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HomeMy WebLinkAbout2024 09-19 Memo from K&G Regarding Ordinance 1018MU210\4\977140.v1-9/19/24 Fifth Street Towers 150 South Fifth Street, Suite 700 Minneapolis, MN 55402 (612) 337-9300 telephone (612) 337-9310 fax http://www.kennedy-graven.com Affirmative Action, Equal Opportunity Employer MEMORANDUM DATE: September 19, 2024 TO: Mounds View City Council Nyle Zikmund, City Administrator FROM: Joseph L. Sathe, Assistant City Attorney RE: Charter Amendment – Vacancies Second Reading and Consideration of Ordinance No. 1018 BACKGROUND On September 3, 2024, the City Council held the public hearing and first reading of a proposed amendment to the City Charter allowing the City Council to make appointments from a specified list to fill councilmember and mayoral vacancies. The purpose of this memo is to provide a legal review of the amendment and provide feedback. I have provided a high-level overview of six issues that I believe could be improved, need additional clarity, or should be revised. I do not recommend approving the amendment as written. Since the Council cannot change the language in the ordinance once presented by Council, I recommend voting against approval so revisions can be made by the Charter Commission. I have also provided potential alternative language of the amendment that reflects some of the items below and which the Charter Commission could use to propose an amendment by ordinance. The enclosed has not been reviewed by the Charter Commission. 1) Process Direction – City Administrator Role The appointment process is well described in the amendment. I suggest being more specific about the process and explicitly include that the City Administrator is to reach out to the list of potential appointees and present the first person who is willing to serve on the Council and qualifies. 2 2) Remaining on Appointed Board The amendment includes a list of eligible individuals who could be appointed to a vacancy from certain city commissions. The language provides that when serving on the council, the individual will retain their commission seat but shall be excused from and not participate in the commission. There should be no conflict for Charter Commission members or Parks, Rec. and Forestry Commission, but the city code criteria provides that Planning Commission members are appointed “from the resident population of the city, other than persons elected to a public body.” City Code, section 33.002. Use of the phrase “elected” could be interpreted to exclude an “appointment” to the City Council. My recommendation is to have the City Council provide direction on whether it wants to allow a person to serve on the Planning Commission and on the City Council and then revise the City Code and/or request a revision to the amendment, as necessary. 3) Additional Revisions to Chapter 2 Chapter 2 of the Charter establishes the “Form of Government”. The following two points are recommendations for the Charter Commission that could be considered along with revisions to Section 4.05: • Section 2.04 establishes what offices members of the council may not hold while on the council (“any municipal office or employment through the City other than that to which elected”) – I recommend clarifying that appointment to an advisory board or commission is not considered an “incompatible office”. • Section 2.05 describes when a vacancy occurs – I recommend amending this section to reference Section 4.05 and making appointments. 4) Mayor Duties The amendment language provides: In the case of vacancy of the mayor term the appointed person shall serve as a member of the council and the acting or vice mayor will continue to serve as mayor, for emergency powers, until the successor mayor is elected and qualifies. The Mayor is the ceremonial head of government with limited official duties. However, three official duties include that “[a] local emergency may be declared only by the mayor of a municipality … or their legal successors”; every ordinance adopted and must be signed by the Mayor; and certain agreements binding the City are signed by the Mayor. The Acting Mayor acts as the Mayor “during the disability or absence of the Mayor or, in the case of vacancy in the office of Mayor, until a successor has been appointed and qualifies.” Having a person in the office of the Mayor who is available and able to serve, but having an Acting Mayor performing official duties would, at minimum, be unique and could lead to confusion and conflict. 3 Particularly because of the statutory language on declaring local emergencies, I recommend the language be revised or removed. Serving as “chair” of the City Council under rules of procedure is not an official duty and the Council could choose to have any other member of the Council chair meetings by motion or resolution if desired. This would not require an amendment to the Charter. 5) Appointments Near Regular Election The current code and amendment language provide that if a vacancy is declared in the office of a member of the council within 120/130 days, respectively, of a general city election, and the last day to file for office has passed, then there shall be no appointment made prior to the election but the successful candidate shall be appointed to serve the remainder of the term. Since two members of the council are on the ballot at a general municipal election, I recommend amending the language to provide that if the vacancy is in a council seat that is up for election, the candidate receiving the most votes will be appointed to serve the remainder of the term. 6) Voting Threshold Almost all Council actions require three affirmative votes pursuant to the Charter. Given that the appointment will be taking place when the Council is already down at least one member and the language is not intended to provide Council with discretion in making the appointment, I recommend lowering the voting threshold to a simple majority of members of the Council voting on the appointment to make the process simpler to accomplish. A quorum would still be necessary. 7) Repeal and Replace – Alternative Language Enclosed is draft language that could be proposed by the Charter Commission that is in the form of a repeal and replace the entire Chapter 4. The current amendment does a good job of presenting the information in an amendment format, but, given the number of revisions, I recommend a full repeal and replace of Chapter 4 to make review and approval easier. The enclosed draft of a repeal and replace has not been reviewed by the Charter Commission and would be subject to change based on Charter Commission direction. 8) Next Steps If the Council desires to see any revisions, corrections, or clarifications to the proposed amendment language, it should vote against adopting the amendment by ordinance. Amending the Charter by ordinance requires unanimous council approval, so without five votes, the action would fail and the amendment process would stop. The Charter Commission could then propose a new ordinance, that could take the form of the enclosed or whatever form the Charter Commission chooses. Council should not take any official action on the enclosed draft potential alternative, but can provide feedback as part of a collaborative process to amend the Charter. The Charter Commission has a regular meeting in November that the Council could consider in December-January. 4 Exhibit A - Potential Alternative Language Section 4.05 Vacancy in Municipal Elected Office Subdivision 1. Vacancy and 365 days or more remain in term. The following timelines shall be followed when addressing a vacancy in an elected office of the City that occurs with 365 days or more remaining in the term of the vacated office: a. The vacancy will be filled at the next uniform election date specified in Minnesota Statutes, section 205.10, subd. 3a, for which all legal requirements for special elections can be met by the City. b. If the date of the vacancy is more than 130 days from the date of the next eligible election the City Council must follow the appointment process in this Section 4.05 to fill the vacancy. No appointment may be made if the next eligible special election date is 130 or fewer days from the date of the vacancy. Subdivision 2. Vacancy and less than 365 days remain in the term. The following timelines shall be followed when addressing a vacancy in an elected office of the City that occurs with less than 365 days remaining in the term of the vacated office: a. If the date of the vacancy is more than 130 days before the regular municipal election, then the vacancy shall be filled by appointment following the appointment process in this Section 4.05. b. If the date of the vacancy is 130 or fewer days before the regular municipal election at which the vacant seat is up for election, then the vacancy shall remain until the results of the election are canvased by the City Council. The individual receiving the most votes at the election shall be appointed to fill the remainder of the term. Subdivision 3. Appointment If, pursuant to subdivisions 1-2(a), the City Council may appoint an individual to fill a vacancy, the following process must be used: a. The Council declares a vacancy via resolution. b. Within 30 days of the date of the vacancy, the City Administrator shall present an individual from the list in Subdivision 3 (d) to the City Council for appointment using the process described in this Subdivision 3. c. The City Administrator shall contact the individuals in the order of the list provided in Subdivision 3 (d), beginning with the Chair of the Mounds View Charter Commission, and determine if that person is willing and qualified to serve as a member of the City Council. If the person is not willing or is not qualified, the City Administrator will move on to the next person. If no person on the list is willing and qualified, then the vacancy shall remain unfilled until the appropriate election is held. 5 d. The following is the list of individuals that may be presented for appointment to fill a vacancy: i. Chair of the Mounds View Charter Commission ii. Chair of the Mounds View Planning Commission iii. Chair of the Mounds View Parks, Recreation, and Forestry Commission iv. Vice Chair of the Mounds View Charter Commission e. If an individual on the list is qualified and willing to serve, the City Administrator will present that individual to the City Council for appointment to fill the vacancy. f. A majority of members of the City Council voting on the appointment are necessary to make the appointment. If there is a tie vote, the Mayor shall make the appointment of the individual presented to the City Council for appointment. g. A person appointed under this Section 4.05 is not required to vacate their commission seat but will be excused from all meetings and may not participate in the commission until they are no longer serving as a member of the City Council. Subdivision 4. Special Election to Fill Vacancy. a. The City Administrator shall give at least sixty days published prior notice of the date of the special election and such notice shall comply with all notice requirements under Minnesota Statutes, section 205.16. b. The procedure at such election and assumption of duties of elected officers following such election shall conform as nearly as practicable to that prescribed for other municipal elections under this Charter.