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HomeMy WebLinkAbout1979 03-20 CHCMSpecial meeting of the Brooklyn Center Charter Commission with Stanley Peskar, Chief Counsel, League of Minnesota Cities Tuesday, March 20, 1979, Fire Station, 65th Duponts Ave. N. Present: Commissioners Michael Beauchane, Robert DeVries, Donn Escher, William Hannay, Orlander Nelson, Barbara Swart, Edwin Theisen, Vincent Tubman, and Ann Wallerstedt were present. Mary Harty, Bill Fignar, Mary Jane Gustafson, Dolores Hastings, Henry and Pat Bogucki were also present. Absent: Commissions Cheryl Asplund, Jerry Campion, and Betty Johnson were absent. The following is a transcript of the meeting: Hannay: When the city attorney has completed the task of correcting gender references in the charter, copies will be sent to charter commission and city council for their review. Next meeting date will be set later. Appointments have not been announced as yet. Stan Peskar, is the Chief Counsel for the League of Minnesota Cities. This will be a rather informal discussion. He has some general comments.to make and then we'll our questions. Peskar: My general comments will be very brief because I understand that you have been operating as a charter commission for a good long time now, and there isn't anything I have to tell you in terms of how charter commissions function or what their duties are vis -a -vis the city council. I'm going to let your questions direct the discussion tonight. I understand the problems that most concern von+ are the (rneci-innc of the kind of marhanicm vrnt wsp for n roo- pedinP WiLii charLef ameLlu melLL� vi V. Livu.1 klLiva. irvilai, iC LLLC LUVOL iv handle housekeeping amendments. That's probably the amendments by ordinance as opposed to handling substantive amendments things that are the kind that you may wis?, to have the voters approve or disapprove without fail without having them petition in order to get election on the subject. There are at least a couple of other means of amending charters. Both of those other means probably needn't concern this charter commission, so I won't speak about them. Is that the basis that we are proceeding on tonight? We'll talk about the amendment process. Perhaps you could fill me in on the kinds of discussion you'd like to have about different procedures for amendments. Hannay: What we apparently are concerned about is that once we present a change to the council that technically they had to act upon it and if they did not, then they had to put it up for election. If this is true, we are trying to mind a way where we can negotiate with the council for these housekeeping amendments. Then if we have a policy change that we are convinced should go to the people that we present that to them in such a manner that they know they can act upon it or present it to the electorate. Obviously, what we want to do is avoid special elections if we can because of the cost and yet we don't want to get a whole flock of things on there either. We want to know how we can communi- cate with the council in such a way as not to force an issue until we are satified that both ways that it should be forced. Brooklyn Center Charter Commission page 2, March 20, 1979 Peskar: I imagine you're in touch with the council. Normally it's nice to have a council representative speak to the commission, bring up any problems that they see as in need of being addressed by the charter commission. The charter commission as well can speak to the council, have a representative at the council, make a point that the commission feels has to be made, get the view of the council on a particular issue. When the charter commission decides that an amendment is necessary but they don't want to press it upon the council; then it would be proper initially to provide to the council recommen- dations in the form of a recommended amendment for adoption by ordinance. Refer to the statutory number MSA 410.12 subdivision 4 provides for amendment by ordinance. Indicate that the charter commission recommends that this amendment be enacted by ordinance pursuant to MS 410.12 subdivision 4. Then it is clear that you are making a recommendation to them that's not binding. The council then can proceed to act by a vote of all'members of the council to adopt an ordinance on that subject after having a public hearing, have to print the text of the proposed amendment, have a public hearing, and then if all the members of the council vote for it, it would become an amendment to the charter sixty days after its publication as an ordinance, if no one has petitioned for an election on it at that time. Now suppose the council rP acts the recommendation or suppose only 4/5 of the council votes for it, so tn t it fails. It is not accepted as an amendment to the charter. They must then communicate that to you or you will know that the council has not acted on the charter commission's recommendation. Then if %roii AnlilV+oratn_ nkniit t-hn mnf-tcr ngnin Vinyl doncide th this is anmathinr that you feel is important enough to go to the people, you can then propose it as an amendment of the charter commission and again you might want to indicate in the transmittal letter that this is a proposed amendment that the charter commission is submitting to the council for submittal to the voters. Again you might cite the section 410.12 subdivision 1. When you as a commission submit a proposed amendment under that section subdivision, the council has no choice but to submit that to the voters. They may send it to their attorney, get his comments upon it, may make recommendations to the charter commission for changes in it, but ultimately if the charter commission does not accept those changes, then it must be submitted to the voters as it was submitted by the charter commission. Hannay: Is there a time limit that the council has to respond to us or we have to respond to them? Peskar: There is not a time limit on a recommendation. It wouldn't be critical anyway, because if the charter commission were satisfied that what the council is doing is stalling, then they'd be in a position to submit a proposed amendment rather than a recommended amendment. There is a time limit of 60 days. There is no time limit on how quickly the council must act on a recommended amendment. Hannay: Could we as a charter commission on a recommended amendment set a time limit for an answer from them? Brooklyn Center Charter Commission page 3, March 20, 1979 Peskar: Yes, I suppose the charter commision could indicate to the council that if they do not have the response of the council by a certain time,the charter commission will then go on to consider the matter again, consider whether .to adopt it as a proposed amendment. That would be within your legal power, whether that is advisable in terms of your best and most effective relation- ship with the council. Hannay: If we submit a proposed amendment to the council, one with a 60 day time limit, the charter commission would want to time this in such a way as not to force a special election. Is there a way that this has been done normally'so it could go on to the general election in the fall,for example. Then we'd have to time ourselves in a certain way so we'd want to know how to do it. Now 60 days from what to what, then what? Peskar: Of course, you could wait and submit the proposed amendment to the council within a period of 60 days from the scheduled election so that they would have an opportunity to put in on that election without calling a special election. It might be possible in the resolution of this body proposing the amendment to recommend that the proposed amendment not be submitted to the voters at a special election, but that the submittal be delayed until the next regular election to occur. Question: Are you saying the council, an el i eskai Tiic coo ieil mist statute. that the charter commission submit a proposed amendment to action must be held within 60 days? SCLLCLLUIC nit ctc%tivri wlthiit uv days as 1 1Ci.4.it iivui tiic Question: Schedule, but not hold? Peskar: That's right. The period for holding the election is longer than that needs to check period. Mary Jane Gustafson: Three people's terms expired on the 5th of February and it is already past the 5th of March, the judge has 30 days or the council can appoint. At what point was the judge notified? Hannay: February 23rd, that's when the letter was dated. Gustafson: Is that 30 working days or 30 calendar days? Hannay: Thirty calendar days. Would it be I wonder the date of the letter or the date he received it? You might have to give him a couple days to receive it. The chief judge has a few more days. It hasn't come into city hall as yet. Gustafson: It isn't Minenko any more? Answer: Yes, it is. Hannay: Seems to me the last time we got it about the 30th day. I made no recommen- dations. Brooklyn Center Charter Commission page four, March 20, 1979 Peskar: (Checking statutes) Amendments shall be submitted to the qualified voters at a general or special election and published as in the case of the original charter. It doesn't give a specific date during which the council has to submit the question. As I recall the attorney general and.I think some court cases there have been rulings and decisions that the council has a reasonable period of time and that's normally within six months or so to get the matter to the voters. Theisen: If I understand you right, you cannot submit it to the voters prior to the 60 day period? Peskar: No, that's right. It goes to the council and they have the 60 day period during which to discuss and think about the matter, make any comments they might have to the charter commission. Hannay: Then it would behove us,for example, if we had something that was contro- versial and we'll say that -we had reason to believe that the council would not act upon it, we should try to get that to them about six months ahead of time if we want to get it on the general election rather than a special election. Peskaz: Part of the statute that governs is the one that governs submission of original charters because you submit the amendment the same way as you do for the submission of orin__inal charters and that is MS 410.10 says "Unon the ,ICI ,ICI4 ..F -.l. d Fa,. -h 1 YhZ L.. .7 .�:C YL L..11 L� VY ✓UVaI vYC.lt L.J, L11V VVUUV II vL. ✓L. LLV1 bVV�Y Li%b V ✓Y LLLV A. Jl all cause the proposed charter to be submitted at the next general election after occurring in the city within six months after delivery of such draft. And if there is no general city election occurring in the city within six months after delivery of such draft, then the council or other governing body of the city shall cause the proposed charter to be submitted at a special election to be held within 90 days after the delivery of such draft. At any time before the council has _fixed the date of the election upon the proposed charter, the charter commission may recall it for further action and the council may authorize recall of the charter by the commission at any later date prior to first publication of the proposed charter." If there is a general election within six months of the date that you submit it, the council must submit it at that general election. If not, they must call a special election to occur within 90 days after the delivery. Hannay: Any further questions? Wallerstedt: When the charter commission received either the petition or had a charter amendment to propose, does the charter commission itself have any kind of responsibility to find out about its constitutionality or legalities involved` in it before it goes to the council or to the voters? Peskar: If you've got a petition amendment, if it's properly petitioned by the voters, you have a responsibility to investigate into its constitutionality and practicality and so forth, and to make recomendations that you may feel about it to the council, to the voters at. large, but when you've got,a petition amendment you cannot change the of the amendment, the substance of the Brooklyn Center Charter Commission page five, March 20, 1979 amendment, even though it may be impractical and unconstitutional. Question: Does that mean that it cannot be held up because of challenged constitutionality then and must be put on the ballot then? Peskar: A court determined that it had to be put on the ballot even though its constitutionality was questionable. Beauchane: I wanted to make absolutely sure that a proposed amendment short circuit that by passing it by ordinance in 90 days? Peskar: That's right. They cannot pass it by ordinance when the charter commission has made it a proposal for amendment specifically under MS section 410.12 subdivision 1. Wallerstedt: But what you are actually saying is when something comes out of the charter commission to the council, there has to be more than just the transmittal of the minutes of the charter commission. It has to say in cover letter or whatever W that the charter commission would like the council to pass Mg 410.12 or whatever it is. Peskar: It is best to be quite clear about what you are doing so that they are not in doubt as to what kind of a proposal this is that is coming from the charter commission. Wallerstedt: Make it clear in writing? es' iCD. Hannay: Now, if I understand that right that would be a recommended amendment or a proposed amendment. Peskar: Yes, we have a recommended amendment for adoption by ordinance as opposed to a proposed. amendment. Question: Cite the statute? Peskar: Yes Hannay: Anybody else got questions? Theisen: If we were to submit something a charter commision and say people wanted to submit a petition differently, what happens then? Say that you have a policy like one is that it should be black and the other that is should be white and one says it sb -uld be purple, that a group of voters can come again and put an option on a ballot. Does that change anything or do both questions then go to the public if it has the proper number of voters signing it? Peskar: I'd say off hand certainly the petition's question would have to be put on the ballot once it went through the proper process, was properly submitted and the names on the petition were determined to be valid and so forth. That would have to be put on the ballot. If the charter commission were to make a kecommendation properly, I guess, that would have to be put on the Brooklyn Center Charter Commission page six, March 20, 1979 ballot as well. If the two were totally inconsistent I don't know what would happen if they both passed,for example. We'd assume the voters would not pass both. Hannay: Say somebody wanted to paint the city buildings green and had enough signatures. We'd have to present it as a charter commission. But we as a charter commission would like to recommend that the buildings be left their present tan. Could that be added to the petition in such a way to the original petition that the people could indicate whether they wanted tan or green? Peskar: I don't think it could be done in that way. You can't really change the substance of the petition. If the petition was initially submitted with the question, "The city buildings shall be green, yes or no." To change that to be "Shall the city buildings be green or tan, and mark your x." That's changing the substance of what was submitted and you can't do that as the commission. You have to submit it as it was petitioned. DeVries: Couldn't the charter commission come back with a contradictory proposal, and have that submitted so that you have a choice between the voters vote yes or no on either of two questions? Peskar: Yes, I think it could be done on the two question route. "1. Shall the charter be amended to require all city buildings. be green? 2. Shall the city bui.laings be tanY yes or no" Conceivably the voters could reject both of them and they wouldn't be in that either or situation of green or tan. Hannay: But then Ed says, what if both of them passed? If you left the second question out entirely, the people would have to vote and they didn't vote for green why Peskar: Then there would be no provision on that subject. Hannay: So the thing that would have to happen if other people disagreed with the people that were petitioning for the green would have to get out and work to defeat the amendment. Peskar: That would be the sensible and most clear way of handling it. If you come in with an inconsistent proposal to be submitted at the same election, you can see the situation you can get in where you can get a bad result out of it conceivably. Beauchane: What is considered number charter amendment Peskar: You mean people not voting on the amendment as counting, no. On charter, only the people who actually voted on the amendment are counted. Only Chose marking the yes or no are counted. Tubman: The council has to put the amendment on the ballot within 60 days. What is the recourse if they don't? Brooklyn Center Charter Commission page seven, March 20, 1979 Peskar: I stand corrected. Before looking at the statute I said 60 days. Tubman: I meant six months. Peskar: If they do not, any citizen through a legal action can mandate that the council put the question on the ballot. Peskar: Question is if a refusal or inaction by the council to effectuate the statutory requirement that they submit the proposed amendment whether that would be malfeasance or misfeasance or nonfeasance. You can conceive of situations in which it could be malfeasance if there was an attempt to obstruct the process. It was clear that they all had that responsibility, they all knew it and had taken steps to actively prevent each other from consenting to submit it. Question: That would be individual citizen action. Peskar: Yes, it would. I don't know if it would be theoretically possible for a charter commission. I don't think so. A charter commission is not an entity of government. It is just a body of the city and has only those powers which it is given to create charters and submit them. So it is doubtful if the charter commission as a unit could and using funds that are appropriated for its use could in any way force the question to bring a legal action. U ZV y Would 1.110 L1 ti1tC1. l.V ll1LLL.7 1A1V11 C Vltlll {.11 Cj� it C L,-V ULLI.11 VVUlu Lull any thing that came to it? Peskar: First of all any citizen has recourse to a legal action and normally they'd be quick t3 respond to that because it is very clear what their responsibility is. The second line of defense is if the citizen knows the council is defying the law, it is not likely that many of those people will be reelected. Tubman: Once the clock starts on the six month period, is there any way that it can be stopped? Peskar: Yes, the council can with the consent of the charter commission withdraw the charter amendment before the election. If it is a petition amendment, however, that could not happen. DeVries: Doesn't the charter commission have one other option in the case of a petition, the charter commission' itself can negotiate an acceptable change? And then propose that change via the ordinance route to the council. Peskar: If it is acceptable to the petitioners, yes. Theisen: I hate to challenge an attorney, but if I sign a petition as one of 2,000 people, I signed it verbatim as to what was stated there. I did not sign anything that is a change to that. I believe it is very difficult if not impossible to change the words on that petition even with the charter Brooklyn Center Charter Commission page eight, March 20, 1979 commission's consent. Peskar: I think there is a specific provision which allows with the consent of the originators of the petition to change the wording of the petition. Hannay: It seems to me when we were involved in that fire department thing, there. was the possibility of the original committee who drew up the petition to mak:e,changes. It;seems that was the bargaining point. Actually if this were not so, then we've got a city that was in violation of its charter on that thing because it should have gone to the public. The fire department later agreed to changes with the council. As long as there was common a agreement decided before it went to a vote, that would clarify it. DeVries: I believe at that time, the counsel that the charter commission brought in advised us that we could go to the committee that initiated the petition and secure agreement there. We adopted the charter change and forwarded it to the council, then they could enable it by ordinance. Hannay: There is another thing that we should get clear. Can the charter commission hold that up? This was a big question at the time as to when the starting date was. Swart: This was what was happening. This was the biggest problem that the charter n llmml CG1. /T f.Tl I� it o Hannay: I think w'd should have that clear in case it would come up. 0 DeVries: What you are talking about is the time element for the charter commissioners to respond to the petition. Hannay: Yes, once the petition was presented DeVreis: And then go to the council and they again have a time limit. Swart: The time element limit had started at the time it was presented. Hannay: Wouldn't the sixty days have started right then when it was presented to the council. This 2s something we better get clear so if that pops up again DeVries: Not if it is a direct violation of the city's charter itself. You got two steps there and the first step was overlooked. You can change the necessary ordinances, but first of all, you couldn't act contrary to the charter so you had to go back and amend the charter, at least simultaneously with the city rules and procedures. That was the purpose we were given by council. Hannay: He said here that it doesn't make any difference. DeVries: He was addressing a very specific question at that point. Hannay: If a group were to petition, when would that petition begin? Can the chart commission sit on it? Brooklyn Center Charter Commission page nine, March 20, 1979 Peskar: No. "The charter commission may propose amdendments to such charter and shall do so upon the petition of voters equal in numbers to 5% of the total vote cast at the last previous state general election in the city. If the city has a system of permanent registration of voters, only registered voters are eligible to sign the petition. All petitions circulated with respect to a charter amendment shall be uniform in character and shall be attached thereto. In the case of a proposed amendment containing more than a 1,000 words the true and correct copy of the same may be filed with the city clerk and the petition shall then contain a summary of not less than 50 nor more than 300 words setting forth in substance the nature of the proposed amendment. Such summary shall contain a statement of the objects and purposes of the proposed amendment in an outline of the proposed new scheme or framework of government and shall be sufficient to inform the signers of the petition as to what change in government is sought to be accomplished by the amendment. The summary together with a copy of the proposed amendment shall first be submitted to the charter commission for its approval as to form and substance. The charter commission shall within ten days after such submission to it return the same to the proposers of the amendment with such modifications in statement as it may deem necessary in order that the summary may fairly comply with the requirements above set forth." I guess the commission can change somewhat the form such modifications in the statement as they deem necessary in order that the summary, they can't change the proposal, they can just change the outline. So you can let them know what it is really that their language is going to do. Question: Does it have to be agreed to by the petitioners? .Peskar: Not really. What you are doing is just changing the statement. This doesn't speak to that and I think there is a different provision on that. Let me go on to see if I can find that other portiva that we are talking about where the originators or circulators of the petition may agree to a modification. "A petition may be amended at any time within ten days after the making of a certificate of insufficiency by the city clerk by filing a supplementary petition upon additional papers signed, filed and provided in the original petition." I'm trying to think where the rule comes from that permits the originators of the petition to consent to a change in form. I'm not finding it in the statutes, but I am certain that it exists. Theisen: I don't think we need to focus in too strongly on that one. I think we'd agree that any substantive change could not be allowable by either the council or the charter commission. On the other part we've hit a problem. The time clock here say on a petition by the voters starts immediately upon receipt by the city clerk. Peskar: Yes. Theisen: And the city clerk then has 10 days in which to review the names and determine the validity of the voters etc. Then it goes to the charter commission if it is a charter change and they have 10 days. Peskar: to comment upon and change the summary that describes what the proposal does. Brooklyn Center Charter Commission page ten, March 20, 1979 Theisen: And then thereafter after a 60 day period the council has a 60 day time frame in which to review it and it goes to a special election within six months. Peskar: It goes to a general election within six months or special election within 90 days and there is no 6 week period there for review. Theisen: At the next general election or within 6 months? Peskar: Yes. At the next general election if that occurs within six months, other wise at a special election within 90 days. Swart: If it was submitted in January with the elections in November, then it would have to go 90 days. Peskar: Yes. Question: In view of the Minnesota registration voter laws, what is the definition of a registered voter? Peskar: I think this language was in there before the registration and election date language so anyone who has voted is a registered voter. the state it they wouid put something Bice this in a flow chart version iice a grievance procedure in a labor contract by showing where the actions occur and things involved in the time span. That would be a great asset all charter commissions, not just us. Peskar: I think that is a good suggestion. I'll see what we can do about construc- ting such a graphic aid. Gustafson: Is the summary that Ed gave correct as far as the flow that the city clerk has 10 days to review the names, goes on to the charter commission and they have 10 days to change the summary if they so choose and then the council has 60 days to review it. Peskar: That 60 days for review is not a part of this process. Hannay: In this summary they speak there of, I was under the impression that that was what was put on the ballot so this could occur after the 60 days and before it went on to election. Peskar: The petitioners have to along with their petition explain in relatively short memo what it is they are doing with their amendment and that is what the charter commission has an opportunity to change to apprise the petitioners of what they are doing so that they have a better idea whether or not they really want to proceed as they had been proposing. Then the council has the responsibility for preparing the ballot including the summary that goes on the ballot. Brooklyn Center Charter Commission page eleven, March 20, 1979 DeVries: Do I read you correctly then, what you just said is that the council gets the petition, council reviews it, the summary and commentary gets boiled down, gets forwarded on to the charter commission. They can have up to ten days and say this is what you're really saying and this is what will happen but we don't really think you mean it and you send it back within that ten day period. Suppose there is somewhat of a contradiction there and the petitioners say you're right, so they decide to modify. Now what's happening in all this time the minute that they say hey that's right, we really didn't mean it that way. In effect, isn't that they're starting all over again. Peskar: I have to find that provision or court case or whatever it is that deals with that subject of modifying petition amendments. I didn't find it in reading through the statute tonight. I just don't know off hand what the procedure is there if the circulators of the petition are willing to modify the language proposed. We do have an inquiry service at the league and I can communicate the answer for your next meeting. If any of these questions do come up in the future don't be hesitant to call our office and we can research the matter at the office. We have access not only to the statutes, but the court decisions and the attorney general opinions and so forth and then provide a written answer to you. I will do that. I will look up that questions and have an answer to you by your next meeting. Wallerstedt: Should we set the date for the next meeting? Hannay: I think as long as we are depending on the city attorney's changing the gender for that Amendment 24. we might ns we1:7. wait. Tr iG ci11v to nraGPnt- rntr amendments that we reworded without sending in Amendment 24 so that they can act on it all at once. I think we might as well wait until I get some word on that and then I'll call a meeting, if' that's agreeable. Theisen: Likewise we should thank our gracious attorney. Hannay: Isn't that wonderful. I feel so much more confident now when he said we can call on him at any time. Peskar: I should be able to have a flow chart for you. I can send that along with the letter. That should be kind of fun to sit down and work out. Theisen: You cleared a lot of things up for the whole charter commission that we've been struggling with for a couple of years. Hannay: Any other questions. If not, I'll accept a motion to adjourn. Theisen: So move. Tubman: Second. Hannay: We've had a motion made and seconded to adjourn. All in f'avor. 0 All: Aye! Hannay: Opposed. None. Thank you all for coming. Brooklyn Center Charter,Commission page twelve, March 20, 1979 (Adjourment was at 8:30 p.m.) Chairman: William Hannay Secretary: Barbara Swart Respectfully submitted: Barbara Sexton Secretarial Assistant 0