HomeMy WebLinkAbout1979 07-25 CHCAAGENDA:
BROOKLYN CENTER CHARTER COMMISSION
Wednesday, July 25, 1979
City Hall, 8 p.m.
I. Call to order
2. Roll Call
3. Approval of transcript of March 20, minutes of April 18 and 23!
4. Amendment 24
5. Rules of Procedure Committee Cheryl Asplund
6. Study Committees Edwin Theisen
Ryamond Maik
8. Next meeting
9. Adjournment
June 25, 1979
E. M. Theisen
5701 June Avenue North
Brooklyn Center, MN 55429
Dear Ed:
J league of minnesota cities
This letter is a response to yours of June 11 regarding two proposed charter
amendments.
It is difficult to anticipate what, if any, affect the proposed amendment 13
language might have. Ending with the word "people it could be construed to
have the same effect as if the word "city" were substituted for the word "people"
since the city encompasses all the inhabitants and presumably the government
was constituted to meet their needs. On the other hand, expecially if the
history of the enactment of the amendment as demonstrated by charter commission
records newspaper articles and other extrinsic evidence, so indicates that language
could be interpreted as limiting the power of city government.
Because the intent is not clear without resorting to extrinsic evidence, I
would not recommend its use. Nor would "substitution of the word "petitioners"
seem to me to clear up all ambiguities or accomplish your probable objectives.
Since you propose to put this generally applicable language in a chapter that
deals with initiative and referendum, what if any affect would it have on
petitioners not proceeding under any specific charter section but under the
common law right to petition this government for redress. Does it somehow intend
to favor petitioners over the interests of those citizens who for various reasons
remain silent about their interests. Because of these problems, I might suggest
language something like the following:
"This charter shall be construed in such a manner as to
maximize direct citizen participation in city government."
I would suggest that it be in the first chapter rather than in the one on
initiative and referendum, if you wish to achieve the broadest possible effect.
As to proposed Amendment 15, I can make the following statements:
1. There is no decisional or other law that I could find construing this or
similar language. In the absence of any statement in the charter, city
expenditures with regard to initiative and referendum matters are permitted
300 hanover building, 460 cedar street, saint paul, minnesote 55101 C612] 222 -2661
E. M. Theisen
2. From my 11 years on the League staff working with charters, I do not know
of any other city charter in Minnesota which contains a similar limitation.
I also examined approximately half of the charters in our collection
specifically searching for such a provision.
3. You asked what problems such an amendment might present. I think most pro-
blems with it would simply be ones of interpretation. On its face, I don't
think it would change current law. Though contemporaneous history could
cloud the issue, the proposed language would not seem to alter the power
and responsibility of the clerk, attorney and council to determine the
genuineness and validity of the signatures or the sufficiency of the petition.
It might cause a somewhat more careful analysis of the legality of expendi-
tures which might possibly be construed as discouraging or promoting a matter
which is the subject of the petition. The language could result in greater
legal and administrative expenses to the city as citizens on various sides
of -;ues decide it provides them the basis of a tax payers suit against the
city.
4. The amendment would be most logically enforced by vote of some members
on the governing body, by critical audit reports and of course taxpayer suits. AIL
5. The council and finally the courts would have ultimate power and responsibility
to determine if violations had occurred.
We hope this answers your questions satisfactorily.
Sincerely yours,
Stanley Peskar
General Counsel
SP /ck
-2- June 25, 1979
as reasonably necessary to establish the genuineness, appropriateness and
sufficiency of the signatures and petition. In addition, expenditures to
educate the electors as to the meaning and significance of proposed charter
changes are also authorized.
July 5, 1979
Dear Ed:
300 hanover building, 480 cedar street, saint paul, minnesota 55101 C6123222-2861
5 I
JhJ league of minnesota cities
E. M. Theisen
5701 June Avenue North
Brooklyn Center, MN. 55429
This letter is a follow -up to mine of June 11. I noted that in my
previous letter I overlooked two proposed amendments and the questions
you had posed with regard to them. The first of these is listed as
proposed amendment 2: Section 2.03, which would limit the number of
consecutive terms of council members and the mayor. You ask is such
a restriction constitutional.
Article 7, section 6 of the Minnesota Constitution provides: "Every
person who, by the provisions of this article, is entitled to vote at
any election and is twenty -one years of age, is eligible for any office
elective by the people in the district wherein he has resided thirty (30)
days previous to the election, except as otherwise provided in the
constitution, or the constitution and law of the United States." Though
'I could find no court decisions or attorney general's opinions directly
construing whether this constitutional provision forbids home rule charter
limitations on consecutive terms of office, it would be my opinion that that
is the result. The attorney general has construed the predecessor and counter-
part provision of the pre -1974 constitution and opined that a declaration in
a city charter that a member of a city council was ineligible to any other
elective city office was invalid. Op. Atty. Gen. 280G, Jan. 16, 1958. He
also ruled that the legislature could not add to constitutional qualifications
for public office. Op. Atty. Gen. 141 -D -5, Jan. 11, 1950.
In the 40 -odd charters that I examined, I found no limitations on the number of
consecutive terms that can be served by mayors or council members.
E. M. Theisen
July 5, 1979
Page 2
Your third specific question: Whether this type of provision is governed
in any manner by the State of Minnesota, would seem to be no. If a court
were to find that the constitutional provision quoted on page 1 of this
letter, permits such limitations, I don't think there is any law that
would prevent its inclusion in a home rule charter.
Your proposed amendment 4, Section 2.05, deals with quorp requirements.
You ask whether a quorum of 4 can be applied by the charter to a council
which the charter establishes as five members. The answer is yes. The
charter can establish a quorum in any reasonable manner which does not
deprive citizens of essential rights.
Secondly you ask, is it better to require a minimum of three votes to
approve action on any motion or action by the council. Of course, that is
a judgemental question. And my own preference would be to leave your
charter provision as it is with no increase in the quorum number necessary.
There are some home rule cities in Minnesota that establish a minimum number
of votes such as three out of five in order for the council to take any
action, and I am not sure what problems they may have however, especially
where there may be some unfilled vacancies, I can foresee the possibility of
situations where no action is possible either under the proposed amendment,
because of absence of members, or under the alternatives set out in question
two because of the opposition of one member present at the council in the
absence of two others.
You ask whether other cities require a quorum of four in a five member council:
To my knowledge they do not.
Question 5 you ask whether other cities have a charter provision requiring a
minimum number of votes. The answer is yes. Many cities require a minimum
number of votes per pas sage of ordinances, especially emergency ordinances.
Some, require a minimum number of votes for any action.
In summary, I think your present charter provision 2.05, unamended likely
to be the most workable.
I hope this answers your questions satisfactorily.
Sincerely yours,
SP /smr
C4-a a°,4/2.&„.
Stanley G. Peskar
General Counsel
Proposed Amendment 13: Sec 5,01: "This chapter shall be construed
liberally in favor of the people,"
Questions:
1. Does this amendment affect the charter?
2. Ira this nmendrnent enforcvnble?
1. Would changing "people" to "petitioners" change the
meaning? If so, do questions (1) and (2) apply?
Proposed Amendment 15: Sec, 5.02 (new paragraph)
"The City shall not expend city money or services in favor of
or in opposition to the petition."
Questions::
1. Is there any state law concerning the intent of this
amendment?
2. Do you know of any other charters that have a similar
stipulation?
`i, What problems would this amendment present?
*1, How could this amendment be enforced?
5. flow would it be determined if this- amendment were
violated?
Proposed Amendment 2: Sec. 2.03: Each Councilman shall serve
for a term of three years hut no more than 2 consecutive
terms. The Mayor shall serve for a term of two years, but
no more than 3 consecutive terms. Incumbents shall be
deemed to have occupied office following their next election
to their present position.
Questions:
1. Is such a restriction constitutional?
2. Do any other cities in Minnesota have this limitation?
3. Is this type of provision governed in any manner by
the State of Minnesota?
Proposed Admendment 4: Sec. 2.05: The quorum of the Council
consists of three—H)- four (4) members; if at any time the
membership of the Council is reduced to less than three -43+
four (4) the remaining members may by unanimous action
appoint additional members to raise the membership to
three-43i- four (4)
Questions:
1. Can this provision be applied to a five member
council?
2. Is it better to require a minimum of three votes
to approve action on any motion or action by the
council?
Do any other cities with a five member council
require a quorum of four?
4. Do any cities have a provision as in question 2?