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HomeMy WebLinkAbout2003 06-25 CHCABROOKLYN CENTER CHARTER COMMISSION Meeting Agenda 7:00pm, Wednesday, June 25, 2003 Brooklyn Center City Hall Council/Commission Meeting Room Call to order. 2. Roll Call of Charter Commission members. Approval of the minutes of the January 23, 2003 meeting. 4. Old Business Continued discussion of the commission's recommendation for an amendment to Section 3.01 of the City charter; Review of letter from city attorney. 5. New Business Discuss Section 3.07 as requested by the City Council. Discuss Section 3.10 as requested by City Manager. Discussion of ideas to fill vacant positions on the Charter Commission 6. Adjournment City of Brooklyn Center A Millennium Community MEMORANDUM TO: Robert Cambanes, Charter Commission Chair FROM: Sharon Knutson, City Cleric 1Q W_ DATE: June 9, 2003 SUBJECT: Section 3.10 of City Charter Office of the City Clerk City Manager Michael McCauley suggested that I forward the following information to the Charter Commission for review and comment and report back whether or not an amendment to the City Charter is warranted. Section 3.10 of the Brooklyn Center City Charter relates to the amendment and repeal of ordinances. Following is the language for Section 3.10 of the Brooklyn Center City Charter: Section 3.10. AMENDMENT AND REPEAL OF ORDINANCES. Every ordinance repealing a previous ordinance, section or subdivision thereof shall give the number, if any, and the title of the ordinance to be repealed in whole or in part. No ordinance, section, or subdivision thereof shall be amended by reference to the title alone. Such an amending ordinance shall set forth in full each section or subdivision to be amended and shall indicate new matter by underscoring, and the old matter to be omitted, by enclosing it in brackets. In newspaper publication of ordinances, the same indications of omitted and new matter shall be used except that italics or bold -faced type may be substituted for underscoring and omitted matter may be printed in capital letters with parenthesis. Several times throughout the year there are necessary amendments that need to be made to City Ordinances. An Ordinance Amendment is the method that is used to amend an existing Ordinance. City Attorney Charlie LeFevere and I discussed the requirement that is set in Section 3.10 of the City Charter relating to the method by which old matter is removed from ordinances. The Charter requires that old matter to be omitted be enclosed in brackets. This can be quite confusing to someone reading the ordinance amendment if there are several sections or paragraphs that are to be removed, especially since there is only bracket at the beginning of the section or paragraph and one at the end. I believe the brackets were the method chosen at the time the charter was adopted because it was cumbersome to strike through matter on a typewriter. With computers and technology today, it is quite simple to strike through matter to indicate deletion, and it is visually easier for a person reviewing the ordinance amendment to follow what is to be removed (see attached sample). I would request that the Charter Commission discuss whether or not the matter to be deleted is stricken rather than enclosed in brackets. 6301 Shingle Creek Parkway Recreation and Community Center Phone TDD Number Brooklyn Center, MN 55430 -2199 (763) 569 -3400 City Hall TDD Number (763) 569 -3300 FAX (763) 569 -3434 FAX (763) 569 -3494 www.cityofbrooklyncenter.org Memorandum to Robert Cambanes June 9, 2003 Page 2 With regard to the last sentence of Section 3.10 regarding newspaper publication of ordinances, I would ask that the Charter Commission review the current language and determine if it should be amended as well. Generally the legal notice is published in the same manner as the Ordinance Amendment, as the same is true with regard to computers and technology in the newspaper industry. Thank you for your consideration of this request. Attachment SAMPLE with strikethrough Notice is hereby given that a public hearing will be held on the 27th day of May, 2003, at 7 p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider an amendment to Chapters 11 and 23 relating to the conduct of charitable gambling. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763 -569 -3300 to make arrangements. ORDINANCE NO. AN ORDINANCE AMENDING SECTIONS 11 -717 AND 23 -1902 OF THE BROOKLYN CENTER CODE OF ORDINANCES, RELATING TO THE CONDUCT OF CHARITABLE GAMBLING IN THE CITY THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Section 11 -717 of the City Ordinances of the City of Brooklyn Center is hereby amended as follows: Section 11 -717. GAMBLING REGULATIONS. 1. Only licensed charitable nonprofit organizations that have been in existence in Brooklyn Center for at least three years aP who e ntFib to the m fity of pull tab p eeds f r lavgul pt"esas the City of Br-eek4y Genie may be allowed to sell pull -tabs. naddletickets. or tinboard tickets on the premises. 2. Use of the licensed premises shall be by means of a written lease agreement between the licensee and the charitable organization. The lease shall be for a term of at least one year; a copy shall be filed with the peliee depw4ne City Manager's designee, and also a copy must be kept on the premises and available for public inspection upon request. Leases shall be governed by the following: a. The amount of rent charged may not exceed the amount authorized by law. b. Rental payments may not be based on a percentage of profits from gambling. c. The charitable organization may not reimburse the licensee for any license fees or other gambling related expenses incurred by the licensee. SAMPLE with strikethrough ORDINANCE NO. e: d. Pull -tabs, paddletickets, and tinboard tickets shat ei4y be sold fro be 1.11 I.lJVZT a s„ l b t h e h o zat a nd „u41 t shall neither VV be sold by employees of the licensee nor sold from the bar service area. g e. The lease shall contain a provision permitting the licensee to terminate the lease if the charitable organization is found guilty of any violation of state or local gambling statutes, ordinances, or rules and regulations. 3. Only one charitable organization shall be permitted to sell pull -tabs paddletickets, or tinboard tickets on the licensed premises. 4. The licensee may not be reimbursed by the charitable organization for any license or permit fees, and the only compensation wIii that the licensee may obtain from the charitable organization is the rent fixed in the lease agreement. 5. The licensee must commit to a minimum of twenty -five (25) hours of sales of pull -tabs, paddletickets. or tinboard tickets for the charitable organization per week. 6. The licensee shall be responsible for the charitable organization's conduct of selling pull -tabs, paddletickets. and tipboard tickets. The city council may suspend for a period up to sixty (60) days or revoke the licensee's permission to allow gambling on the premises for any violation of state or local gambling laws or regulations that occur on the premises by anyone, including the licensee or the charitable organization. Any violation may also be considered by the city council as grounds for suspension or revocation of the on -sale liquor license. Section 2. Chapter 23 -1902 of the City Ordinances of the City of Brooklyn Center is hereby amended as follows: Section 23 -1902. PULL TABS SALE OF PULL -TABS, PADDLETICKETS, AND TIPBOARD TICKETS IN ON -SALE PREMISES. The sale of pull -tabs, paddletickets, and tipboard tickets in on -sale licensed premises shall be conducted by qualified and state licensed charitable organizations. In addition to satisfying the qualifications set forth in Minnesota Statutes, Chapter 349, the following regulations and qualifications must be complied with by all such charitable organizations: 1. The organization must have been in existence in Brooklyn Center for at least three years. SAMPLE with strikethrough ORDINANCE NO. .,f5 n: z uciorr= ridac- vviimbuce a signaricuixc- a vr its prvcccas -zrvrn lawful ,x,1,li to lt'awffil puTeses -y •thi the Cit of Breeldyn Cent of +1.' or-dinanee, the word cc ii (90 when avefaged ever- a tee° year- per ,,,1 The organization must expend 85% of its expenditures for lawful mmoses on lawful pumoses conducted or located within the Cities of Brooklvn Center. Brooklvn Park. Minneapolis. Crvstal. Robbinsdale. and Fridlev. 4. 3. The organization must file a list containing the names and addresses of all current members with the [police department] Citv Manager's designee on an annual basis. 4. The organization must file pull ta b charitable gambling, financial reports monthly with the poliee depai4m City Manager's designee. 6: 5. The organization must exhibit and sell pull -tabs, paddletickets, and tipboard tickets in a method as required by the City. 7, 6. Workers or managers may not divulge the number of or the dollar amount of the winners at any time. 8, 7. Workers or managers shall not co- mingle game cards. Chapter 349. 8. The organization shall comply with all the provisions of Minnesota Statutes, 9. The organization shall register with the State Gambling Board all equipment and supplies used in a licensed on -sale establishment. r. 42 10. The charitable organization will be responsible for the booth and other equipment used in the operation of pull -tabs. 13. No organization may have a pull tab sale operation in more than e -H the City; emeept that an or-ganizefion may be &L#her-ized to eepAtiet one mere, dhi—An tffie number o g amblin g operations it is l awf ully w:_ on th 44 11. The organization must pay the City of Brooklyn Center an investigation fee of $250 per year. Section 3. This Ordinance shall become effective after adoption and upon thirty (30) days following its legal publication. SAMPLE with brackets Notice is hereby given that a public hearing will be held on the 27th day of May, 2003, at 7 p.m. or as soon thereafter as the matter may be heard at the City Hall, 6301 Shingle Creek Parkway, to consider an amendment to Chapters 11 and 23 relating to the conduct of charitable gambling. Auxiliary aids for persons with disabilities are available upon request at least 96 hours in advance. Please contact the City Clerk at 763 -569 -3300 to make arrangements. ORDINANCE NO. AN ORDINANCE AMENDING SECTIONS 11 -717 AND 23 -1902 OF THE BROOKLYN CENTER CODE OF ORDINANCES, RELATING TO THE CONDUCT OF CHARITABLE GAMBLING IN THE CITY THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER DOES ORDAIN AS FOLLOWS: Section 1. Section 11 -717 of the City Ordinances of the City of Brooklyn Center is hereby amended as follows: Section 11 -717. GAMBLING REGULATIONS. 1. Only licensed charitable nonprofit organizations that have been in existence in Brooklyn Center for at least three years [and who contribute the majority of pull -tab proceeds for lawful purposes within the City of Brooklyn Center] may be allowed to sell pull -tabs. naddletickets. or tinboard tickets on the premises. 2. Use of the licensed premises shall be by means of a written lease agreement between the licensee and the charitable organization. The lease shall be for a term of at least one year; a copy shall be filed with the [police department] Citv Manager's designee. and also a copy must be kept on the premises and available for public inspection upon request. Leases shall be governed by the following: a. The amount of rent charged may not exceed the amount authorized by law. b. Rental payments may not be based on a percentage of profits from gambling. c. The charitable organization may not reimburse the licensee for any license fees or other gambling related expenses incurred by the licensee. [d. The only form of gambling that shall be permitted on the licensed premises shall be pull -tabs approved by the state.] SAMPLE with brackets ORDINANCE NO. [e.]d. Pull -tabs. Daddletickets. and tiDboard tickets [shall only be sold from a booth used solely by the charitable organization, and pull -tabs] shall neither be sold by employees of the licensee nor sold from the bar service area. [f. The construction and maintenance of the booth used by the charitable organization shall be the sole responsibility of the charitable organization.] [g.]e. The lease shall contain a provision permitting the licensee to terminate the lease if the charitable organization is found guilty of any violation of state or local gambling statutes, ordinances, or rules and regulations. 3. Only one charitable organization shall be permitted to sell pull -tabs, paddletickets. or tiDboard tickets on the licensed premises. 4. The licensee may not be reimbursed by the charitable organization for any license or permit fees, and the only compensation [which] that the licensee may obtain from the charitable organization is the rent fixed in the lease agreement. 5. The licensee must commit to a minimum of twenty -five (25) hours of sales of pull -tabs. Daddletickets, or tiDboard tickets for the charitable organization per week. 6. The licensee shall be responsible for the charitable organization's conduct of selling pull -tabs. Daddletickets, and tinboard tickets. The city council may suspend for a period up to sixty (60) days or revoke the licensee's permission to allow gambling on the premises for any violation of state or local gambling laws or regulations that occur on the premises by anyone, including the licensee or the charitable organization. Any violation may also be considered by the city council as grounds for suspension or revocation of the on -sale liquor license. Section 2. Chapter 23 -1902 of the City Ordinances of the City of Brooklyn Center is hereby amended as follows: Section 23 -1902. [PULL -TABS] SALE OF PULL -TABS. PADDLETICKETS. AND TIPBOARD TICKETS IN ON -SALE PREMISES. The sale of pull -tabs. Daddletickets, and tiDboard tickets in on -sale licensed premises shall be conducted by qualified and state licensed charitable organizations. In addition to satisfying the qualifications set forth in Minnesota Statutes, Chapter 349, the following regulations and qualifications must be complied with by all such charitable organizations: [l. The sale of pull -tabs shall be the only authorized form of gambling in on -sale licensed premises.] [2.] L The organization must have been in existence in Brooklyn Center for at least three years. SAMPLE with brackets ORDINANCE NO. [3.]2. [The organization must contribute a significant amount of its proceeds from lawful gambling to lawful purposes within the City of Brooklyn Center. For purposes of this ordinance, the word "significant" is defined as over ninety percent (90 when averaged over a three year period.] The organization must expend 85% of its expenditures for lawful purposes on lawful purposes conducted or located within the Cities of Brooklvn Center. Brooklvn Park. Minneapolis. Crvstal. Robbinsdale, and Fridlev. [4.]3. The organization must file a list containing the names and addresses of all current members with the [police department] Citv Manager's designee on an annual basis. [5.]4. The organization must file [pull -tab] charitable gambling financial reports monthly with the [police department] Citv Manager's designee. [6.]5. The organization must exhibit and sell pull -tabs. paddletickets. and tipboard tickets in a method as required by the City. [7.]6. Workers or managers may not divulge the number of or the dollar amount of the winners at any time. [8.]7. Workers or managers shall not co- mingle game cards. Chapter 349. [9.]8. The organization shall comply with all the provisions of Minnesota Statutes. [10.]9. The organization shall register with the State Gambling Board all equipment and supplies used in a licensed on -sale establishment. [11. The charitable organization shall not use a pull -tab which does not return to the players a minimum percentage of 75% nor a maximum percentage of 80% which percentage shall include free plays awarded.] [12.]10. The charitable organization will be responsible for the booth and other equipment used in the operation of pull -tabs. 13. No organization may have a pull -tab sale operation in more than one premises in the City; except that an organization may be authorized to conduct one more than the number of gambling operations it is lawfully conducting on the effective date of this ordinance.] [14.]l 1. The organization must pay the City of Brooklyn Center an investigation fee of $250 per year. Section 3. This Ordinance shall become effective after adoption and upon thirty (30) days following its legal publication. 470 Pillsbury Center 200 South Sixth Street Minneapolis MN 55402 001 k-17 M, (612) 337 -9300 telephone (612) 337 -9310 fax C H A R T E R E D http: /www.kennedy- graven.com CHARLES L. LEFEVERE Attorney at Law Direct Dial (612) 337 -9215 email: clefevere@kennedy- graven.com March 17, 2003 Sy Knapp, Chair Brooklyn Center Charter Commission City of Brooklyn Center 6301 Shinule Creek 1'arkwav Brooklyn Center, MN 55430 -2199 Re: Proposed Charter Amendment to Section 3.01 Dear Sy: You have asked for review of a proposed amendment to Charter Section 3.01. The relevant part of the Charter currently provides: "Officers elected at the time of the regular municipal election provided for by this Charter shall be sworn in and assume the duties of the office to which they were elected on or after the first business day of January, or at the first City Council meeting in January, or as soon thereafter as practical." The proposed change would be to substitute for the existing language the following new language: "Terms of officers elected at the time of a regular municipal election provided for by this Charter shall commence on the first Monday in January following the election at which t11C off,uer 16 chosen. All officers chosen and qualified as such shall hold office until their successors qualify." This amendment would make the language of the Charter consistent with Minnesota Statutes, Section 412.02, subd. 2. However, Section 412.02, subd. 2 specifies the procedure to be followed in statutory cities. Most of the cities in the State are, therefore, subject to this requirement. However, as a Charter City, Brooklyn Center may provide for a different procedure by Charter. CLL 228756 BR291 -7 March 17, 2003 Page 2 I. Time of Taking Office. The proposed Charter amendment would change the time at which a newly elected mayor or council member takes office. Under the current Charter, the new officer takes office "on or after the first business day of January, or at the first City Council meeting in January, or as soon thereafter as practical." This would be changed, under the proposed Charter amendment, to taking office "on the first Monday in January." As noted above, the City is not obligated to change its Charter. However, it seems to me that there are advantages to specifying a date on which the newly elected Council member's term begins rather than having a number of days to chase from, including an unspecified date that is "as soon thereafter as practical." As discussed later in this letter, a number of questions can arise about the transition from one elected official to another, including when a vacancy exists that can be filled by the Council. For purposes of determining when a vacancy exists, it would be helpful to be able to point to a date by which a person was expected to qualify, but had not done so. In this regard, specifying one time when the term commences would be preferable to a range of dates during which the term commences. Additionally, ordinarily there would be two Council members leaving office and two coming in. If one of the Council members takes office on the first business day of January, and the second Council member takes office at some time after the first Council meeting in January when it is practical for him or her to do so, questions arise about the status of the incumbent Council members. Specifically, if the incumbent Council members "hold over," or stay in office, until their successors qualify, the question comes up which of the two incumbent Council members will sit as a Council member at the first Council meeting in January. If the change is made to be consistent with State law, the terms of both of the incoming Council members would commence on the same date, and this issue would not arise. II. Qualification for Office. The second concept introduced by the proposed Charter amendment is that officers continue to hold office until their successors "qualify." Being "qualified" for office simply means that the elected candidate meets the legal qualifications for office. In general, to be qualified for office, one must be a resident of the City, be at least 21 years of age, have taken 'the oath of office, have received a certificate of election, and not have been disqualified by reason of having committed an "infamous" crime or felony or being mentally ill or incompetent. A memorandum from Sarah Frisque of my office on this subject, providing more detail, is attached. These requirements for office would exist whether or not they were recognized in the Charter. These qualifications arise because of requirements of state election laws that apply to all cities or requirements of the Minnesota Constitution. No person can take public office until he or she is "qualified," and the term "qualified" in this context is clearly understood to mean that they are legally qualified to take office. Therefore, use of the word "qualified" is not a matter of concern. CLL 228756 BR291 -7 March 17, 2003 Page 3 III. Holding Over. The third issue raised by the proposed amendment relates to "holding over." Minn. Stat., Sec. 412.02, subd.2 provides that "all officers chosen and qualified as such shall hold office until their successors qualify." It is common in elected or appointed public offices for office holders to "hold over," or stay in office until they are replaced by a newly elected or newly appointed office holder who is "qualified" (i.e., meets the legal requirements to take office). The application of this idea has the advantage of avoiding problems that can arise if a public office becomes vacant upon the expiration of that officer's elected or appointed term and no other person is authorized to perform some essential public_, function. In a statutory city, the legislature has determined that it is appropriate for incumbent officer holders to "hold over" until their successors qualify. This would probably have been the common law, as is suggested in a number of Attorney General's opinions, even if the legislature did not specify that incumbent officers hold over in such a case. However, this does not answer all of the legal questions that can arise in such a situation. For example, as noted in the second attached memorandum from Sarah Frisque of my office, difficulties arise if, for example, the incumbent does not wish to hold over or if there are several incumbents who might qualify for one position (such as the case where two new Council members are elected but only one qualifies for office, in which case there is a question which of the two incumbent Council members would hold over). The Charter commission might decide that it is a good idea for incumbent mayors or council members to hold office until a replacement is qualified. If so, it might be advisable to answer some of the questions that arise or can arise in such a case, such as which of two incumbent council members will hold over when only one newly elected council members fails to qualify. On the other hand, the Charter commission may decide that it is not a good idea to provide for holding over given other provisions in the City's Charter. In a statutory city, all it some case e ._�nc ar�^nV -nt� a VLL it vacancies ar filled by appointment, although, 1 ome cases, p n ap ,.�d m y be replaced by someone later elected at a special election. Therefore, if, for example, a newly elected council member failed to qualify for office in January of a given year, the incumbent office holder in a statutory city would hold over for only a short period of time since the council could declare a vacancy based upon the failure of the newly elected officer to qualify and appoint a replacement who would serve until a special election called to fill that seat. However, the Brooklyn Center Charter does not provide for an interim appointment (unless there is less than one year remaining in the term at the time a vacancy occurs). Therefore, an incumbent mayor or council member holding over (perhaps after losing an election) would continue to hold office if his or her successor failed to qualify until a special election would be held to fill that seat. The Charter Commission should decide whether it wishes to allow for holding over even though holding over may continue for a substantial period of time, or whether it wishes simply,to have a vacancy occur and continue until a person can be elected to fill that vacancy. CLL 228756 BR291 -7 March 17, 2003 Page 4 In general, it is better to have a full council than to be one or two members short. However, situations could arise in which council members who had been defeated at the polls by the electorate would continue in office well past January until they could be replaced at a special election. IV. Time for Qualifying. The law does not specify a time by which a newly elected officer must be qualified. The Attorney General has given opinions stating that they must qualify within a "reasonable time" after the beginning of their term. For purposes of determining a reasonable time, it would be helpful to.-,,specify a date on which the reasonable time" would begin. This would be accomplished by the proposed charter amendment specifying the first business day in January as the beginning of the term. The current charter does not specify a single date when the term commences, making it somewhat more difficult to decide when a "reasonable time" has expired. If a person fails to qualify within a "reasonable time," the City Council can, and should, act to declare a vacancy. It seems to me that it would be helpful, and might avoid litigation in the future, if the Charter specified a date by which a person must be qualified or the council would declare a vacancy. For example, the charter might specify that if a person has not met the legal qualifications for office, including taking the oath of office, by January 15th, a vacancy exists and the council will proceed to fill that vacancy. If the charter commission feels that this could be helpful, it may also wish to provide a deadline for qualification in the case of a person elected at a special election and a person appointed by the city council so that no matter how a person is appointed or elected to office, there is a deadline by which that person must qualify that is clearly understood. V. Questions to be Considered. Because there are a number of questions that should be addressed by the Charter Commission, I have not prepared draft language for possible amendments. Once the Charter Co,nrnission has considered these questions I vVould be happy to prepare an amendment or review language proposed by the Charter Commission if it wishes for me to do so. These questions include the following: 1. When should the terms of office begin? 2. What is a reasonable time after the date when the term begins to require that a newly elected officer qualifies for office? After this date a vacancy should be declared. 3. If one or more elected officers fails to qualify by the beginning of his or her term, should incumbent officer hold over until a successor qualifies? 4. If holding over is to occur, which one of multiple incumbents would hold over for a single seat? 5. If the Charter Commission specifies a reasonable time after the commencement of a term that a newly elected officer must qualify for office, does it wish also to CLL 228756 BR291 -7 March 17, 2003 Page 5 specify a time by which an incoming officer qualify for office in the case of a person appointed to fill a vacancy and in the case of a person elected at a special election? Please give me a call if I can be of any further assistance in this matter. Very truly yours, Charles L. LeFevere CLL:sez cc: Michael McCauley, City Manager CLL 228756 BR291 -7 Mar -26 -03 11:19am Date: To: From: RE: From Kennedy Graven +61233T9310 MEMORANDUM February 19, 2003 Charlie LeFevere Sarah Frisque Definition of "Qualified" for Office and "Holdover" Ioldover" A PERSON IS "QUALIFIED" FOR OFFICE VVMN: 1) Candidate does not hold Incompatible Offices T -TT6 P.002 /005 F -026 When a person is elected to serve in two incompatible offices a vacancy exists. Op.Atty. Gen. 358- F -5A -5 (April 17, 1957). There are several Attorney General Opinions that deal with this subject and make a distinction as to which offices are incompatible. See Minn. Stat. Ann. §412.02 p.83 -84; Minnesota Constitution Annotated Article 7 §6, p233 -234. Acceptance of an incompatible office results in an automatic resignation of the prior, incompatible office. 2) Candidate is a Resident of the TowWCity /County Where Elected A candidate and incumbent must be an "inhabitant of the state, or, if the office is local, of the district, county, or city for which the incumbent was elected or appointed, or within which the duties of the office are required to be discharged." Minn. Stat. 351.02 (4) (2002). To qualify as a resident of the district, the person must have resided there for 30 days prior to the election. M.N. Const. Art VII, §6.. If person's home bums down shortly after an election and moves to another township with his fatnily, but still owns the land where his house once stood, he no longer qualifies for office. Op.Attny. Gem. 471 -M (December 30, 1959). The determination of residence is contained in Minn. Stat. 200.031 (2002). The candidate also must be eligible to vote in the district where he is elected, although it is not required that he actually be registered to vote. Op.Atty. Gen. 184 -I (November 28, 195$)_ 3) Candidate is at Least 21 Years of Age "Every person who by the provisions of this article is entitled to vote at any election and is 21 years of age is eligible for any office elective by the people in the district." M.N_ Const. Art. VII, §6. 4) Candidate Has Taken the Oath of O "Mhe incumbent's refusal or neglect to take the oath of office, or to give or renew the official bond, or to deposit or file such oath or bond within the time prescribed" creates a vacancy in office. Minn. Stat. 351.02(6) (2002). S) Cert�flcate of ,Election has Been .issued and ,Received See Op.Atty_ Gent. 471 -M (November 23,1999). 'Not included in attached Opinions ##227760 vl memo to clf re: qualification and holdovers in elections BR-193-7 Mar -26 -03 11':19am From Kennedy Graven AND THE CANDIDATE HAS NOT: +6123379310 T -776 P- 003/005 F -026 I) Been Convicted of an "Infamous" Crime or Felony A. 'Type of Crime "Mhe incumbent's conviction of any infamous crime, or of any offense involving a violation of the official oath" create a vacancy in office. Minn. Stat. 351.02(6). The word "conviction" means a plea of guilty as well as a finding of guilty. See Warren v Marsh, I l N.W.2d 528. To determine whether a crime is "infamous" the consequences available to the individual, not the punishment is actually given or suspended, is examined. The term infamous includes Any crime punishable by imprisonment in the state prison, Op.Atty. Gen. 490D (January 20,1941); some violations of federal law, Id.; and felony convictions, Op.Atty. Gen. 68 -D (February 27, 1942). A person convicted of a misdemeanor can also office. Id. If a crime is a ;Felony under federal law, but not under state law, a person is still entitled to hold off ce. Arpagaus R Todd, 29 N.W. 2d 810 (1948). B. Exception when Civil Rights Restored Person convicted of a felony and has not has his civil rights restored is not eligible for office. Op. Atty. Gen. 68 -D (December 17, 1 937). C. When Vacated The office is vacated when a verdict of guilty is returned or when a guilty plea is made. Op.Atty. Gen. 471 -M (November 18,1952); Op.Atty. Gen. 490 -D (January 20, 1941). 2) Is not Mentally 1111Incompetenr A person who is adjudged insane/mentally incompetent cannot vote and thus under Article VII, also is not eligible to hold office. Op- Atty.Gen 1932, No. 160, p.1$7 a 2 Unable to obtain, but its holding is noted in the annotations. ##227760 v memo to clFre: qualification and holdovers in elections 2 BR291 -7 Mar -26 -D3 11:2Dam From Kennedy Graven +6123379310 T -TT6 P.004/005 F -026 HOLDOVERS Issuel: Must an Incumbent Holdover until His Successor is Qualified? Conclusion: No, it appears to be permissive except in the case where a council would be left without a quorum. The Attorney General Opinions relating to holdovers in office state that the incumbent shall holdover until appointment. See Op.Attny. Gen. 12 -B -5 (December 12,1946); Op. Attny. Gen. 12- B-5 (March 16, 1951). However, it does not appear to be mandatory that the incumbent holdover. In one opinion, a town assessor who was re- elected, but knowing the poor financial situation of the village, refused to qualify because he knew payment would not be forthcoming. Op.Att ny. Gen. 12- B-5 (June, 5,1931). The opinion stated that he should holdover under his previous term until a successor could be found. Id. It does not appear there is any penalty if the assessor fails to holdover, because the opinion further suggests the village to then write to the tax commission and request their appointment of a special assessor for making a special assessment. Id. The opinion failed to address any penalties for failure of the assessor to holdover, thus holdovers must be permissive. In another Attorney General Opinion, a situation was discussed where three of the five council members wished to resign. Op.Atty. Gen. 471 -J (April 17, 1967). Doing so would leave the council without a quorum and thus the council would be unable to appoint new members to fill the vacant positions. Id. The opinion stated that the proper procedure and the reason for the holdover provision in the statutes was to have two of the members resign first and one member holdover until one new successor could be chosen. Id. Examining a similar statute in West Virginia, the opinion noted that in that case, the court stated that "mandamus would issue to force then councilmen to perform their duties until their successors qualified State ex reL Westphall v, Blair, 105 S.E. 830 (1921). Thus, it appears that for the most part, holdovers are permissive unless they leave a council without a quorum to appoint successors and conduct business. Issue 2_ Are there any situations in which an incumbent cannot holdover? Conclusion: Yes. He cannot holdover if he no longer qualifies to hold office or the winner of the race qualifies. One opinion noted that a person who no longer qualifies due to residency cannot hold over in office. Op.Atty. Gen. 471 -M (June 6,1958). It would be inferred that if aperson no longer qualifies for office in another way (declared incompetent or is convicted of a felony), he would be unable to holdover in office as well. Additionally, a candidate is barred from holding over once the winner of the election qualifies. It is immaterial whether the winner of the election qualifies and then subsequently resigns before ever taking office. Op.Attny.Gen. 471 -H (February 5, 1942). Therefore, there are some situations in which a holdover is not permitted. #227760 vl memo to cif re: qualification and holdovers in elections 3 RR291 -7 Mar-26 -03 )1:20am From Kennedy Graven +6123379310 T -776 P- 005/005 F -026 Issue 3: Which of multiple incumbents holds over if a small number of candidates fail to qualify? Conclusion: None of the incumbent holdover. Offices, such as that of City Council, in which a pool of candidates run and the ones with the highest number of votes obtains a seat on the council present a problem in applying the office holdover provision_ It is quite possible that Incumbents A and B did not receive the highest number of votes in an election and two New Candidates X and Y were duly elected. If Y qualifies for office but X refuses or cannot qualify, a vacancy exists on the council. Normally the incumbent should holdover in the position until a new member is appointed; however, in this situation, both A and B are equally entitled to holdover. In this case, following the reasoning citing in Kilburn v Conlan, 56 N.J.L. 349 (N.J.1894) and People v. Jones, 17 Wend. 81 (N.Y. 1837), neither are entitled to holdover and fill the vacancy. Op.Atty. Gen. 471 -M (March 28, 1910). Both of these cases continue to constitute applicable law. Although these cases state the above proposition, they do not go further and state the ramifications if more than one candidate fails to qualify or the failure to fill position through the use of the holdover provision causes the council to be without a quorum. #227760 vl memo to clf re: qualification and holdovers in elections 4 BR291 -7