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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?