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HomeMy WebLinkAbout1976 01-21 CHCA10. Open discussion 11. Set date of next meeting 12. Adjournment BROOKLYN CENTER CHARTER COMMISSION Wednesday, January 21, 1976 City Hall, 7:30 P.M. AGENDA 1. Roll Call 2. Approval of minutes of meeting of October 1, 1975 3. Reading of 1975 Annual report to Chief Judge of District Court 4. Audit Chairman Report for the year 1975 5. Election of officers for 1976 Chairman Vice Chairman Secretary 6. Appointment of Audit Chairman and Public Relations Chairman 7. Discussion of commissioners expieration dates of October 24, 1976 8. Correspondence St. Louis Park Charter Commission Chairman John Lund Brooklyn Center DFL Club David Kanatz 9. Review and discussion of study groups written reports Study Group I Chapter 1 H..Dorff Study Group II Chapter 5 V. Kanatz Study Group III Chapter 9 E. Theisen BROO LYN CENTER CHARTER COMMISSION Annual Report for 1975 Officers elected at our January meeting: Chairman Henry A. Dorf Vice Chairman James A. Gillen Secretary Barbara Swart Officers appointed by chairman and approved by commissioners: Audit chairman Mona Hintzman Public Relations chairman Edwin Theisen Reappointments of commissioners by Chief Judge for another four year period were: Mona Hintzman Richard Higgins James A. Gillen Frank Kampmeyer Betty Johnson The following three new replacements to the commission were made during the year: Cheryl Asplund Robert DeVries Orlander Nelson (replaced Lorely Olson) (replaced Fred Stanley) (replaced Jack Welsh) The commission met four times during the year as required in its by -laws. The major action taken was to establish three sub committees consisting of five members each. These committees were charged with the responsibility of studying assigned chapters of the charter and periodically submitting written reports covering the results of their study to the commission as a whole. Respectfully submitted, January 21, 1976 BROOKLYN CENTER CHARTER COMMISSION Chairman oio January 16, 1976 Mr. Henry Dorff, Chairman Brooklyn Center Charter Commission Brooklyn Center, Minnesota Dear Mr. Dorff: Subject: Chapter 9, Eminent Domain Study Group Three Study Group Three met on January 15 at 5:00 p. m. to review Chapter 9 Eminent Domain of the Brooklyn Center City Charter. After reviewing and studying this Chapter the group suggests the following to the Charter Commission: Section 9.03. PAYMENT OF AWARDS The group questioned why the number of 70 days was selected for payment of any awards of damages. Normally one would expect the number of days to be 30 60 or 90. This can probably be explained by one of the original members of the Charter Commission. Section 9.04 CITY MAY DISMISS PROCEEDINGS This Section implies that the city shall pay all reasonable costs and expenses incurred by the condemnee, including attorney's fees, when the city dismisses the proceedings. It is the opinion of the group that this Section shall be rewrittten to include provision for such instances when the,courts dismiss eminent domain proceedings. In other words, if a condemnee challenges the city's right to eminent domain in the courts and his challenge is upheld, this Section should recognize that the city should be required to pay all reasonable costs and expenses incurred by the condemnee, including attorney's fee. It is recommended that this Section be reworded to reflect this provision. The group also held a general discussion of the four assigned chapters and it was the feeling of the group that a serious weakness exists in the ease by which the city can enter into the acquisition and operation of utilities. As stated in Section 11.01, the action to acquire utility property may be taken by ordinance and the only restriction is that it shall not be an emergency ordinance. When one reviews the ordinance procedure, this indicates that only three votes would be required to commit the city to the acquisition of utility operations which may have a significant financial impact on the citizens of Brooklyn Center. The acquisition of utility operations generally involves hundreds of thousands or even millions of dollars and the control exercised when committing this amount of money should be greater than the checks and balances needed to enact dog and cat controls. Therefore, our group will give serious consideration to requiring a referendum rather than an ordinance for such acquisitions. Very truly yours, E. M. Theisen Chairman, Study Group Three Attendees: Richard. Higgins, Robert DeVries, Frank Kampmeyer and Edwin Theisen Absent: Betty Johnson To: Brooklyn Center Charter Comm.s•sion From: Richard J. ,orseeo^ Brookly~. Center Resident Recently I had the oprtortunity to review a legal memoran °iu°. from City Attorney Richard Schieffer which I feel compelled to bring to your attention. In the memo, dated December 18,197 and dealing with the fire chief issue, we read of the structure of city g.Dverr: rent we read about the Council/Manager form of mun3 ci o ai. government; We read of legislative/management perogatives under our city carter; and we read of interference with aeministr.av on. Mr. Sch _effer has Misinterpreted the charter and the Council has t aken action based on this bad legal advice. Why? Its the charter vague? Are various sections in conflict? Cr are some city officials w {.th vested `Interests distorting the'.r proper roles? she legal advice given, in the memo is identical to thct ph+lcsop :y which we hear espoused at council meetings. The legal advice in the memo violates common sense. t violates representative democracy. It is also biased. And finally, it violates our city charter. I have often wondered, as 1 sit throgh Council meetings, why th Council acts ar:d talks as though they are powerless Although the fire chief issue `s cne example, there are others. Cur city and its cit].zenn have suffered a lot of misery over this issue and I only write to she some 1i;ht on why it may have occurre c a_d here` L-.11y- to pre ant it from happening again. The Council is net powerless. I is all powerful.- I will. attempt to point out those matters in the Schieffer memo that are incorrect. It is your responsibility to judge the memo. It is also your responsibility to decide upon a course of action based on your findings. The City Mgnazer- Courci l Svst em City attorney Schieffer in his memorandum states that "The Council /anager for of government is cut from the same mold as the Separation of Powers Principle which lies at the .root of the three branches of the Federal and State Governments" However, he is absolutely wrong. There is no separation of powers between the Council and the City Manager under the Council /Manager form of local government. Neither in theory nor under the Charter is there separation. Power is vested solely in the hands of the Council. Because Schiefferst further conclusions could only follow from his power separation premise, let me review the true nature of our system of municipal government. The Council /:Manager form of government originated with the reform movement at the turn of the century (when corruption was more •wide spread than today). Supporters thought it would maximize governmental efficiency, eliminate politics from government, and assure that governments would be run by the better people. It was thought government should be run as a business and this could best be carried out by leaving administrative de °;ails to a business manager. An additional and successful g was to eliminate the "spoils" system of the appointment of friends. -2- The council would consist of laymen responsible for policy making. The administration would be under the direction of the chief adminis called the city manager, who in turn would be responsible, not to the public, but to the council. Ultimately, the Council would be responsible to the public for the character of the administration as well as for all policy matters. The manager plan emvhasized professional. administration but it did not turn the city over to the whims of an independent bureaucracy. The city manager is not independent because he has no direct public mandate. Many of our City Officials erroneously assume that a sharp distinction can be drawn between "policy' and "administration". No_such line exists. It is fictitious. In fact, the theory of absolute separation of "policy" and "administration" has been abandoned by nearly all administrative theorists. This is not to say an informal separation of the powers of the council and the duties of the manager cannot exist. Rather. it could be said that general policy matters flow to the consideration of elected officials and administrative details gather on the desks of appointed managers. There can be no doubt that the manager may influence the making of city policy. In section 6.02(6) of our charter. we see that he is expected to initiate policy. In 6.02(7), he is allowed great latitude in influencing policy decisions because he is responsible for submitting the city's annual budget. On the' other hand, the Council may deal with administrative ^matters. esides Stating that the Council shall have legislative powers and the Manager shall be head of administration section. 2.01 goes on to say "The City Manager shall be responsible to the Council for the proper administration of all affairs relating to the City." In one aspect, control is absolute. In section 7.01, The Council shall have full authority over the financial affairs of the City.... In section 2.09 we find "...the Council and its members shall deal with and control the administrative service solely through the City Manager This is an important clause: Except for inquiries, the Council is to deal with employees through the city manager. This is as it should be. Bypassing the manager will only ur:dsrcut his authority. However, the Council clearly controls the administrative service. The absence of any separation of powers is also apparent when one examines the role and duties of the City .tanager. In section 6.02(1), "Subject to the provisions of this charter, any Council regulations corsisten+ -rere wi +h, the City Manager •shall control and direct the administration of the City's affairs." Where in the charter do we find words from which we could conclude, contrary to political theory on the subject, that there is a separation of powers? Where is the analogy between the Governor, for example, and the City Manager, to which Mr. Schieffer alludes in his memo. Mr. Schieffer points out in his memo the right of the citizen "to know who is responsible for the function or malfunction 9i of city government". He incorrectly answers "the city manager This answer might be expected if the "separation of powers" argument was true, but the manager has little or no absolute power. He is responsible to the council. Responsibility clearly rests with five individuals -four councilmen and the mayor. This is as it should be Responsi- bility rests with elected officials. intervenin of C inch into Administration As described above, the charter clearly states the council controls the administration and thus TMav intervene into admin- istrative matters. I will give a trivial example to show why this is desireable. This will be followed by a discussion of whether or not the Council may interfere in any way with the administrative matter of appointments. Assume a citizen complains to a councilman that the snow plows travel too fast and pile unnecessary snow onto his driveway. The councilman brings this matter to the attention of the city manager who states they must travel fast to save money. The council might conclude the savings is,not worth a few heart attacks on the part of the city residents and they agree the citizen is correct. If the manager will not budge, what should happen? First, if the council "acts are they stepping into administrative matters? Yes, they are. Should they act? Of course. The Council is responsible to the public for all affairs of the city. How shall they act? Recall that the manager is responsible to the Council. The Council -first tells the city manager to instruct the snow plow drivers that they must slow down. If this is not sufficient to do the job, they could pass a resolution to that effect. Then, by section 6.02(2) and 6.02(9) of the charter, the city manager must slow the plows. The Council must be responsible to the citizens when they step into administrative matters. If the Council consistently, bogs itself down in running the city on a day-to-day basis. the public at election time has the power to correct things. For, if the council does day -to -day administration, you could properly assume that either (1) the manager is poor, and, if the Council will not replace him, then the Council must be replaced, or (2) the Council does not understand its role and therefore should be replaced. Contrary to Schieffer's conclusions, there are no admin- istrative Derogatives (except the one discussed below). The Council may run the city on a day --to -day basis if they desire, and do it through the manager. But they should recognize that we, have a business manager on the payroll and why not take advantage of his efforts. That is what he is paid for. But surely we should not turn the city over to him neither by desire, nor under the charter. The manager has one perogative, but even here it is not absolute. He appoints, but his appointments must be approved by the Council. If I might summarize Mr. Schieffers' conclusions, based on his theories of separation of powers and of the raanagers1 duty to appoint solely on the basis of merit and fitness, he argues that the Council dares not intervene in any manner in the appointment process. o tame an example from the fire chief issue so that we might be specific here, he argues the Council may not prevent the testing of candidates and may not prohibit any probationary period and may not impose any other conditions on the appointment. These conclusions, in my opinion, are clearly erroneous. In his memo, Mr. Schaeffer quotes the charter in section 6.02(3) as the "City Manager shall appoint, on the basis of merit and fitness all officers and employees of the City... But what do the first three dots stand for? Except for a few words of no importance here, Mr. Schieffer deleted the words "...and upon the provisions of all applicable ordinances With the total clause, how could anyone conclude other than that the council may pass ordinances and impose reasonable conditions and thereby intervene in the appointment process. Why would our city attorney not tell us the full story? However, Mr. Schieffer also bases his arguments on section 2.09 of the charter: "....neither -the council nor any of its members shall dictate the appointment of any person to office... He starts by raising the question :nay the Council direct the City Manager to appoint one of 'several applicants Compare the wording of the charter "any person" with Schieffer's words "one of sever 1 apnlicnnts IIr Schieffer answers "no" to the question of whether the Council may dictate the appointment of any ind ividl: 1 (which is clearly prohibited in the charter) _7_ We still do' not know:r. Schieffers answer to "may the Council direct the City a;°Iager to appoint one of several f?oD1icnnts Why doesn't he answer it? This is my answer. The charter provision in the above paragraph is designed to prevent the Council from appointing a friend. I find no reference in the charter that the Council may not specify a group, having a reasonable basis. from which an appointee must come. :here is no reference because political payoffs throusrh appointments is prevented if the manager picks from a reasonable group. Can the Council bass a resolution directing the manager to get on with the appointment of a department head? We read in section 6.02(9), the City Manazer "shall such other duties as may be prescribed by this charter or by law or required of hip: by ordinance or resolutions adopted by the Council". Not only must the manager serve coffee at council meetings if the Council so resolves, he must appoint when so commanded by the Council. In review, the manager selects a candidate, based on merit and fitness, given reasonable constraints which are put on him, followed by Council approval. If the manager imposes other conditions on the appointment process, assuming they do not violate any charter or ordinance provisions, clearly the Council has the mower to remove any or all of these conditions. he Council controls the administration. Forfeiture of O* Vice Nothing good can be said of t:r.•Schieffers' section "Inter- ference with Administration" extent. that he correctly stared a councilman who violates any express prohibition of the Charter shall forfeit his office. Nothing good can be said because each of his conclusions follow from his, belief in a separation of powers principle. He makes the mistake of claiming that the "last step" in establishing the separation between the powers of management and of the legislative body comes under charter provision 2.09, Inter- ference with Administration. The intent of this Charter section surely is not to prohibit the Council from intervening into admin- istrative matters, as Schieffer suggests. On the contrary. It ex- plains to the Council "how" they will intervene. They sla.11 inter- vene only by going through the city manager. Councilmen do not forfeit their office by intervening into administrative matters. When it is pertinent, that is their job. They must be, careful of only two things. Firstly, they must go through the city manager. And secondly, they must do nothing to return us to the "spoils" system. To be specific, lets return to his "merit and fitness" argu- ment. Schieffer points out that if the city manager cannot appoint on the basis•of merit and fitness due to Council qualifications, then the Council or its members are guilty of interference with administration. .rased on my review, appointment on the basis of merit and fitness means appointment of the best available Fiven certain qualifications or restrictions. -9- Mr. Schieffer also points out-that t a conflict arises if the money appropriated is insufficient and prevents the city manager from, appoi nt inF on the basis of merit and fitness. Is not a low level of fundin: simply another constraint that the city manager must work with? Do we want the city manager to find the absolute best person in the world, or do we want him to hire the best that satisfies Council constraints. You decide. We might recall here that the Council has the power not to confirm "the best in the world". Schieffer would probably conclude this is also a dilemma. he city manager Must appoint "the best the Council might not approve the appointment; and the city manager must still appoint "the best A ludicrous argu.^.erit. This is sim- ply another constraint when the Council refuses to confirm. We might point out here that the city' manager must hire all city employees on the basis of merit and fitness (see 6.02 -3). But, ordinance 17 -105 says promotions to fill non-management vacancies in the municipal service shall be by promotion of perma- nent employees. This is reasonable. Is this a constraint the city manager must work with? Of course. However, if Schieffer it correct, then this ordinance violates the charter. Before concluding, I would like to point out a most cur- ions statement of Schieffers' from page 16 of his memos "That argument, coupled, no doubt, with allegations that the Council or its members sought to deal with and control the Fire Department and its appointive processees directly through the members of the Fire Department rather than through the City Manager required by 2.09 of the Charter -10- Read the sentence again. Read it in the context of the memo. Does it have any bearing on his arguments? Why does he say H i t threat? no doubt"? Does he know of a pen�?in.� lava suit? Is it a ._ear? Did this line by itself reverse a Council vote? Summary You can see that my conclusions, Which differ from Schieffer`s, are based on different interpretations of the Manager /Council form of government, and are based on different interpretations of our Charter. _hese differences are fundamental and important. If you think I an wrong, so be it. 1 am not an attorney. If you con elude the City Attorney is wrong, this is a serious matter for, as you know, the City Attorney has a monopoly on t`:e legal advice which passes to' councilmen. I hope you will excercise your prerogative of office, inter- pret the charter as it was intended, give us your findings, deter- mine the reasons for any erroneous advice which you find, and recommend a course of action for our city to follow. If the charter does not work, you are empowered and it is your duty to propose improvements. January 20, 1976 mkf R. J. F. To: Brooklyn Center Charter Commi ssion rrom: Richard J. Forstrom ADDENDUM After I had the previous memo typed, another disturbing thought came to mind, generated again by the Schieffer memo. It concerns the discharge of the city manager. Schaeffer claims that if the Council discharges the manager, the decision "would, of course, be subject to review by the District Court". L think we can assume he is saying that the city manager only can be dismissed "for cause". I have organized the following as: 1) dismissal based on the concept of the Manager /Council plan, 2) what the Charter says about dismissal, and 3) comments concerning a review in District Court. The manager is selected by the Council by majority vote. It is essential that the Council be allowed to remove the city manager at any time and for any reason that the Council majority thinks sufficient. Otherwise the adminis- tration becomes autonomous and irresponsible. The administration becomes uncontrolled by the machinery of democracy. Should the Charter permit dismissal only for cause? Of course not. Such a rule has the effect of putting final discretion in the hands of the courts rather than the Council. We must not allow this. Corporate boards of directors hire and fire presidents. The governor hires and fires, for example, the Highway Commissioner. This is as it should be. It should be the same for the city manager. Should the Charter permit the removal of the city manager through the use of public recall? Of course not. This would only allow the Council to shirk its responsibility for the city manager. Ultimate responsibility for all that takes place in city government rests with the Council. No argument for limiting the powers of the Council can circumvent the fact that the Manager /Council plan can work effectively only if a majority of the councilmen have confidence in the manager. What does the Charter say about the discharge of the city manager? Section 6. 01 reads: "The City Manager shall be removable by the Council at will, provided, however, he may demand written charges and a public hearing on the same before the Council; I think basically the Charter reads as I described dismissal. above. The city manager serves for an indefinite period, at the pleasure of the Council, and he can be removed "at will Just because he can demand a hearing does not mean he must be removed "for cause I feel the clause concerning- a hearing is designed to prevent a frivolous dismissal. The city manager can take his position before the public so that we can ascertain whether or not the Council is behaving in a responsible manner. Of course, dismissal "for_ cause" would look better in the eyes of the public. Nonetheless, because of this built in feature'of public disclosure, we must allow only dismissal "at will" as the Charter provides. Turning to Schieffer's claim of a District Court review, I suppose anybody can try to take his case to court. But Schieffer says "of course" the judge will review the "reasonableness of the Council's decision concerning the dismissal. The point is, however, the Council need not be reasonable. They can dismiss "at will We can expect a reasonable decision, but the public is the judge, not the District Court. There is only one reason I can find from which we could conclude the matter might end up in court. That is, maybe all public'employees, including the chief executive officer, have some natural right to a job. Until someone produces documentation, I can not believe the dismissal of the city manager could ever end up in court. I am ready to be corrected on this matter, but I will stand firm on the philosophy that the Manager /Council plan will fail if we build into the system a feature permitting city manager discharge only for cause. January 21, 1976 R. J. F.