Loading...
HomeMy WebLinkAboutCity of Mounds View Letter Brief August 12 2019Kennedy Graven Offices in 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis Minneapolis, MN 55402 Saint Paul (612) 337-9300 telephone (612) 337-9310 fax St. Cloud www.kennedy-graven.com Affirmative Action, Equal Opportunity Employer SCOTT J. RIGGS Attorney at Law Direct Dial (612) 337-9260 Email: sriggs@kennedy-graven.com August 12, 2019 VIA E-FILING and E-SERVICE The Honorable Chief Judge John H. Guthmann Ramsey County District Court 15 West Kellogg Boulevard, Room 130 Saint Paul, MN 55102 Re: In the Matter of the Petition to Remove Brian Amundsen File No. 62-CV-19-4965 Dear Chief Judge Guthmann: I. Introduction and legal standard The purpose of this letter is to provide the Court with the applicable arguments and authority to render its decision regarding the petition (the "Petition") submitted by the City of Mounds View (the "City") to remove Mr. Brian Amundsen from the Mounds View Charter Commission (the "Commission"). Minnesota Statutes, section 410.05, subd. 2 provides that "[a]ny [Commission] 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." During the hearing, the parties and the Court agreed that this language provides the applicable authority governing these proceedings. While there is no case law interpreting said language, it clearly provides the Court with the requisite discretion to remove a Commission member upon a finding that removal is appropriate, so long as the reasons are articulated in the Court's order. Based on the evidence presented to the Court during the August 5, 2019 hearing (the "Hearing") and the arguments contained below, the City respectfully requests that Mr. Amundsen be removed from the Commission. II. Argument a) The Commission is unable to effectively operate due to Mr. Amundsen's actions. Mr. Amundsen's removal from the Commission is absolutely necessary to allow for the Commission to operate effectively. Charter commissions play a vital role for cities that are governed by way of a home rule charter, including the power to propose charter amendments at 605223v4MU210-271 The Honorable Chief Judge John H. Guthmann August 12, 2019 Page 2 any time.' Absent an active and functioning Commission, the residents of Mounds View are deprived of a critical, statutorily -created body intended to address significant issues related to the City's ability to govern and effectively operate under the Mounds View City Charter (the "Charter"). During the Hearing, Mounds View City Administrator Nyle Zikmund testified that the Charter, which was originally adopted in 1979, lacks clarity and is in desperate need of revision. For this reason, the City has long urged the Commission to address various issues via the charter amendment process contained in state law.2 During his tenure with the City, one of Mr. Zikmund's principal goals has been to work with the Commission to facilitate revisions to the Charter. Those efforts have been futile due to the inefficiencies of the Commission caused by Mr. Amundsen. One example cited specifically by Mr. Zikmund is the Commission's efforts to address deficiencies contained in Chapter 8 of the Charter, which relates to public improvements. Mr. Zikmund stated that the Commission has discussed possible amended language for Chapter 8 of the Charter at 69 different meetings, and those meetings span a time period of eight years. To date, those discussions have been fruitless and Chapter 8 of the Charter still remains unchanged due to Mr. Amundsen's excessively -belabored discussions. Commission member Brandon Clawson also testified during the Hearing and indicated that he does not intend to remain on the Commission beyond his current term. Mr. Clawson described Commission meetings as a waste of time because nothing is accomplished, again due to Mr. Amundsen. A specific example cited by Mr. Clawson was Commission discussions related to Chapter 4 of the Charter, another section of the Charter that warrants revision. Mr. Clawson was first appointed to the Commission in January 2017 and testified that, despite meeting on numerous occasions throughout the duration of his tenure, the Commission has accomplished nothing. Due to these inefficiencies and lack of any accomplishments, which Mr. Clawson and Mr. Zikmund attributed directly to the actions of Mr. Amundsen at meetings, Mr. Clawson stated that he will not seek reappointment in the future, absent changes to the Commission's membership. Mounds View City Councilmember Gary Meehlhause also testified during the Hearing. Mr. Meehlhause has been a member of the Mounds View City Council for approximately seven years and, the City's petition, although signed by the mayor, was filed with the Court on behalf of the entire City Council. During the Hearing, Mr. Meehlhause testified specifically about his involvement in recruiting Commission members over the years. Mr. Meehlhause has also attended Commission meetings during his multiple City Council terms and, like Mr. Zikmund and Mr. Clawson, has observed first-hand how Commission meetings are conducted. According to Mr. Meehlhause, recruiting Commission members has become increasingly more difficult based 'See Minn. Stat. § 410.12, subd. 1. '- Minn. Stat. § 410.12 (providing the various ways in which a Charter amendment can be accomplished and the Commission's role related to said amendments). 605223v4MU210-271 The Honorable Chief Judge John H. Guthmann August 12, 2019 Page 3 on the way the Commission presently operates and its overall ineffectiveness. Because of these difficulties, Mr. Meehlhause indicated that he will forego any additional recruiting efforts if Mr. Amundsen remains on the Commission. Based on the evidence presented through the City's witnesses, the materials contained in the City's Petition and the historical public records related to the Commission's activity, it is readily apparent that the Commission is unable to effectively operate with Mr. Amundsen as a member. The ongoing dysfunction of the Commission and its longstanding failure to be productive has done the residents of Mounds View a substantial disservice. Mr. Amundsen's conduct at meetings, as described and detailed throughout these proceedings, creates an inherent inability by the Commission to fulfill its intended purpose and his removal is therefore warranted. b) The Commission cannot function with less than nine members, a number that will be difficult to achieve if Mr. Amundsen is not relieved of his membership. Finally, during the Hearing, Mr. Amundsen repeatedly inquired about not only the Commission's quorum requirements, but also its ability to operate without a full complement of nine members, a number that was previously set by the Court pursuant to its appointments to the Commission. Presumably, Mr. Amundsen is imploring the Court to place little emphasis on maintaining a full Commission when determining whether he should be removed. The City views these issues as red herrings and mostly insignificant to the issue presently before the Court, though they do warrant some discussion. Although the Commission's bylaws provide that "[t]he Commission is composed of up to and including nine (9) members," state law expressly provides that "[t]he commission shall be composed of not less than seven nor more than 15 members" and, unless specified in the city's charter, "[t]he size of the commission shall be determined within the above limits by the court. ,3 The Mounds View City Charter is silent with respect to Commission membership 4, however, membership has been established by the Court at nine members by way of its recent appointment history. Accordingly, the statutory language above makes clear that (1) the Commission expressly lacks the authority to dictate its size through its bylaws; and (2) the Commission requires no fewer than nine members or, in any event, seven members should a reduced number of Commission members be established pursuant to State laws, to function. The statutorily established requirements make sense, especially when considering a charter commission's important function of proposing amendments. This process demands substantial participation by numerous representatives of the 3 Minn. Stat. § 410.05, subd. 1 (emphasis added). a Id. (which expressly requires no fewer than seven members even when dictated by charter). 5 Id. 605223v4MU210-271 The Honorable Chief Judge John H. Guthmann August 12, 2019 Page 4 affected community. Furthermore, Minn. Stat. § 410.05, subd. 2 lays out an expeditious process for filling Commission vacancies through immediate judicial appointment.6 When reading all of this statutory language together, there is no doubt that the legislature intended for charter commissions to have, at the very least, the established number of commission members in order to duly operate. This interpretation is not only consistent with numerous Attorney General opinions 7, but it is also the longstanding position of the League of Minnesota Cities.8 This intent is certainly not inconsistent with the 1961 Attorney General opinion presented by Mr. Amundsen, whereby it was opined that a charter commission can function with 14 members during a vacancy, which is certainly within the legislature's mandated range of 7-15 members. It is also true that the legislature has afforded a charter commission the ability to set its own quorum requirements and the Commission has indeed done so through its bylaws.9 Article III, Section 3 of the bylaws contains the following: Section 3. Quorum. In accordance with Minnesota Statutes Section 410.05, as amended, a quorum shall be defined as follows: If there are nine (9) qualified and acting members, then five (5) members shall constitute a quorum. If there are less than nine (9) qualified and acting members, then four (4) members shall constitute a quorum for the purpose of conducting the commission's business and exercising its powers and for all other purposes. If the commission lacks a quorum, a smaller number of members may set a time to reconvene the commission, continue to meet as a subcommittee if desired, and report their discussions to the commission. A quorum is defined as "[t]he smallest number of people who must be present at a meeting so that official decisions can be made."10 Based on the nine -member requirement presently in existence for the Commission, the number needed for a quorum is only relevant if the Commission has a full complement of nine members or, if one or two short-term vacancies are in existence. As such, the The statute provides for the following process to fill vacancies: Vacancies in the commission shall be filled by appointment of the chief judge for the unexpired. terms. Upon the expiration of each term, the chief judge shall appoint new commission members. If the chief judge fails to appoint new commission members within 30 days then thereafter the governing body of the city shall, appoint new commission members, unless within the 30-day period the chief judge indicates in writing to the governing body an intention to appoint new members, in which case the chief judge shall have an additional 60 days within which to make the appointment. See, e.g., Op. Atty. Gen., 58G, Sept. 28, 1950; Op. Atty. Gen., 58C, April 1, 1954. e The "commission should always contain its full complement of members." League of Minnesota Cities, Handbook for Minnesota Cities, Part 1 Form and Structure of the Minnesota City, Chapter 4: the Home Rule Charter City, section X(B)(2) (last revised 6/14/2019). 9 Minn. Stat. § 410.05, subd. 2 ("The charter commission, within 30 days after the initial appointment of the commission, shall make rules, including quorum requirements, with reference to its operations and procedures). io Black's Law Dictionary (1 lth ed. 2019). 605223v4MU210-271 The Honorable Chief Judge John H. Guthmann August 12, 2019 Page 5 bylaws make clear that a quorum is either five members (if there are nine active members) or four members (if there are seven or eight members). While none of this is dispositive as it relates to the Court's determination of whether Mr. Amundsen should be removed, it does lend credence to the notion that the Commission could easily fail to meet the statutory membership requirement for a charter commission should Mr. Amundsen be allowed to continue his membership. In other words, if members choose not to remain on or individuals do not seek appointment to the Commission due to Mr. Amundsen's actions, and recruitment efforts subside for the same reason, the Commission will certainly risk membership falling below the statutory minimum. For these reasons, Mr. Amundsen's removal is imperative to the Commission's continued ability to function and operate effectively for the City's residents. III. Conclusion Based on the foregoing discussion, the Petition, and the testimony at the Hearing, the City respectfully requests that the Court grant the City's Petition and remove Mr. Amundsen from the Commission. The parties have stipulated to the Court's express authority to remove Mr. Amundsen under the language contained in Minn. Stat. §410.05, subd. 1. Based on the record, Mr. Amundsen's activities have long prevented the Commission from conducting business in accordance with its statutory purpose. The Commission suffers from dysfunction and in effect, uselessness, that can only be remedied by Mr. Amundsen's removal. Further, efforts to recruit additional members will be sufficiently curtailed if Mr. Amundsen is allowed to remain on the Commission. Thank you for your consideration of the City's petition. Please let the parties know if you have any questions or need any additional information with regard to this matter. Yours truly, KENNEDY & GRAVEN, CHARTERED Scott J. Riggs (#0244788) Mounds View City Attorney SJR.jms cc: Mr. Brian Amundsen 605223v4MU210-271