Loading...
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