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Home My WebLink About2003 01-13 CCP Orientation Session • AGENDA CITY COUNCIL ORIENTATION SESSION January 13, 2003 CONTINUATION OF CITY COUNCIL WORKSESSION COUNCIL COMMISSION CONFERENCE ROOM New Council Member Orientation 1. Council Members' Presentation/Discussion: a. City Council Goals for 2003 i. City Council goal setting retreat on August 23rd ii. Process b. City Council group process i. Council decision process ii. Council protocols during meetings iii. Council commissions and liaisons c. City Council Retreat i. March 3rd d. City Council working under the City Charter through the City Manager and not through staff members • 2. City Manager Presentation: a. The differences between statutory and home rule charter cities b. Open meeting law c. Data practices d. Conflict of interest e. Funds: Enterprise, EDA, HRA etc. f. Miscellaneous 3. Miscellaneous 4. Adjourn • Member introduced the following resolution and moved its adoption: RESOLUTION NO. • RESOLUTION ADOPTING CITY COUNCIL GOALS FOR 2003 2003; and WHEREAS, the City Council met in a facilitated workshop to discuss goals and objectives for WHEREAS, the goals set forth in this resolution are the results of the discussions amongst the Council in the course of the facilitated workshop. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City ofBrooklyn Center that the following goals be and hereby are adopted as the official goals of the City Council directing the leadership priorities for City government. Goals are not in any order of priority. Goal 1: Promote the Inclusion of All Residents in Brooklyn Center's Community Life By: ➢ emphasizing opportunities to include all residents in the community's activities and plans. Goal 2: Support Brookdale Redevelopment By: ➢ use of tax - increment financing ➢ monitoring developer performance and project completion. • Goal 3: Continue and Improve Code Enforcement and Compliance Activities By: ➢ coordinated efforts of the police and community development departments ➢ increased effort and focus on high - density areas, while continuing neighborhood enforcement ➢ continuing to evaluate additional approaches to achieving improved compliance ➢ increased enforcement of noise ordinances; barking dogs and other noise generating nuisances. Goal 4: Increase Fighting Crime Proactively By: ➢ continuing high visibility of police in neighborhoods and apartment complexes Neighborhood Watch Programs including public safety information in all City newsletters. Goal 5: Actively Support Northeast Corner of 69` Avenue and Brooklyn Boulevard Redevelopment By: ➢ completing project and monitoring developer performance. Goal 6: Continue and Implement Long -Term Financial Planning Within the Constraints Imposed by State Legislature By: ➢ continued five -year planning for utilities and capital improvements ➢ reviewing and developing contingency planning ➢ continuing to evaluate the City's financial priorities. RESOLUTION NO. • Goal 7: Support and Promote Major Road and Street Improvement Projects By: ➢ completing Brooklyn Boulevard project north of 65` , y ➢ advocate for Hennepin County's completion of Brooklyn Boulevard south of 65 completing Brooklyn Boulevard project with the County in the year 2002 and streetscaping in 2003 Highway 100: continuing to support and participate in the North Metro Mayor's Highway 100 Council; keeping project schedule with Mn/DOT ➢ supporting and participating in the Interstate 694 widening project, with improved sound walls, in a manner advantageous to the City of Brooklyn Center. Goal 8: Support Phase III of Joslyn Site Development By: ➢ working with the developer to complete Phase III. Goal 9: Continuing Traffic Enforcement Efforts and Expand Information Available to the Public By: ➢ continuing enforcement efforts through multiple resources ➢ continuing and expanding information to the public on traffic safety and calming efforts ➢ enforcement of noise ordinances as they relate to noise originating from vehicles and vehicular use • Goal 10: Utilize Recommendations Developed in the Opportunity Site Process to Adopt a Vision and Plan for Brooklyn Center's Central Business District By: ➢ additional public input on directions and priorities for development and redevelopment of the Central Business District ➢ establishing specific development priorities for the next five -ten years ➢ modifying and updating the Comprehensive Plan consistent with the results of public input and planning processes. Date Mayor ATTEST: City Clerk The motion for the adoption of the foregoing resolution was duly seconded by member and upon vote being taken thereon, the following voted in favor thereof: and the following voted against the same: whereupon said resolution was declared duly passed and adopted. • 'NEII 0 COMPANY September 11, 2002 Mr. Michael J. McCauley City Manager City of Brooklyn Center 6301 Shingle Creek Parkway Brooklyn Center, MN 55430 Dear Mr. McCauley: Enclosed is the final report from the City Council Workshop conducted on August 24, 2002, which reflects the changes you had sent to me. Please let me know if there is anything further you need. • Sincerely, i Sharon J. Wallin Executive Assistant to Carl Neu Enclosure • Phone: 303 /986 -8487 Fax: 303/986 -0223 The Center for the Future of Local Governance TM E -mail: cadneu @mindspring.com Website: www.carineu.com 8169 West Baker Avenue Lakewood, Colorado 80227 Mailing Address: P.O. Box 36308 Lakewood, Colorado 80236 NE11 9 0 COMPANY CITY OF BROOKLYN CENTER, MINNESOTA CITY COUNCIL WORKSHOP August 24, 2002 SUMMARY OF KEY OBSERVATIONS AND CONCLUSIONS MADE BY THE PARTICIPANTS Submitted by Carl H. Neu, Jr. August 26, 2002 • ©Neu and Company and the Center for the Future of Local GovernanceTM, 2002 • CITY OF BROOKLYN CENTER, MINNESOTA CITY COUNCIL WORKSHOP August 24, 2002 SUMMARY OF KEY OBSERVATIONS AND CONCLUSIONS MADE BY THE PARTICIPANTS Submitted by Carl H. Neu, Jr. August 26, 2002 I. INTRODUCTION On August 24, 2002, the members of the Brooklyn Center City Council, the City Manager and Assistant City Manager conducted a one -day workshop focusing on • a number of issues culminating in the preparation of proposed City goals for 2003. A copy of the workshop objectives and agenda is attached to this report as Appendix A. II. KEY OBSERVATIONS AND CONCLUSIONS MADE BY THE PARTICIPANTS. A. Feedback from the Pre - Workshop Questionnaire. Prior to the workshop, the Mayor and Council members were asked to complete a questionnaire assessing progress made on the goals for 2002, the City Manager's priorities for 2002, and identifying proposed goals for 2003 and the "next steps" the Council should consider pursuing relative to Smart Growth issues. Four of the council members responded to this questionnaire. A summary of responses to the Pre - Workshop Questionnaire is attached to this report as Appendix B. ' B. Review and Assessment of Progress Made Relative to City Council Goals for 2002. 1 • Goal No. 1: Promote the Inclusion -of All Residents in Brooklyn • Center's Community Life. 2 a. This goal is an on -going goal for the City. b. Needs that need to be addressed relative to the goal: • Achieving more involvement from ethnic communities. • Surveying the language capabilities of City staff members who can provide translation services as required when serving the public. 2. Goal No. 2: Support Brookdale Redevelopment. a. This is an on -going goal for the City. b. Needs: The following items still need to be addressed in pursuit of this goal: • Seeking development of more retail activity around the Brookdale area. • Beautifying the area with landscaping, etc. The City will need to find funding to achieve this. • • Mounting a .campaign, in conjunction with the developer, to enhance the `Brookdale image" and to bring shoppers back to the new Brookdale. 3. Goal No. 3: Continue and Improve Code Enforcement and Compliance Activities. a. This is an on -going goal for the City. b. Needs to be addressed in pursuit of the goal include: • Attempting to be more specific in communicating with specific actions and things people must do to come into compliance with codes, especially when they have received a citation for code violation. • More enforcement emphasis on: - rental properties - 67 and Humboldt - townhouse area behind Northbrook • 3 • 4. Goal No. 4: Increase Proactively Fighting Crime. This goal was identified as a on -going goal. No specific needs were identified by.the participants relative to pursuit of this goal. 5. Goal No. 5: Actively Support Northeast Comer of 69 Avenue and Brooklyn Boulevard Redevelopment. a• This goal is identified as an on -going goal for the City. b. There is the potential for expanded or new development in the area as a result of progress being made on the Northeast corner of 69 Avenue and Brooklyn Boulevard. 6. Goal No. 6: Complete Community Center and City Hall Retrofitting Project. a• This goal will not be carried over into 2003 since the project is essentially completed with the exception of the items noted below. b. Some finish work and rework needs to be done in the pool - women's locker room area to deal with mold problems that • are occurring. The City will need to provide additional funding to address these needs to include possibly paying for the construction of masonry walls. C. There is a punch list of items that need to be worked on to achieve project completion. 7. Goal No. 7: Continue and Implement Long -Term Financial Planning: a• This is considered to be an on -going goal. b. The participants recommend that the goal wording be revised to read as follows: Continue and Implement Long- Term Financial Planning, within the Constraints Imposed by the State Legislature. C. The above word changes represent the fact that the State Legislature is severely hampering the City's ability to do rational long -term financial planning. 4, • 8. Goal No. 8: Support and Promote Major Road and Street Improvement Projects. a• This is seen as an on -going goal for the City. b. Some of the specifics identified for implementing this goal will be changed as a part of the wording for the goal in 2003. 9• Goal No. 9: Plan for Destination Parks. a. The participants recommended that this goal be deleted . from the list since a plan has been developed. 10. Goal No. 10: Support and Expand Joslyn Site Development. a. This goal is identified as an on -going goal. b. The only remaining major thing to be accomplished in pursuit of this goal is the completion of Phase III construction. 11. Goal No. 11: Continue Traffic Enforcement Efforts and Expand • Information Available to the Public. a. This is considered to be a on -going goal for the City. b. Traffic enforcement remains a big issue with the public. C. The City is making visible progress in this effort and has received numerous favorable comments from the public about expanded traffic enforcement efforts. 12. Goal No. 12: Utilize Recommendations Developed in the Opportunity ite Process to Create Y C to a Vision and Plan for Brooklyn Center's Central Business District. a. This is considered to be an on -going goal for the City. b. There are a number of significant long -term issues to be addressed in the pursuit of this goal. C. The City Manager will link this goal to the Smart Growth process discussed below and provide Council with a plan of action for how the City wishes to proceed to address this • goal and the Smart Growth issue. I 5 C. City Manager's Priorities for 2003. The comments of the participants included in the Pre - Workshop Survey, Appendix B to this report, pretty well summarize the group's observations pertaining to the City Manager's priorities for 2003. D. Smart Growth "Next Steps ". 1. It was agreed that the Smart Growth effort would probably have to be carried out over the next one to one and a half years for completion. 2. It is proposed that a council work session be established to address, at a minimum, the following items: • Identifying a long -term comprehensive vision for what the City sees itself to be in the future. • Research and explore options available to the City to achieve its vision. • • Establish specific directions the City wishes to pursue and identify the specific items that it wishes to accomplish as a result of these directions. • Establish processes to achieve the directions the City desires to pursue. • Identify specific critical land -use issues that need to be addressed. • Identify amendments required in the Comprehensive Plan. • Establish a process for public involvement. • Define the City's priorities so that components of the Plan can be achieved in a staged manner. • Identify how the City will fund its involvement in any of the activities required to achieve the long -term vision and implement an amended Comprehensive Plan. 3. Other issues to be considered in the Smart Growth effort: • Affordable housing 6 • Levels of disposable income needed to support retail development/activities in the City • Transit issues /impacts /service requirements • The City's economic base. 4. Other direction provided relative to the Smart Growth issue: a. City Manager will start the effort in October - November, 2002. b. A work session will be established for the City Council to begin addressing this issue in October. C. City Manager will draft, and submit to Council, a plan addressing how to proceed, timelines, definition of who should be involved in the effort with the Council, and how the City will communicate with the community at large about the entire Smart Growth planning process. d. The City Council will be designated as the "primary task . team" addressing this issue with input to be provided by others as requested by the City Council. E. Capstone Accomplishment that the Council would like to- Complete Within One Year. This particular discussion focused on identifying a project or accomplishment that could demonstrate clearly to the community the progress that the City and City Council have made over the last several years for the benefit of Brooklyn Center and its what it plans for continuing this past momentum into the future. The participants concluded that the Capstone effort should be both a celebration and a skillfully developed marketing activity that celebrates past accomplishments and excites the community's interest and enthusiasm about the City's future. The Capstone accomplishment will be a "success report" to be released by February 2004. This "success report" will: • Provide a 5 -year snapshot of Brooklyn Center's achievements. • Identify what the City and Council is seeking to achieve over the next • 5 years as future achievements for the City of Brooklyn Center. 7 . Serve as a good marketing piece that will enhance citizen pride in the community and attract new citizens and businesses to Brooklyn Center in the future. The overall effort should focus on a sense of progress, achievement, and a vision for the future attainable through strong leadership momentum that this Council has created and intends to carry forward. F. Proposed City Council Goals for 2003. Goals are not in any order of priority. Goal 1: Promote the Inclusion of All Residents in Brooklyn Center's Community Life By: ➢ emphasizing opportunities to include all residents in the community's activities and plans. Goal 2: Support Brookdale Redevelopment By: ➢ use of tax - increment financing ➢ monitoring developer performance and project completion. • Goal 3: Continue and Improve Code Enforcement and Compliance Activities By: ➢ coordinated efforts of the police and community development departments ➢ increased effort and focus on high - density areas, while continuing neighborhood enforcement ➢ continuing to evaluate additional approaches to achieving improved compliance ➢ increased enforcement of noise ordinances.; barking dogs and other noise generating nuisances. Goal 4: Increase Fighting Crime Proactively By: ➢ continuing high visibility of police in neighborhoods and apartment complexes Neighborhood Watch Programs ➢ including public safety information in all City newsletters. Goal 5: Actively Support Northeast Corner of 69 Avenue and Brooklyn Boulevard Redevelopment By: . . ➢ completing project and monitoring developer performance. • 8 Goal • 6• Continue and Implement Long -Term Financial Planning Within the Constraints Imposed by State Legislature By: ➢ continued five -year planning for utilities and capital improvements ➢ reviewing and developing contingency planning ➢ continuing to evaluate the City's financial priorities. Goal 7: Support and Promote Major Road and Street Improvement Projects By: ➢ completing Brooklyn Boulevard project north of 65` ➢ advocate for Hennepin County's completion of Brooklyn Boulevard south of 65 ➢ completing Brooklyn oulevard project Yn p � ct with the County in the year 2002 and streetscaping in 2003 ➢ Highway 100: continuing to support and participate in the North Metro Mayor's Highway 100 Council; keeping project schedule with Mn/DOT ➢ supporting and participating in the Interstate 694 widening project, with improved sound walls, in a manner advantageous to the City of Brooklyn Center. Goal 8: Support Phase III of Joslyn Site Development By: • ➢ working with the developer to complete Phase III. Goal 9: Continuing Traffic Enforcement Efforts and Expand Information Available to the Public By: ➢ continuing enforcement efforts through multiple resources ➢ continuing and expanding information to the public on traffic safety and calming efforts ➢ enforcement of noise ordinances as they relate to noise originating from vehicles and vehicular use Goal 10: Utilize Recommendations Developed in the Opportunity Site Process to Adopt a Vision and Plan for Brooklyn Center's Central Business District By: ➢ additional public input on directions and priorities for development and redevelopment of the Central Business District ➢ establishing specific development priorities for the next five -ten years ➢ modifying and updating the Comprehensive Plan consistent with the results of public input and planning processes. I I 9 G. February, 2003 Workshop. I • It was agreed that the workshop scheduled for February, 2003 will focus primarily on orienting members of the new City Council and focusing on the City Council team. Later in the year, in preparation for the August, 2003, Goal- Setting Workshop, a process will be established allowing a dialogue between City Council and key Department Heads around proposed goals for 2004. H. Ground Rules for 2002 City Elections. The following three items generally were established as ground rules to be followed relative to providing information to candidates for City Council in the 2002 elections: • Information would be provided as requested by candidates, but Council packets would not be prepared for mayoral and council candidates before the primary election. • After the primary election, mayoral and council candidates will receive a copy of the agenda for Council meetings and may request specific documents. Candidates, however, will not be provided the Council • packet distributed to the Mayor and current Council members. • No special requests for research from candidates will be accepted. The City Manager, however, indicated he would be happy to answer general questions candidates might have. I• Other Issues Raised by Participants. The participants raised a number of other general issues which were addressed quickly by the City Manager and attendees. One issue, however, involved boards and commissions and how the Council may wish to review how boards and commissions are utilized and supported by staff. 10 �I • City of -Brooklyn Center Minnesota City Council Workshop August 24, 2002 1. Objectives: Upon completion of this workshop, the participants will have: a. reviewed progress made and provided further direction on the City Council's Goals for 2002 and the City Manager's Priorities . b. identified a "capstone accomplishment" the council would like to complete within one year I C. defined "next steps" to be pursued by the City relative to Smart Growth d. defined proposed City Council Goals for 2003 • e. affirmed the ground rules for the 2002 city council elections f. identified the themes and points of emphasis to be included in the January/February 2003 workshop including: • the "new" council (post 2002 elections) the council -staff partnership in goal setting and achievement g. addressed other issues raised by the participants. 2. Agenda 8:00 a.m.. Welcome and review of workshop objectives and agenda. 8:15 a.m. Feedback from the pre - workshop questionnaire. 9:00 a.m. Review, assessment of progress made, and possible course corrections to City Council Goals and City Manager Priorities for 2002. • 10:00 a.m. Break 12 10:15 a.m. City. Council: Capstone Accomplishment to be completed within • one year. (a stellar feat or celebration) 10:45 a.m. Smart Growth: Next steps for the City of Brooklyn Center 12:00 a.m. Lunch 1:00 P.M. Proposed City Council Goals for 2003 2:30 p.m. January- February 2003 Workshop: • Orientation - leadership perspectives of the "new" council team. • The Council -Staff Partnership working together in goal setting and achievement. a Other ideas. 3:00 p.m. Ground rules for 2002 City Elections. 3:30 p.m. Other topics. • 4:00 p.m. Adjourn • 13 APPENDIX B 14 City of Brooklyn Center, Minnesota Summary of Responses to Pre- Workshop Questionnaire 4 Respondents 1. Personal Information: Personal information on respondents 2. As you move toward completion of this year, 2002, what is your assessment of progress being made on the 2002 City Council Goals (copy attached)? a. Goal No. Accomplishments, Obstacles Encountered 1 ' Designing section of communicating - • website to educate getting representation different ethic groups on commission and races was proposed by city Plan for council needs manager. I think we to be implemented have done a good job of reaching out to all members to bring everyone together as Americans • Ordinance translations, etc. • Have plan for council 2 ' • Brookdale is image still needs progressing very work nicely. bring people back to • Construction on shop schedule • Brookdale looking good - good progress 3 ' Taken on a much • repeat offenders more aggressive tone 15 I • for the police department since new chief has taken over. This is a good thing. • Good 4 ' • Taken on a much more aggressive tone for the police department since new chief has taken over. This is a good thing. • Foot patrol/bike patrol helpful - different police shifts (12 hr) helpful 5 ' Development has now commenced • Construction starting • Groundbreaking of • Culver's 6. • Pretty much done!! • Moving along well • Final stages. 7 ' • "Area of Focus" Legislature -cuts on • ? ?difficult to plan aid • Ongoing 8 • Looking kin good. g g Congestion during • All projects on projects schedule. • All projects are moving ahead 9 ' • Need a report on this • P Working with district one. - slows things down, • Most parks etc. completed. • In process of Planning • 16 • 10. • This seemed to have Economy y urtin stalled. Phase III work. • Phase II complete 11. • Taken on a much S for continued effort more aggressive tone in this area. for the police department since new chief has taken over. This is a good thing. • On goal. • Concentrated police detail worked on this - issued many citations 12. • This is where we need to focus our efforts • Plan developed - public meeting held • to display vision b. Other observations about 2002 City Council Goals. • Except for a couple of goals, we have either accomplished the goal or well on our way. • Some goals are difficult to implement. 3: What "course corrections" /modifications do you propose for the remainder of 2002 relative to any of the goals? • Continued effort - especially in traffic calming area. 4. City Manager Priorities: At the February 14 workshop, council identified the five "highest immediate priorities ", listed below, for the City Manager. What observations /comments do you have relative to achievement/progress made on each? 17 Priority Achievements /Pro4ress • • State legislature • This year went better than expected; next year will be a challenge. • Need to focus on laws as they pertain to subsidized housing • Tan increment financing (T.I.F.) • Not as available as a tool. • None • Dealing with the current and next • Serious concerns about next year's year's City budget. budget. • Challenging due to state aid issues. • Smart Growth Public meeting at which "vision" was exhibited - citizens were interested and asked pertinent questions. • Need focus to be on middle to upper income bracket home owners and renters • Developing information on • Not aware of specific progress on education issues and their impacts this priority. on the City. • None 5. What goals do you propose council consider for 2003? • Some goals will be completed this year. I think we should continue effort on all of the other goals - stronger emphasis on some (1, 11). • • Assess T.I.F. and course of action to take as it relates to legislation and reorganization. 18 • Code. enforcement sweep f all rental properties P p p s m city. 6. Smart Growth issues. What are the "next steps" council should consider pursuing relative to Smart Growth? • Start developing our vision independent of Met Council..is Met Council's vision the same as what we want? • A lot of study needs to be done on the result of the Calthorpe study. Implementation is a big question mark, as is funding sources. • Narrow the focus to one or two projects to begin process. • Council first needs to understand the BIG picture as it relates to our city's progress, i.e., traffic, retail, jobs, police, etc. 7. Other items you would like to discuss, time permitting, during the workshop. • Bus hub Election ' • tion - positive campaign. • Conference items • Conflicts 8. Other observations or comments. Thank You!!! 19 City Bro Z n Center f y . A Millennium Community To: Mayor Kragness and Council Members Carmody, Lasman, Niesen, and Peppe From: Michael J. McCauley City Manager Date: January 2, 2003 Re: Chapter 7 of League of Minnesota Cities Handbook Attached is a copy of Chapter 7 of the League of Minnesota Cities Handbook. While it is illustrative of many good practices, most of its specific sections are applicable to statutory cities. With the exception of the sections on Data Practices and Open Meeting Law, the specific procedures are not applicable to Brooklyn Center. Where Chapter 412 is referred to as the authority for a statement, it is applicable to statutory cities and not to home rule charter cities, though procedures in many instances will be similar. Also attached are sections relating to conflicts of interest. 301 Shingle Creek Parkway y Recreation and Community Center Phone &TDD Number Brooklyn Center, MN 55430 -2199 (763) 569 -3400 City all & TDD Number y 763 569 -3300 ( ) FAX (763) 569 -3434 FAX (763) 569 -3494 www. cityofbrooklyncenter. org I � I 'i PART II ELECTIONS, ELECTED OFFICIALS, AND COUNCIL MEETINGS Chapter 7: Meetings, processes, ordinances and resolutions I. Types of council meetings ................................................................................................ ............................... 1 A. Annual meeting (first meeting of the year) ............................................................... ............................... 1 B. Regular meetings ...................................................................................................... ............................... 2 C. Adjourned meetings .................................................................................................. ............................... 3 D. Special meetings ....................................................................................................... ............................... 3 1. Notice to the council ................................................................................................. ............................... 3 2. Notice to the public ................................................................................................... ............................... 4 E. Meetings conducted by interactive television .............................................................. ............................... 5 F. Emergency meetings ..................................................................................................... ............................... 5 G. Days and times when meetings cannot be held ........................................................ ............................... 6 11. Meeting processes and procedures ............................................................................... ............................... 6 i A. Quorum ..................................................................................................................... ............................... 6 B. Open meeting law ..................................................................................................... ............................... 7 1. Open meeting exceptions .......................................................................................... ............................... 9 a. Labor negotiations .............................................................................................. ............................... 10 b. Not public data .................................................................................................... ............................... 10 c. Misconduct allegations or charges ..................................................................... ............................... 11 d. Performance evaluations ..................................................................................... ............................... 11 e. Attorney - client privilege ..................................................................................... ............................... 11 2. Penalties .................................................................................................................... .............................12 C. Citizen involvement ................................................................................................ ............................... 14 D. Recording by citizens ............................................................................................. ............................... 15 E. Accessibility ............................................................................................................... ............................... 15 F. Maintaining order ....................................................................................................... ............................... 15 G. Rules of procedure .................................................................................................. ............................... 15 1. Agendas .................................................................................................................. ............................... 16 • 2. Consent agenda ....................................................................................................... ............................... 16 • 3. Tips for shortening meetings .................................................................................. ............................... 17 H. Parliamentary procedure ......................................................................................... ............................... 17 1. Motions ................................................................................................................... ............................... 18 2. Simultaneous motions ............................................................................................. ............................... 19 3. Role of the presiding officer ................................................................................... ............................... 20 4. Special motions ....................................................................................................... ............................... 21 a. The motion to reconsider .................................................................................... ............................... 21 b. A motion to postpone indefinitely ...................................................................... ............................... 21 c. A motion to limit debate ..................................................................................... ............................... 22 d. The motion to amend .......................................................................................... ............................... 22 e. The motion to substitute ..................................................................................... ............................... 22 I. Voting procedures ....................................................................................................... ............................... 22 J. Role of the mayor and clerk ........................................................................................ ............................... 23 K. Minutes of council meetings ................................................................................... ............................... 23 1. Publication of council minutes ............................................................................... ............................... 24 • 2. Content of council minutes ..................................................................................... ............................... 24 3. Making an adequate record .............. ............................... 4. Parts of the record ................................................................................................... ............................... 25 III. Motions, resolutions, and ordinances ......................................................................... ............................... 27 A. Passing ordinances and resolutions ........................................................................ ............................... 27 B. Differences between ordinances, resolutions, and motions .................................... ............................... 28 i C. Ordinances .............................................................................................................. ............................... 30 1. Form, content, and adoption of ordinances ............................................................ ............................... 32 a. Title ....................................................................................................................... .............................32 b. Number ............................................................................................................... ............................... 32 c. Enacting clause ................................................................................................... ............................... 32 d. Body ...................................................................................................................... .............................33 e. Penalty ................................................................................................................ ............................... 33 f. Closing .................................................................................................................. .............................33 g. Maps ................................................................................................................... ............................... 33 • • h. Deliberation ........................................................................................................ ............................... 34 i Passage .................................................................................................................. .............................34 J. Attestation ............................................................................................................. .............................34 k. Effective date ...................................................................................................... ............................... 35 2. Ordinance book ....................................................................................................... ............................... 35 3. Publication of ordinances ....................................................................................... ............................... 35 4. Adoption by reference ............................................................................................ ............................... 36 5. Alteration of ordinances ......................................................................................... ............................... 38 a. Amendment ........................................................................................................... .............................38 b. Repeal ................................................................................................................... .............................38 6. Codification of ordinances ...................................................................................... ............................... 39 a. Purposes of codification ..................................................................................... ............................... 39 b. Codification procedures ...................................................................................... :.............................. 41 7. Prosecution responsibilities .................................................................................... ............................... 41 N. Local approval of special laws ................................................................................... ............................... 43 • A. Model resolution approving a special law .............................................................. ............................... 44 V. How this chapter applies to home rule charter cities .................................................. ............................... 44 • • CHAPTER 7 Chapter 7 Meetings, processes, ordinances, and resolutions This chapter reviews the requirements and processes councils must follow when conducting meetings and in passing ordinances and resolutions. Topics include: I. Types of council meetings II. Meeting processes and procedures III. Motions, resolutions, and ordinances IV. Local approval of special laws V. How this chapter applies to home rule charter cities I. Types of council meeting s � For further information, see The city council has vast authority to make decisions and operate League memo, Meetings of City Councils (LMC 1408.1) municipal affairs. The council, however, can exercise this authority only when it meets as a group. Therefore, council meetings are very important to the council and to the general public. Under state law, there are certain procedural requirements for council meetings. A. Annual meeting (first meeting of the year) Minn. Stat. § 412.02, suhd. 2 s first meeting of the year, sometimes referred to as the annual meeting, city council must perform certain functions. State law does not set a date for nnual meeting, but council bylaws usually prescribe when it will occur. Becau w councilmembers usually start their term on the first Monday in January, t e ting may take place as early as Jan. 2. At this first meeting, the council mu the following: Minn. Stat. § 412.831 . Designate a newspaper of general circulation as its o newspaper For the requirements for a in which the city will publish ordinances and other matters as 'red qualified newspaper see Minn. by law, Stat. § 331 A.02 HANDBOOK FOR MINNESOTA CITIES 7 -1 • 1 • CHAPTER 7 Minn. Stat. § 412.12 . Elect an acting mayor from among the councilmembers. The acting or shall perform the duties of the mayor during the disability or absence o a or from the city or, if there is a vacancy, until a successor has been ap ' d. The council should also act on or review o s at least annually, including the following: Minn. scat. §§ 427.01 -,12 . Select an official depository, by resolution, for city funds; Minn. Stat. § 1 18A.02, subd. I Review the council's bylaws or rules of procedure, and make any _ necessary changes (An ordinance amendment is necessary if the bylaws are in ordinance form, otherwise a resolution or motion is sufficient.); Renew any annual appointments to administrative positions, although the practice of annual appointments for administrative personnel is no longer advisable because that may create an employment contract and the annually appointed person will no longer be an "at- will" employee; Assign committee duties to members; M;nt)- -g — 8412.111 . Approve official bonds that have been filed with the clerk; and, • Minn. Stat. § 412.101 . Appoint, i t e canned- �s, one or more city police officers or councilmembers as process servers for the B. Regular meetings Minn. Stat. § 412.191, subd. 2 No statutes govern the time, place or frequency of city council meetings. Regular meetings of the city council, however, must be held at times and places that may be prescribed by council rules. Councils typically meet once or twice a month in the city hall or at another place in the city. Minn. Stat. § 13D.04 subd. 1 The council must keep a schedule of its regular meetings on file at its primary office. The council should set an alternate day for meetings when the regular meeting day falls on a legal holiday. If the council decides to hold a regular meeting at a different time or place from the time or place stated in its schedule of regular meetings, it must give notice as required for special meetings. Minn. Stat. § 204C.03. subd. 1 ; City council meetings and meetings of a housing and redevelopment Minn. Stat. § 202A.19, subd. 1. authority economic development agency or other special taxing district Minn. Stat. § 645.44, subd. 5. cannot be held between 6 p.m. and 8 p.m. on any day that an election is held within the boundaries of the city. Additionally, meetings of these bodies cannot be held after 6 p.m. on the day of a major political party precinct caucus. And, such meetings cannot be held on any legal holiday. 7 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 C.Adjourned meetings City officials often use the terms "adjourned," "continued," and "recessed" interchangeably. The terms refer to meetings that are postponed to a future time for lack of a quorum, for purposes of convenience, or to complete pending business from a regular meeting. Minn. Stat. § 412.191, subd. 1 Although a quorum, or a majority of councilmembers, is necessary in order to conduct business, less than a quorum may adjourn or postpone a regularly organized meeting to a fixed, future time. When the council calls an adjourned meeting to complete pending business, the adjournment should be treated as a recess. Minn. Stat. § 13D.04, subd. 4 If the date, time, and place of the adjourned or recessed meeting are announced at an open meeting and that information is recorded in the minutes no additional p ublic notice is necessary. Otherwise , the notice required for a special meeting is necessary. D. Special meetings A special meeting of the council refers to any meeting other than a regular meeting. The council may transact any business within its powers at • special meetings. The council should, however, only transact business for which notice has been provided. All statutory provisions governing regular meetings, including the open meeting law, apply to special meetings. 164is -. „ F 412.191, subd. 2 Special meetings may be called - -by the mayor, by any two members of a five -me ubw °a h -;l, or by three members of a seven - member council - -by filing a written statement with the city clerk. Minn. Stat. § 13D.04, subd. 2 Unless otherwise expressly established by statute, certain notice requirements apply to all special meetings. 1. Notice to the council . 412.191, subd. 2; When a special meeting has been called, the clerk must mail a notice to all A.G. Op. 471 -E (Jan. 22, 1957), maQ of the city council, at least one day before the meeting, stating the time an p - ef1bg,meeting. If, however, all councilmembers attend and participate in the meeting, the am' w i e.requirements are not necessary. HANDBOOK FOR MINNESOTA CITIES 7 -3 • • CHAPTER 7 2. Notice to the public In addition to the notice to councilmembers, public notice is also necessary. Minn. Stat. § 13D.04. subd. 2 The clerk must post written notice of the date, time, place, and purpose of the special meeting on the principal bulletin board of the city. A principal bulletin board must be located in a place reasonably accessible to the 893 (Minnn. n. App. 1 99955 ). Rupp v. N.W.2d public. If the city has no principal bulletin board, the notice must be posted p 1 on the door of its usual meeting room. Notice of special meetings must be posted at least three days before the date of the meeting. Minn. Stat. § 13d.04,, subd. 2 In addition to a posted notice, the city must also mail or deliver a notice to (b) (c) each person who has filed a written request for notice of special meetings with the city. Notice to these individuals must be mailed or delivered at least three days before the meeting. As an alternative to mailing or delivering the notice, the city may publish the notice once in its official newspaper, at least three days before the meeting. If there is no city newspaper, notice must be published in a qualified newspaper of general circulation that covers the city. Minn. Stat. § 645.15 When the performance of an act is ordered within a fixed period of time, • the time is computed as excluding the first day and including the last day of the prescribed or fixed time period, unless the last day falls on a Saturday, Sunday, or legal holiday. For example, if a special meeting is scheduled for a Thursday, notice has to be given on Monday to meet the three -day notice provision. In this scenario, Tuesday is day one, Wednesday is day two, and Thursday is day three. Monday is not included in the time computation. Similarly, if a special meeting is planned for Monday, notice must be given on Friday; Saturday and Sunday are included in the time computation since they are not the last day of the fixed period. Minn. Stat. § 13d.04, subd. 2 A person filing a written request for notice may limit the request to (d) notification of special meetings that cover a particular subject. In this case, the city only needs to send notice of special meetings addressing those subjects. Minn. Stat. § 13d.04, subd. 2 Cities may set an expiration date for requests for notices of special (e)' (f) meetings, and require people to re -file the request once each year. The city must notify each person of the requirement not more than 60 days before the re- filing is due. • 7 -4 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 A.G. Op. 63 -A -5, Aug. 28,1996 If a council committee or other group meets where a quorum of the councilmembers also attend, the city does not need to give additional notice of a council meeting as long as proper notice of the committee or other meeting has been given. However, if councilmembers participate in committee discussions or deliberations, additional separate notice of a special council meeting may be required. Minn. Stat. § 331A.05, subd. 7 If, through no fault of the city, an error occurs in the publication of a notice, the error does not impact the validity of a public meeting. E. Meetings conducted by interactive television Minn. Stat. § 13D.02 A city council meeting may be conducted by interactive television if all of the following provisions are met: At least one member of the council is physically present at the regular meeting location; All members must be able to hear and see each other and all discussion and testimony presented at any location at which at least one member • of the council is present; All members of the public at the regular meeting location must be able to hear and see all discussion and testimony and all votes of all members of the council; Each location at which a member of the council is present must be open and accessible to the public; and, If possible, a member of the public should be able to monitor the meeting electronically from a remote location. F. Emergency meetings Minn. Stat. § 13D.04, subd. 3 An emergency meeting is a special meeting called by the council due to circumstances that, in the judgment of the council, require immediate council consideration. The procedure for notifying councilmembers of emergency meetings is the same as for special meetings. Public notice requirements are somewhat different for emergency meetings. The council must make good faith efforts to provide notice of the meeting to media that have filed a written request for notice. Notice must be by telephone or by any other method used to notify councilmembers. The notice must include the subject of the meeting. A published or posted notice is not necessary. HANDBOOK FOR MINNESOTA CITIES 7 -5 • • CHAPTER 7 Minn. Stat. § 13D.04, subd. 3 If matters not directly related to the emergency are discussed or acted upon M at an emergency meeting, the minutes of the meeting must include a specific description of the matters. G.Days and times when meetings cannot be held Minn. Stat. § 645.44, subd. 5. State law defines a set of public holidays when no public business can be transacted except to deal with emergencies. The transaction of public business includes conducting public meetings. If a holiday falls on a Saturday, the preceding Friday is considered to be a holiday. If a holiday falls on a Sunday, the next Monday is considered to be a holiday. Minn. Stat. § 645.15. The law does not appear to prohibit holding meetings on weekends. However, the law regulating how time is computed for the purpose of giving any required notice provides that if the last day of notice required under the open meeting law falls on either a Saturday or a Sunday, that day cannot be counted. Thus, if notice is required for a meeting to be held on a Saturday or Sunday, the last day of that notice would be the preceding Friday. Minn. Stat. § 204C.03. Minnesota election law provides meetings are prohibited between • 6 p.m. and 8 p.m. on any day an election is occurring. This applies to state and to local general and special elections. Thus, if a school district is holding a special election on a particular day, no other unit of government totally or partially within the school district may hold a meeting between these times. Meetings convened before 6 p.m. must be adjourned or recessed by the 6 p.m. deadline. II. Meeting processes and procedures A. Quorum Minn. Stat. § 412.191 subd. 1 To transact city business in a statutory city, state law requires that a quorum (or a majority) of the councilmembers be presenL-Tliis�ui�,.wi, may include, but does Dahavv -t3 include the mayor, or, in standard plan :.it,iCS, the clerk. Minn. Stat. § 645.08 (5) For most city councils and other public bodies, a majority of the qualified members of the council, board, or commission constitutes a quorum. For some charter cities, however, their charters may provide for the number that will be a quorum of their public bodies. • 7 -6 HANDBOOK FOR MINNESOTA CITIES I • CHAPTER 7 B. Open meeting law Minn. Stat. § 13D.01, subd. I Under the Minnesota open meeting law, all city council meetings and executive sessions must be open to the public, with only a few exceptions. The open meeting law also requires meetings of any committee, subcommittee, board, department, or commission of the city council be open to the public. Governing bodies of local public pension plans are subject to the open meeting law. Meetings of housing and redevelopment authorities and of economic development agencies are also subject to the open meeting law. For more information, see The League of Minnesota Cities Insurance Trust (LMCIT) offers open LMCIT Risk Management Information memo Open meeting law defense coverage to member cities. The coverage will Meeting Law Defense reimburse city officials for either 80 percent or 100 percent of the legal Coverage, which may be costs they incur to defend themselves if they are charged with violating the obtained by calling LMCIT at open meeting law. (800) 925 -1122 or (651) 281- 1200. St. Cloud Newspapers, Inc. v. The open meeting law serves three vital purposes: District 742 Community Schs., 332 N.W.2d 1 (Minn. 1983). • • To prohibit actions from being taken at a secret meeting where the interested public cannot be fully informed of the decisions of public bodies or detect improper influences; • To ensure the public's right to be informed; and, • To give the public an opportunity to present its views. Minn. Stat. § 13D.04, subd. 4, 5 The votes of the city council, or any other group subject to the open meeting law, on any action taken in a meeting that must be open to the public, must be recorded in a journal kept for that purpose. The journal must be open for public inspection during all normal business hours where such records are kept. The clerk should record the votes on all formal council actions. Minn. Stat. § 13D.04, subd. 4 Each member's vote must be recorded on each appropriation of money, (b) except for payments of judgments, claims, and amounts fixed by statute. Minn. Stat. § 1313.04, subd. 5 For any meeting required to be open to the public, at least one copy of the printed materials relating to agenda items distributed to councilmembers must be available in the meeting room for public inspection while the council considers the subject matter. This requirement does not apply to materials the law classifies as other than public or to materials relating to the agenda items of a properly closed meeting. HANDBOOK FOR MINNESOTA CITIES 7 -7 • • CHAPTER 7 Moberg v. Independent Seh. The open meeting law does not define the term "meeting." The Minnesota Dist. No. 510 (Minn. 1983); 83); St. Cl d Supreme Court, however, has ruled that the open meeting law applies to St. Newspapers, Inc. v. District 741 gatherings where a quorum or more of the council, committee, board, Community Schs., 332 N.W.2d department, or commission are present, and at which the members 1 (Minn. 1983). intentionally discuss, decide, or receive information as a group on issues See , Meetings of City Councils relating to the official business of that body. The law does not cover letters, (LMC 1408.1) for a discussion e-mail, and telephone conversations among less than a quorum of the of common problems in applying the open meeting law, councilmembers. The law does prohibit the use of telephone conversations, including a discussion of what e-mail, or letters in a decision - making process among a quorum of kinds of meetings the open members designed to avoid an open meeting. meeting law applies to. Thuma v. Kroschel 506 N. W. When persons constituting a quorum of a city council attended a meeting 14 (Minn. App. 1993), of the city planning commission, unless in conjunction with that meeting, A. G. Op. 63a -5 (Aug. 28 the court found a violation of the open meeting law, not because of the 1996). attendance at the meeting but because the members of the council conducted public business in conjunction with that meeting. Based on that decision, the attorney general is of the opinion that mere attendance by additional councilmembers at a meeting of a council committee held in compliance with the open meeting law would not constitute a special council meeting requiring separate notice, but warned members should not participate in committee discussions or deliberations absent a separate . notice. Mankato Free Press c. City of A 1997 Minnesota Court of Appeals decision seems to support serial North Mankato, 563 N.W.2d 291 (Minn. App. 1997) meetings as potentially violating the open meeting law. In the decision, the court looked at a situation where councilmembers conducted individual interviews of candidates for a city position in separate rooms. Although the district court found that no meetings had occurred because there was never a quorum of the council present, the Court of Appeals sent the decision back to the district court for a determination of whether the councilmembers had used the interview process for the purpose of avoiding the open meeting law requirements. Mankato Free Press c. CiR of On remand, the district court found that the private interviews were not North Mankato. Dec. 1 98 -677 , 1 done for the purp of avoiding the open meeting law (Minn. App., c. I5, 1998) p� g p g requirements. This q decision was also appealed and the Court of Appeals, in a 1998 unpublished decision, agreed. Cities that wish to hold this type of interview with job applicants, however, should first consult their city attorney. • 7 -8 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 St. Cloud Newspapers Inc. v. The Minnesota Supreme Court also decided that informational seminars District 741 Community about school board business which the entire board atte must t be public 332 N.W.2d 1 (Minn. 1983). 83). and open. Thus, any scheduled gatherings of a governing body must have proper notice and be open, whether or not the body takes or contemplates taking action. This includes meetings where members receive information that may influence later decisions, but excludes chance or social gatherings. A quorum of members cannot discuss or receive information on official business in any setting under the guise of a private social gathering. Hubbard Broadcasting v. City The Supreme Court has warned that even though gatherings of less than a of Afton, 321 A.G. . 4 quorum do not constitute meetings under the law serial atherin s of less (Minn. 1982); A.G. Op. 471 -E q g � g g (May 23 1978). than a quorum may be a violation of the statute depending on the individual case. Compare St. Cloud It is not clear from the Court's recent rulings whether the participation of a Newspapers, Inc. v. District 741 Community Schs., 332 N.W.2d city council in a League of Minnesota Cities - sponsored training program to I (Minn. 1983) With A.G. Op. develop various skills can be defined as a meeting under the open meeting 63 -A -5 (Feb. 5 , 1975). law. The determining factor may be whether or not the program includes discussions of particular matters within the council's official duties or powers. See the League research memo It is not entirely clear how the open meeting law applies to recent Meetings of City Councils (LMC 140b.1) technology, such as e-mail. Although the law does not specifically address • the use of e -mail and other recent technologies, it is likely that e-mail communication between councilmembers or members of other public bodies could violate the open meeting law under certain circumstances. Moberg v. Independent School The Minnesota Supreme Court has indicated that serial communications Dist. No. 281, 336 N.W.2d 510 (Minn. 1983) through telephone conversations or letters could violate the open meeting law if done to avoid holding a public meeting. City councils and other public bodies should not use e-mail to communicate with other members in the following instances: • When a quorum of the council or public body will be contacted regarding the same matter. • When less than a quorum of the council or public body is involved in e -mail being used in a serial fashion. 1. Open meeting exceptions The open meeting law is designed to favor public access. Therefore, the few exceptions that do exist are carefully constrained to avoid abuse. HANDBOOK FOR MINNESOTA CITIES 7 -9 • • CHAPTER 7 a. Labor negotiations Minn. Stat. § 13D.03, subd. t The city council may, by majority vote in a public meeting, decide to hold (b) a closed meeting to consider strategy for labor negotiations, including negotiation developments or discussion of labor negotiation proposals. The council must announce the time and place of the closed meeting at the public meeting. Minn. Stat. § 13D.03, subd. 1 After the closed meeting, a written record of all members of the city (d)and subd. 2 council and all other people present must be available to the public. The council must tape- record the proceedings at city expense, and preserve the tape for two years after signing the contract. The tape - recording must be available to the public after all labor contracts are signed for the current budget period. Minn. Stat. § 13D.03, subd. 3 If someone claims the council conducted public business other than labor negotiations at the closed meeting, a court must privately review the recording of the meeting. If the court finds the law was not violated, the action must be dismissed and the recording sealed and preserved. If the court determines a violation of the open meeting law may exist, the recording may be introduced at trial in its entirety, subject to any protective orders either party requests and the court deems appropriate. • Minn. Stat. Ch. 13D Several other exceptions to the open meeting law exist that may apply to cities, which are discussed in the following sections: b. Not public data Minn. Stat. § 13D.05, subd. 2 First, a meeting may be closed in some circumstances pursuant to the Data Practices Act. The general rule is that meetings cannot be closed to discuss data that are not public data. Any portion of a meeting, however, must be closed if expressly required by other law or if the following types of data are discussed: Data that would identify victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults; Active investigative data created by a law enforcement agency, or internal affairs data relating to allegations of law enforcement personnel misconduct; and, Educational, health, medical, welfare, or mental health data that are not public data. • 7 -10 HANDBOOK FOR MINNESOTA CITIES i • CHAPTER 7 Minn. Stat. § 13D.05, subd. I Data that are not public data may be discussed at an open meeting without (b) (0) liability or penalty if the disclosure relates to a matter within the scope of the public body's authority and is reasonably necessary to conduct the business or agenda item before the public body. The public body, however, should make reasonable efforts to protect the data from disclosure. Data discussed at an open meeting retain their original classification, however, a record of the meeting shall be public. C. Misconduct allegations or charges Minn. Stat. § 13D.05, subs. 2 Second, a public body must close one or more meetings for "preliminary (b) consideration" of allegations or charges of misconduct against an individual subject to its authority. If the members conclude discipline of any nature may be warranted, further meetings or hearings relating to the specific charges or allegations and held after that conclusion is reached must be open. A meeting must also be open at the request of the individual who is the subject of the meeting. d. Performance evaluations Minn. Stat. § 13D.05, subd. 3 Third, a public body may close a meeting to evaluate the performance of an of s au his process, see "Employee J Y• public For a complete discussion individual who is subject to its The ublic body must identi the • of t Discipline and the Open individual to be evaluated prior to closing the meeting. At its next open Meeting Law" Minnesota meeting, the public body shall summarize its conclusions regarding the Cities, September 1997, page 41 evaluation. A meeting must be open at the request of the individual who is the subject of the meeting. e. Attorney - client privilege Minn. Stat. § 13D.05, subd. 3 Fourth, a meeting may be closed if permitted by the attorney - client (b) privilege. For example, a council may close a meeting to discuss pending Northwest Publications, Inc. v. or threatened litigation. An actual lawsuit does not have to be commenced. City ofst. Paul, 435 N.W.2d 64 If litigation is threatened, as in a letter to the council, and the city (Minn. App. 1989). council seeking legal advice regarding specific acts and their legal Star Tribune v. board ofEduc. Consequences. The city may not abuse this privilege to suppress public Sol N. W. 2a 869 (Minn. App. 1993); observation of the decision - making process. The privilege does not extend to the governing body's request for general legal advice or opinion. Prior Lake American v. Mader, C7 -00 -1909 (Minn. App. Apr 17, 2001). Clearwater v. Independent School district No. 166, C9 -99- 294 (Minn. App. Oct. 2, 2001). HANDBOOK FOR MINNESOTA CITIES 7 -11 • I • CHAPTER 7 Minn. Stat. § 13D.01, subd. 3 Before closing a meeting, the public body must state on the record the specific grounds that permit the meeting to be closed and describe the subject to be discussed. Minn. Stat. § 13D.04, subd. s The notice requirements that apply to open meetings also apply to closed meetings. Therefore, open meetings the council closes after they are called, need no special notice. But special and emergency meetings the council intends to close, must be properly noticed. While not required by law, some cities record closed meetings, and have the clerk or city attorney keep the tape until information no longer needs to be kept private or a court orders the release of the tape. The tape may be useful in establishing that members did not use the closed meeting to discuss matters which should have been discussed publicly. 2. Penalties Minn. Stat. § 13D.06, subd. l Any person who intentionally violates the open meeting law is subject to personal liability in the form of a civil penalty up to $300 for a single Claude v. Collins, 518 N.W.2d occurrence, The public body may not pay the penalty. A court may take 836 (Minn. 1994). into account a councilmember's time and experience in office to determine the amount of the civil penalty. . Coalwell v. Murray. No. C6 -95- Technical violations of the law that are not willful or deliberate may not 2436 (Minn. App. Aug 6, result in penalties. 1996). Minn. Stat. § 13D.06, subd. 2 A action to enforce this penalty may be brought by any person in any court of competent jurisdiction where the administrative office of the governing body is located. Minn. Stat. § 13D.06, subd. 3 If a person is found to have intentionally violated the open meeting law in (a) three or more actions involving the same governing body, that person must forfeit any further right to serve on the governing body or in any other capacity with the public body for a period of time equal to the term of office the person was serving. Claude v. Collins, 518 N.W.2d Three separate adjudications are not necessary. Rather, one adjudication of 836 (Minn. 1994). three separate, unrelated and intentional violations is sufficient for removal - under the statute. Minn. Stat. § 13D.06, subd. 3 The court determining the merits —upon finding a separate, third violation (b) that is unrelated to the previous violations —must declare the position vacant and notify the appointing authority or clerk of the governing body. As soon as practicable, the appointing authority or governing body shall fill the position as in the case of any other vacancy. • 7 -12 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 Minn. Stat. § 13D.06, subd. 4 In addition to other remedies, the court may award reasonable costs, disbursements, and attorney fees of up to $13,000 to any party in an action alleging a violation of the open meeting law. The court may award costs and attorney fees to a defendant only if the action is found to be frivolous and without merit. A public body may pay any costs, disbursements, or attorney fees incurred by or awarded against any of its members. Insurance is available from the League of Minnesota Cities Insurance Trust to pay these amounts, but the insurance must be in effect before the violation occurs. Minn. Stat. § 13D.06, subd. 4 No monetary penalties or attorney fees may be awarded against a member (d) of a public body unless the court finds there was a specific intent to violate the open meeting law. Minn. Const. Art. V111, § 5 Under the Minnesota Constitution, the Legislature may provide for the Jacobsen v. Nagel, 255 Minn. removal of public officials for malfeasance or nonfeasance. To constitute 300, 96 N.W.2d 569 (1959). malfeasance or nonfeasance, a public official's conduct must affect the performance of official duties, and must relate to something of a substantial nature directly affecting the rights and interests of the public. Jacobsen v. Nagel, 25 Min " Malfeasance" "Nonfeasance" s n • Malfeasance refers to evil conduct or an illegal deed. Nonfeasance 1s 300, 96 569 (1959) Cla ude e v. . Collins, C 518 N.W.2d described as neglect or refusal, without sufficient excuse, to perform what Claude • 836 (Minn. 1994). is a public officer's legal duty to perform. More likely than not, a violation of the open meeting law will be in the nature of nonfeasance. Although good faith does not nullify an open meeting law violation, good faith is relevant in determining whether a violation amounts to nonfeasance. Claude v. Collins, 518 N.W.2d Ignorance alone does not amount to good faith or sufficient excuse. 836 (Minn. 1994). Ignorance due to inexperience may constitute good faith and amount to sufficient excuse in instances where the elected official neither knows or has reason to know he or she is violating the open meeting law. Claude v. Collins, 518 N.W.2d To remove a public official, it must be established that the official had a 836 (Minn. 1994). reasonable amount of time to learn the responsibilities of office. The excuse of inexperience, however, will not last long if ignorance results in harm to the public. Public officials should seek advice from the city attorney or other resources to prevent open meeting law violations. HANDBOOK FOR MINNESOTA CITIES 7 -13 • • CHAPTER 7 Sullivan v. Credit River The open meeting law contains no provision invalidating actions the body Township, 299 Minn. 170, 217 takes at a closed meeting that should have been an open meeting. In a 1974 N.W. 2d 502 (1974). case, the court held that because the law failed to provide a method of enforcement, the statute was not mandatory and its violation did not result in invalidating actions of the body. Although the fact that the plaintiff had spent a substantial sum in reliance on the action the public body took at the illegal meeting may have influenced the court, it seems unlikely that a court would overturn the rule of the case without a change in the law. Because the law now contains methods of enforcement through the civil penalty and removal from office, there is probably little need for an invalidation rule. C. Citizen involvement Any person may observe council meetings. In fact, the council should encourage citizen attendance to help citizens become more aware of the city's problems and more sympathetic to programs suggested by the council. Citizens must be able to hear the discussion and be able to Minn. Stat. § 13D.01, subd. 6 determine who votes for or against a motion. One copy of the agenda and (b) all materials made available to the council should be made available to the audience unless doing so would violate the Data Practices Act. • Although anyone can attend council meetings, citizens cannot speak or otherwise participate in any discussions unless the mayor or the presiding officer recognizes them for this purpose. The decision to recognize speakers is usually up to the presiding officer, but the council can overrule this decision. The council can, through a motion, decide to hear one or more speakers from the audience. Participation in council meetings can be intimidating for the average citizen. Councils should take care to make sure citizens are invited to participate when appropriate and listened to with courtesy. Individual councilmembers should not argue with citizens. Citizens attend council meetings to give information and opinions for the council to consider. Discussions or debates between individual councilmembers and citizens during council meetings is inappropriate and may reflect badly on the decision - making process. The council should not sample public opinion by asking for a show of hands. The majority opinion of those attending the council meeting does not necessarily represent general public opinion. It is likely to express only the opinion of a special group. • 7 -14 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 D. Recording by citizens A. G. Op. 63a -5, Dec. 4, 1972. The public may make an audio or videotape of an open meeting if doing so does not have a significantly adverse impact on the order of the meeting. Neither the city council nor any member may prohibit dissemination or broadcast of the tape. E. Accessibility Minn. Stat. § 363.03, subd. 4 Both the meeting and the meeting room must be accessible. To ensure 42 U. S. C. § 12101- 12213. accessibility, the meeting should be located in a room that all people, including people with mobility impairments, will be able to access. A city may also have a person sign for people with hearing loss and make written materials available in large print, Braille, or audiocassette for people with sight or hearing impairments. F. Maintaining order Minn. Stat. § 412.191, subd. 2. Although meetings must be open to the public, individuals who are noisy State v. Occhino. 572 N. W. 2d or unruly do not have the right to remain in council chambers. When 316 (Minn. App. 1997), pet. individuals abuse their right to be present in the council chamber, the • For rev. denied (Minn. Jan. 28, mayor, as presiding officer (subject to overrule by the council) should 1998). order their removal from the room. If the presiding officer fails to act, the council may, by motion, issue such an order. The council has authority to preserve order at council meetings. The council can use necessary force, including use of the marshal or police, to carry out the mandate. If a person is excluded from a meeting, the council should provide an opportunity for the excluded person to give his or her interpretation of the exclusion to a designated city staff member to satisfy any due process questions. If the entire audience becomes so disorderly that it is impossible to conduct a meeting, the mayor should declare the meeting continued to some other time and place if necessary. The council may also move for adj ourrunent. No matter how disorderly a meeting may be, it 1s a legal meeting and any action the council takes in proper form is valid. The council cannot issue contempt citations against individuals whose disorderly conduct disrupts or interferes with the transaction of city business. G. Rules of procedure Minn. Stat. § 412.191, subd. 2 The city council has the power to regulate its own procedure. While many councils have operated without written rules or regulations, written rules facilitate the conduct of city business and reduce the risk of mishandling important matters. HANDBOOK FOR MINNESOTA CITIES 7 -15 • • CHAPTER 7 See the League research memo Council bylaws usually cover the place and time of regular council Meetings of City Councils (LMC 140b.1), which contains meetings, the order of business, parliamentary rules governing council suggested by laws and other procedures, minutes, and standing and special committees and their rules of procedure. powers. Many councils also include other provisions in their bylaws. 1. Agendas The bylaws should establish an order of business and a process for placing items on an agenda. Many councils have found the following order of business convenient: • Call to order • Roll call • Approval of minutes from previous meeting • Consent agenda • Petitions, requests, and complaints • Reports of officers, boards, and committees • Reports from staff and administrative officers • • Ordinances and resolutions • Presentation of claims (the authorization for paying city claims and bills are often included in the consent agenda.) • Unfinished business • New business • Miscellaneous announcements • Adjournment 2. Consent agenda By resolution or through bylaws, a council may establish a consent agenda containing routine, non - controversial items that need little or no deliberation. The clerk or the person responsible for placing items on the agenda prepares the consent agenda. By a majority or higher vote, the council can approve all actions on the consent agenda with one vote. If a councilmember objects to an item being placed on the consent agenda, it should be removed and acted upon as a separate agenda item. • 7 -16 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 I Tips for shortening meetings In addition to the consent agenda, councils may consider the following suggestions to shorten meetings. Council bylaws may set a closing date for the agenda. For example, the clerk must receive all requests to include items on the agenda five days before the meeting. This is especially important if councilmembers need to review written material before the meeting. The council might make an exception in emergency situations by a unanimous vote, for example. The council should set a definite time for adjournment and observe this rule. At some time during the meeting, often at the beginning, many city councils establish a specific time when citizens can present concerns to the council. In such an open forum, the mayor or presiding officer should allot a limited time for each person who wishes to speak. No action should be taken on any of the issues raised. Rather, if appropriate, the issues should be placed on the agenda of a future council meeting. When the council is going to discuss a major public issue, the bylaws or the council, by resolution, may allot a limited, specific amount of time for each side to express its views. The council may also follow this procedure • for all items on the agenda. H. Parliamentary procedure Parliamentary procedure is a system of rules that aid in transacting business. The rules are designed to preserve order, expedite business, and protect the rights of those involved in making decisions. The mayor, as presiding officer, is responsible for guarding against abuse of the procedures. But, the effective use of parliamentary procedures is the joint responsibility of the mayor and of all councilmembers. Parliamentary rules can be very simple or very complex. The complexity of rules should vary in direct ratio to the size of the group; i.e., as the number of people in the group increases, the complexity of the rules should increase. Accordingly, the rules for city councils should be simple. Any attempt to introduce a high degree of formality into the proceedings of a city council will probably reduce its ability to operate effectively. HANDBOOK FOR MINNESOTA CITIES 7 -17 • • CHAPTER 7 The rules of parliamentary procedure apply to council proceedings only if the council formally adopts such rules in its bylaws. Roberts Rules of Order are designed for meetings of large bodies. Rather than adopt these rules as a formal procedure to always follow, a council can agree to informally follow the rules while conducting meetings. An informal application of the rules, together with the common sense of the councilmembers, may be the only guidelines many councils need in order to conduct their business in an orderly manner. If a very controversial discussion is about to occur, the mayor or a councilmember could move to adopt more formal rules for that particular discussion. The following discussion introduces a few rules of parliamentary procedure that can simplify the work of the council. The rules are contained in Roberts Rules of Order. The council can adopt them by inserting the following clause in the bylaws: "In all points not covered by these rules, the council shall be governed in its procedure by Roberts Rules of Order (or some other similar code of parliamentary procedure)." 1. Motions See League research memo The council transacts business through motions made by councilmembers. Meetings of City Councils These motions are seconded, at times, and subsequently passed or rejected (LMC 140b.1) for a summary of • the motions councils use most by council vote. Each motion has different rules. For example, councils can frequently and important debate some motions while they must vote on others immediately. Some information relating to them. motions require a simple majority for passage; others need a two- thirds maj ority. These are the typical steps to make and act on a motion: • A member of the council addresses the presiding officer. • The presiding officer recognizes the member. • The councilmember states his or her motion. (Usually in the following form: "I move ... text of the motion. ") A motion should always be in positive, rather than negative, terms. For example, if the motion is to deny X a permit and the council defeats the motion, there may be some confusion as to whether or not X has been granted a permit. Even if the consensus of the council is to deny the permit, the motion should be to grant the permit and the council should then vote it down. The councilmember making a motion does not need to favor it or vote for it. The councilmember may wish to put the issue before the council so a decision can be made. • 7 -18 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 • If necessary, another councilmember then seconds the motion by saying: "I second the motion." (Seconds are not needed for meetings of small bodies like city councils unless required in the bylaws.) Neither making a motion or seconding a motion places it before the council. Only the presiding officer can place the motion before the council by stating the motion. • The presiding officer repeats the motion or states the question to the council. (When the presiding officer has stated the question, the motion is pending and it is then open to debate.) • A discussion follows, if the motion can be debated. A councilmember may make subsidiary motions in the same form as the original motion. • The council votes on the original motion or on any of the subsidiary motions. The presiding officer announces the result of the vote on each motion immediate) after the vote count is complete. Y p • A councilmember may not make a second main motion while the • council is discussing the first one. • Any councilmember may, however, make a privileged motion even if a main motion is currently before the council. A privileged motion is one to adjourn, to recess, or to ask a question of privilege--such as to restate the motion or ask for order. In this case, a vote on the privileged motion precedes the one on the main motion. 2. Simultaneous motions When several motions are before the council at the same time, the council should vote on them in the following order: • Adjourn • Recess • Question of privilege • Postpone temporarily (lay on table) • Vote immediately (previous question) • Limit debate • Postpone to a definite or indefinite time HANDBOOK FOR MINNESOTA CITIES 7 -1I • • CHAPTER 7 • Refer to committee • Amend • Substitute • General main motion 3. Role of the presiding officer In any group or assembly, the presiding officer has an extra measure of power. As the chair of the meeting, the presiding officer is responsible for guiding the group toward the conclusion of pending business in good time, while also giving major issues enough consideration. To accomplish this, the presiding officer has two special powers: • The first power is to interpret and apply the rules of procedure. The presiding officer must decide whether or not motions are proper and in order, whether the body should grant questions of special privilege, and what procedure is proper in any given instance. The presiding officer should maintain order and expel disorderly individuals from the meeting. • • The presiding officer does not have complete freedom in exercising this authority. Any member of the council may appeal the decision of the chair. To do this, a councilmember must say: "I appeal the decision of the chair," immediately after the chair announces the decision. (Recognition from the presiding officer is not necessary when making an appeal.) The appeal must be seconded, is debatable, and cannot be amended. After the debate, the assembly votes on the chair's decision. A majority of "yes" votes upholds the decision of the presiding officer, and a majority of "no" votes overrules the decision. A tie vote sustains the ruling. The presiding officer may vote to uphold his or her own ruling. If no one appeals a ruling as soon as the presiding officer makes it, it becomes the rule of the council. • The presiding officer's second power is to recognize speakers. The presiding officer may not, however, refuse to receive a motion after recognizing the maker, nor refuse to call for a vote on any motion that has been properly made and seconded. The power to recognize speakers still gives the presiding officer considerable influence over the course of the discussion and, consequently, over the eventual decision on any matter. When the council invites comments from the audience, the presiding officer continues to recognize speakers. • 7 -20 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 In statutory cities, presiding officers play a dual role. They preside, make and second motions, and vote on all questions before the council. The presiding officer usually steps down from the position as chair in order to make a motion. To do this, the presiding officer turns over the duties of presiding officer to a member of the council. The mayor or other presiding officer may then make a motion, and should not assume the duties as presiding officer until the council has taken a final vote or postponed the motion until another time. 4. Special motions Several motions deserve special consideration. They include the following: a. The motion to reconsider This motion enables a council to set aside a vote it previously took, and to reconsider the matter as though it had not voted on the issue. If the council uses Roberts Rules, only a person who originally voted on the prevailing side may move to reconsider. Otherwise, any member may make the motion by saying, "I move to reconsider ... stating the motion to be reconsidered. . ." The council may debate the motion. If the council passes • the motion to reconsider, it must then reconsider the original motion and take another vote. If the council defeats a motion to reconsider, no further action is necessary. b. A motion to postpone indefinitely There is an important difference between the motion to postpone indefinitely and the motion to postpone temporarily. The motion to postpone temporarily is more commonly called a motion to "lay on the table" or "to table." The motion to postpone, postpones consideration of the motion until some undetermined, future time. The council may consider a tabled motion whenever a majority of the members decide to do so. A motion to postpone indefinitely, however, is the equivalent to a negative vote on the main motion. Thus, the issue can be raised again only by a motion made by someone on the prevailing side of the vote since, unless someone changes his or her mind, the motion to postpone will once again prevail. A motion to permanently suppress any future consideration of an issue is not binding on a future council. HANDBOOK FOR MINNESOTA CITIES 7 -21 • • CHAPTER 7 C. A motion to limit debate A council may limit debate by placing a time limit on debate, such as a limit of 15 minutes to consider a particular motion; or limiting the number of people who may speak for and against a certain motion, such as a limit of three speakers in favor and three speakers opposed. d. The motion to amend Councilmembers may offer amendments to a main motion at any time. In addition, it is possible to amend an amendment currently under consideration. Beyond this, councilmembers can offer no further amendments. When a member has made a motion to amend, the vote on the amendment must precede the vote on the original motion. After the council has accepted or rejected the amendment, another vote on the original motion is necessary. e. The motion to substitute This is a motion to replace one motion with another on the same subject. A councilmember may move to substitute a main motion or an amendment to a main motion. One form for making a substitute motion is to say, "I wish • to introduce the following substitute motion ... present the substitute motion ..." When a substitute motion is before the council, the council must decide which of the two motions, the original motion or the substitute motion, to consider. The council must vote on the question. A "yes" vote favors considering the substitute motion. A "no" vote favors considering the original motion. The council must then discuss and vote on the selected motion. I. Voting procedures State law does not regulate council voting. The council may use whatever procedures it prefers, subject to charter provisions in home rule cities. The council's bylaws can include voting rules. Otherwise, the council may use voice voting or standing vote unless a councilmember calls for a vote by ballot. The bylaws can also set the order in which councilmembers vote. Whether the vote is unanimous or not, the minutes must record the name of each councilmember present and his or her vote. Occasionally councils may vote by ballot, such as eliminating candidates for a city position, until Minn. Stat. § 13D.01. subd. 4 only two options remain. While the law allows for voting by ballot, the procedure must ensure each councilmember's vote is recorded in the minutes and open for public inspection. • 7 -22 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 J. Role of the mayor and clerk ors and standard plan city clerks have the same powers as coun ' embers to make, second, and vote on motions. The mayor does not have a nor may the mayor vote twice in order to break a tie. If, however, there is vote in filling an elective office, the mayor must fill Minn. Stat. § 412.02, subd. 2a the vacancy by appointor The mayor presides at council meetings and the clerk keeps the minutes. In cities operating under one of the option lans, the clerk attends council meetings and records the minutes, but may not , second, or vote on motions. In addition, unless the council extends the pn ' e, the clerk lacks the right to participate in discussions. K. Minutes of council meetings Minn. Stat. § 412.151, subd. I The council must keep a full and accurate record of its actions at every council meeting. In statutory cities, the clerk records the council proceedings in a minute book. In the clerk's absence, the council should delegate the duty of taking minutes for that meeting. • The clerk determines the actual wording of the minutes, unless the council adopts a standard form by motion or specifically directs the clerk to change the wording in the minutes. The minutes should be written in language and in terms the average citizen understands. Reference to numbers of ordinances, resolutions, and other matters should include a brief description. A.G. Op. 470 -C (Feb. 18, If the council finds a mistake in the minutes of the previous meeting, the 1959). clerk should correct the minutes. If the clerk declines, the council can order the change by motion and a vote. The clerk must then make the change and show in the minutes that the change was made by order of the council. Once the council has formally approved the minutes of any meeting, the minutes should not be changed under any circumstances. The council can dispense with the reading of the minutes if all councilmembers have received them prior to the meeting. Minn. Stat. § 412.221, subd. 1; The council must provide books and stationery for keeping minutes. State Minn. Stat. § 15.17, subd. I law requires all cities to keep minutes on a physical medium that is of a quality that will ensure permanent records. HANDBOOK FOR MINNESOTA CITIES 7 -23 • • CHAPTER 7 Minn. Stat. § 412.151, subd. l Because minutes are official papers of the city, the clerk should sign them. Although the law does not require it, in many cities, the mayor also signs the minutes after the council has approved them. If the minute book includes only a clipping from the published proceedings, the clerk should sign the clipping even though the signatures of the clerk and mayor are already printed on the clipping. Minute books are public records and must be available for public view at any reasonable time. 1. Publication of council minutes Minn. ; 412.191, subd. 3 After every regular or special meeting, statutory cities with populations over 1,000 must publish the official council proceedings or a summary of fficial minutes. The summary must include action on motions, resolutio , dinances, and other official proceedings. As an alternative to publication, the c> mail, at city expense, a copy of the proceedings to any resident upon request. ation of the council minutes must occur within 30 days of the meeting. Cities opulation of less than 1,000 according to the latest federal census, are not re d but may choose to publish the council proceedings. The publication requirdnient does not cover home rule charter cities. Therefore, if a home rule city does ave a charter requirement, it does not need to publish council minutes. • Minn. Stat. § 412.191, subd. 4; Whether or not the city publishes minutes, it must publish ordinances and, Minn. Stat. § 471.697 -.698. in certain cases, the annual financial statement. 2. Content of council minutes Minn. Stat. § 412.191. subd. 3 The clerk should include the following information in the minutes: and Minn. Stat. § 331A.01, subd. 6. • The time and place of the meeting; • The members present; • A summary of all decisions made by the council, including a copy of each motion exactly as stated, whether or not the motion had a second and, if the motion was seconded, whether or not the council adopted it, and the names of the people who made and seconded the motion; and, Minn. Stat. § 13D.01, subd. 4 . The names of the councilmembers and the mayor who voted either for or against each motion. Minn. Stat. § 412.151, subd. 1 Ordinances, resolutions, and claims considered by the city council do not need to be fully detailed in the minutes if they appear in other permanent records kept by the clerk and can be accurately identified by the description given in the minutes. • 7 -24 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 3. Making an adequate record It is very important to make an adequate record of council decisions and of the factual information on which members base their decisions. Minutes are the primary record of the decision - making process and are critical if council actions become subject to judicial review. Council actions are classified as either legislative or administrative in nature. The establishment of general policies and procedures is legislative and is subject to limited judicial review. Courts typically will not substitute their judgment for a council's judgment. Administrative or quasi-judicial actions involve the application of a general policy to a specific person or situation. Administrative actions are subject to greater judicial scrutiny and will be set aside if arbitrary, unreasonable, or capricious. Therefore, it is important for the council to develop an accurate record and findings. Metro 500, Inc. v. City of For example, in order for a court to meaningfully review council actions, 211 N.W.2a 38 (1973); Inland the minutes must clearly and precisely state the council's finding of facts Constr. Co. v. City of and how those facts led to the council's decision. Findings of fact serve Bloomington, 292 Minn. 379, not only to improve the decision - making process, but aid in judicial • 195 N.W.2d 588 (1972). Bank review. The findings are part of the record. When a court reviews council of America v. City of St. Paul, No. C7 -97 -1073 (Minn. App. proceedings, they will rely on the records the city kept, not on the records Feb. 17, 1998). pet. For rev. it might have maintained. denied (Minn. Apr. 30, 1998). See also cases cited concerning the necessity of findings in Chapter 16, concerning land use and Chapter 10 concerning termination ofemployees. personnel decisions. Bank ofAmerica v. City of It should be noted that courts set aside routine municipal decisions only in Paul. No. C7 -97 -1073 (Minn. rare instances where the decision lacks any rational basis. To avoid having App. Feb. 17, 1998), per For rev. denied (Minn. Apr. 30, a decision overturned by the court, substantial evidence should be included 1998). in the record to support the council's decision. 4. Parts of the record When the city council or other governing body holds a hearing, the record usually consists of two separate parts: the transcript, which preserves testimony, and the final order or determination. Following is a sample final order outline for a special use permit. The elements of the order reflect the steps taken by a hearing body in arriving at a decision: HANDBOOK FOR MINNESOTA CITIES 7 -25 • • CHAPTER 7 • A caption or title, such as, "In the matter of Ms. X's application for a special use permit"; • A preamble that summarizes the council's actions at the hearing and states the purpose of the application; • Findings of fact (individually numbered); • Conclusions or reasons; • A decision; • An opinion if any; and, • A copy of the transcript, tape recording or, at a minimum, detailed minutes that include all objections and rulings on them (if any). Saginaw Broadcasting Co. v. The federal courts have suggested that a hearing body adhere to the FCC, 554 .C. CirJ cert. denen ieedd, , 305 U.S.S. 613 following sequence when making a decision: (1938). Council takes and weighs the accuracy and credibility of evidence; After careful consideration of the evidence, the body makes a • determination of facts that are of a basic or underlying nature; From the basic facts, the body makes findings or conclusions often in the language of the statute or ordinance; and, From this finding, the council makes a decision following the statutory criterion. When a council prepares precise findings of relevant facts, the result is a well- reasoned decision. When a council can demonstrate its conclusions are consistent with all the facts in the record, its decision is likely to be upheld if judicially challenged. The record should also demonstrate compliance with all constitutional requirements, as well as with all statutory and ordinance procedural requirements. (Often, due process deficiencies, such as lack of notice, provide grounds for appeal). • 7 -26 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 Ill. Motions, resolutions, and ordinances A. Passing ordinances and resolutions Any member of the council, including the mayor, may introduce an ordinance or resolution. When ordinances or resolutions are before the council, the council may act upon them at once, refer them to a committee for study and recommendation, postpone consideration to some future time, or take any of the other subsidiary or privileged motion actions. After the council has completed all consideration and discussion of the matter, the presiding officer should read the ordinance or resolution and call for a vote. If the council decides to refer the matter to a committee, the committee may conduct an investigation and recommend passage of the ordinance or resolution in its original form or in an amended form, or reject the ordinance or resolution. Debate on the ordinance or resolution may take place at the time of introduction, while a committee is considering it, and after the committee has reported its findings and recommendations. • Minn. Stat. § 13D.01, subd. 4 For an action to be legal, it needs a proper motion, an actual vote, and a record of the councilmembers voting for and against the proposal. Many clerks report the names of the members who take action at each of these various steps, although the law only requires a record of the third step. Most resolutions and other procedural motions of the council must have a majority of the votes cast for adoption. To illustrate: if two members of the council vote in favor of a resolution - -one votes against it, and two abstain from voting - -the resolution passes. State law requires some resolutions to M. S. 412.191, subd 4, for be adopted by more than a majority of those voting on the resolution. For summaries of ordinances. example, a resolution to approve the summary of an ordinance for M. S. 412.851 for vacation of publication requires a four -fifths vote of the members of the council. And a streets. four - fifths vote of the members of the council is required to vacate a street, Minn. Stat. § 412.191, subd. 4 Ordinances, on the other hand, must be enacted by "a majority vote of all the members of the council," except where a larger number is required by law. Therefore, on a five- person council, an ordinance would need at least three favorable votes to pass. State law requires a large number on some M. S. 462.357, subd. 2b. circumstances. For example, a two- thirds vote is required to change the classification of land in a zoning district from residential to commercial or industrial. HANDBOOK FOR MINNESOTA CITIES 7_27 • CHAPTER 7 B. Differences between ordinances, resolutions, and motions A motion is a matter of parliamentary procedure. Motions may introduce ordinances and resolutions, amend them, and take any other actions. See e.g., Hanson v. City of Any council enactment that regulates or governs people or property and Granite Falls, 529 N.W.2d 485 (Minn. App. 1995). provides a penalty if violated, is an ordinance. As a result, the council must pass, in ordinance form, all police regulations for public health, morals, economic well- being, welfare, and safety. Any regulations should be of general application within the city, and of a permanent and continuing nature. Many council powers must be exercised by ordinance. These include land use controls, including the fees for land use applications, creation of a planning commission and board of adjustment, creation of a park board for statutory cities over 1,000 population; combining the office of clerk and treasurer; and establishing city council salaries. Although M. S. § 412.231 Violations of an ordinance may be specified in the ordinance to be either a provides for penalties of $700 and $200, see M. S. § 609.02, misdemeanor or a petty misdemeanor. State law establishes the maximum subds 3 and 4a and M. S. §§ penalty for each violation. The maximum penalty for a misdemeanor is 609.0332 and 609.034, which $1,000 or imprisonment of up to 90 days, or both. The maximum penalty increase these penalties to for a petty misdemeanor is $300. If the ordinance does not provide for • $1,000 and $300. imprisonment, no jury trial is accorded a violator. State v. Welrzin. 618 N. W. 2d 600 (Minn. App. 2000). Ordinances may also provide permanent rules for the organization and operation of the council. If the statutes require actions to be in ordinance form, the council cannot validly perform the action by resolution. The following decisions are among those that must be done by ordinance. Stat. § 412.022, subd. 1. 0 Establishing a four -year tern for mayor. Minn. Star. § , subd. 6 . Combining the office of clerk and treasurer. Minn. Stat. § 412.221, subd. 0 Regulate the use of streets and other public grounds to prevent umbrances or obstructions, and to require the owners or occupants of bul ' s and the owners of vacant lots to remove any snow, ice, dirt or rubbish sidewalks, and assess the cost of removal against owners. M. S. 412.221, subd. 8 . Regulate the setting out and p ction of trees, shrubs, and flowers in the city or upon its property. M. S.§ 412.221, subd. 11 . Regulate the use of wells, cisterns, reservoirs, rworks, and other means of water supply. • 7 -28 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 �9 I l lI Y 6 W , ,t a P°� 6 �6 W M. S. § 412.221 subd. 12. . Regulate the location, construction, and use of piers, docks, wharves, V u and boat houses on navigable waters, and to maintain public docks and warehouses. C J M. S. 412.221, subd. 14. • Regulate tourist camps and automobile parking facilities. M. S. 412.221, subd. 16 • Establish a hospital board and authorize it to establish a separate fund in the city treasury. M.S. 412.221 subd. 17 • Prevent, control or extinguish fires. M. S. 412.221, subd. Is. • Name or rename streets and public places, and number and renumber the lots and blocks of the city, and make and record a consolidated plat of the city, M. S. § 412.221, subd. 19. • License and regulate transient merchants, dealers, hawkers, peddlers, M. S.§ 330.025 (auctioneers). solicitors, and canvassers. By law, cities no longer can license auctioneers. M. S. § 412.221, subd. 20 • License taxicabs and automobile rental agencies. M. S. § 412.221, subd. 21 • Regulate animals, including the keeping of animals, animals running at large, and impounding of animals. M. S. 412.221, subd. 22. . Various health regulations, including establishing a board of health. • M. S. § 412.221, subds. 23 and • Regulate nuisances za. gu sa ces and nose and disorder. M. S. 412.221, subd. 25 • Regulate amusements. M. S. 412.221, subd 26. • Restrain vice. M. S. § 412.221 subd.27. • Regulate public dances. M.S. § 412.221, subd. 28. • Regulate the construction of buildings. The only regulations the city M. S. § 1613.62. may adopt are the uniform state building code. M. S. 412.221, subd. 30 • License and regulate restaurants. M. S. § 412.221, subd. 31. • Require sewer connections. M.S. § 412.221, subd. 32 • Provide for the governance and good order of the city; the prevention of vice; the prevention of crime; the protection of public and private property; the benefit of residence; trade and commerce; and the promotion of health, safety, order, convenience, and the general welfare. M. " "''' • Create a utility commission. M. S. 412:501 • Create a park board i t e is more than 1,000. HANDBOOK FOR MINNESOTA CITIES 7_29 • • CHAPTER 7 M. S. § 415.11 • Set the salaries for mayor and councilmembers. M. S. §§ 462.353, subd. 4 . Adopting zoning and land use controls, including establishing a board (fees), 462.35 (planning commission scion and board of � of ad p lanning ustment and lannin commission an g d establi the amounts adjustment), 462.357 (zoning) of land use fees. 462.358 (subdivision controls) McQuillin on Municipal . License fees should be adopted by ordinance. There are no court cases Corporations Section 26.32. 10 in Minnesota requiring this practice, although a court would likely make this requirement. Councils should use resolutions for any action of a temporary, routine, or administrative nature. If the council has a question about the classification of a piece of legislative business, the city should consult its city attorney. If the council has any doubt as to whether an ordinance is necessary, it is best to proceed as if the action requires an ordinance. Lindahl v. independent Sch. The courts often view proceedings that are in the form of motions that the Dist. 306, 2 Minn. 164, 133 (1 N.W.2d 23 (1965). council approves and records, to be equivalent to a resolution. Motions are probably sufficient for most simple administrative acts. C. Ordinances • Minn. Stat. § 412.191, subd. 4 ; Only the city council has the power to enact ordinances. In almost all A.G. Op. 4720 (July 31 1959). instances, ordinances do not need voter approval. The statutes do not Minn. Stat. § 412.221, subd. 33 authorize a council to seek voter consent to a proposed ordinance or even See LMCfr Risk Management to ask for an advisory opinion on its desirability. There is an exception, Information memo Goofv however, that authorizes advisory elections when the council is deciding Ordinances Your City Should whether the city should join a special district or other independent Amend or Repeal, which also governmental body having taxing powers. In home rule charter cities, the contains hints for writing better ordinances. A copy may be charter may provide for voter approval or advisory elections. obtained by calling the League's Research Service at (800) 925 - 1122 or (651) 281 -1220. Mangold Midwest Co. V. City councils can only deal with subjects the Legislature has expressly Village W . 274 Minn, N.2d 81 347, 143 N.W.2d 813 (Minn. authorized them to act on or that directl y e s relate to the gr ant. In 1966). some areas, statutory cities may enact ordinances on subjects state law City of Birchwood villa v. already regulates, as long as the ordinances are consistent with state law. Simes, 576 N. W. 2d 458 (Minn. But the city's regulation of an area, including those areas where authority App. 1998). may be generally granted in the statutory city code, may be pre - empted or, A. G. Op. 62b (May 4, 2000) if some other entity is empowered to regulate an area, the city may be concerning city's authority to unable to regulate that area even if there is no express pre - emption in the regulate smoking in restaurants. law, • 7 -30 HANDBOOK FOR MINNESOTA CITIES I • CHAPTER 7 32 Dunnell Minn. Digest In addition, councils must adhere to the following general requirements Municipal Corporations §§ 5.00 -5.12 when enacting ordinances: Press v. cit if Minneapolis, . Ordinances must be reasonably certain in their terms and set forth 153 N.W s (Minn. App. 1996); ;S v. . Becker, 351 N. � p olice an objective standards to the d the p ublic to p rovide adequate p p rov W. 2d 923 (Minn. 1984) State notice of what is required (An ordinance must not be v. Northwest Poultry & Egg unconstitutionally vague); Co., 203 Minn. 438, 281 N.W. 753 (1938); State v. Suess, 236 Minn. 174, 52 N. W. 2d 409 (1952). See State v. Hayes, C 0- 01 -241 (Minn. App. Nov. 6. 2001)for a good discussion of this issue. Holt v. City of Sauk Rapids, . Ordinances must be consistent with the United States and Minnesota 559 N.W.2d 444 (Minn. App. 1997), rev. denied (Minn. Apr constitutions and statutes (A city ordinance is presumed constitutional 24, 1997). so long as it is substantially related to health, safety, morality or the Cascade Motor Hotel, Inc. v. general welfare. But it must be reasonable, that is, it must be fair, City of Duluth, 348 N. W. 2d general, and impartial in operation. If an ordinance is arbitrary, 84 (Minn. 1984). oppressive or partial it is invalid.); • See City of Eveleth v. Town of Fayal, C2 -00 -1882 (Minn. App. June 5, 2001). See cases cited above. • Ordinances must not limit nor deny any common law or constitutional rights; Ordinance provisions must not constitute an unreasonable restraint of trade; and, State of Minnesota v. 0 Ordinance terms must be reasonable and not unconstitutionally vague. Kortkamp, 633 N.W.2d 863 (Minn. App. 2001). State of Minnesota v. Hayes, CO -01 -241 (Minn. App. Nov. 6, 2001) Hanaicrafi Block Ltd. Certiorari is an extraordinary remedy only available to review judicial or Partnership v. City of Minneapolis, 611 N.W.2d 16 quasi-judicial proceedings and actions. It is not available to review (Minn. 2000) legislative actions, such as the enactment of ordinances or administrative actions. HANDBOOK FOR MINNESOTA CITIES 7 -31 • CHAPTER 7 See Chapter 20. When adopting an ordinance, city officials should be aware the city might Lorshbough v. Township of be liable for not enforcing a police power measure contained in the Buzzle, 258 N. W.2d 96 (Minn. ordinance. However, if the language of the ordinance did not make the 1977); enforcement of the ordinance mandatory, the city may have the discretion Schultz v. Frank C 1 -00 -285 not to enforce it. Cities should not adopt or retain an ordinance they do not (Minn. App. Aug 1, 2000. intend to enforce. The council can adopt an ordinance to respond to a pre- existing problem or nuisance, and the city may prosecute a person who violates an ordinance after it has been adopted even if the person began the activity prior to the existence of the ordinance. Pelican Lake Propegv Owners In an unpublished decision, the Minnesota Court of Appeals held that the Association v. Countv of Crow Wing, Nos. C5 -98 -1549, C3 -98- interpretation of an existing ordinance is a question of law. The court 1940 (Minn. App. Aug. 17, further said a city council must follow any procedures established by its 1999) own ordinances. State v. Howard, 360 N.W.2d The council can adopt an ordinance to respond to a pre- existing problem or' 637 (Minn. App. 1985). nuisance, and the city may prosecute a person who violates an ordinance after it is adopted even if the person began the activity prior to the existence of the ordinance. 1. Form, content, and adoption of ordinances • Because ordinances have the force and effect of law, their form is of utmost importance. While the law does not require an attorney to draft ordinances, their preparation should involve sound understanding of the law or they may be subject to a variety of legal objections. The city should consult a competent attorney to help prepare ordinances. Ordinances must meet certain requirements and follow a certain form. Charter cities should also look to their own charter provisions for ordinance enactment. a. Title Every ordinance should have a title that describes its contents briefly yet adequately. The phrases: "repealing ordinances inconsistent herewith" and "providing penalties for the violation thereof' should not be part of the title. b. Number Each ordinance should have an identifying number as part of its title. C. Enacting clause Minn. Stat. § 412.191, subd. 4 All ordinances, after a suitable title, should begin substantially in this form: "The City Council of ordains..." • 7-32 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 d. Body The text of the ordinance should be written in clear and brief terms. If definitions are helpful, they should be contained in one beginning section. The sections should be short to make subsequent amendments easier and cheaper. All sections and subsections should have a number and an identifying word or short title. e. Penalty Minn. Stat. § 412.231 This section is for enforcement purposes. Cities may impose maximum Minn. Stat. § 169.89, subd. 2 penalties of a $1,000 fine or 90 days in jail, or both. In addition, the costs of prosecution may be added. The petty misdemeanor law, however, limits and Minn. . Stat. § 609.034 Y �' Y g Minn. St § 609.02, subd .3 a city's authorit b setting a fine limit of $300 for certain traffic offenses. f. Closing This should read: "Passed by the (n _i) Council this (date) day of (mom (year)." If the council wants an effective date later than the date of publication, this section should state the effective date. • g. Maps A.G. Op. 477 -B -34 (Sept. 20 If the ordinance refers to maps and they are an integral part of the 1962); A.G. Op. 59 -A -9 (Apr. ordinance, they must be included in the published ordinance. Because it is 13, 1957). expensive to publish maps, some cities omit all reference to the map in the ordinance and rely instead on word descriptions. The city then prepares a separate, unofficial map. Minn, Stat. § 412.191 subd. 4. However, a statutory city council may publish a summary of a lengthy ordinance or an ordinance that includes charts. Publishing the title and summary shall be deemed to fulfill all legal publication requirements as completely as if the entire ordinance had been published. In order to do this, the city council must do the following: • The council must determine that publication of the title and a summary of the ordinance would clearly inform the public of the intent and effect of the ordinance. See Minn. Stat. § 331A.01 . The council must approve publishing the title and summary by a four- subd. 10 fifths vote of its members. • The title and summary must conform to section 331A.01, subd. 10. HANDBOOK FOR MINNESOTA CITIES 7 - • CHAPTER 7 • The summary must include notice that a printed copy of the ordinance is available for inspection by any person during regular office hours at the office of the city clerk and at any other location the council designates. • The council must approve the text of the summary prior to the publication of the title and summary and determine that it clearly informs the public of the intent and effect of the ordinance. • A copy of the entire text of the ordinance must be posted in the community library if there is one or, if not, in any other public location the council designates. • The text of the summary must be published in a body type no smaller than brevier or eight -point type. • Proof of the publication must be attached to and filed with the ordinance. h. Deliberation See 4 McQuiuin, Municipal The council should discuss the ordinance according to the council's rules Corporations § 13.42. before passing it, even though failing to abide by these rules probably • would not invalidate an ordinance if it meets statutory requirements. The statutes do not specify that an ordinance in a statutory city must have a certain number of readings, nor do they require the council to consider it at more than one meeting. Unless the council has rules to the contrary, it may pass an ordinance at the same meeting at which it is introduced. L Passage Minn. Stat. § 412.191, subd. 4 Except where the statutes require a larger majority, ordinances in statutory cities must get a majority vote of all the members of the council to pass. This means, in effect, if the council has five members, at least three councilmembers must vote in favor of an ordinance. Both the clerk and the mayor in standard plan cities have the power to vote on ordinances. The mayor has no veto power. j. Attestation Minn. Stat. § 412.191, subd. 4 After the council passes an ordinance, the mayor and the clerk must sign it. Although not required 1 clerk should 1 affix the city seal. If g qu by law, the c ou d a so ty Union Pub. Serv. Co. v. Village either the mayor or clerk refuses to sign the ordinance, a court order can of Minnesota, 212 Minn. 92, 2 require them to do so. If there is a question of legality, the court will rule rl.w.2d sss (1942. on that issue before issuing an order. • 7 -34 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 k. Effective date Unless otherwise specified within the ordinance, an ordinance becomes effective on the day following its publication in the official newspaper. 2. Ordinance book Minn. Stat. § 412.151, subd. 1 ; Each statutory city must maintain an ordinance book containing copies of Minn. Stat. § 412.191 subd. 4. all ordinances passed by the council. Every ordinance must be recorded in the ordinance book within 20 days of its publication. The ordinance book is a public record and is evidence in court. If the clerk uses rinted copies of th p p e ordinance clipped from the newspaper, a printer's affidavit should be attached to each ordinance in the book. The city should have a numbering system adequate for indexing its ordinances. In most small cities where there are few ordinances, chronological order is satisfactory. When the number of ordinances is large or when the city is recodifying its ordinances, a more complicated system of decimal numbers might be advisable. I Publication of ordinances • The following publication requirements apply to statutory cities: Minn. scat. § 412.191, sub 4; Every ordinance must be published once in the city's official newspaper. Minn. scat. § 331A.02, Minn. To qualif as an official ne the new must be a le Stat. § 331A.04. �l � al g n spaper under state statute, and the council must have designated it as the c' 's official newspaper. Cities usually publish ordinances separately. If the cit ublishes them in -full as part of the minutes, the publication meets all sta tory requirements. Minn. Stat. § 412.191 subd. 4 In the case of len ordinances or ordinances that include charts or maps, the city may publish t ordinance title and a summary of the ordinance if the council determines su ublication would clearly inform the public of the intent and effect of the or ' ance, Minn. Stat. § 412.191, subd. 4 A title and a summary may be publl ed, only if directed by a four - fifths vote of the council. Along with the title d summary, there must be a notice that a printed copy of the ordinance vailable for inspection by any person during regular office hours at the ci clerk's office or other location designated by the council. A copy of the e ' e text of the ordinance shall also be posted in the community libr If there is no library, the entire text of the ordinance must be posted in other public location designated by the council. HANDBOOK FOR MINNESOTA CITIES 7_35 • CHAPTER 7 Minn. star. § 412.191, subd. 4 r to publication of the tile and summary, the council shall approve the text of t e ary and determine that it clearly informs the public of the intent and effect o ance. Publishing the title and summary shall be deemed to meet all legal publicatiulents as completely as though the entire ordinance had been published. Minn. Stat. § 331A.05, subd. An ordinance must be published within 45 days after being passed. Failure 2( A.G. Op. 277 -B -4 (Feb. 11, , 1 986). p ublish ublish within 45 days, however, will not necessarily invalidate the 1 ordinance. Minn. tat. § 412.191, subd. 4 The text of the summary shall be published in a font no smaller then brevier or eight -point type. Proof of publication shall be attached to and 1 h the ordinance. Proof of publication is an affidavit of publication that the newspa t furnish when it sends its printing bill. The absence of an affidavit of publicatioii, ie�, ver, does not invalidate an ordinance. The affidavit facilitates proof of public atio d anyone challenge that fact in a lawsuit. W.H. Barber Co. v. City of Errors in the publication of an ordinance may or may not affect the validity Minneapolis, Minn. 77 34 N. W.2d 710 (194 8). of the ordinance. If the error is minor so that the correct meaning is, clear from the context, the error has no effect upon the ordinance's validity. When the error is more substantial, however, the ordinance provision containing the error is ineffective and void. • Minn. Stat. § 331A.05, subd. 6 In home rule cities, the charter can impose additional or special qualifications for the publication requirements of ordinance notices or proceedings. 4. Adoption by reference Minn. Stat. § 471.62 Statutory and charter cities can avoid publication requirements when adopting certain complicated regulatory codes in ordinance form by using the process of adoption by reference. In effect, cities can adopt certain regulations by passing and publishing an ordinance that identifies statute or other rule by name. • 7 - HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 Minn. Stat. § 471.62. Cities may adopt the following by reference: • Minnesota statutes; • State department administrative rules or regulations affecting the city; • The state building code and the uniform fire code; • Codes (or parts of codes) prepared for general distribution in printed form as a standard or model by any governmental, trade, or professional association on the subject of building construction (limited to the state building code), plumbing, electrical wiring, flammable liquids, sanitary provisions, public health, safety, or welfare; and, • Compilations or regulations or standards prepared by regional and county planning agencies on the subject of planning, zoning, subdivision regulation, and housing regulation. Minn. Stat. § 471.62 All other statutory publication requirements also apply. In addition, prior to publication or posting, at least one copy of the incorporated ordinance or • code must be marked as the official copy and filed in the clerk's office for public use and examination. The clerk must furnish a copy, at cost, of any incorporated ordinance or code to any person upon request. Minn. star. § 471.62. Incorporation by reference does not authorize a city to adopt ordinances on any subject it does not have power by statute or charter to legislate. A.G. Op. 59 -A -9 (July 18, Codes, statutes, rules, regulations, and ordinances the council adopts by 1967); reference remain effective in their original form until changed or repealed A.G. Op. 59 -A -9 (Mar. 27, by the council changes. Any changes an issuing agency makes after the 1956). city's adoption of the code, do not take effect automatically. The city, when adopting the code by reference, cannot stipulate that any future revisions are automatic. One exception is that future changes in the building code automatically become part of the city's building code. If the city wishes to incorporate later changes in any other codes, it must pass an amending ordinance. Upon request, the clerk must furnish a copy of any code adopted by the city by reference. The clerk may levy a charge sufficient to cover the cost of providing the copy. • HANDBOOK FOR MINNESOTA CITIES 7 -37 • CHAPTER 7 5. Alteration of ordinances a. Amendment The council must follow the same procedures for amending an ordinance as those followed for passing an ordinance. After the amendment is passed by a majority of the council, it must be attested to, published, and included in the ordinance book. In addition, the form of the amendment should be like new ordinances with respect to title, enacting clause, body, closing, and signatures. The council cannot change an ordinance by resolution; it must pass an amending ordinance. If the ordinance is short or if the changes are numerous, the council will usually re -pass the entire ordinance in its amended form, repealing the old ordinance in a separate section. An optional form would be to title the new ordinance as an amendment, and then recite the entire ordinance as it would read after amendment. If the ordinance to be amended is so long that the cost of publishing it in its entirety would be prohibitive, the council may pass an amending ordinance that sets forth only the sections that will change. The council may include several amendments to the same ordinance in different sections of the same amending ordinance. The council should label an amending ordinance as • such, and should state the ordinance and sections in the proposed change. The council should avoid the practice of amending a single word or picking out a single sentence from a paragraph. This practice frequently leads to confusion and the possible invalidation of an entire section of an ordinance. A better practice is to reprint the section or subsection in full as it would read after amendment. If the council wishes to re- number its present ordinances, it may pass a re- numbering ordinance. The city must publish the re- numbering ordinance, but it does not have to include the text of the old ordinances. b. Repeal A city may repeal an ordinance only by passing another ordinance stating the title, number, subject, and date of the ordinance being repealed. The ordinance must explicitly state it is repealing the ordinance. To repeal an P Y P g p ordinance, the council must follow the same requirements for adopting ordinances. The council can repeal any number of ordinances in a single repealing ordinance. • 7 -38 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 Frequently, when a council passes a new ordinance or revises an ordinance, the new ordinance will contain provisions that are inconsistent with or replace similar provisions in an existing ordinance. Some cities insert a provision in the new ordinance repealing any or all ordinances or portions of ordinances inconsistent herewith. Such a clause is a waste of time and print. A better practice is to repeal, by name and number, any inconsistent provisions of former ordinances. If this is impractical, it is best to say nothing about the repeal of inconsistent ordinance provisions since the new ordinance automatically supersedes all inconsistent provisions in existing ordinances. 6. Codification of ordinances a. Purposes of codification Citizens have a right to know what their government -- whether national, state, or local -- requires of them. This is fundamental due process in our legal system. If a citizen is to know the law on a particular matter, he or she must first know where to find it. If a citizen is interested in knowing the city's current law on a particular matter, where does the search begin? In the book covering the minutes for • the last 65 years? In the clerk's files? In the basement of city hall? Depending on the current state of affairs in the particular city, the answer to any or all of these questions could be "yes." In assessing the need for codification, a city should begin by asking the following questions: What condition are the ordinances in? Are they gq organized in one place? Are they properly indexed? Are they cross- referenced? Are they up- to- date? Are they internally consistent? Are they in compliance with state and federal laws? Are they complete? A codification of city ordinances allows city officials to respond affirmatively to all of these questions. A proper codification project encompasses all of the following: • Identification of conflicting ordinances, and repeal or re- drafting of inconsistent or unclear ordinance provisions; • Removal of archaic and unconstitutional ordinances; • Development of a system that facilitates access to the city's laws and provides for continuous updating; • Development of comprehensive indexing and cross - referencing; • Review of the entire body of city ordinances for omissions; and, HANDBOOK FOR MINNESOTA CITIES 7 -39 • • CHAPTER 7 Organization of city ordinances into an easy -to -use reference book known as the city code. A well - drafted city code helps a city operate efficiently and effectively. Ordinances are grouped together by subject, not by the chronological order in which they were passed. This eliminates the need to sort through stacks of loose ordinances to find a regulation on a particular subject. Cities have a number of options for completing a codification of ordinances. Occasionally, the city attorney or city clerk will do the codification, but in many cases competing demands on their time make it a, difficult for them to undertake the project. Cities can also hire private consulting firms that specialize in charter revision and ordinance codification. The League of Minnesota Cities, in partnership with American Legal Publishing, provides codification services to member cities. The service is designed to provide each city with a customized city code that meets the needs of that particular city by establishing an interactive working relationship between the League, the city council, the city attorney, and any other city representatives chosen by the council. The League provides the following services as part of its codification service: • • Sorting, integrating, and organizing all current ordinances; • Updating all ordinances to reflect current state and federal laws; • Simplifying and using gender - neutral language; • Suggesting new ordinances; • Numbering all sections to allow the easy insertion of future amendments; • Submitting a full -text draft for city review and approval; and, • Delivering multiple copies of the final code with a detailed table of contents and complete index. Options are available for electronic editions of the code with full text search capacity and Internet support of the city code with links to the city's designated web site and to the League's web site. The League also offers assistance in drafting and reviewing individual ordinances. In addition, the League has available for purchase a basic city code for Minnesota cities, which can be customized by the League's codification service to meet the needs of individual cities. • 7-40 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 7 b. Codification procedures Minn. Stat. § 415.02 The council may codify any general or special laws, ordinances, resolutions, rules, and bylaws in force in the city. Minn. Stat. § 415.021 The city may print and publish such a codification in book, pamphlet, or newspaper form. Newspaper publication is not necessary if the city prints a substantial number of copies of the codification for general distribution to the public. Minn. Stat. § 415.02; Minn. A council may declare, by ordinance, that the codification is prima facie Stat. § 599.13. evidence of the city's law. After three years, the compilation and publication of any codification book or pamphlet is conclusive proof of the regularity of the ordinances' adoption and publication. 7. Prosecution responsibilities Minn, Stat. § 412.231 The city council has the power to declare the violation of any ordinance to Minn. Stat. § 609.02, subd. 3 be a penal offense and to prescribe penalties. The maximum penalty is a and Minn. Stat. § 609.034 fine of $1,000, imprisonment in a city or county jail for a period of 90 days, or both. In addition, prosecution costs may be added. • Minn. Stat. § 412.861, subd. l; All prosecutions for ordinance violations are brought in the name of the Minn. Stat. § 487.25, subd. 10 city upon complaint and warrant as in other criminal cases. The city may hire an attorney, including the county attorney, for this purpose. Minn. Stat. § 412.861, subd. l If the accused is arrested without a warrant, a written complaint must be made. The accused must then plead guilty or not guilty, and a warrant shall be issued and served by either the sheriff or a police officer. The city may have the sheriff or a city police officer serve an ordinance violator with a warrant for the arrest. City police officers, however, cannot serve criminal warrants outside the city limits. Minn. Stat. § 412.861, subd. 2 The complaint must describe the violated ordinance at least by section and number or chapter. When the complaint describes ordinances in this manner, the court considers them general laws that do not need proof in evidence. Minn. Stat. § 487.25, subd. 10 The city attorney, or the county attorney with whom the city has contracted to prosecute such violations, must prosecute all violations of a municipal ordinance or charter, regardless of city population. Minn. Stat. § 487.2 1, subd. 3 The trial on all ordinance violations must be conducted in the municipality where the alleged violation occurred if the court regularly holds sessions at that location, or in another location within the county as the court designates. HANDBOOK FOR MINNESOTA CITIES 7 -41 • • CHAPTER 7 Minn. Stat. § 412.861, subd. 2 Upon conviction, it is within the judge's discretion to impose a fine, jail time or both. The judgment must direct, that if the defendant does not pay the fine, the defendant shall be committed to the county jail for a period not exceeding 90 days. Minn. Stat. § 412.861, subd. 3 A defendant may appeal any conviction or sentence to the Minnesota Court of Appeals. The defendant must post a bond to the city to be approved by the court. The bond represents the defendant's promise to pay all awarded costs and damages if the defendant loses the appeal. After initiating and perfecting the appeal, the defendant must be released from custody. Minn. Stat. § 487.25, subd. 10 State law requires the county attorney to prosecute all felonies. In most counties, cities with a population of more than 600 must prosecute most statutory misdemeanor and petty misdemeanor violations that occur within the city. If a city has a population of 600 or less, it may, by resolution of the city council and with the approval of the county board of commissioners, give the duty to the county attorney. Prosecution responsibility of gross misdemeanors is split depending on the location of the city and the particular offense. Minn. Stat. § 497.33, subds. 1, The court administrator pays all fines and penalties to the county treasurer 5 of the county in which the funds were collected. On or before the last day • of each month, the county treasurer must pay the proceeds from fines and penalties as follows: one -third to the subdivision that provides the arresting officer, one -third to the authority providing the prosecution, and one -third to the county for court and jail services. There are two exceptions to this division of fine money. Minn. Stat. § 487.33, subd. 5 First, cities are entitled to all fines and penalties for parking violations if they do not issue complaints and warrants. Second, under the state law relating to fines and forfeited bail money from state patrol traffic arrests, the division of fines is as follows: Minn. Stat. § 299D.03, subd. 5 . If the arrest occurs within a city and the city attorney prosecutes the (a)(3) offense and the defendant pleads not guilty, one -third of the money goes to the city, one -third to the county, and one -third to the state; Minn. Stat. § 299D.03, subd. 5 . In all other cases, three - eighths of the money goes to the county, (a). five- eighths to the state, and none to the city. Under the court system, a city council can maximize the delivery of court services to its community and provide for ease of prosecution in several ways: Minn. Stat. § 487.2 1, subd. 1 . A city council may petition the county board to direct the court to hold sessions in that city. The city must be willing to provide, at its own expense, suitable facilities for court sessions. • 7 -42 HANDBOOK FOR MINNESOTA CITIES i • CHAPTER 7 Minn. Stat. § 487.2 1, subd. 1 . Two or more governmental units may petition for the holding of night court, but the court will determine the location. The law also permits the court to establish traffic and ordinance violation bureaus in locations determined by the court. The city cannot force the court to establish a bureau in the community. A council, however, might successfully negotiate for the establishment of a bureau within its city. Iv. Local approval of special laws Minn. Const. art. XII, § 2; Under the Minnesota Constitution, any law that affects a single unit of Minn. Stat. § 645.021 local government or a group of such units must name the unit or units. Also, the law does not take effect, with certain exceptions, until a majority of the city council passes a resolution approving the law, unless another method of approval is specified in the law. Unless otherwise required by the special law, the usual procedural requirements apply to resolutions. Publication is not necessary. Local approval is necessary except for the following cases: Minn. Stat. § 645.023, subd. 1 . A law enabling one or more local government units to exercise • authority not granted by general law; Minn. Stat. § 645.023, subd. 1 . A law bringing a local government unit within the general law by repealing a special law, by removing an exception to the applicability of a general statutory provision, by extending the applicability of a general statutory provision, or by reclassifying local government units; or, Minn. Stat. § 645.023, subd. 1 . A law that applies to a single unit or a group of units with a population of more than one million people. Minn. Stat. § 645.021, subd. 3 When local action is necessary to approve the special law, the city must file a certificate of approval with the secretary of state. The secretary of state usually furnishes the city with certificate forms when the city receives notice of the passage of the special law. The local unit must approve the special law by the first day of the next ensuing regular session of the Legislature in order for it to take effect. Minn. Stat. § 645.02 Special laws take effect in the city the day after the city files the certificate of approval unless the special law provides otherwise. A model form the resolution should follow is printed below: HANDBOOK FOR MINNESOTA CITIES 7 -43 • • CHAPTER 7 A. Model resolution approving a special law Resolution approving Laws of Minnesota, /vet Ch. (Chapter numhe and section if applirahW WHEREAS, Laws of Minnesota &ear) Ch. (cjnpter number and sertion) entitled "An Act" requires approval by a majority of the city council before it becomes effective. BE IT RESOLVED by the city council of 4zLy�, that Minn. Laws (}year) Ch. (ch ap ter numher and sertion is hereby approved. Adopted by the council this 4 e1 day of (month,), ( Mayor City Clerk Official seal V. How this chapter applies to home rule charter cities • Several sections of this chapter may be useful to charter cities: The first part, Types of council meetings, generally applies to statutory cities, although the sections discussing meetings held by interactive television and emergency meetings apply to all cities. The portions that discuss the Minnesota open meeting law apply to all cities. The sections on agendas, parliamentary procedures, and making an adequate record apply to both statutory cities and charter cities. Motions, resolutions and ordinances generally applies only to statutory cities. Home rule charter cities may have different hearing and publication requirements in their charters. However, Local approval of special laws, applies equally to charter and statutory cities. Under the provisions of this law, charters could not be amended by special law without local approval, except for the specific limited instances. • 7 -44 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 25 B. Optional method Minn. Stat. § 15.73 At the option of the contractor, the city must pay retainage to the contractor. The contractor may deposit bonds or securities with the public contracting agency or in any bank or trust company that may hold the security in lieu of cash retainage for the benefit of the city. In that event, the city must reduce the retainage in an amount equal to the value of the bonds and securities, and pay the amount of the reduction to the contractor. Interest on the bonds or securities is payable to the contractor as it accrues. The state treasurer approves the types of bonds and securities a contractor may provide in lieu of retainage. They include, but are not limited to: bills, certificates, notes, or bonds of the United States, other obligations of the United States or its agencies, obligations of any corporation the federal government owns, or indebtedness of the federal National Mortgage Association. If the city incurs additional costs because of this option, it may recover the costs from the contractor by reducing the final payment due under the contract. As work on the contract progresses, the city must, upon demand, inform the contractor of all accrued costs. X. Conflict of interest in contracts Minn. Stat. §§ 471.87 -.89 Subject to certain exceptions, city officials may not have a personal See League Memo 140a.3, Official financial interest, either directly or indirectly, in any contract the council Conflict of Interest makes. A city council generally may not contract with one of its members, except in limited circumstances. For councilmembers, these prohibitions apply whether or not the interested councilmember actually votes or otherwise attempts to influence the council in its consideration of the contract or any related matter. The application of these rules to contracts a city makes with the spouse of an official is uncertain; it depends largely on the facts in each particular case. Since the interest of an official under the statute may be direct or indirect, a contract with the spouse of the official may invoke an infraction of the law. Each case will depend on its individual facts. See League Memo, offieiar There are a number of limited exceptions to this prohibition. A detailed Conflict of Interest discussion of these exceptions can be found in the League's research memo on conflict of interest. • 25 -34 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 6 H. Special concerns —gift law, conflicts of interest, and incompatible offices There are several areas that are special concerns for all elected officials and some appointed officers. These include the following: Gift law. City officials are generally prohibited from accepting gifts, although there are a few limited exceptions. Conflicts of interest. City officials are prohibited from entering into a contract that one of their officials has an interest in. There are some exceptions to this rule. Incompatible offices. City officials may not hold two offices that are incompatible. See Official Conflict of Interest In all three of these areas, the law is complex and whether a violation has (LMC 140a.3) occurred is not always clear. Even when a situation does not violate these laws, people sometimes still question whether a public official has acted ethically. This section discusses each of the laws in more detail. (A research memo with further detail is available from the League.) • 1. The law prohibiting gifts to city officials Minn. Stat. § 471.895 With some exceptions, every gift to any city official is prohibited. An interested person may not give a gift or request another to give a gift to a local official. A local official may not accept a gift from an interested person. Minn. Stat. § 471.895, subd. I An "interested person" is a person or a representative of a person or (C) association with a direct financial interest in a decision the local official is authorized to make. The law prohibits gifts to local officials, not to cities: Thus, a gift can be given by an interested person to a city. Whether the city can pass the gift on to local officials is discussed below. A gift means money, real or personal property, a service, a loan, a forbearance or forgiveness of indebtedness, or a promise of future employment, that is given and received without the giver receiving consideration of equal or greater value in return. A local official means an elected or appointed official of a county or city, or of an agency, authority, or instrumentality of a county or city. • 6-8 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 6 All members of the city council, appointed boards, commissions, and committees are covered by this law. The definition of an interested person implies that appointed officials who are authorized to make decisions or recommendations that could impact someone financially also cannot accept gifts. Top appointed officials are thus covered, such as the manager/ administrator, clerk, financial officer, and other department heads. Other covered city employees include inspectors and people who can make decisions or recommendations about purchasing property, supplies, or services. It is possible to construct fact situations where any public employee can make or recommend actions that could affect someone's direct financial interest. Peace officers and public works employees are examples. Many cities interpret the gift law to include all city employees. An interested person who cannot give a gift to a local official includes anyone who is or may provide goods or services to a city —such as engineers, attorneys, fiscal advisors, contractors, and sales representatives. Virtually every resident of the city and anyone doing business in the city could at some time have a direct financial interest in a decision a local official is authorized to make and thus would qualify as an interested person. The following are possible examples where a property or business owner's financial interested could be effected: • • The levying of property taxes. • The spreading of special assessments. • The valuation of property for tax purposes. • The issuing of a license. • The zoning of property or granting of a land use permit. Any person doing business or residing in the city is potentially an interested person as far as a city councilmember is concerned. Whether a resident or business owner is a potential interested person as far as members of boards and commissions are concerned depends on the types of decisions or recommendations they are authorized to make. The decision or recommendation a city official is authorized to make does not have to be pending or probable. If the city official is authorized to make that decision or recommendation, then a person who could at any time have a direct financial interest in that decision or recommendation is an interested person and any gift from that person is prohibited. Minn. Stat. § 471.895, subd. 3a Since virtually every elected or appointed city official or employee is covered by the prohibition of gifts law, the question of whether anything is exempted from the gift law is important. There are a few limited types of gifts that are not prohibited. The following types of gifts are permitted: • HANDBOOK FOR MINNESOTA CITIES 6 -9 • CHAPTER 6 • Political contributions. • Services to assist an official in the performance of official duties. • Services of insignificant monetary value. • A plaque or similar memento recognizing individual services in a field or specialty or to a charitable cause. • A trinket or memento of insignificant value. • Informational material of unexceptional value. • Food or beverage given at a reception, meal, or meeting away from the recipient's place of work by an organization before whom the recipient makes a speech or answers questions as part of a program. This exception probably permits only principal speakers at meetings to receive gifts of food or beverage. There are no blanket social exceptions to the law prohibiting gifts to local officials. But, gifts given because of the recipient's membership in a group, a majority of whose members are not local officials, is permitted if an equivalent gift is offered to or given to the members of the group who are not local officials. And, gifts given by an interested person who is a member • of the family of the recipient are permitted, unless the gift is given on behalf of someone who is not a member of that family. Also, gifts given by a national or multistate organization of governmental organizations or officials, if a majority of the dues to the organization are paid from public funds, if the gift is food or a beverage given at a reception or meal and an equivalent gift is given or offered to all other attendees. The law prohibits gifts to city officials, not to cities. Thus, an interested person can give a gift to a city. If the giver has no control over who will receive the gift, and the gift was not targeted to a specific person, perhaps a city official could benefit from that gift. However, if the person who benefits has any control over the decision to have that gift benefit that person, the gift' would be prohibited. For example, if an interested person gave five tickets to a football game to a city, the council could not decide to use the tickets themselves. 2. Conflicts of interest There are two types of conflicts of interest that a councilmember may encounter: • 6 -10 HANDBOOK FOR MINNESOTA CITIES • CHAPTER 6 Minn. Stat. §§ 471.87 and A councilmember of a statutory city may not have a direct or indirect 412.311. personal, financial interest in any sale, lease, or contract they are authorized See League memo, Official to make in their official capacity. There are limited exceptions to this law. Conflicts of Interest (LMC 140a.3). But , unless re s an exception, th i contract made in violation of this law 11 tion Y an is void. That is, neither the councilmember who benefits from the contract nor the city may enforce the contract. Also, city councilmembers who knowingly authorize a prohibited contract, even though they do not benefit from it, may be guilty of a crime. The councilmember who would benefit from the contract could also be guilty of a crime if that person entered into it knowing it would be illegal. The contract is invalid even if the benefiting councilmember did not participate in the discussion of the contract or vote on it. Even if the councilmember acted in good faith and the contract was fair and reasonable, the contract is void because it is prohibited by the conflict of interest in contracts law. There are also situations where councilmembers may find they have an interest in a non - contract decision the council will make. This type of interest could be of a financial nature, but isn't always. These non - contract hatters may include such things as council decisions on zoning, local improvements, and the issuance of licenses. Although not generally prohibited by law, an interested councilmember should abstain from participating in the council discussion and from voting on these issues, • otherwise the council decision could be reversed by a court because of the self - interest. 3. Incompatible offices State ex Hilton vl sword,) Incompatible offices are any public offices an individual may not hold 157 Minn. 263,196 N.W. 615 simultaneously. The term, "incompatible office" when applied to a (1908); Kenney v. Goergen, 36 combination of public offices, means that a conflict of interest would exist if Minn, 190, 91 N.W. 210 (1886). one person held them at the same time. The term, "office" includes all See League Memo, Official elected offices and those appointed positions that have independent authority Conflict of Interest (LMC under law to determine public policy or to make a final decision not subject 140a.3) for a discussion of 1 1 Il Y J incompatible offices. to a supervisor's approval. State laws do not generally prevent a person from See also House Research holding two or more governmental positions. However, without specific Information Brief, statutory authority, government officials cannot hold more than one position Compatibility of Offices, for if the functions are incompatible, or if the jobs create a conflict between two more information. different public interests. McCutcheon v. City of St. Paul, 216 N.W.2d 137, (Minn. 1974). • HANDBOOK FOR MINNESOTA CITIES 6 -11 • CHAPTER 6 Unless otherwise limited by law, an individual may apply for a job or run for an office that is incompatible with a current position without resigning from the current position. However, if they accept a position or receive a certificate of election to an office considered incompatible with the previously held job or office, the individual is considered to have resigned from the first position. A.G.Op. 471 -M, Dec. 11, 1957. When an official qualifies for a second and incompatible position (by taking an oath and filing a bond, if necessary), that person automatically resigns from the first position, which then becomes vacant. However, an individual can run for election to a position that is incompatible with the position the person already holds without resigning from the first. Positions are incompatible when ANY one or more of the following conditions exist: If the holder of one position (or the group or board of which the person is a member): • Hires or appoints the other. • Sets the salary for the other. • Performs functions that are inconsistent with the other. • • Makes contracts with the other. • Approves the official or fidelity bond of the other. If a specific statute: • States that certain positions may not be held by one person. • Requires that the holder may not take another position. • Requires that the holder devote full -time to the position. If one of the positions: • Is in the federal service (except for postal employees). • Exists by reason of a contract made by the group or board of which the holder is a member. • Is in a governmental unit whose interests and purposes conflict with those of the group to which the other belongs. • Has duties that conflict or are antagonistic to those of the other. A waiver of salary or serving without pay does not change the incompatibility of any two positions because it does not change their basic character and relation to each other. 6 -12 HANDBOOK FOR MINNESOTA CITIES • • CHAPTER 6 Some of the more common examples of offices that are incompatible include: AG. Op. 358e -7, Mar. 5,1965. . City treasurer and councilmember or mayor. A.G. Op. 358e -9. Dec. 13, 1969. • School board member and councilmember or mayor. A.G. Op. 358e -3, Mar. 6, 1946. • City attorney and councilmember or mayor. Minn. Stat. § 412.152 State statute now allows a statutory city mayor to be the fire chief of an Also see discussion in independent nonprofit firefighting corporation if certain conditions are met. Official Conflict of The statute, however, is unclear on several points. It does not address ' Interest (LMC 140a.3) council positions other than the mayor, so there still may be incompatibility concerns. It also appears to be limited to independent nonprofit fire departments, so city departments (whether volunteer or salaried) are not addressed. Although the statute outlines general criteria under which there will not be incompatibilities, there is still some vagueness regarding what functions between the two offices would be considered inconsistent. A.G. Op. 90 -e, Apr. 17,1978. A mayor or councilmember apparently can be a member of a volunteer fire Minn. Stat. § 471.88, subd.6. department because the office is not incompatible and the conflict of interest law contains an exception for this type of service. However, the proper procedures for entering into the contract must be followed. The council- member who is a member of the department cannot participate in the discussion or vote on the contract, and the contact must be approved by unanimous vote of the other members. Because each city may have a different relationship with its fire department, a city may want to get a legal opinion from its city attorney or from the Attorney General before allowing a councilmember to serve as a firefighter with any sort of supervisory powers. Minn. Stat. § 43A.32, State laws allow federal and state employees from holding city offices as subd. 2(b). long as the positions are compatible. Federal civil service rules generally require all people covered by the rules to resign before seeking local elective office. State civil service employees can hold any local elected office as long as it does not conflict with their regular state employment. The Dept. of Employee Relations will make the determination of whether a conflict exists. Ultimately, whether two offices will be incompatible depends on the character of the offices and their relationship to one another. For further information on incompatible offices, talk to your city attorney or contact the League of Minnesota Cities. L Photographs • HANDBOOK FOR MINNESOTA CITIES 6 -13 I