kennedy-graven.com
ralsop@kennedy-graven.com
danderson@kennedy-graven.com
**********
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INDEX
EXHIBITS:
DESCRIPTION:
PAGE:
Exhibit A
Letter dated 7/30/19 from Jonathan
Thomas to Judge Guthmann .........
6
Exhibit B
Letter dated 7/30/19 from Bryan and
Debra Engblom to Judge Guthmann.....
6
Exhibit C
Letter dated 7/30/19 from Jerry
Peterson to Judge Guthmann .........
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Exhibit D
Letter dated 7/30/19 from Joshua
Kiley to Judge Guthmann .........
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Exhibit E
Letter dated 7/30/19 from Steve and
Kay Haglund to Judge Guthmann.......
6
Exhibit F
Letter dated 7/30/19 from Ronald
and Debbie Kordiak to Judge
Guthmann ...................
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Exhibit G
Letter dated 7/31/19 from William
Mori to Judge Guthmann .........
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Exhibit H
Letter dated 7/31/2010 [sic] from
Frances Pokash to Judge Guthmann....
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Exhibit I
Letter dated 7/31/19 from Valerie
Amundsen to Judge Guthmann .........
6
Exhibit J
Letter dated 7/31/19 from Barbara
Smith to Judge Guthmann .........
69
(EXHIBITS
continued on the next page.)
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EXHIBITS (CONTINUED):
Exhibit K Letter dated 7/30/19 from Tom
Pavlovich to Judge Guthmann.........
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Exhibit L
Letter dated 7/31/19 from John and
Paula Funk to Judge Guthmann........
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Exhibit M
Letter dated 7/31/19 from Michael
McDonald to Judge Guthmann .........
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Exhibit N
Attorney General's Opinion draft
submission of new proposed charter
from Attorney General Walter
Mondale and Harley Swenson dated
4/27/1961 addressed to the
Honorable Walter N. Trenerry........
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Exhibit 0
Chapter 208, 1971 Minnesota
Session Laws ......................
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P R O C E E D I N G S
THE CLERK: Calling page one, line one in the
Matter of the Petition to Remove Brian Amundsen.
THE COURT: All right. We have one matter on
the calendar this morning, and that is a petition
filed by the mayor of Mounds View, Carol Mueller,
to remove Mounds View Charter Commission Member
Brian Amundsen.
Who is here on behalf of the Petitioner?
MR. RIGGS: City Attorney Scott Riggs as well
as David Anderson from the City Attorney's Office.
THE COURT: All right. Is the mayor here?
MR. RIGGS: The mayor is not here.
THE COURT: All right. And for the record?
MR. AMUNDSEN: Your Honor, I'm Brian Amundsen.
I'll be representing myself this morning, if that's
acceptable to the Court.
THE COURT: It is.
Okay. I have been unable to locate any
appellate decisions dealing with petitions to remove
charter commission members. I see counsel nodding.
You haven't found any, either.
MR. RIGGS: I agree.
THE COURT: There is no procedure for doing
this in the statute that governs this case,
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Minnesota Statute 410.05, Subdivision 2. So we will
make it up as we go.
The Court accepts as the petition the July 11,
2019 letter of Mayor Carol Mueller, M-u-e-1-1-e-r,
that was filed, and it's got nine exhibits. I treat
that as the petition.
In addition to that, I have received a number
of letters. I think they have been filed, but what
I plan on doing is simply marking them as exhibits
and making them exhibits to the case. And I'm going
to ask my court reporter to mark them. So don't
talk while they are being marked. And I'll have
Lori mark them one at a time starting with the
number 1 -- I take it back. Let's start with the
letter A since the petition has Exhibits 1 through
9, then we won't be confusing that with the exhibits
attached to the petition.
(Exhibits A through I were marked.)
THE COURT: And then before referring to the
exhibits, the Court should also note that I've
received an August 1 letter from Brian Amundsen.
It's a three -page letter with attachments 1 through
12 totaling 58 pages that was filed in the court
file. And I treat that as the answer to the
petition. Exhibit A -- now, these are the letters:
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A letter from Jonathan Thomas dated July 30 is
Exhibit A. A letter from Bryan, B-r-y-a-n, and
Debra Engblom, E-n-g-b-l-o-m, is Exhibit B; that's
dated July 30. There's also a July 30 letter from
Jerry Peterson, Exhibit C. There's also a July 30
letter from Joshua Kiley, K-i-1-e-y, Exhibit D.
There's also a July 30 letter from Steve and Kay
Haglund, H-a-g-l-u-n-d; that is Exhibit E. There is
also a July 30 letter from Ronald and Debbie
Kordiak, K-o-r-d-i-a-k, Exhibit F. There's also a
letter from William Mori, M-o-r-i, dated July 31,
Exhibit G. A July 31 letter from Frances,
F-r-a-n-c-e-s, Prokash, P-r-o-k-a-s-h, Exhibit H,
and a letter from Valerie Amundsen dated July 31
that is Exhibit I.
And I'm going to simply receive these as part
of the court record of the case as letters from
interested citizens.
Anyone want to comment on my receipt of those
letters?
MR. RIGGS: Your Honor, we have not seen those,
but I have no problem with that. That's fine.
THE COURT: Okay. If you want to look at them,
they are here for your review.
MR. RIGGS: If we need to, I can do that at
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that time.
THE COURT: Okay. Mr. Amundsen?
MR. AMUNDSEN: Your Honor, I submitted to the
filing office on Friday additional -- copies of
additional letters which I had received that aren't
in your packet. In particular, I had a letter from
Ms. Barbara Smith dated July --
THE COURT: Why don't you hold off.
MR. AMUNDSEN: Okay.
THE COURT: And what I'll do is I'll let the
parties submit things as I let you present your
case. And you can present those, and we'll have
them marked as you are given a chance to proceed. I
think -- go ahead.
MR. AMUNDSEN: I apologize, your Honor. I do
have some additional amendments which I would like
to offer the Court -- I have copies for counsel --
to my answer. I was under the impression I may have
been wrong when I spoke with Luke Gosselin on the
date that I was told of the notice of the hearing
that the Court was going to be accepting the letter
and the first two attachments. So my initial answer
is addressing the letter and the first two
attachments specifically. And I have a response and
some additional attachments I would like to submit
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to the Court as an amended answer.
THE COURT: You can just do that as a part of
your case in chief.
MR. AMUNDSEN: Okay.
THE COURT: That's not a problem. Did you
bring copies for counsel?
MR. AMUNDSEN: I did bring copies for counsel.
I can distribute that now.
THE COURT: Just hand it to them.
MR. AMUNDSEN: Do I submit it to you also?
THE COURT: You can hold off.
All right. The way we're going to proceed is
I'm going to have Mr. Riggs and Mr. Anderson present
the case in chief on behalf of the Petitioner, and
then Mr. Amundsen can present the case in chief on
behalf of himself. If there is a need for any
rebuttal or surrebuttal, we'll take that up at the
time.
You can make arguments. You can offer
exhibits. You can offer witnesses. Mr. Amundsen,
if you want to testify on your own behalf, I'll
place you under oath and put you on the witness
stand. I want this hearing to be focused on any
grounds that may exist to remove Mr. Amundsen from
his seat on the charter commission. This is not a
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history lesson in the history of the Mounds View
charter commission or what the charter commission
generally has or has not done or what other members
of the charter commission have or have not done
unless that's relevant to Mr. Amundsen's
performance.
The statute that's involved here, Minnesota
Statute 410.05, Subdivision 2, has two sentences
that relate to removal of commissioners from office,
a short sentence and a very long sentence that
concludes Subdivision 2. The first sentence says,
"Any member may be removed at any time from office,
by written order of the district court, the reason
for such removal being stated in the order." The
second sentence, which is the long one, says, "When
any member has failed to perform the duties of
office and has failed to attend four consecutive
meetings without being excused by the commission,
the secretary of the charter commission shall file a
certificate with the court setting forth those
facts, and the district court shall thereupon make
its order of removal, and the chief judge shall fill
the vacancy created thereby."
Anyone here claim that the second sentence
applies to this case?
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MR. RIGGS: No, your Honor.
THE COURT: Mr. Amundsen?
MR. AMUNDSEN: No, your Honor.
THE COURT: All right. So we're just dealing
with that first sentence: "Any member may be
removed at any time from office, by written order of
the district court, the reason for such removal
being stated in the order." So presumably, the
Petitioner today is going to be presenting a reason
for removal, and the court's authority is "may," so
I have the discretion to remove or not to remove.
Mr. Riggs, you are here strictly representing
the city council. Is that true?
MR. RIGGS: The city council and the charter
commission itself.
THE COURT: Has the charter commission taken
any position on Mr. Amundsen?
MR. RIGGS: They have not had a meeting to do
so, your Honor.
THE COURT: Okay. In fact, their last meeting
was canceled by the vice chair.
MR. RIGGS: That's correct.
THE COURT: So on what basis do you claim to be
acting on behalf of the charter commission?
MR. RIGGS: On the basis that the city attorney
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by default is the attorney for the charter
commission and has been acting in that capacity.
THE COURT: Okay. Are you advocating for an
outcome on behalf of the charter commission?
MR. RIGGS: I am not. I'm here advocating
based on the petition submitted by the city council
to the mayor.
THE COURT: So your actions here today are
solely on behalf of the city council?
MR. RIGGS: That would be correct.
THE COURT: Okay. All right. Hypothetically,
if the charter commission had voted to oppose this
petition, you would have a problem, wouldn't you?
MR. RIGGS: Potentially, yes, your Honor.
THE COURT: Not potentially. If that vote had
occurred, you would actually have a problem.
MR. RIGGS: Yes.
THE COURT: Okay. But since that didn't
happen, you don't have a problem today. You are
only acting on behalf of the city council and not on
behalf of the charter commission?
MR. RIGGS: Correct, your Honor.
THE COURT: Okay. You may proceed.
MR. RIGGS: Thank you, your Honor. Is it okay
if I remain seated?
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THE COURT: Yeah.
MR. RIGGS: Your Honor, obviously, the majority
of the discussion here centers on the petition that
the city council decided to submit via the mayor's
signature regarding the actions of Mr. Amundsen and
the current status of the charter commission and
issues that arose particularly from a more recent
meeting on May 21, 2019. The biggest concern that
the city council has and has had for many years has
been the inability of the charter commission to keep
members on the commission. It's taken many years to
get commission members and get up to a full
complement of the commission with all seats filled.
Nine members at this point in time. And again, I
won't go and belabor it, but the commission has
reduced from fifteen to eleven to nine, where it is
right now. We have one vacancy, so there are eight
members present on the charter commission.
THE COURT: And you would agree that the
charter commission under its bylaws can conduct
business with fewer than a full complement of
members?
MR. RIGGS: It can conduct business, that is
correct, to a degree. There are certain things I
don't agree that it can do. But yes.
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THE COURT: If it has a quorum, it can do
anything that the charter commission can do under
its bylaws.
MR. RIGGS: I disagree with that, your Honor.
I don't believe that's supported by attorney general
opinions, nor does the League of Cities support
that, nor do I support that conclusion, and in
particular as to proposing amendments to the city's
charter.
THE COURT: And where in statute is there a
limitation on amendments to the city charter based
on the number of commissioners?
MR. RIGGS: It's been an interpretation and
guidance that's been provided by the Attorney
General in the past. And it's sort of a
long-standing policy, as it is for commissions and
city councils where they're not covered in state
statute, it's always been you should have a full
appointed membership, whether it's a city council,
whether it's a charter commission, that you have all
members there to make informed decisions and
recommendations.
THE COURT: Isn't "all members" all members?
If there's -- if there's less than the full
complement -- cite me a statute that requires the --
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MR. RIGGS: There is none.
THE COURT: -- charter commission --
MR. RIGGS: There is none, your Honor.
THE COURT: Okay. And the bylaws allow it?
MR. RIGGS: The bylaws do allow it, yes.
THE COURT: And is there anything in statute
that prohibits the bylaws?
MR. RIGGS: Not in statute, your Honor, no.
THE COURT: Okay.
MR. RIGGS: This is merely a directive from the
Attorney General that has said that's the way it
should be.
THE COURT: Okay.
MR. RIGGS: And I certainly can provide that to
you at some time if you need that, but --
THE COURT: You will need that because if
you're going to make that argument to me, which
appears to directly contradict the statute, I'm
going to want to see it.
MR. RIGGS: Okay.
THE COURT: If I had the rules strictly on the
statute and the bylaws, it's pretty clear that as
long as there's a quorum, they can do business. And
they can do anything the statute authorizes them to
do. And it's as plain as the nose on your face. So
lug
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I would be very interested in reading what you have.
MR. RIGGS: We certainly will provide that,
yes, your Honor.
THE COURT: Okay. Keep going.
MR. RIGGS: And continuing on from the petition
again, the main, main issue has been the inability
to keep a fully functioning charter commission in
place. And --
THE COURT: Fully functioning meaning full
complement of members?
MR. RIGGS: Full numbers appointed, which is
something that's been a problem for years and years
and years. And again, the charter commission, as
has been provided with the materials to the
petition, had a number of years where it was
operating and conducting meetings with less than
what would be a quorum of an eleven or nine -member
commission, which has been the problem, which is
what the council is trying to address at this point
in time. There are and have been received one
resignation since the May 21 meeting. There are at
least three others that have stated -- three other
commission members that have stated that they would
resign or simply fulfill their term and no longer
serve as a commission member or no longer reapply to
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serve as a commission member.
The council, in viewing the video of the
meeting as well as the immediate resignation that
very evening of the charter commission chair, looked
at this, conducted meetings, and decided to take
what we've said is an unprecedented request to you
to dismiss Mr. Amundsen from the commission. It
came down to one consistent variable that was cited
by these individuals who say they are resigning from
the commission, and that was Mr. Amundsen's certain
activities. I don't discount that Mr. Amundsen has
a very vast knowledge, has been very proactive with
the charter commission. But as is pointed out in
the city's -- or in the mayor's letter, there have
been times when the discussions have taken so long,
and there's no product, no end result. Nothing
comes out that is either proposed for amendment or
concluding that no amendment is necessary. In fact,
we would cite one situation where one chapter has
been met on for 69 different meetings. And it's
taken eight plus years on a single chapter that has
not come to fruition or recommendation made for any
type of amendment to the city, whether through an
election or by ordinance or whatever other means is
available by statute.
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The council has looked at that and determined
that there is so much dysfunction, so much
sidetracking, I guess is the way to put it, that
nothing results from what the commission is doing.
We have a more recent and statutory change
brought on by the legislature as to elections -- the
charter commission has been looking at the elections
chapter of the city charter for over a year and a
half at this point in time. And those just don't
seem to be fruitful results, hence, the city
council's request. When looking at the record, when
looking at what they have seen, when discussing this
with charter commission members who have said they
will resign if Mr. Amundsen stays on the commission,
that's why the request has been made for his
removal.
THE COURT: Okay.
Mr. Amundsen, would you like to make an opening
statement now or wait until the city is done?
MR. AMUNDSEN: Your Honor, I absolutely could
respond. Do I need to stand?
THE COURT: No.
MR. AMUNDSEN: Your Honor, I do want to respond
to the opening statements. I do have a short
opening statement for myself, if I might be able to
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do that.
THE COURT: Yeah, go ahead.
MR. AMUNDSEN: Your Honor, thank you for having
this hearing and giving me the opportunity to speak
to the Court and to those citizens who are here
today asking -- the city is asking you to remove me
from my appointment as a charter commission member.
I would ask you to deny this request at the outset.
I covered that in my amendment -- or my answer.
First, let me tell you a little about myself.
I am 64 years old. I've lived in Mounds View for 40
years. I bought my grandmother's back property and
built my home, raised my four children and now have
eight grandchildren. I know you're not interested
in the history, but I do want to mention that I've
always been a volunteer. I was elected to the
school board in the '90s. I do volunteer at my
church, and I serve on the board down at Sharing &
Caring Hands. I was Cub master in the City of
Mounds View for many years, and I'm currently
functioning as an election judge for Ramsey County
and have done that for 15 years as well as serving
on the charter commission. My first appointment was
in 2002, and I left after that appointment for
cancer treatment. I did reapply.
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THE COURT: So what year did you leave?
MR. AMUNDSEN: I was there from 2002 to 2006.
THE COURT: Okay.
MR. AMUNDSEN: I left the charter commission
and rejoined in 2009 filling a time slot that
only -- that appointment was only three years rather
than the normal four.
Partly due to my engineering background, I do
tend to have an analytic way of looking at topics,
and I go into depth on topics researching and
looking for situations outside of commission
meetings so that I can see it from multiple sides.
I do place a high value on dialogue and discussion
amongst members and, as the chair, often encourage
people to participate in the conversation by asking
them their opinions.
THE COURT: When were you the chair?
MR. AMUNDSEN: I was the chair from -- I was
the chair during this current appointment, your
Honor, which started in 2016. I was the chair at
that time, and I was re-elected as secretary in
January of this year.
I don't believe that disagreeing with others is
a sign of disrespect to that individual. It is
simply having a disagreement on an opinion about a
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subject. In fact, I believe that having different
opinions actually improves the government by finding
better results and better outcomes. But the final
decision is the decision of a body, the commission.
I'm just one of the commissioners on a commission of
nine. I hope that others would listen to me, but I
know that sometimes there's impediments for that.
I do believe that I've done nothing wrong.
I've attended all of the meetings since my
appointment in 2016, and I have fulfilled my duties
as chair and as secretary, and I've done the best to
my ability and my judgment as I had stated in my
original oath that I would do for this Court.
I believe that there's a basic political issue
here, and that is that the council is under the
impression that a full complement of the commission
is required in order for the commission to function.
And because of that and because of the fact that I
am a person who believes in dialogue, that they
would rather not have me on the commission. I also
believe that the council, which has the authority in
410.12 to request amendment proposal or to propose
amendments to the charter, would rather not take
that path but would rather take the path of 410.12
where the commission is allowed to suggest changes
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to the amendment. And so the council at this time
is attempting to remove me to place additional
members on the commission which will suggest changes
and will then send those changes to the council for
unanimous approval, thus mitigating the requirement
of their proposed amendments to be required to go to
ballot.
The commission has had a full complement of
members starting in the May meeting of 1917 [sic],
shortly after my appointment period in November. I
have stipulated in the amendment, which I've handed
to counsel, an amended attachment which shows the
number of attended meetings, people attending the
meeting, and the number that were appointed at the
time. So that quorum is shown to have been met at
all of those meetings without exception and also
that the statement that we haven't had a full
complement is not truly full.
My opening comment would be that, again, I
agree there's no meeting of the secondary reason for
removal related to duties or to attendance and that,
instead, this is an action under the first sentence
and that I disagree with the conclusions that the
council has come to that any of my actions have been
the result of a resignation, as I showed in my
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answer, that even the current resignation, which
they have, was not for a specified reason. It was
simply the chair resigning from the commission.
I thank you for your time. And that would be
my closing statement.
THE COURT: All right. Thank you.
Mr. Riggs, how would you like to proceed?
MR. RIGGS: Your Honor, the city was not
intending to call a number of witnesses. We believe
that the petition speaks for itself. We do have
persons or individuals here that could be brought up
for supplementing this. But the statements in here
are exactly the council's position.
THE COURT: Okay.
MR. RIGGS: The --
THE COURT: I'm not going to make you do
anything.
MR. RIGGS: No. What I'm trying to say is
that, obviously, it's your discretion. The council
didn't look at this lightly to move forward with
this type of request. The request was made because
people are leaving because of one individual, you
know, and the reality is -- you know, I've spoken to
these commission members, certainly other city staff
has, certainly council members have that would state
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and could state they want to leave or will leave if
changes aren't made. That's where the council is
at.
THE COURT: Okay. I'm not going to base a
ruling on hearsay.
MR. RIGGS: I understand that. I understand
that.
THE COURT: So if you've got some evidence of
what you've said here today, I want to see it --
MR. RIGGS: Okay.
THE COURT: -- if it's an affidavit from that
person or testimony from that person.
MR. RIGGS: And --
THE COURT: You've been informed that whatever
you're going to prove, you need to prove it here
today.
MR. RIGGS: I understand that.
THE COURT: So if you've got some either way,
any way you want to present it, I'm all ears.
MR. RIGGS: Well, and keeping that in mind,
certainly I can call witnesses if that's where you
want to go with this from the standpoint, or if you
would like us to do a submission with affidavits
from these individuals, that's certainly --
THE COURT: Today's the day.
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MR. RIGGS: Okay.
THE COURT: And if you've got someone that you
want me to hear from, bring them up. If you've got
an affidavit from them right now, let me see that,
too.
MR. RIGGS: Okay. Then, your Honor, we would
call the city's administrator Nyle Zikmund as a
witness.
THE COURT: All right.
Stand and raise your right hand without
tripping. Do you swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
THE COURT: All right. Have a seat. State
your name and spell it.
THE WITNESS: Nyle, N-y-1-e, Zikmund,
Z-i-k-m-u-n-d.
THE COURT: All right.
Mr. Riggs.
MR. RIGGS: Thank you, your Honor.
NYLE ZIKMUND,
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. RIGGS:
Q Mr. Zikmund, what is your position with the
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City of Mounds View?
A I am the city administrator.
Q And how long have you been in that capacity?
A Full-time capacity, January 3 of 2018, interim,
September 3, 2017.
Q And in that capacity, you've also been working
with the charter commission?
A That is correct.
Q And what type of duties has that entailed?
A So when I was initially hired as the interim,
there wasn't much, although I was asked to start to
attend those meetings. But when I was put on full-time,
that was part of my probation requirements, employment
requirements to attend those meetings, be the liaison to
those meetings, and also there was clear direction to get
a better understanding of some of the -- I don't know
what word to use. But the council had concerns over the
charter commission. It was right amongst the top of the
priorities, right up there with budgets and other issues.
It was to be the main focus of my job.
Q So you interacted with all the commission
members at those meetings or outside of the meetings?
A I've interacted with the charter commission
members more than all the other commission members
combined in planning, zoning, and EDC, extensive
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interaction. I've attended all the meetings. It's the
only commission that I've had anywhere near that much
interaction with. And I've researched extensively on the
minutes back to -- or to the initiation in 1978.
Q And what did those minutes show to you?
A So as -- in the course of the last year, as
things were starting to become more clear as I sat in on
those meetings and I had commission members speak to me,
things came to a head on May 21. And that had caused
me -- also, I'm not an engineer, but I do a ton of
analysis. As I had gone through, I had also spent the
previous year organizing the scanning of several, oh, a
hundred boxes' worth of documents, including the charter
commission documents back to the inception that I had.
And I made a spreadsheet -- I believe that's in your
packet, Judge, that showed that not only was there not a
full complement for years, the commission couldn't even
get a quorum. I think up to that 2016 they were
operating with three members. And that just caused me to
kind of, you know, dig in a bit deeper. And I think,
simultaneously, we had appointments coming up. And one
of my tasks was as city administrator to help recruit
because we had some vacancies to fill, and so I started
with the current members. And Commissioner Reyes -Johnson
was up for reappointment, and I specifically asked to
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meet with her. And she said she could not be --
THE COURT: Hold on. Hold on. I'm not going
to allow any hearsay, so you can't talk to me about
any conversations that you had with anyone else.
Okay?
THE WITNESS: Okay. Now I lost my track, so --
BY MR. RIGGS:
Q That's fine. But you were involved in the
recruitment to try to get a full nine -member commission?
A That is correct.
Q You also were -- the council has also requested
that -- well, what has the council requested you to do
relative to the language of the charter? Have they given
you directions regarding that or to ask the commission
for certain policy changes or anything along those lines?
A I've received no directive from the council on
specific language. There's a consensus by the council to
have the commission -- I want to make sure I phrase this
accurately. There's clear direction consensus from the
council to make the charter easier to read. The word
"simple" is used, that it's a very difficult charter to
read. Our residents can't understand it, that there has
to be a different way and better way of making that
charter much more readable and much simpler.
Q In your attendance at the charter commission
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meetings, what issues have you seen come up relative to
how the commission performs?
A What issues have I seen relative to how the
commission performs. The commission -- they belabor
minutia on an epic scale. They have been on chapter 7
since I started, and so that's all I've seen, that and
just calling the meeting to order and doing agendas
and -- but even the May 21 meeting, they belabored the
agenda for 45 minutes, the adoption of the agenda. But
that's typically -- a typical charter commission meeting
goes on and on and on. We argue about periods and commas
and words and --
Q And who are the individuals that are involved
with most of that discussion?
A So it would be Mr. Amundsen, Mr. Thomas, the
two senior members, and they have the most expertise, so
I would expect some of that.
Q Okay. Since the May 21 meeting, how many
resignations have been received by the city relative to
the charter commission?
A So I received an email resignation from Marissa
Reyes -Johnson I think 51 minutes after she left my
office, which was a 50-minute meeting after the meeting.
Q And since that same meeting on May 21, have
there been --
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THE COURT: 50 minutes after a meeting on what
date?
THE WITNESS: So, your Honor, May 21. So I
think the charter commission ended about 9:15.
Mrs. Reyes -Johnson asked to meet with me in my
office until 10, and at 10:51 we received a
resignation.
THE COURT: Got it.
BY MR. RIGGS:
Q And have there been any other resignations
since that time?
A So I had another commission member as the
meeting was breaking up walking out the door, he told me
he was done; he was going to be resigning.
THE COURT: The question was have you received
any other resignations.
THE WITNESS: Sorry, your Honor. No.
THE COURT: Okay.
BY MR. RIGGS:
Q Are you aware of any other folks, any other
commission members that may be resigning?
A Two individuals have told me they're --
THE COURT: Wait. That's hearsay.
THE WITNESS: How do I answer that? Sorry,
Judge, I'm trying to follow the rule.
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THE COURT: Okay.
THE WITNESS: Yes.
MR. RIGGS: Is that sufficient?
THE COURT: He said he's aware of two others.
That's personal knowledge, but --
THE WITNESS: Yes, thank you.
THE COURT: Okay.
MR. RIGGS: Thank you.
THE COURT: But no one else has resigned?
THE WITNESS: Correct, your Honor.
THE COURT: All right.
BY MR. RIGGS:
Q Are you aware that people -- well, why don't
you describe the difficulty of getting commission members
to serve on the charter commission and your experience
with that.
A So the challenge is twofold for me. One, it is
a difficult commission to convince people to serve on. I
was successful in recruiting two out of five. But going
forward, I've told the council I won't recruit any more
members to be on the commission until there's changes
because I simply won't recruit people to put them in that
situation.
Q Mr. Zikmund, what is your thoughts or opinion
of the commission operating should Mr. Amundsen remain on
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the commission?
A I believe there will be continued dysfunction.
I believe we will have more resignations and people
finishing their term and then not re -upping, which will
create more vacancies.
MR. RIGGS: I have nothing further, your Honor.
THE COURT: Any questions, Mr. Amundsen?
MR. AMUNDSEN: Yes, your Honor.
CROSS-EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Zikmund, you stated that you were hired
full time January 2018 and that the council required as
part of your job performance that you work with the
commission. Is that correct?
A I wouldn't characterize it that way. I was a
liaison on the commission. I was concerned about the
commission. Yes, I was assigned as the liaison, much
like the community development director to the planning
commission, public works director is the liaison to the
park and rec and forestry, so I was the liaison to the
charter commission.
Q Did the council give you further direction in
terms of communicating important issues or concerns that
the council had for the commission to work on starting in
January of 2018?
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A No.
Q Because I was the chair at that time, can you
detail any communication that you and I had about your
concerns or the council's concerns about the functioning
of the commission?
A There were none at that time.
Q When have you expressed to me as concerns of
the council any time since 2018?
THE WITNESS: So, your Honor, I'll need to look
at my notes.
THE COURT: You can.
THE WITNESS: All right. I believe our first
significant conversation was shortly after
Ms. Reyes -Johnson became the chair.
THE COURT: Which was when?
THE WITNESS: I believe she became chair
officially at the January meeting.
THE COURT: Wasn't it the March meeting?
THE WITNESS: It was not, your Honor.
THE COURT: All right. So January of 2019. Is
that right?
THE WITNESS: Your Honor, she was elected
January of 2019, and I would stipulate that she
became chair at the end of that meeting per the
bylaws.
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THE COURT: Okay. So she became chair at the
meeting in January?
MR. AMUNDSEN: Her chairman [sic] started at
the end of the meeting.
THE COURT: Okay. Do you agree with that,
Mr. Zikmund?
THE WITNESS: Yes, that is accurate, your
Honor.
THE COURT: Okay.
THE WITNESS: Shortly after that, Chair Johnson
reached out and wanted to do some training.
Attorney Riggs provided that training. There were
two sessions. I think we had all commission members
but one attend one of those two sessions. And then
as Chair Johnson was preparing for the May meeting,
that's when -- I don't want to use hearsay, but she
called me because she had had an interaction with
you, Mr. Amundsen, and she had concerns, and you had
also called the mayor.
THE COURT: And when did that take place?
THE WITNESS: So it was after the March meeting
and before the May meeting. And so my notes say on
May 16. I initiated a call to you for the purpose
of understanding your concerns as a result of both
the mayor and the commission chair sharing that they
NYLE ZIKMUND - CROSS-EXAMINATION
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had received calls from them. And so my purpose on
the call was to understand the concerns. And I
believe I had this transcript, it was in the
submission we submitted of that call, and typed it
up the next day.
THE COURT: And that was a call that you had
with Mr. Amundsen on May 16?
THE WITNESS: That is correct.
BY MR. AMUNDSEN:
Q Mr. --
A That I would characterize it as a significant
conversation, right.
Q Mr. Zikmund, would you -- when did I make my
first request to talk to you, on what date?
A I can't remember. I know that you made a
request to talk to me. I think you sent me an email.
Q Would you agree that it was more than ten days
earlier?
A In that ballpark, yes.
Q Mr. Zikmund, what do you consider a quorum?
THE COURT: Hold on. A quorum for who?
MR. AMUNDSEN: For the commission. Thank you,
your Honor.
THE COURT: Charter commission?
MR. AMUNDSEN: For the charter commission.
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THE COURT: All right.
THE WITNESS: I would have to look at your
bylaws, but I believe it's five.
BY MR. AMUNDSEN:
Q So you're questioning whether you know what the
quorum is?
A I believe it's five. But I will look at the
bylaws to make sure.
Q If we're going to go by the bylaws, what was
the quorum requirement prior to November of 2016?
A If you had eleven members, it would have been
six. I'm guessing. I have to look.
Q And using the bylaw language, what was the
quorum requirement prior to 2016? Are you aware of it?
MR. RIGGS: Objection, your Honor.
THE COURT: What grounds?
MR. RIGGS: It's not relevant.
THE COURT: You're the one who brought up
quorum, so that objection is overruled.
Mr. Amundsen -- actually, it was the question
before you. Do you know what the quorum requirement
was before 2016?
THE WITNESS: I know that the number of
commission members was moved from eleven to nine, in
that area. So if it was eleven, it was six. If it
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was nine, it's five. I don't know when exactly that
bylaw occurred.
BY MR. AMUNDSEN:
Q So, Mr. Zikmund, when you were preparing the
chart that is the city's attachment number two, what
standard were you applying to identify quorum?
A So give me a specific date, Mr. Amundsen.
Q The question is, what standard were you using
when developing that chart to define quorum?
A The answer is it depends on what date because
it had moved, because the commission size moved.
Q So --
A So let me answer this way. In 2003 it went
from fifteen to eleven members, which means you would
have needed six. In 2017 --
Q Let me make it simpler.
A -- you went from --
Q Let me make it simpler.
THE COURT: Let him finish his answer.
THE WITNESS: You went from eleven to nine,
which means you needed five. In the fall of 2016, I
show in the chart here that the actual number of
members on 12/31 in 2016 was five, but two of those
members were added at the last meeting. So
throughout that year, you had three. In years '14,
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115 and '16, you basically had three members on an
eleven and a nine -person commission, so you didn't
meet the quorum, so that's the standard I was using.
BY MR. AMUNDSEN:
Q Mr. Zikmund, were you using the bylaws standard
prior to 2016?
A To the best of my knowledge, I was, yes.
THE COURT: Did the bylaws have a two -tiered
quorum requirement in 2016 and earlier?
THE WITNESS: Not to my recollection, your
Honor.
THE COURT: It has one now.
THE WITNESS: Correct.
THE COURT: Okay.
THE WITNESS: A single quorum requirement.
THE COURT: Right. So if there were eleven
authorized members, you needed six, and if there
were only three members, you could never have a
quorum because you didn't have six.
THE WITNESS: Not in my judgment, your Honor.
THE COURT: Okay.
MR. AMUNDSEN: Your Honor, I in my answers
supplied the actual language of the bylaws, which
states that the quorum was established on the
majority of those appointed and serving is the
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actual language of the bylaw.
THE COURT: Okay. And you'll have a chance to
point that out when it's your turn.
BY MR. AMUNDSEN:
Q Mr. Zikmund, you said that the council
direction -- gave no direction as to what should be
amended. Did the council have conversations of things
which they would like to see amended?
A Yes.
Q Can you tell the Court what that item was or
items?
A So item number one was the entire charter would
be simpler. Item two through a series of workshops,
retreats in 2018 at, I think, the second meeting of
January of this year, the strategic plan talks about
visiting the issue of the levy cap. And number three, at
a council workshop, they gave the commission some clear
feedback and direction on the chapter 7 election.
Q Are you certain of that chapter number?
A No. The election chapter. There's a lot of
numbers going through my head, your Honor.
THE COURT: Did the charter commission attend
the city council workshops?
THE WITNESS: Your Honor, the chair of the
commission was invited to come to a workshop
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specifically to discuss, because they completed
their work on the election chapter.
THE COURT: That's not what I asked. Were any
members of the charter commission present during
this workshop?
THE WITNESS: Yes. The commission chair, I
believe, Mr. Amundsen was there.
THE COURT: Okay.
THE WITNESS: There were several members there,
yeah.
THE COURT: Okay.
BY MR. AMUNDSEN:
Q Mr. Zikmund, you just stated that the
commission had completed its work. What was the day --
what date are you aware of that the commission had
completed its work on Chapter 4, elections and
nominations?
A The March meeting of this year, I believe.
Q Mr. Zikmund, you state that the commission's
work is performed with a lot of labor. Can you identify
any meetings other than the May 21 meeting which extended
beyond the commission's appointed time?
A No.
Q Can you identify any cases where the charter
commission didn't follow its bylaws in relation to its
NYLE ZIKMUND - REDIRECT EXAMINATION
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procedures at the meeting?
A None that I can recall.
Q Mr. Zikmund, are you aware of any meetings or
any -- I'm sorry -- any time when you have related to
myself since May 21 the names of anyone who was having
difficulty with me?
A I don't believe I've shared those with you
other than the chair, who has now resigned.
Q Mr. Zikmund, you indicate that the council had
gave you direction to be involved with the commission.
Would you --
MR. AMUNDSEN: I'll hold that question for
later, your Honor. I think I'm done with my
questions.
THE COURT: All right.
Any redirect?
MR. RIGGS: Yes, your Honor.
REDIRECT EXAMINATION
BY MR. RIGGS:
Q Mr. Zikmund, in your opinion -- and again,
notwithstanding the discussions on the quorum, things
like that. In your opinion, can the charter commission
function and provide an adequate, efficient service to
the City of Mounds View if Mr. Amundsen remains on the
commission?
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A No.
MR. RIGGS: I have nothing further, your Honor.
THE COURT: Any recross?
RECROSS-EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Zikmund, was the council requesting more
than my removal from the commission after May 21? Did
any other commissioner -- did the commission ask for any
other commissioner to be removed and a letter be drawn up
to the Court for my removal or for removal from the
commission, and has the council ever recommended to this
Court that a commissioner requesting reappointment not be
reappointed?
A Your Honor, he asked two questions. Can we do
one at a time?
THE COURT: You're right. You sound like a
lawyer.
THE WITNESS: Start with the first one again.
THE COURT: The first question is, did the city
council ask for any other commissioner -- no. The
first question was, was the council asked -- did the
council ask to have anyone else be removed.
THE WITNESS: No.
BY MR. AMUNDSEN:
Q Mr. Zikmund, did the council discuss having any
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other commissioner removed in addition to me?
A No.
Q Mr. Zikmund, were there any public meetings
that the council had where another commissioner's name
was mentioned as needing to have a letter drawn up to the
Court requesting removal?
A Mr. Amundsen, the council had discussion on
asking for another resignation. But the official council
action was specific to you.
Q Mr. Zikmund, I'm asking about discussion about
removal, not --
A Yes.
Q -- council action. Discussion.
A Answer yes to that.
Q The answer is yes, that there was discussion of
other commissioners to be removed?
A Correct.
Q Thank you.
Mr. Zikmund, are you aware of the resolution --
or the recommendation to this Court that William Doty not
be reappointed to the commission in November of last
year? The resolution -- I apologize, your Honor -- I
believe was sent to the Court in October.
A Yes, I'm aware of it.
Q Mr. Zikmund, are you ready to describe that
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resolution and what its language was and the reason?
A Yes.
MR. RIGGS: Objection, your Honor, relevance.
THE COURT: Overruled.
BY MR. AMUNDSEN:
Q Can you describe the reason the council gave
for Mr. Doty not to be reappointed?
A So, your Honor, Mr. Amundsen, I can only tell
you what I was instructed to do. I certainly can't get
into the minds of the five council members on how they
acted. I was, again, directed to recruit new
individuals. The council was given a slate of names, and
the council then makes that decision, and I executed the
decision. And that resulted in the council recommending
a different slate -- or not recommending Mr. Doty's name.
There was more candidates than there was positions to
fill.
MR. AMUNDSEN: That's the end of my redirect at
this time.
THE COURT: Anything else?
MR. RIGGS: No, your Honor.
THE COURT: All right. Thanks. You can step
down.
Does the city wish to call any other witnesses?
And Doty, is that D-o-t-y?
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MR. RIGGS: That's correct.
Yes. The city wishes to call Gary Meehlhause.
THE COURT: All right. Stand and raise your
right hand.
Do you swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?
THE WITNESS: I do.
THE COURT: Have a seat. State your name, and
spell it, please.
THE WITNESS: My name is Gary, G-a-r-y, last
name is Meehlhause, M-e-e-h-l-h-a-u-s-e.
THE COURT: All right. You may inquire.
MR. RIGGS: Thank you, your Honor.
GARY MEEHLHAUSE,
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. RIGGS:
Q Mr. Meehlhause, what is your capacity with the
City of Mounds View?
A I am a member of the Mounds View City Council.
Q How long have you been on the council?
A I am on my seventh year.
Q In your time on the council, have you
interacted with the charter commission?
A I have gone to -- I have attended the charter
GARY MEEHLHAUSE - DIRECT EXAMINATION
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commission meetings. There has been only one occasion
where I've actually spoke at a charter commission
meeting.
Q In your capacity as a council member, what
activities have you undertaken relative to the charter
commission?
A I have tried to recruit individuals to serve on
the charter commission when we were -- when we only had
three members at one point in time. And there was a time
back in 2015 or so where I provided the city
administrator at that time with a list of about 15 names
of people that might be interested in serving on the
charter commission.
Q And how successful have your recruitment
efforts been?
A There were two individuals who ultimately
agreed to serve.
Q How easy has it or difficult has it been to
recruit commission members?
A It has been a challenge.
Q What are the challenges that you have relative
to getting names of willing individuals for the
commission?
A There are two individuals specific that I have
tried to recruit who have served on multiple commissions
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in our city, are individuals who frequently volunteer for
all kinds of things, and they have not been willing to
serve on the charter commission because they have lived
in the community a long time and they know Mr. Amundsen,
and they have just said they do not want to serve with
Mr. Amundsen.
MR. AMUNDSEN: Your Honor, I would ask for that
to be hearsay and stricken.
THE COURT: It is stricken. Sustained.
BY MR. RIGGS:
Q Mr. Meehlhause, have you undertaken any efforts
of recruitment since the time of May 21 and the most
recent resignation of a commission member?
A I have not.
Q And why have you not?
A I have chosen because of having individuals
serve and not working out for them to just not go that
route, plus, since that May meeting, I have chosen not to
even have conversation with anyone about the charter
commission.
Q In your opinion, Mr. Meehlhause, do you think
you'll be able to find citizens willing to serve on the
commission should Mr. Amundsen remain?
THE COURT: That calls for speculation. He
doesn't have a crystal ball.
GARY MEEHLHAUSE - CROSS-EXAMINATION
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MR. RIGGS: I understand, your Honor.
THE COURT: He might bump into someone on the
way out of here.
MR. RIGGS: Yeah.
THE COURT: You know better than to ask a
question like that.
Go ahead.
MR. RIGGS: Thank you, your Honor.
BY MR. RIGGS:
Q Mr. Meehlhause, will you continue efforts to
recruit if Mr. Amundsen remains on the commission?
A I will probably not.
MR. RIGGS: Thank you.
Nothing further, your Honor.
THE COURT: Any cross?
MR. AMUNDSEN: Not at this time, your Honor.
THE COURT: Well, unless you call him as your
own witness, there aren't any other times. So if
you've got one, ask one.
CROSS-EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Meehlhause, what do you understand is the
quorum requirement for the commission?
A I believe the present bylaws say six -- excuse
me, five individuals, because there's nine current
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members.
Q Are you aware of the two-tier standard?
A No.
Q So you're not aware that the -- if there are
less than nine that the quorum requirement is four?
A I thought there was some reference to four in
the bylaws, but I wasn't quite sure.
Q Were you aware of the quorum requirement prior
to November of 2016 for the commission?
A No.
Q Were you ever concerned -- I withdraw that.
Does the council -- Mr. Meehlhause, are you
aware of the council -- as your function as a council
member, are you aware of ever sending a proposed
amendment to the charter commission to be addressed?
A The council is the one that asked the charter
commission to look at Chapter 4 related to special
elections and the current requirement in the charter that
a special election needs to be held whenever there's 365
days or more remaining in a charter. Now, whether or not
that was done --
Q Mr. Meehlhause --
A -- in writing I can't tell you. I know that
came up in a work session that we had with charter
commission members.
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Q Mr. Meehlhause, are you aware that the statute
has a specified method for the council to propose
amendments to the charter commission?
A I am not. I do not claim to be an expert on
state statutes. That's the reason why we have a city
attorney.
MR. AMUNDSEN: No further questions.
THE COURT: All right. There's a question that
was asked that I don't think was answered. Has the
city council ever proposed an actual charter
amendment to the charter commission?
THE WITNESS: Your Honor, I'm not aware of
any while I've been a council member. I cannot
speak prior to my election in 2012.
THE COURT: So limited to your time on the city
council, has the city council ever proposed an
amendment to the charter?
THE WITNESS: No.
THE COURT: Okay. Thank you.
Any other questions?
MR. AMUNDSEN: No, your Honor.
MR. RIGGS: No, your Honor.
THE COURT: All right. Thank you. You can
step down.
Anyone else?
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MR. RIGGS: Yes, your Honor. The city would
call Brandon Clawson to the witness stand.
THE COURT: All right. Mr. Clawson, raise your
right hand. Do you swear to tell the truth, the
whole truth, and nothing but the truth, so help you
God?
THE WITNESS: Yes.
THE COURT: Have a seat. Spell your name.
THE WITNESS: Brandon, B-r-a-n-d-o-n, Clawson,
C-1-a-w-s-o-n.
THE COURT: All right. Mr. Riggs, you may
inquire.
MR. RIGGS: Thank you, your Honor.
BRANDON CLAWSON,
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. RIGGS:
Q Mr. Clawson, what is your capacity with the
City of Mounds View?
A I am a member of the charter commission.
Q And how long have you been a member of the
commission?
A I joined, I believe, in January of 2017. I was
filling a vacant term.
Q And in your position with the charter
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commission, have you -- well, describe the activities
you've participated in in your position with the charter
commission.
A When I first started, I believe the city
council had asked the charter commission to look at
Chapter 4, specifically the vacancy language, when is a
new council member appointed or is a special election
held. And that's pretty much all we did for those first
two years every meeting was discuss that language. And
that just kind of went on and on every meeting was just
working on that specific language. We did a few other
things here and there, but the bulk of my time on the
charter commission has just been about Chapter 4.
Q Have you enjoyed your time working on the
charter commission?
A No, not entirely. Sometimes it's been
interesting and fun, but other times, it's very been
frustrating to sit through the meetings. A lot of the
meetings seem to go on for several hours with no actual
progress of anything we have made, just a lot of
discussion about motions and rules and details back and
forth about very small things. I did feel like we
weren't actually really accomplishing anything at most of
the meetings.
Q Do you intend to continue in your quest to be
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reappointed to the commission?
A I have decided I'll fill out my term. I was
reappointed this year, but I likely would not seek
another appointment after that.
Q And why would that be?
A Just the way that things are going with the
charter commission. It takes up a lot of time. We meet
every two months. Some of those meetings end up taking
three hours, and I've really felt like it has not been
worth my time. We haven't been accomplishing anything,
and a lot of that I've felt was just because the meetings
go off track so much that nothing really gets done.
Q In your opinion, if there were changes made,
would you continue on -- or excuse me. Would you be able
to accomplish anything on the commission?
MR. AMUNDSEN: Your Honor, objection,
speculation.
THE COURT: Sustained.
Next question.
BY MR. RIGGS:
Q If there were changes made to the commission,
would you continue serving?
A Yes.
MR. RIGGS: I have nothing further, your Honor.
THE COURT: Mr. Amundsen, any cross?
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CROSS-EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Clawson, are you -- what's your
professional capacity?
A I'm an attorney.
Q As an attorney, are you familiar with Minnesota
Statutes?
A Yes.
Q Have you ever read the statutes related to the
charter commission?
A Yes.
Q Have you as an -- have you ever read the bylaws
of the charter commission?
A Yes.
Q Have you been in attendance at all meetings
since January of your appointment?
A No.
Q How many of the meetings do you believe you've
attended? And I'll stipulate that there were six per
year.
A I don't know. I know I've missed one this year
due to a family emergency, and the other two years I
don't remember. Like I said, I've missed some.
Q You indicate that the meetings take as long as
three hours. Can you name a date that a meeting took
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three hours?
A The May 21 meeting, I believe, took up to three
hours.
Q Do you know what time that meeting convened at?
A I think it started at around 7:00, and we got
done close to 10:00.
Q Are you aware that the minutes --
MR. AMUNDSEN: Your Honor, there are in the
amendment which I've submitted to council and would
like to submit to the Court the unofficial draft
minutes from the secretary as attachment 6 that
indicates the meeting opened at 7:02 and was closed
at 9:06.
BY MR. AMUNDSEN:
Q Are you in receipt of those minutes,
Mr. Clawson?
A I don't know.
Q Are you in receipt of any minutes, Mr. Clawson,
of the May 21 meeting?
A I would have to look at my notes and see if I
received any minutes.
Q On what basis are you stating that the meeting
lasted three hours?
A That was just my recollection. Again, I would
have to go back and look at other minutes to be for sure,
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but I do remember meetings taking a long time.
Q In your relationship with the commission and
specifically with me, have I ever been disrespectful to
you?
A No.
Q Have I ever been -- have I encouraged others to
participate in conversations?
A Yes.
Q Have I followed the bylaws and the Robert's
Rules of Order?
A Yes, I think to your understanding of them.
MR. AMUNDSEN: No further questions.
THE COURT: Any other questions?
MR. RIGGS: Yes, your Honor.
REDIRECT EXAMINATION
BY MR. RIGGS:
Q Mr. Clawson, how would you describe the May 21
meeting?
A Contentious.
Q In or during that meeting, do you believe that
Mr. Amundsen was disrespectful towards anyone else?
A Yes.
MR. AMUNDSEN: Your Honor, I'm confused at this
point because he's given two answers to the same
question.
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THE COURT: You'll have a chance to ask
questions.
MR. AMUNDSEN: Thank you.
THE COURT: Do you have an objection to
anything or --
MR. AMUNDSEN: Because I'm self representing, I
don't know if I can object to an answer from a
witness, your Honor.
THE COURT: You can object if there's a grounds
to object, which you did previously, and I struck an
answer based on hearsay. Do you have --
MR. AMUNDSEN: Your Honor, I object to this
answer because he's previously indicated that I was
not disrespectful at any meeting.
THE COURT: Well, that's not a grounds for
objection.
MR. AMUNDSEN: Thank you.
THE COURT: So that objection is overruled.
You can continue.
BY MR. RIGGS:
Q Mr. Clawson, in previous questioning as to
disrespectfulness, I've asked you were you -- was
Mr. Amundsen disrespectful to any others. Didn't he
previously ask you if he was disrespectful to you?
A I believe so.
BRANDON CLAWSON - RECROSS-EXAMINATION
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MR. RIGGS: Okay. I have nothing further at
this point, your Honor.
THE COURT: Hold on.
Okay. You can ask questions, Mr. Amundsen.
RECROSS-EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Clawson, you described that at the May 21
meeting -- I retract that question.
Mr. Clawson, is dialogue at a meeting an
indication of disrespect?
A It can be. Depends on your tone and what
you're asking and what you're doing.
Q Does Robert's Rules of Order allow people to
express different opinions during the discussion period?
A I believe so.
Q Does Robert's Rules of Order allow all members
to participate in the conversation?
A I don't know. You would have to look up
Robert's Rules of Order.
Q Mr. Clawson, you said that you thought that I
was disrespectful to others. Can you describe whom you
thought I was disrespectful to?
A I thought you were very disrespectful to the
chair, to the city administrator, and the city attorney.
Q Can you describe why and what -- what words I
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used to be disrespectful?
A You were telling the city attorney several
times when he was giving a legal opinion and making a
point -- you wouldn't even make eye contact with him and
were very, I would say, rudely saying I thank you for
your opinion.
Multiple times when the city administrator
would try to cut in, it was clear that you were not
pleased with what he was saying, and you were
disagreeing, and not just disagreeing, but you were being
rude. And then with the chair, it came across as a power
play. It came across that you were angry for some reason
that you were no longer in charge, that she was doing
things differently, that you felt like you were being
left out of the loop. And by the time I left that
meeting, that's what I felt, that this was a power play.
You were upset that you weren't in charge anymore and
that you were trying to assert some kind of authority by
making us discuss what you thought the role of the
secretary was.
When it came down to it, I didn't understand
why you and Marissa hadn't just discussed this outside of
the meeting. I didn't understand why you decided the
meeting was the place to do this. And you were just --
she was the chair. She had the right to call the agenda.
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BRANDON CLAWSON - RECROSS-EXAMINATION
Just because you disagreed with it or didn't like it or
thought it should be formatted a different way, I didn't
think you had the right to treat her like that.
Q Mr. Clawson, what was the commission's
decisions on the format of the agenda, that it should be
the proposed amenda [sic] or follow the bylaws and the
format?
A In the beginning, we all went along with you.
And I can tell you why I did.
Q Mr. Clawson, just answer. Was it to use the
proposed amendment or to use the bylaws format? What was
the decision of the commission?
A We used your proposed amendment.
Q The bylaws?
A Your proposed agenda. You asked me if we used
the proposed agenda or the bylaws. We used your proposed
agenda.
Q The draft -- all right. Let me be clearer
then. Was the decision of the commission to use the
agenda proposed by the chair or to use the amended agenda
according to the bylaws?
A Neither. We amended the agenda based on your
request.
Q So the decision of the commission was to use
the amended format of the bylaws?
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A No. We used the amended -- the amended agenda
that you requested.
Q Mr. Clawson, does a commission member have a
right to request the commission to follow its bylaws?
A Yes.
Q Does a commission member have a right to ask
for clarification of duties?
A Yes.
Q Does a commission member -- once a commission
makes a decision, does a commission member need to follow
that decision?
A Yes.
Q Are you aware of any time when I asked -- are
you aware of times when I asked the commission to follow
the bylaws?
A Yes.
Q Are you aware of times when I asked the
commission to clarify secretary duties?
A Yes.
Q Are you aware of me ever not following the
bylaws' duties of the secretary?
A No.
Q Mr. Clawson, are you ever aware of the city
council submitting an amendment to the commission, a
proposed written amendment to the commission?
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A No.
Q Mr. Clawson, can you describe the process that
the commission was told would be used for the Chapter 4
election and nomination process?
A Well, I think that was confusing. I think that
some of the direction was unclear. But my understanding
was they made a request to you as the chair at that
point. We were going to draft proposed language, and
then we were going to send it back to the city council
for them to either approve or make changes to.
MR. AMUNDSEN: Thank you. No further
questions.
THE COURT: Any other questions?
MR. RIGGS: No, your Honor.
THE COURT: Thank you. You can step down.
Any other witnesses?
MR. RIGGS: No, your Honor.
THE COURT: All right.
How many witnesses do you have, Mr. Amundsen,
if any?
MR. AMUNDSEN: Your Honor, I have not
specifically subpoenaed anybody, but I believe there
are some members present who would be willing to
answer some questions.
THE COURT: All right. What we're going to do
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because it's that time for a morning break, we'll
take a 15-minute break, and then we'll start by you
offering the documents that you've been talking
about and then any testimony you would like to
present. Okay? So we'll go into recess and be back
in 15 minutes.
(Recess, 10:27 a.m. until 10:44 a.m.)
THE COURT: Please remain seated.
Mr. Riggs, I take it you rest.
MR. RIGGS: Yes, your Honor.
THE COURT: All right. One thing I forgot to
mention that I had in my notes is that the pleadings
reference links to the online meetings that have
taken place, the May 21 meeting, a couple of city
council meetings. I think the minutes of the
charter commission are also posted online and are
available to the public. Is that true, Mr. Riggs?
MR. RIGGS: Generally, it is, yes.
THE COURT: Okay. So you didn't come in here
with --
MR. AMUNDSEN: Your Honor --
THE COURT: -- a stack of DVDs or documents
today. So if I cite in my order anything I reviewed
using the proper Blue Book format, Mr. Riggs, does
anyone have any objection to me reviewing those
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items?
MR. RIGGS: I do not.
MR. AMUNDSEN: Your Honor, would that review
include a digital document switch I would like to
submit to the Court that I've shared with counsel?
THE COURT: What do you mean by digital
documents?
MR. AMUNDSEN: I have a recording of a file
that I requested and the city acknowledged should be
done at an open meeting with three council members.
THE COURT: You have a recording of a meeting
that took place?
MR. AMUNDSEN: Yes, on a flash drive.
THE COURT: Well, you can offer that yourself
as an exhibit. I'm talking about things that no one
is offering here today during the hearing that are
online and have been referenced by both parties in
their pleadings like the May 21 meeting, which is
online. And anybody who wants to can go look at
that. And I think a couple of the city council
meetings, they're online, and no one has brought in
a flash drive. And if everyone agrees that I can
look at those things on the condition that anything
I look at has to be cited in my order, and you can
safely assume that if I don't cite it in my order I
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didn't look at it, are you okay with that?
MR. RIGGS: Yes, your Honor.
THE COURT: All right.
Mr. Amundsen?
MR. AMUNDSEN: Yes, your Honor.
THE COURT: Okay.
All right, Mr. Amundsen. You may proceed. Do
you want to start with the documents you want to
offer?
MR. AMUNDSEN: Thank you, your Honor.
Your Honor, I have -- as I would ask the Court,
I have an additional amendment to my answer sheet,
which counsel has now had since the beginning of
this proceeding.
THE COURT: All right.
MR. AMUNDSEN: It includes six attachments,
one of which is a flash drive of a meeting, which
is purely the content of a meeting -- audio of
a meeting between myself, Mayor Mueller,
Council Member Bergeron, Council Member Hull, City
Administrator Zikmund, and myself held on June 18.
It was recorded by the city administrator and
submitted to me as a copy on a flash drive, which I
have copied onto a version for the Court and a
version for counsel. And if there's no objection, I
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would like to include that as one of the additional
amendments.
THE COURT: All right. Will there be any
objection?
MR. RIGGS: No, your Honor.
THE COURT: All right. Why don't you bring
that up to me. Let me look it over and figure out
how we'll be accepting this into the record.
MR. AMUNDSEN: That would be attachment three.
I apologize I didn't write it on it.
THE COURT: All right. Have a seat. Let me
take a look at this.
All right. The August 5, 2019 letter with nine
attachments --
MR. AMUNDSEN: Six attachments, your Honor.
There are six attachments to this -- I apologize for
correcting. There are six attachments with this
letter --
THE COURT: Okay.
MR. AMUNDSEN: -- which is an amended answer --
THE COURT: No, no.
MR. AMUNDSEN: -- and the amended answer
addressing the original city's letter of nine
attachments.
THE COURT: Right. You're referring to letter
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attachment nine.
MR. AMUNDSEN: Correct.
THE COURT: That would mean the city's letter.
Your attachments are in parentheses, and they are
one through six.
MR. AMUNDSEN: Correct.
THE COURT: And you've marked what they are on
them, and then --
MR. AMUNDSEN: That was attachment three. I
can write that on there. That would be attachment
three, your Honor. I put it on counsel's. I might
have failed to put it on yours.
THE COURT: Just a second. Hold on.
MR. AMUNDSEN: Yeah.
THE COURT: I got it. Why don't you write
"Attachment 3" on the top of the envelope. And this
will be received as your amended answer.
So the first answer and this answer in total
constitute your entire answer, right?
MR. AMUNDSEN: As well as whatever testimony
you're hearing here today, yes, sir.
THE COURT: That's not an answer. That's
testimony.
MR. AMUNDSEN: That's my answer.
THE COURT: Okay. All right. So we got that.
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So those don't need to be marked as exhibits because
it's part of your answer.
All right. You can proceed.
MR. AMUNDSEN: Your Honor, I would also like to
submit to the Court -- I submitted it to the file
room on Friday, but it has not appeared on the case
record, that there were additional letters which I
received copies of, and perhaps they're coming in
the mail.
THE COURT: Okay. Well, all the letters I have
marked as Exhibits A through I. So if you have
additional letters that you would like to offer as
exhibits, we'll start with J.
THE WITNESS: I would like -- I have copies of
what you -- some of what you've received. Some I
don't have copies of even that you received.
THE COURT: Bring me anything that's new.
MR. AMUNDSEN: Anything that's new. Can I have
one moment to separate them?
THE COURT: Yes. They need to be anyway. If
you're not sure if it's new, bring it up, and we'll
compare them.
All right. Thank you.
MR. AMUNDSEN: I've circled the ones which I
don't believe the Court is yet in receipt of, and I
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will hand over a copy of the --
THE COURT: Unless you want me -- unless you're
offering your own cover letter in addition, I don't
think I need your cover letter.
MR. AMUNDSEN: No. Thank you, sir.
THE COURT: We have a July 31 letter from
Barbara Smith, which will be J, a July 30 letter
from Tom Pavlovich, P-a-v-l-o-v-i-c-h, a July 31
letter from John and Paula Funk, F-u-n-k, and a
July 31 letter from Michael McDonald. So we'll
start with Exhibit J and put labels on them
accordingly.
(Off the record.)
(Exhibits J through M were marked.)
THE COURT: And since there were no objections,
those exhibits which are J through M are received.
MR. RIGGS: Your Honor, could I ask you one
question regarding that, though?
THE COURT: Yes.
MR. RIGGS: I don't believe the city has an
issue with the submission of this, but obviously,
from the standpoint of hearsay evidence or lack of
ability to cross examine, I guess the request is to
obviously consider the weight of that and treat it
as such. I don't want to outright object. I
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certainly can. I don't think that's relevant or
necessary for what we're doing. We don't object to
that coming in, but we haven't seen them. I mean,
we haven't read them, so I don't even know what's in
there to address it, and so -- I mean, I know --
THE COURT: Do you want to read them?
MR. RIGGS: No.
THE COURT: You can have them, and I'll give
you whatever time you want.
MR. RIGGS: Yeah, no, your Honor, I don't
believe that's necessary, so...
THE COURT: Okay. It appears that only one of
them is from a current member of the charter
commission. Doesn't appear that any of them are
from anyone on the city council or any employees of
the city. They appear to be character reference
letters.
MR. RIGGS: And I understand that.
THE COURT: And so whatever weight that's
entitled to be given, that's what they get. And
does that address your concerns?
MR. RIGGS: It does, your Honor. Thank you.
It does.
THE COURT: Okay.
All right. Mr. Amundsen.
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MR. AMUNDSEN: Your Honor, I would like to call
Jonathan Thomas to the witness stand.
THE COURT: Okay. Mr. Thomas, come on up. Why
don't you raise your right hand. Do you swear to
tell the truth, the whole truth, and nothing but the
truth, so help you God?
THE WITNESS: I do.
THE COURT: Have a seat. State your name and
spell it, please.
THE WITNESS: Jonathan Thomas, J-o-n-a-t-h-a-n,
T-h-o-m-a-s.
THE COURT: All right. You may inquire.
JONATHAN THOMAS,
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Thomas, can you tell the Court your
relationship to the city?
A I am currently serving as the vice chair of the
charter commission.
Q Mr. Thomas, can you tell me if you were present
at the May 21 meeting?
A I was.
Q Mr. Thomas, can you tell the Court if you felt
that I was disrespectful at that meeting in the conduct
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of the meeting?
A No.
Q Mr. Thomas --
THE COURT: No, he wasn't, or no, you won't
tell us?
THE WITNESS: No, I did not find him to be
disrespectful at that meeting.
THE COURT: Okay.
BY MR. AMUNDSEN:
Q Mr. Thomas, can you tell me if you have had any
conversations with the city attorney in regards to the
commission's quorum standard?
A Actually, yes. That would have been the year
starting in 2014 when the city attorney prepared a letter
response to the questions and first addressed the issue
of the quorum not being enough to perform our duties.
When he brought up the issue of full complement, I
started researching that question because I wasn't aware
of any such requirement. He referenced a 1950s Attorney
General's opinion that he felt was substantial enough to
require for certain business to be conducted that we have
a full complement of members, not just a quorum. And so
I found in some research that there was an April 27, 1961
Attorney General's opinion by Walter Mondale where,
clearly, it wasn't answering that question specifically,
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but in the three questions that were asked in that
opinion, one of the questions was can a charter
commission containing only 14 members lawfully prepare
and present the text of a new charter. And the answer
was, in connection with this question, you call our
attention to Attorney General opinion 58-G on
September 28, 1950 wherein this office answered this
question in the negative. However, Minnesota
Constitution Article IV.36 was then applicable. This
section has since been repeating and superseded in
Article IX.3 and 4. And I brought that up to the
attorney on three different occasions, and he said that,
in his opinion, it was not repealed. It was just
rearranged. And then I brought up at two different
meetings that in 1971 under House File 1127 that the
state legislature had amended the section of 4.10 to add
the language that a charter commission should have a
quorum stated in its bylaws and also in several
references that a charter commission operating under its
bylaws needs to simply abide by its bylaws. And I know
that we've discussed that quite a bit and that our bylaws
actually changed over the years as to the requirements.
I again recently discussed this with the
attorney's office on a telephone call with Jean Short,
one of his assistants, where she asked me what specific
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questions I had for Attorney Scott Riggs, and I again
related all three of these references that I had
previously discussed with the attorney. And I
respectfully disagree with his opinion.
MR. AMUNDSEN: Your Honor, the witness has
identified two documents, government documents which
I have copies of which I could submit to the Court.
THE COURT: Any objection to me receiving those
two Attorney General opinions?
MR. RIGGS: No, your Honor.
THE COURT: All right. Bring them up.
And although they are legal opinions and could
be considered research, I'm going to mark them as
exhibits.
MR. AMUNDSEN: Okay. One is the Attorney
General's opinion. The other is the House File
1171, which he referred to?
THE WITNESS: 1127.
THE COURT: 1127.
MR. AMUNDSEN: 1127.
THE COURT: Okay. I understand that seeing
them now, the 19 -- the Attorney General's opinion
from 1950 you don't have a copy of?
MR. AMUNDSEN: I do not have a copy of that.
THE COURT: Okay. That's fine.
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All right. We will mark these as exhibits.
(Exhibits N and 0 were marked.)
THE COURT: All right. Exhibit N is the
4/27/61 Attorney General's opinion, and Exhibit 0 is
Chapter 208, 1971 Minnesota Session Laws,
specifically House File Number 1127 --
BY MR. AMUNDSEN:
Q Mr. Thomas --
THE COURT: Hold on. We're not done yet --
approved by the legislature on May 5, 1971,
beginning on page 410 of the 1971 Session Laws.
Any objection to these exhibits?
MR. RIGGS: No, your Honor.
THE COURT: They are received.
All right. Now you can ask a question.
BY MR. AMUNDSEN:
Q Mr. Thomas, are you aware of the council having
any discussions in regards to asking for your
resignation?
A Yes.
Q Mr. Thomas, are you aware of the council asking
you -- or proposing to issue letters to the Court asking
for your removal?
A Yes.
MR. AMUNDSEN: Those are all my questions,
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your Honor.
THE COURT: Were you asked to resign?
THE WITNESS: Yes.
THE COURT: When?
THE WITNESS: By telephone call from Mr. Nyle
Zikmund the day after the June 3 work session of the
city council.
THE COURT: All right.
Mr. Riggs?
MR. RIGGS: I have nothing for this witness,
your Honor.
THE COURT: All right. You can step down.
Thank you.
Any other witnesses?
MR. AMUNDSEN: Your Honor, I would ask for
Mr. Jerry Peterson to be called to the stand.
THE COURT: All right.
Raise your right hand. Do you swear to tell
the truth, the whole truth, and nothing but the
truth, so help you God?
THE WITNESS: I do.
THE COURT: All right. Have a seat, please.
State your full name and spell it.
THE WITNESS: I'm Jerry Peterson, J-e-r-r-y,
P-e-t-e-r-s-o-n.
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THE COURT: All right. You may inquire.
JERRY PETERSON,
duly sworn, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. AMUNDSEN:
Q Mr. Peterson, tell the Court what your capacity
is with the city.
A I am a member of the Mounds View Charter
Commission and have been since May of 2016.
Q Mr. Peterson, have you ever --
THE COURT: Hold on. Sorry for leaving you out
when I earlier mentioned that only one person that
submitted a letter was on the charter commission.
So I didn't mean to slight you.
Go ahead.
BY MR. AMUNDSEN:
Q Mr. Peterson, in your opinion, have I ever been
disrespectful at a charter commission meeting?
A Never. You're always very willing to listen to
what -- all the different viewpoints of all the different
things, so I really was very mystified as to why the city
council would accuse you of that, because really,
there's -- I cannot find any reason for it.
MR. AMUNDSEN: Thank you.
Those are all my questions, your Honor.
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THE COURT: Any questions?
MR. RIGGS: No, your Honor.
THE COURT: Thank you. You can step down.
Anyone else?
MR. AMUNDSEN: No other witnesses at this time.
THE COURT: All right.
MR. AMUNDSEN: No other witnesses, your Honor.
THE COURT: Do you want to testify, or are you
going to rest on what you've said?
MR. AMUNDSEN: Your Honor, I wasn't aware that
I could testify because I don't know who would ask
me the questions.
THE COURT: You would -- a person can always
testify on their own behalf. So if you wish, you
can. And you answer your own questions, but you
don't have to state them as questions. You can give
a narrative answer. But you should not be
argumentative or present anything in the form of
argument. You should present facts. And the key to
a person's success testifying on their own behalf is
successfully distinguishing between argument and
facts, because I only want facts from witnesses.
And that's the way you asked your questions of the
witnesses, so if you're able to do that, it's your
choice whether you wish to. I don't make that
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choice for a party.
MR. AMUNDSEN: I understand that. I understand
your description. And --
THE COURT: It also means you sit up there, and
you can be cross-examined by Mr. Riggs.
MR. AMUNDSEN: I understand that also.
THE COURT: So what do you want to do?
MR. AMUNDSEN: I'm weighing it.
THE COURT: Okay. That's fine.
MR. AMUNDSEN: If I could have just a couple
moments.
THE COURT: That's fine.
MR. AMUNDSEN: I choose to not have any further
witnesses at this time.
THE COURT: All right. Any rebuttal by the
city?
MR. RIGGS: No, your Honor.
THE COURT: All right. Then the case -- the
evidence in the case has been submitted.
Where do the parties wish to go from here? Do
you want to present final summations orally? Do you
have any other Attorney General opinions that you
need me to have or see or any other legal
contributions?
MR. RIGGS: Well, your Honor, as we -- at the
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start of the proceedings today, I did suggest that,
yes, I could provide additional Attorney General
opinions. I don't have them here to provide you
today. Certainly would be willing to provide that
in some written summation from our side as well
as -- or from the city's side as well as from
Mr. Amundsen's side. That would be my suggestion.
Other than that, no, I don't think anything further.
THE COURT: Okay. Is it your proposal to
submit the Attorney General's opinion with some
legal arguments on the issue of quorum, or are you
proposing something more broad such as a final
argument in the form of a letter?
MR. RIGGS: Hmm. That's a good question.
THE COURT: I try only to ask good questions.
MR. RIGGS: I know. I know. I'd be --
THE COURT: I want to make good use of your
time.
MR. RIGGS: Yes, I understand.
THE COURT: When I say stuff like that, you're
thinking in your head, geez, that might take a lot
of work.
MR. RIGGS: Yeah. Well, it would. I think in
a letter form, yes, a final argument in letter form,
I think, would be -- would be a request of the city
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at this point.
THE COURT: All right. Any problem with that,
Mr. Amundsen? You would get to respond to it.
MR. AMUNDSEN: I don't have any argument with a
final form argument in letter form which I would
respond to.
THE COURT: Is that a fair way to do it,
Mr. Riggs?
MR. RIGGS: Yes. I would agree so.
THE COURT: Okay. So how much time do you
need?
MR. RIGGS: At most, a week to ten days.
THE COURT: All right. And would the same
period of time to respond be okay with you,
Mr. Amundsen?
MR. AMUNDSEN: Yes, it would.
THE COURT: All right. I'll go with the
shorter of the options. Today is the 5th, right?
All in favor?
MR. RIGGS: Yes, that's fine. Thank you, your
Honor.
THE COURT: Okay. So 8/12 by 4:30 filed, and
then I want a courtesy copy. And, Mr. Amundsen,
that would mean 8/19 by 4:30 electronically filed
with a courtesy copy.
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MR. AMUNDSEN: Your Honor, since I don't have
electronic access to the system right now, is the
alternative that I would have to have it here to the
filing office by 4:30?
THE COURT: Yes. As long as you're in the
neighborhood, you can drop off a courtesy copy.
All right. Do either of you have anything else
for today?
MR. RIGGS: No, your Honor.
MR. AMUNDSEN: Yes, your Honor.
THE COURT: What do you have?
MR. AMUNDSEN: I just wanted to make a closing
statement.
THE COURT: Well, that's what you're going to
do in writing.
MR. AMUNDSEN: Okay.
THE COURT: So whatever you have to say, write
it down and put it into your response on August 19.
So that's what this is all about is each side is
submitting a written closing statement.
MR. AMUNDSEN: Okay, your Honor.
THE COURT: Okay.
MR. AMUNDSEN: I understand your instructions,
your Honor.
THE COURT: All right. Good. We're adjourned.
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Thank you.
MR. RIGGS: Thank you, your Honor.
MR. AMUNDSEN: Thank you, your Honor.
**********
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STATE OF MINNESOTA)
) ss.
COUNTY OF RAMSEY )
REPORTER'S CERTIFICATE
I, Lori Morrow, Certified Merit Reporter,
Certified Realtime Reporter, Certified LiveNote Reporter,
and Notary Public in and for the State of Minnesota, do
certify that I am an official court reporter in and for
the County of Ramsey, Second Judicial District, State of
Minnesota, and that I reported the foregoing proceedings
in this matter, and that the transcript contained on the
foregoing 83 pages is a true and accurate transcript of
the shorthand notes taken by me at the said time and
place herein mentioned.
/S/ Lori Morrow
Lori L. Morrow, RMR, CRR, CCP, CLR
Notary Public, Hennepin County, Minnesota
My commission expires: January 31, 2020