HomeMy WebLinkAbout1990 11-28 CHCABROOKLYN CENTEER CEO TIZER COMMISSION
&3 E1 28, 1C490
7:00 P, M.
CITY EALL
A E N ED A
11 Call to Order
2, Roll it
3. Approval of Octom 24, 1990, Minutes
4. Correspondence
A. Letters to Post/NortnWest News
B. Correspondence from City Attorney
5, Old Businiess
A, Status of Proposed Council Vacancies Revisions (Section 2.05)
B. Status of Proposed Council Neetings Revisions i"Section 3,01)
61 New Business
7, NeNt Meting to
8, Adjournment
HOLMES GRAVEN
CHARTERED
Attorneys at Law 470 Pitlsbur_v Center. Minneapolis, Minnesota 55402
O ROBERT A. ALSOP (612) 337 -9300
J LIE A. LAW LER
C H L. I.EF'E R
PAUL D. BAERTSCHI Facsimile (612) 337 -9310
JOHN N M 11. LEFE \'R£. JR.
RONALD H. BATTY
ROBERT J. LINDALL
MARY J. BRENDEN
STEPHEN J. BUBUL
LAURA K. MOLLET
ROBERT C. CARL SON
DANIEL R. NEISON
CHRISTINE M. CHAL£
BARBARA L. PORTWOOD
JOHN B. DEAN WRITER'S DIRECT DIAL
MARY FRANCESSKALA
ROBERT J. DEIKE
JAMES M. STROMMEN
MARY G. DOBBINS
STEVEN M. TALLEN
JEFFREY ENG
JAMES J. THOMSON. JR.
STEFANIE N. GALEY
LARRY ;N. W'ERTHEIM
DAVID L. GRAVEN
BONNIE L. WILKINS
CORRINE A. HEINE
JAMES S. HOLMES 337 9215
OF COLNSEL
DAVID J. KENNEDY
ROBERT L. DAVIDSON
JOHN R. LARSON
JOHN G. HOESCHLER
WELLINGTON H. LAW
November 7, 1990
Mr. Jerry Splinter
City Manager
City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, MN 55430
Re: Proposed Charter Amendments
Dear Jerry:
At the last council meeting, I indicated that I would provide
the City with my
written comments on the proposed amendments to Sections 3.01,
2.05, and 2.05A of
the City Charter. Please feel free to circulate this letter to the
City Council and
the Charter Commission.
I. GENERAL DESCRIPTION OF AMENDMENTS.
A. Amendment to Section 3.01.
1. Organizational Meeting. The current Charter requires a
special meeting on the first business day of the year following
a general election to allow new Council :Members to be sworn
in. The proposed amendment would allow the swearing in of
new members to occur at the first council meeting in January,
thereby avoiding the need for a special meeting on the first
business day of the month. This amendment would not forbid a
meeting on the first working day if the Council wishes to call
a special meeting; but if there is no pressing need to put new
Council Members in office, this amendment would allow the
Council to wait until a more convenient time to do so.
2. Setting Meeting Dates. This amendment also allows the
Council to set the time and place of regular meetings by
simple motion as opposed to requiring that meetings be set by
resolution or ordinance as required by the current Charter.
Mr. Jerry Splinter
November 7, 1990
Page 2
B. Amendment to Sections 2.05, 2.05A.
1. Minor Changes. This amendment includes a number of
relatively simple changes. Some of these are:
(a) The deletion of the statement that an office becomes
vacant upon death, resignation, or removal from office,
presumably because this is covered by Minnesota
Statutes Section 351.02;
(b) The addition of "departure of residence from the City"
as an event which results in forfeiture of office (I do
not know why this is being added since it is also covered
by Minnesota Statutes Section 351.02);
(c) The addition of the requirement that the City Council
publicly declare a vacancy within ten days of its
occurrence;
(d) A change in the period, or window, within which a
special election must be called whenever necessary to
fill a vacancy from between 90 and 120 days under the
current Charter to between 100 and 130 days under the
proposal;
(e) The addition of a requirement that in filling a vacancy
the Council is to give consideration to former council
members, mayors and present and past city
commissioners.
2. Changes in Procedure for Filling Vacancies.
(a) Current Charter. Under the current Charter all
vacancies are filled, at least temporarily, by
appointment. The Charter establishes a cut -off day for
determining whether there will be an election to fill the
vacancy. If the vacancy occurs in the first one year
and 265 days of a term, the vacancy is filled
temporarily by appointment and the person appointed
serves only until the vacancy is filled by a person
elected at the next general election (the mid -term
election). The person so elected would serve for two
years (the unexpired term of the vacancy). If the
vacancy occurs in the last two years and 100 days of a
term, the person appointed by the Council would serve
the entire term. Under the current Charter there are
no special elections unless an election is necessary
because the Council fails to fill a vacancy by
appointment. All vacancies are filled by appointment
Mr. Jerry Splinter
November 7, 1990
Page 3
at least until a later general election. In all elections,
there is a primary election whenever there are more
than two candidates for an office.
(b) Proposed Amendment. Under the proposed amendment,
there is no temporary appointment by the City Council
to fill a vacancy. Vacancies are either filled by
election or are filled by appointment for the remainder
of the term. The cut -off date under the proposed
amendment is 365 days before the end of the term. If a
vacancy occurs in the last one year of a term, it may be
filled by appointment. If the vacancy occurs in the
first three years of the term, it must be filled by an
election. In some cases, this special election would be
held at the same time as the general election. There
would be no primary election.
It is not clear what the Charter Commission intends
with respect to the question whether a special election
;'should be held at the same time as the general election.
Elections to fill vacancies are generally special
elections under the proposed charter amendment.
However, the proposed amendment contains the
following paragraph:
When a vacancy in an elected municipal
office occurs within one hundred thirty (130)
days prior to a regular municipal election
date, the special election to fill the vacancy
shall coincide with the regular election.
This provision seems to be incomplete since it obviously
would not work to hold an election at the general
election when a vacancy occurs, for example, only ten
days before the election. The Charter Commission may
have intended to provide that a vacancy would be filled
at a' general election rather than a special election if
the vacancy occurs between 100 and 130 days before
the election. However, I am only speculating about
what was intended by the Charter Commission in this
case.
II. COMMENTS AND RECOMMENDED CHANGES.
A. Amendment to Section 3.01.
I would recommend that the Charter Commission consider the
following changes:
Mr. Jerry Splinter
November 7, 1990
Page 4
1. The first sentence of the new language the pronoun "they
used to refer to tht—Ctty Council. I believe it would be more
correct to use the pronoun "it."
1
2. The amendment changes language near the end of this section
from "his" to "his /her." In most of the rest of the Charter,
changes to gender neutral language have been handled in ways
other than using slant lines. Therefore, for purposes of
consistency, I would recommend that this sentence be
I amended to read, "Such notice shall be delivered personally to
each member or shall be left at the member's usual place of
residence with some responsible person."
3. The second sentence of new language states, "Elected officers
provided for by this Charter shall be sworn in and assume the
duties of the office to which they were elected at the first
council meeting in January following such election or as soon
thereafter as practical on or before the first regularly
scheduled council meeting." The last clause of this sentence,
"on or before the first regularly scheduled council meeting" is
somewhat confusing. At first reading, it seems to be self
contradictory, saying that the swearing in will occur at the
meeting or soon thereafter, and at the same time saying that
it will be on or before the meeting. I believe that the City
Council members also found this to be confusing. On more
careful reading, it appears that the intent of the clause "on or
before the first regularly scheduled council meeting" is to
explain that the "meeting" referred to earlier in the sentence
does not have to be "regularly scheduled" meeting. In other
words, the meeting could be a special meeting before the date
of the regular council meeting. If this in fact is what was
intended by the Charter Commission, I believe that it could be
clarified by deleting the clause "on or before the first
regularly scheduled council meeting." Without this clause the
swearing in would occur at the first meeting in January. I
would interpret such language to mean the first meeting in
January whether it is a regular meeting or a special one.
Alternatively, if the Charter Commission wishes to make it
unquestionably clear, it could change the sentence to read,
"elected officers provided for by this Charter shall be sworn in
and assume the duties of the office to which they were elected
at the first regular or special council meeting in January
following such election or as soon thereafter as practical."
4. Finally, I assume that the Charter Commission only intends
the January swearing in date to apply to general elections.
Otherwise, the winner of a special election held in April, for
example, would have to wait to be sworn in until the following
January. To correct this potential misunderstanding, I would
Mr. Jerry Splinter
November 7, 1990
Page 5
recommend that the.second new sentence in Section 3.01, be
amended to read, "officers elected at a general election
provided for by this Charter shall be sworn in and assume the
duties of the office to which they were elected at the first
regular or special council meeting in January following such
election or as soon thereafter as practical."
B. Amendments to Sections 2.05 and 2.05A.
I would recommend that the Charter Commission consider the
following changes and comments relating to the proposed
amendments to Sections 2.05 and 2.05A:
1. T beginning of the. first sentence in Section 2.05A states, "If
the remaining term of office created by a vacancy is less than
three hundred sixty -five (365) days...." However, a "vacancy"
does not create a term of office. Therefore, I would
recommend that the first part of this sentence be changed to
read "if the remaining term of office in a position which has
become vacant is less than three hundred sixty -five (365)
days...."
2. In the first paragraph the phrase "vacancy or vacancies"
appears in four places. In all cases, I would recommend that
the words "or vacancies" be deleted as I believe it is
unnecessary additional language. Likewise, in the first
sentence I would recommend that the phrase, "a person or
persons who must meet all the qualifications" be changed to
read "a person who meets all of the qualifications."
3. In the first sentence, the phrase "this period" has three
antecedents in the sentence to which it might refer, i.e. 30
days, 365 days, and the remaining term. To avoid confusion, I
would recommend that the words "this period" be changed to
"the remainder of the term."
4. In the last sentence of the first paragraph of Section 2.05A, I
would recommend that the words "is to" be changed to "shall,"
that the word "not" be changed to "no" and that the phrase "to
be otherwise" be changed to "shall be otherwise."
5. In the third sentence of the second paragraph of Section
2.05A, I would recommend that the phrase "election is to be
held" be changed to "election shall be held," and that the
phrase "and to be otherwise" be changed to read "and shall be
otherwise."
6. In the first line of the last paragraph of Section 2.05A, a
period or semicolon should be added after the word
Mr. Jerry Splinter
November 7, 1990
Page 6
"members." in the same paragraph, I would recommend that
the phrase "council members, mayors, or present or past city
commissioners" be changed to "council members, mayors and
present and past city commissioners."
7. The last sentence of the last paragraph of Section 2.05A states
"all appointed officers shall serve until a special election or a
general election is held." I would recommend that this
sentence be changed to read, "all appointed members shall
serve until their successors, elected at a general or special
election, are sworn and qualified."
8. The third paragraph in Section 2.05A requires that an election
to fill a vacancy should be a general election if the vacancy
occurs within 130 days prior to a general election date. This
would seem to mean that a vacancy occurring ten days prior to
a general election would have to be filled at that general
election. Obviously this is not reasonable. Even if the
vacancy occurred sufficiently far in advance of a general
election so that the proper filing, and notice procedures could
be followed, it may be that the Charter Commission would
feel that the period of time is too short to fully inform the
voters. Therefore, I would recommend that the Charter
Commission establish a date after which the Council is no
longer required to hold the special election at the same time
as the general election (eg. within 130 days but more than 100
days prior to a general election date).
III. ADVANTAGES AND DISADVANTAGES OF THE PROPOSED
AMENDMENTS.
A. Amendment to Section 3.01.
I know of no significant objections which could be raised to the
substance of the proposed amendment to Section 3.01.
B. Amendment to Sections 2.05 and 2.05A.
There are a number of significant difference between the current
charter provision and the proposed charter provision on filling
vacancies. Neither the current nor the proposed charter provisions
are illegal or unconstitutional. Therefore, whether to adopt the
amendment is a matter of legislative discretion (if adopted by the
City Council) or of intent of the voters (if decided at an election).
1. Election Without a Primary. Under the current Charter,
vacancies are held at general rather than at special elections
and would be preceded by a primary election if appropriate.
Under the proposed charter amendment, special elections
Mr. Jerry Splinter
November 7, 1990
Page 7
would be required in more instances and these elections would
be without a primary. The advantage of a primary election is
that it narrows the field of candidates so that, at least
between the two candidates selected in the primary, the
preference of the majority of the voters can be determined.
Without a primary, the candidate receiving the greatest
number of votes is elected even if the number of votes
received is less than a majority. The argument in favor of the
proposal is that sk ipping the primary would be faster and
would cost appr ximateiy onu -half as much because one
election would be avoided:
2. Special Elections Generally. Under the current Charter, there
would seldom be a special election. All vacancies are to be
filled by appointment or elections which are held at the same
time as the general election, or a combination of these two.
Under the proposed amendment, the majority of vacancies
(assuming vacancies occur at random times) would be filled by
special election held at times other than. the general election.
The argument for the proposed amendment would be that
these officers should be selected by the voters and that the
will of the voters is best determined by a vote of the people.
The .moments against using special elections to fill more
vacancies are: first speQW elections. mone_y� and
second, that voter turnouts at special election�.3r. so cma -ll
that a small number of people can place a candidate in office;
therefore special elections are not reasonably true reflections
of the will of the majority of voters. Perhaps it should be
noted that the legislature has specified a procedure for filling
vacancies in statutory cities which is essentially the _same as
the current Brooklyn Center Charter. See Minnesota Statutes
Section 412.02, Subd. 2A.
3. Interim Appointments. Under the current Charter, all
vacancies are filled, at least temporarily, by appointment.
Those appointments for vacancies occurring before the cut -off
(i.e. in the first one year and 265 days of a term) end after the
next general election (the mid -term general election). Those
appointments to vacancies occurring after the cut -off will last
for the remainder of the term. Under the proposed
amendment, only vacancies occurring within the last 365 days
of a term are filled by appointment. There are no interim
appointments. Therefore, in the case of most vacancies (again
assuming that vacancies occur randomly) the City Council
would be one or more members short until an election could be
held and a candidate qualified. The disadvantage of the
amendment is that the Council would have to operate with
four, or even three, members for a period of several months,
thereby placing the power of government in the hands of fewer
Mr. Jerry Splinter
November 7, 1990
Page 8
officials. Additionally, in the case of a four member Council,
there is an increased chance of deadlock and inability to
conduct the City's business. Arguments against interim
appointments are that appointments should be discouraged
because they do not necessary reflect a decision by the voters
and because the appointee may enjoy an unfair advantage in a
later election because he or she is running as an incumbent.
IV. PROCEDURE.
A. Introduction.
Charters can be amended in several ways involving interplay between
the voters, the Charter Commission, and the City Council. However,
since the amendments currently under consideration originate from
the Charter Commission, only two of the possible procedures are
relevant. The first procedure is adoption by ordinance. Under this
procedure, if the Charter Commission recommends an amendment to
the City Council, the City Council may simply adopt the amendment
by unanimous vote of all of the Council Members, following a public
hearing on two weeks published notice. Such an amendment would
become effective after 90 days. However, such an amendment is
subject to a so- called "reverse referendum." That is, by a petition
signed by a sufficient number of voters, petitioners can force the
amendment to a vote of the people.
Under the second procedure, the City Council would receive the
proposed amendment and simply set it on for election. If the next
general election occurs within six months the question would be
submitted at that election. If no election occurs within six months,
the Council would be required to call a special election within 90
days of submission of the draft amendment to the City Council.
B. Current Status of Proposed Amendments.
The statutory provisions relating to charter amendments proposed by
the Charter Commission do not explicitly require the Charter
Commission to specify to the City Council which of the two
procedures they are following. That is, the Charter Commission is
not required to specify that it wishes to have a proposed amendment
adopted by ordinance rather than by vote of the people. In most
cases, therefore, the City Council would have a choice. Upon receipt
of a proposed amendment, the Council could either adopt an
ordinance by unanimous vote, or, if it did not do so or could not
achieve unanimity, the Council could refer the amendment to the
vote of the people.
Ordinarily, the City Council does not have the option of simply
declining to approve the amendment and referring it back to the
Mr. Jerry Splinter
November 7, 1990
Page 9
Charter Commission with suggestions. In most cases, a proposed
amendment would have to be submitted to the voters if the City
Council did not adopt it by ordinance.
In the case of State ex rel. Andrews v. Beach, 155 Minn. 33, 191 N.W.
1012, (Minn. 1923), the Mankato Charter Commission submitted
charter amendments to the City Council. The City Council felt that
the charter amendments were unclear, incomplete, and inaccurate,
and suggested that the Charter Commission reconsider and clarify
the amendments and return them to the City Council. The Council
did not call an election and a suit was brought to compel the Council
to submit the amendment to the voters. The court noted that there
may be cases in which such amendments need not be submitted to the
voters such as amendments which are clearly contrary to the
constitution or statute or to the public policy of the State. However,
an amendment which simply does not fit well with the remainder of
the Charter, is badly worded, or is difficult to understand or to
administer must nevertheless be submitted to the voters.
Therefore, if the amendments proposed by the Brooklyn Center
Charter Commission had simply come to the City Council without a
recommendation as to the procedure to be followed, the Council
would have had to either adopt the amendments by unanimous
ordinance or set it on for election. (I should note, however, that I see
no reason why the Charter Commission could not voluntarily take a
proposal back for reconsideration if the proposal encountered
objections at the City Council.)
Our case, however, is somewhat different. Both of the charter
amendment proposals came under cover letter from the chairperson
of the Commission stating that they were being recommended to the
Council pursuant to Minnesota Statutes Section 410.12, Subd. 7, for
adoption by ordinance. The subdivision cited is the one dealing with
adoption by ordinance. Therefore, it seems that the Charter
Commission had in mind, at least at the present time, only
recommending the adoption of the amendments by ordinance. I do
not feel that the Council is compelled to set these questions on for
election if the Council does not wish to adopt the amendment by
ordinance because of the fact that the Charter Commission
specifically stated that referral to the City Council was "pursuant to
Section 410.12, Subd. 7."
If the proposals are adopted by the City Council by ordinance, this
can be accomplished with very little expense. However, if the
Council is forced to submit the questions to the voters, it must call a
special election at a fairly considerable expense and inconvenience.
That expense would be unnecessary and unreasonable in the case, for
example, of the amendment to Section 3.01. Section 3.01 was
submitted to the City Council too late to be effective for those
Mr. Jerry Splinter
November 7, 1990
Page 10
taking office in January of 1991. It can have no real practical effect
until after the 1992 elections. Therefore, it is reasonable to assume
that the Charter Commission intended to submit these questions to
the City Council at this time only for the purpose of adoption by
ordinance and not for a referendum at special election.
Finally, as a further indication of the intent of the Charter
Commission, it seemed that the chairperson of the commission who
was present at the City Council meeting was very willing to take
these proposals back to the Charter Commission upon the City
Council's request for clarification and explanation.
In conclusion, it is my opinion that these proposals are in the hands of
the Charter Commission. The Commission can do any of the
following:
1. Decide not to submit these proposed amendments to the City
Council,
2. Amend the proposals and resubmit them, or
3. Resubmit the same or amended proposals and insist on an
election if the City Council declines to adopt them by
ordinance.
It seems to me that the most prudent thing to do is not to force an
election at this time unless the Charter Commission believes that
prompt action is essential. It is obviously desirable to save the
expense and inconvenience of an election if it is possible to do so.
The Charter Commission was most reasonable in submitting these
proposed amendments only for adoption by ordinance. The effect of
such a submission to the City is that the City Council can react to
the proposal and perhaps suggest some changes to the Charter
Commission which improve or clarify the amendments. Such changes
to the amendments, if made by the Charter Commission, may
improve the amendment even if the City Council does not ultimately
adopt it by ordinance. This may mean that an improved proposal will
eventually go to the voters.
Unless the Charter Commission believes that the expense of a special
election is warranted to speed up the process, it would seem to be in
the public interest to time the submission to the City Council of a
question which must be submitted to the voters so that it is just
under six months before the next general election. This would give
the public ample time to become informed on the issue and would
allow the Council to save tax dollars by setting the special election
at the same time as the general election.
Mr. Jerry Splinter
November 7, 1990
Page 11
If you, the Council, or the Charter Commission have any further questions on any
of these matters, please feel free to give me a call.
Very truly yours,
Charles L. LeFevere
CLL:rsr
BR291 -007
0
November 19, 1990
Barbara Sexton, Chairperson
Brooklyn Center Charter Commission
3824 58th Ave N
Brooklyn Center, MN 55429
Dear Ms Sexton:
I have reviewed Mr. LeFevere's letter of November 7th on the Proposed Charter
Amendment and end up thinking to myself WOW we certainly seem to
have opened up a can of worms.
Given that our initiative was /is to simply put some restrictions on the length
of time a person could serve via a Council Appointment, I recommend that we
seek the City Attorney's interpretation of our Charter as it exi sts todav) on
the following questions. This will give us the proper perspective on two
principle issues.
1) Does the charter allow and /or require a Primary Election when a
vacancy is filled via a Special Election?
2) Given a scenario of, "A PERSON ELECTED TO SERVE A FULL FOUR YEAR TERM
RESIGNS IN THE FIRST MONTH OF THEIR TERM IN OFFICE'.
a) Could an appointee, appointed by the Council within 30 days
of the declared vacancy, serve the remaining approximate
3 years 10 months of the four year term?
b) If not for the remainder of the 4 year term, then for how
long? end how does any, then remainder of the 4 year term,
get filled?
Given that, my availability to attend the November 28th Commission meeting is
in question, I thought I would share my thoughts with you in this manner.
Sincerely,
Tony Kuefler, Member
Brooklyn Center Charter Commission
0 cc Carole Blowers V
1
Ms. Barbara Sexton November 27, 1990
3824 58th Avenue North
Brooklyn Center
Dear Barbara,
The purpose of this letter is to inform you that I may not
be able to attend the meeting of the Charter Commission on
November 28. I also wish to request that I be excused from
the meeting. The ominous weather forecasts suggest that we
move our departure date for the Southwest from December 1 to
November 28. However, if the current storm makes departure
unwise, we may stay over a day or so, in which case I will
be at the meeting.
I would like to offer my views on three issues which are
pertinent to the Commission's deliberations at this time.
They pertain to:
Procedural matters,
The issue of swearing in new council members and the
date of the first council meeting.
The term of office for a council appointee.
1. Procedural issues.
The rules of procedure which govern our city are
increasingly complex. They involve statutes and regulations
over which we have no control and of whose existence we are
often unaware. Therefore, in many cases for us to attempt
to draft detailed language to address an issue we are
concerned with seems futile to me. Accordingly, I would
like to suggest that we address the issues on a conceptual
basis, adopt a concept, and submit that concept to the
council and the attorney for a reaction. once we have
agreement on the concept, we could then pass the matter to
the attorney for expression in appropriate language, with
full consideration of other statutes and regulations
involved.
2. Section 3.01 Organizational Meeting and Swearing In.
My views of these issues expressed in conceptual terms are:
a. There should be
new Council members
council;
a public swearing -in ceremony for
at the first meeting of the new
b. There should not
charter for a fixed
that meeting should
be an ",artificial" demand by the
date for the first meeting, but
not be delayed unnecessarily;
c. There should be provision for new council members
to be enabled to take office at their request prior to
the formal swearing in ceremony if they so choose. A
need for such a provision might arise, for example, in
an adversary environment to participate in calling for
a special meeting, or in a public emergency situation.
3. Amendments to Sections 2.05, 2.05A.
My only concern with regard to the issues involved has to do
with the proposed changes for filling vacancies. I would
suggest that the Commission agree on the concepts, and
request the attorney draft appropriate language. At the
same time other language in the affected sections should be
"cleaned up" to conform to statutes, eliminate redundancies
between the charter and statutes, and resolve other language
problems.
My views concerning the appointment issues are these:
a. I am opposed to a procedure that would permit
election of a person to office based on the votes of a
small minority of our voting population. This could
easily occur in a special election with no primary. We
have provided for a primary election to assure that
candidates are elected by a majority of voters, rather
than a plurality. This policy should apply to all
elections for city offices.
b. I do not see a problem with the current appointment
process. The maximum term of appointment is consistent
with the current extended term of office. To require
primary and run -off special elections is costly, and
there is no reason to believe it improves the quality
or responsiveness of elected officials. However, we
could ensure avoidance of controversial appointments by
simply requiring a unanimous vote of the council. I am
aware of instances in the past where an appointee was
approached and stated informally that no would not
serve without a unanimous appointment. I believe a
unanimous appointment would ensure a smooth transition.
If agreement by the council is not unanimous, then a
special election would be automatically invoked under
current provisions of the charter.
Thank you for the opportunity to be heard.
Sincerel
Ted L. Willard
Charter Commission Member