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HomeMy WebLinkAboutOrder-Other1 STATE OF MINNESOTA COUNTY OF RAMSEY In re Petition to Remove Brian Amundsen from the City of Mounds View Charter Commission DISTRICT COURT SECOND JUDICIAL DISTRICT Case Type: Civil Other File No.: 62-CV-19-4965 Judge: John H. Guthmann FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING PETITION TO REMOVE BRIAN AMUNDSEN The Petition to remove Brian Amundsen from his position as a City of Mounds View Charter Commission Commissioner came before the Honorable John H. Guthmann, Chief Judge of the Second Judicial District, for an evidentiary hearing on August 5, 2019. Scott J. Riggs, Esq., Robert A. Alsop, Esq., and David T. Anderson, Esq., appeared on behalf of petitioner. Respondent Brian Amundsen appeared on his own behalf, pro se. The record closed following the receipt of respondent’s post-hearing written final argument on August 19, 2019. FINDINGS OF FACT 1. The City of Mounds View, Minnesota has a Charter Commission that was created pursuant to Minn. Stat. § 410.05, subd. 1 (2018). 2. On July 11, 2019, City of Mounds View Mayor Carol Mueller (hereinafter “petitioner”), at the direction of the City of the Mounds View City Council, filed a Petition to remove Brian Amundsen (hereinafter “respondent”) from the City of Mounds View Charter Commission per Minn. Stat. § 410.05, subd. 2 (2018). 3. At the time of the hearing, respondent was 64 years old and a 40-year Mounds View resident. He is a former Mounds View School Board member and a current Ramsey County 2 election judge. Respondent served as a City of Mounds View Charter Commission Commissioner from 2002-2006 and again from 2009 to the present. On October 27, 2016, the undersigned issued an order reappointing respondent to a four-year term on the City of Mounds View Charter Commission pursuant to Minn. Stat. § 410.05, subd. 2 (2018). Respondent’s term expires on October 31, 2020. (In the Matter of the Appointment City of Mounds View Charter Commission, File No. 62-CV-11-1263 (Dist. Ct. Oct. 27, 2016).) 4. The stated basis for the Petition is that “[t]he Commission is unable to effectively operate due to respondent’s actions.” (Pet’r’s Final Argument, Aug. 12, 2019 at 1.) According to petitioner, the instant Petition was triggered by respondent’s conduct during the May 21, 2019 Charter Commission meeting. A video of the meeting is available for viewing on the Internet. With the parties’ permission, the court viewed the meeting video. The meeting, as depicted in the video, is consistent with the court’s Findings of Fact and Conclusions of Law. 5. In 2014, respondent was elected by his colleagues to serve as Charter Commission Chair. In January 2019, respondent was elected Secretary of the Charter Commission. 6. Petitioner makes no claim that respondent is not qualified to serve on the Charter Commission nor was any evidence supporting such a claim offered at the hearing. 7. Petitioner makes no claim that respondent engaged in any unethical behavior as Charter Commissioner and there is no evidence that any such behavior occurred. 8. Petitioner makes no claim that respondent committed malfeasance related to his Charter Commissioner duties and there is no evidence that any malfeasance occurred. 9. Respondent regularly attended meetings of the City of Mounds View Charter Commission, rarely, if ever, missing a meeting. Respondent has attended all Charter Commission meetings during his present term. 3 10. During Charter Commission meetings, respondent was polite and courteous to members and others in attendance. 11. At no time during Charter Commission meetings was respondent disruptive nor did he in any way interfere with or impede the meeting process. 12. Respondent’s election to two officer positions by his colleagues is inconsistent with any claim that Charter Commission members consider respondent to be a disruptive, ineffective, or inefficient member of the Charter Commission. 13. Between 2002 and 2016 the Charter Commission regularly failed to meet its quorum requirement and regularly had fewer than the full number of authorized commissioners. 14. In 2003, the authorized size of the Charter Commission was reduced from 15 to 11 members. 15. The Charter Commission continued to have fewer Commissioners than authorized during 2006-2009, when respondent was not a Commissioner. 16. On January 3, 2017, this court issued an order approving amended Charter Commission by-laws reducing the authorized size of the Charter Commission from 11 to 9 members. (In the Matter of the Appointment City of Mounds View Charter Commission, File No. 62-CV-11-1263 (Dist. Ct. Jan. 3, 2017).) 17. Recruiting citizens to serve on the City of Mounds View Charter Commission is challenging but any past shortage of applicants was not caused or contributed to by respondent. Moreover, over the last three years, there were often more applicants than openings. The most recent opening was filled by court order dated September 11, 2019. (In the Matter of the Appointment City of Mounds View Charter Commission, File No. 62-CV-11-1263 (Dist. Ct. Sept. 4 11, 2019).) At that time, there was a single opening and four applicants. There were three applicants for the second most recent opening a year ago. 18. Except for the period of time needed to advertise for and appoint three replacement Charter Commissioners (one moved out of Mounds View in 2017, another did not reapply for his seat in 2018, and a third resigned following the May 21, 2019 meeting), the Commission has had a full complement of nine members since May 2017. 19. No evidence was presented to the court that any current or past member of the Charter Commission resigned or failed to reapply for membership due to conduct by respondent in his capacity as a Charter Commissioner or in any other capacity. 20. In 2006-2009, when respondent was off the Charter Commission, quorums were not met just as frequently as when respondent was a Charter Commissioner. Since respondent’s most recent appointment, and the reduction in authorized Charter Commission membership from 11 to 9, there was a quorum for 100% of the meetings. For most of these meetings, respondent was the elected Charter Commission Chair. 21. Whatever the reason for recruiting and quorum challenges over the years, the challenges were not caused by respondent. 22. Petitioner asserts that the Charter Commission is inefficient and that the inefficiencies are due to respondent. However, petitioner failed to demonstrate through admissible evidence that the Charter Commission is either inefficient or that respondent caused inefficiencies. 23. There is no requirement that the Charter Commission pass charter amendments at all much less on a particular time table. Similarly, the passage of potential charter amendments is not necessarily the measure of whether a Charter Commission is efficient or effective. 5 24. If the rest of the Charter Commission wished to take some action that Mr. Amundsen was opposed or indifferent to, it could have voted to do so at any time. Respondent has just one vote. For example, during the May 21, 2019 meeting, petitioner moved to amend the meeting agenda with the stated purpose of conforming the agenda to the Charter Commission’s by-laws. The motion, which took about fifteen minutes of meeting time, was approved by the Commission. Similarly, a motion supported by respondent to address the handling of two different versions of the previous meeting’s minutes was also approved by the Charter Commission. If a majority of the Charter Commission was of the view that respondent’s motions and suggestions were out of order or unwise, they could have voted in the negative. Thus, Mayor Mueller’s characterization of respondent’s actions on May 21, 2019 as lacking respect for others’ time, showing disrespect for the Chair, and demonstrating a “dismissive attitude towards the Commission and City Attorney” is untrue and contradicted by the evidence of record. (Pet., July 11, 2019 at 3.) 25. During respondent’s term as Charter Commissioner, the Mounds View City Council never attempted to amend the city charter by ordinance. By statute, it could have done so at any time. Therefore, there is no factual basis for petitioner to claim that respondent obstructed, delayed, interfered with, or prevented the enactment of charter amendments. If petitioner’s allegation were true, the same could be said of the City Council and its members. 26. There is no requirement in fact or in law that Charter Commissioners get along, like each other, or have the same philosophy about how to conduct or prioritize Charter Commission business. An effective chair, utilizing Roberts Rules of Order, has ample opportunity and authority to run a meaningful and controlled meeting. 6 27. Right after the May 21, 2019 meeting, Commission Chair Reyes-Johnson tendered her resignation. However, no evidence concerning the reason for the resignation was offered to the court. It would be sheer speculation for the court to ascribe a reason for her resignation. 28. Apparently, two other commissioners have considered resigning, but there have been no additional resignations. Moreover, no admissible evidence was offered as to the reason other members considered or reconsidered resigning. 29. At most, petitioner demonstrated that petitioner, the Mounds View City Council, and one or more members of the Charter Commission do not agree on what constitutes a productive or meaningful Charter Commission meeting and they may not share the same philosophy about how to conduct or prioritize Charter Commission business. CONCLUSIONS OF LAW 1. By statute, a city charter commission member is subject to removal on two grounds. First, removal may occur when “[a]ny member has failed to perform the duties of office and has failed to attend four consecutive meetings without being excused by the commission.” Minn. Stat. § 410.05, subd. 2 (2018). The parties agree that the first statutory basis for removal is inapplicable to the present Petition. 2. Second, “[a]ny 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.” Id. The Petition to remove respondent relies on the second statutory basis for removing a charter commissioner. 3. The charter commission statute does not contain a standard to guide the court in determining whether petitioner’s stated reason for requesting respondent’s removal is sufficient in law to justify removal. There is no case law interpreting the charter commission statute. The statute requires a “reason for such removal.” Citing this language, petitioner contends that the 7 court may remove a charter commissioner for any reason as long as the reason is stated in the court’s order. (Pet’r’s Final Argument, Aug. 12, 2019 at 1.) The court disagrees. Petitioner’s position would permit any minor disagreement, slight, or perceived slight to become the basis for filing a petition for removal. Petitioner’s interpretation of the statute could produce a stampede to the courthouse by disgruntled citizens or elected officials and, ironically, produce a much more severe paralysis of charter commission business than anything alleged in the present Petition. Instead, based on guidance from the Minnesota Supreme Court, the court concludes that a legally valid reason for removal must be premised upon “sufficient cause” or “good cause”. In State ex rel. Hart v, Common Council of City of Duluth, the court reviewed an attempt by the Common Council of the City of Duluth to remove the city’s three Fire Commissioners. 53 Minn. 238, 55 N.W. 118 (1893) (Mitchell, J.). In the absence of a statutory standard for testing the legal validity of the removal, the court adopted a “cause” or “sufficient cause” standard by which to determine whether the removals were “sufficient in law.” Id. at 244, 55 N.W. at 120. Justice Mitchell stated: “cause,” or “sufficient cause,” means “legal cause,” and not any cause which the council may think sufficient. The cause must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. The causes must be one touching the qualifications of the officer or his performance of its duties, showing that he is not a fit or proper person to hold the office. An attempt to remove an officer for any cause not affecting his competency or fitness would be an excess of power, and equivalent to an arbitrary removal. In the absence of any statutory specification the sufficiency of the cause should be determined with reference to the character of the office, and the qualifications necessary to fill it. Id. The Minnesota Supreme Court subsequently applied Justice Mitchell’s definition of “cause” when determining the validity of a termination pursuant to a civil service statute that permitted employee discipline only for “just cause.” Hagen v. Civil Service Bd., 282 Minn. 296, 298-99, 164 N.W.2d 629, 631-32 (1969) (quoting Hart; upholding termination of employee who was 8 sleeping on the job). The court’s Findings of Fact in this case compel a conclusion that petitioner failed to meet her burden of proving cause or sufficient cause for respondent’s removal from office. 4. Petitioner blames respondent for the city’s failure to act on proposed charter amendments. According to Minn. Stat. § 410.12 (2018), there are multiple ways to amend a city’s charter. First, qualified voters may petition to place a city charter amendment on the ballot for voter approval. Id., subd. 2-4. Second, an amendment may be proposed by the City Council by ordinance. Id., subd. 5. The ordinance is then submitted to the charter commission, which may approve, reject, or amend the proposed amendment. Id. The council may submit to city voters the amendment as originally proposed or as amended by the charter commission. Id. Finally, upon recommendation of the charter commission, the city council may enact a charter amendment by ordinance without submitting the question to voters. Id., subd. 7.1 5. Section 410.12 does not prefer one amendment method over another. As such, the failure of the city council or the charter commission to pass a charter amendment does not lead to a conclusion that either was inefficient or ineffective. Moreover, if the Mounds View City Council is frustrated that the Mounds View Charter Commission did not act on a proposed measure, the City Council may, by statute, act on its own and submit the measure it passed to city voters or to the Charter Commission. Minn. Stat. § 410.12, subd. 5 (2018). It is therefore both disingenuous and inaccurate for the City Council to blame either the Charter Commission, a Charter Commissioner, or a group of Charter Commissioners for the City of Mounds View’s failure to enact a city charter amendment. 6. Petitioner blames respondent for the Charter Commission’s failure to operate with a full membership complement. Petitioner failed to prove that respondent had anything to do with 1 Subdivision 7 also contains a vehicle by which voters may petition to place the charter amendment ordinance on the ballot. Minn. Stat. § 410.12, subd. 7 (2018). 9 recruiting challenges over the years. Moreover, the Charter Commission was also below full complement in 2006-2009 when respondent was not a Charter Commissioner. Since the Mounds View Charter Commission reduced its complement to nine members in January 2017, the Charter Commission remained at its full complement other than brief periods when vacancies were being filled. As already noted in this Order, the vacancies had nothing to do with respondent. 7. While arguing that the quorum issue is a “red herring”, petitioner goes on to argue that the Mounds View Charter Commission cannot operate legally with fewer than its nine authorized Commissioners regardless of the Charter Commission’s by-law defining a quorum. (Pet’r’s Final Argument, Aug. 12, 2019 at 3-5.) Because petitioner seeks to have things both ways, the membership and quorum issues will be addressed. It is not clear that the parties agree either on what constitutes a quorum or the significance of having a quorum if there are fewer than the authorized number of appointed Charter Commissioners. By statute, the district court must fix the size of a charter commission at “not less than seven nor more than 15 members” unless the size is determined by the city charter.2 Minn. Stat. § 410.12, subd. 1 (2018). In addition, the charter commission “shall make rules, including quorum requirements, with reference to its operations and procedures.” Id., § 410.12, subd. 2. The Mounds View Charter Commission adopted by-laws. The Mounds View Charter Commission by-laws defines a quorum as follows: 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. 2 The Mounds View City Charter does not address the size of the Charter Commission. The curr ent authorized membership of up to nine members was set by court order. (File No. 62-CV-1263 (Dist. Ct. Jan. 3, 2017).) 10 (Mounds View Charter Commission By-Laws, Art. III, § 3.) Pursuant to the by-laws, if five of the nine qualified and acting members of the Charter Commission attend a properly convened meeting, it may conduct any legally authorized business. If there are fewer than nine qualified and acting members, the Charter Commission may conduct all legally authorized business as long as four charter commissioners are in attendance. The plain and unambiguous statutory language does not require the presence of nine authorized members to conduct business.3 The unambiguous language of the statute and the by-laws require the same outcome both when there are charter commission vacancies and when qualified and acting members choose not to attend a meeting.4 Notwithstanding the applicable quorum requirements, petitioner failed to meet its burden of proving that respondent had anything to do with Charter Commission meeting attendance at any time during his various tenures as a Charter Commissioner. In 2006-2009, when respondent was not a Charter Commissioner, quorums were not met just as frequently as when respondent was a Charter Commissioner. Since respondent’s most recent appointment, and the 2016 reduction in authorized Charter Commission membership from 11 to 9, there was a quorum for 100% of Charter Commission meetings. For most of these meetings, respondent was Charter Commission Chair. 3 Petitioner cites a League of Cities Handbook provision stating that the “commission should always contain its full complement of members” to support its argument that a charter commission cannot legally operate without a full complement of members. (Pet’r’s Final Argument, Aug. 12, 2019 at 4 & n.8 (citation omitted).) The League of Cities’ stated aspirational goal of full membership falls far short of a legal opinion that full membership is required to operate notwithstanding section 410.05, subd. 2 and the language of a duly adopted by-law that defines a quorum. 4 Petitioner also cites two Attorney General opinions from 65 and 69 years ago to support its argument that a Charter Commission cannot legally operate absent a full complement of authorized Commissioners. (Pet’r’s Final Argument, Aug. 12, 2019 at 3-5.) These opinions are of no assistance to the court. The statute was amended to add the provision permitting charter commissions to establish operational rules after the Attorney General opinions were written. Act of May 5, 1971, ch. 208, § 2, 1971 Minn. Laws at 412 (amending Minn. Stat. § 410.05, subd. 2). The plain and unambiguous language of the statute as amended stands on its own and allows for no other reasonable interpretation. The statute permits charter commissions to adopt rules regarding their “operations and procedures”, “including quorum requirements.” Minn. Stat. § 410.05, subd. 2 (2018). The legislature delegated to charter commissions the authority to establish a rule permitting charter commission operation under any circumstance in which a defined quorum is present. The current Mounds View Charter Commission by-laws are perfectly consistent with the enabling statute. A minority of charter commissioners cannot stymie charter commission operations by a mass resignation any more than they can accomplish the same result by boycotting meetings. Business may proceed as long as a quorum is present as defined in the by-laws. 11 Respondent’s election to two officer positions and actual attendance over the past three years belies any claim that either respondent or his leadership caused membership or attendance deficits. Petitioner failed to prove her claim that respondent’s actions “resulted in Commission membership and quorums being unobtainable.” (Pet., July 11, 2019 at 1.) Over the past three years, the opposite is true. 8. The record does not support a conclusion that respondent acted or failed to act in a manner that touches on his qualifications for the office of Charter Commissioner. No one questioned respondent’s fitness for office. 9. The closest petitioner came to an allegation impacting the performance of respondent’s duties was to assert that the City of Mounds View Charter Commission “is unable to effectively operate due to respondent’s actions.” However, as noted above, the allegation is unsupported by the record and appears disingenuous. Per Finding of Fact No. 29, petitioner at most demonstrated that petitioner, the Mounds View City Council, and one or more members of the Charter Commission do not agree on what constitutes a productive or meaningful Charter Commission meeting and they may not share the same philosophy about how to conduct or prioritize Charter Commission business. Yet, diversity of opinion and outlook are normal and arguably desirable features in the membership of a public body. In the final analysis, petitioner’s vague and unproven allegations do not rise to the level of “sufficient cause” and they eerily resemble the vague and unproven allegations that Justice Mitchell described in Hart as an exercise in “excess of power, and equivalent to an arbitrary removal.” 53 Minn. at 244, 55 N.W. at 120. Hart demonstrates that little has changed in politics since 1893. 12 ORDER 1. The Petition to remove Brian Amundsen as a City of Mounds View Charter Commissioner is denied and the Petition is dismissed. 2. Brian Amundsen is entitled to retain his position as City of Mounds View Charter Commissioner pursuant to the appointment by this court. THERE BEING NO JUST REASON FOR DELAY, LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: October 28, 2019 BY THE COURT: _________________________________ John H. Guthmann Judge of District Court