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HomeMy WebLinkAbout01.19.05 Work Session Packet City of Farmington 325 Oak Street Farmington, MN 55024 Mission Statement Through teamwork and cooperation, the City of Farmington provides quality services that preserve our proud past and foster a promising future. AGENDA CITY COUNCIL WORKSHOP January 19, 2005 5:30 P.M. CITY COUNCIL CHAMBERS 1. CALL TO ORDER 2. APPROVE AGENDA 3. DISCUSSION OF WETLAND BUFFERS 4. COUNCIL ORIENTATION a) Questions and Answers b) Legal Issues - E-mails; Open Meeting Law; Public Comments "'" 5. DISCUSSION OF SPEED AND TRAFFIC ISSUES 6. SETBACKS FOR MINOR COLLECTORS 7. DISCUSSION REGARDING LEGISLATIVE POSITION OF THE CITY 8. ADJOURN PUBLIC INFORMATION STATEMENT Council workshops are conducted as an informal work session, all discussions shall be considered fact-finding, hypothetical and unofficial critical thinking exercises, which do not reflect an official public position. Council work session outcomes should not be construed by the attending public and/or reporting media as the articulation of a formal City policy position. Only official Council action normally taken at a regularly scheduled Council meeting should be considered as a formal expression of the City's position on any given matter. 3 City of Farmington 325 Oak Street, Farmington, MN 55024 (651) 463-7111 Fax (651) 463-2591 www.ci.farmington.mn.us TO: Mayor, Councilmembers, City Administrator ~ FROM: Lee M. Mann, P.E., Director of Public Works/City Engineer SUBJECT: Wetland Buffer Issue DATE: January 19,2005 INTRODUCTION The issue of wetland buffers on private property has been raised by several residents in the City. When the City's wetland buffer ordinance was first put into place, buffers were allowed on private property (this practice is no longer allowed, buffers must now be contained in outlots dedicated to the City). Lots were platted with a drainage and utility easement that encompassed the buffer on the property. However, it was the developer's responsibility to insure that home buyers knew of the buffer since wetland buffers are not allowed to be shown on the plat. A copy of the plat of the lot is what the homeowner typically receives. There is evidence that there were efforts by the developers to inform the builders who bought the lots about the buffers. This communication may have been lacking between some builders and homebuyers. Some residents have indicated that they had no knowledge of the buffers before they bought their homes and became aware only as the City has begun enforcement to preserve those buffer areas. The residents are very concerned because in some cases there is 40+ feet of wetland buffer on their property (rear yard) and they have much less usable space than they thought when they bought their home. DISCUSSION Pursuant to the November 15th City Council meeting, staff met with the Department of Natural Resources, the Soil and Water Conservation District and the Minnesota Pollution Control Agency to discuss the wetland buffer issue and whether or not there is a way to address any of the property owner's issues and still provide adequate protection to the wetlands. There were several ideas that came out of that meeting that required staff to perform some analysis on a lot by lot basis to quantify the effect of those ideas. Staffhas completed this analysis at this time. The proposal that was discussed at the meeting is to reduce the amount of required buffer on the private property to 10-feet, the width of the standard drainage and utility easement on a rear lot line. Staff has analyzed all of the lots that are affected to determine how much buffer is left after applying this criterion (see attached chart). At the meeting with the agencies, it was discussed that if the buffers are reduced, it would still be desirable to retain a total of a 30-foot buffer on Manage 1 type wetlands and a total of a 50-foot buffer on Protect type wetlands. As shown on the attached chart, there are several lots that would not quite meet these criteria. Wetland Buffer Issue January 19, 2005 Page 2 Staff has been in further communication with Brian Watson of the Dakota County Soil and Water Conservation District and he has indicated that, in light of all the circumstances, the approach outlined above is reasonable, as long as the City will strictly enforce the buffer limits and encourage those property owners that wish to keep the current buffer width to do so to enhance the wetland and wildlife protection. Several issues that arise for discussion if this concept is adopted are as follows: 1. The City would need to consider whether or not to go ahead and allow this "variance" to only those property owners that lodge a complaint, or should the City contact all property owners affected and offer the "variance" to all at the same time? 2. A decision would need to be made as to whether the City would go ahead and vacate those portions of the existing drainage and utility easements that were platted to encompass the buffers that are larger than the standard drainage and utility easements (lO-feet). If the easements are vacated, there would be the opportunity to incorporate language in the vacation document that identifies the buffer area that would show up in future title searches when the properties are sold. Future owners should then be aware of the buffers. Vacating the easements would involve a cost and staff time. 3. The City would need to decide if the concept would be applied across the board or if the residents have a choice. If there are residents that are happy to have a 40- foot buffer on their property, does the City still vacate a portion ofthe easement and document the 40-foot buffer, or is the 10- foot buffer documented and the buffer width is left up to the property owner? BUDGET IMPACT None at this time. As actions are determined, staff will bring back cost implications at a future meeting. ACTION REQUESTED Council discussion and direction to staff on how to proceed on this issue. Respectfully Submitted, ~ J;Y\~ Lee M. Mann, P .E., Director of Public Works/City Engineer cc: file Mr. Michael Pierce Mr. Derek Christianson Brian Watson, Dakota County SWCD Pat Lynch, Mn. DNR Buffer Total Buffer Wetland Total Width on with 10' on Buffer Development Property Block Lot Type Buffer Property Property Required Charleswood 5750 200th 5t. 4 3 Manage 1 60 43 27 50 Charleswood 5764 200th 5t. 4 2 Manage 1 60 43 27 50 Charleswood 5778 200th 5t. 4 1 Manage 1 65 40 35 50 Charleswood 5806 200th 5t. 3 16 Manage 1 30 18 22 50 Charleswood 5820 200th 5t. 3 15 Manage 1 33 23 20 50 Charleswood 5844 200th 5t. 3 14 Manage 1 35 21 24 50 Charleswood 5860 200th 5t. 3 13 Manage 1 35 20 25 50 Charleswood 5872 200th 5t. 3 12 Manage 1 35 22 23 50 Charleswood 5884 200th 5t. 3 11 Manage 1 35 21 24 50 Charleswood 5900 200th 5t. 3 10 Manage 1 35 18 27 50 Charleswood 5914 200th 5t. 3 9 Manage 1 35 21 24 50 Charleswood 5928 200th 5t. 3 8 Manage 1 40 21 29 50 Charleswood 5940 200th 5t. 3 7 Manage 1 50 20 40 50 Charleswood 5952 200th 5t. 3 6 Manage 1 55 15 50 50 Charleswood 5964 200th 5t. 3 5 Manage 1 48 18 40 50 - Charleswood 5976 200th 5t. 3 4 Manage 1 43 27 26 50 Charleswood 5982 200th 5t. 3 3 Manage 1 50 17 43 50 Charleswood 5988 200th 5t. 3 2 Manage 1 135 16 129 50 Charleswood 5994 200th 5t. 3 1 Manage 1 87 22 75 50 Middle Creek 3rd 19990 English Ave. 2 1 Protect 75 22 63 75 Middle Creek 3rd 19998 English Ave. 2 2 Protect 75 25 60 75 Middle Creek 3rd 20012 English Ave. 2 3 Protect 75 25 60 75 Middle Creek 3rd 20020 English Ave. 2 4 Protect 75 20 65 75 Middle Creek 3rd 20044 English Ave. 2 5 Protect 75 25 60 75 Middle Creek 3rd 20100 English Ave. 2 6 Protect 75 27 58 75 Middle Creek 5th 5137 203rd 5t. 1 9 Protect 75 18 67 75 Middle Creek 5th 5161 203rd 5t. 1 8 Protect 75 24 61 75 Middle Creek 5th 5215 203rd 5t. 1 7 Protect 75 24 61 75 Middle Creek 5th 5241 203rd 5t. 1 6 Protect 75 24 61 75 Middle Creek 5th 5289 203rd 5t. 1 5 Protect 75 22 63 75 Middle Creek 5th 5321 203rd 5t. 1 4 Protect 75 20 65 75 Middle Creek 5th 5349 203rd 5t. 1 3 Protect 80 25 65 75 Middle Creek 5th 5375 203rd 5t. 1 2 Protect 75 23 62 75 Middle Creek Estates 20591 Dyers Pass 2 10 Protect 195 44 161 75 Middle Creek Estates 20617 Dyers Pass 2 9 Protect 75 50 35 75 Middle Creek Estates 20633 Dyers Pass 2 8 Protect 75 41 44 75 Middle Creek Estates 20649 Dyers Pass 2 7 Protect 75 38 47 75 Middle Creek Estates 20665 Dyers Pass 2 6 Protect 80 42 48 75 Middle Creek Estates 20681 Dyers Pass 2 5 Protect 80 15 75 75 Vermillion Grove 1 st 19825 Emperor Ct. 4 12 Protect 75 24 61 75 Vermillion Grove 1 st 19839 Emperor Ct. 4 11 Protect 80 20 70 75 Vermillion Grove 1 st 19845 Emperor Ct. 4 10 Protect 75 23 62 75 Vermillion Grove 1 st 19857 Emperor Ct. 4 9 Protect 80 31 59 75 Vermillion Grove 1 st 19865 Emperor Ct. 4 8 Protect 77 25 62 75 Vermillion Grove 1 st 19873 Emperor Ct. 4 7 Protect 78 14 74 75 Vermillion Grove 1 st 19880 English Ave. 5 1 Protect 80 15 75 75 Vermillion Grove 1 st 19890 English Ave, 5 2 Protect 75 20 65 75 Vermillion Grove 1 st 19900 English Ave. 5 3 Protect 75 24 61 75 Vermillion Grove 1 st 19920 English Ave. 5 4 Protect 75 20 65 75 Vermillion Grove 1 st 19940 English Ave. 5 5 Protect 75 20 65 75 Vermillion Grove 1 st 19960 English Ave. 5 6 Protect 75 20 65 75 Vermillion Grove 1 st 19980 Enalish Ave. 5 7 Protect 75 25 60 75 . The League of Minnesota Cities provides this publication as a general informational memo. It is not intended to provide legal advice and should not be used as a substitute for competent legal guidance. Readers should consult with an attorney for advice concerning specific situations. @ 2004 League of Minnesota Cities Research Foundation. All rights reserved. . LMC L-gue 0/ Minnesota Cities Cities pt'OmOting 1IJIICBl1enCfi1 League of Minnesota Cities 145 University Avenue West St. Paul, MN 55103-2044 (651) 281-1200 (800) 925-1122 Fax (651) 281-1299 www.lrnnc.org . Conflict of Interest Highlights 1. What is a conflict of interest? ? . A conflict of interest occurs when an individual has a personal interest in a decision about which he or she has the power to make. A prohibited personal interest may be contractual or non-contractual. It includes decisions in which personal involvement, gain or fmancial benefit exist for the decision-maker. The following elements must be considered: . Contracts. Public officers may not have a personal financial interest in any sale, lease, or contract that they are authorized to make in their official capacities. Councilmembers of home rule charter cities should consult their city charters for additional limitations. . Incompatibility of offices. A public officer may not hold two positions if the positions' functions are inconsistent with one another. . Self-interest in non-contractual matters. Sometimes, elected officials find they have an interest in a non-contractual decision that the council will make. This type of interest is sometimes of a financial nature, but not always. These non-contractual matters may include such things as council decisions on zoning, local improvements, and the issuance of licenses. An interested councilmember should generally abstain from discussing and voting on these matters. 2. Who is subject to the conflict of interest law for contracts? All public officers who have the authority to take part in making any sale, lease or contract in their official capacity are subject to the conflict of interest law. A "public officer" certainly includes councilmembers. In some circumstances, it may also include non-elected officers and employees who are able to influence contracting decisions. ~ 3. What are some common exceptions to the conflict of interest law for contracts? The statute generally prohibits city councils from entering into a contract if one of its councilmembers has an interest in it. However, there are several exceptions to the law. The following actions are permitted under certain circumstances, even if they affect the personal interests of a councilmember: . Designating a bank or savings association. . Designating an official newspaper. Official Conflict of Interest 3 · Contracting for goods or services that are not required to be competitively bid. · Contracting with a volunteer fire department for payment of wages or retirement benefits to its members. · Contracting for construction materials or services, if the contract is let by a sealed bid process and the city has a population of 1,000 or less. · Contracting to rent space in a public facility to a public officer at a rate similar to that paid by other renters. · Issuing a grant offered by a local development organization. There are several other less common exceptions that are described in Part III. A. 2. of this memo. ~ 4. Is there a special procedure to use if a contract is permitted under one of the exceptions? If a contract with an official is permitted under one of the exceptions in the law, the following must generally be done: · The council must approve the contract by unanimous vote. · The interested officer should abstain from voting on the matter. There are additional requirements for some of the exceptions that are described in Part III. A. 2. of this memo. 5. Who is subject to the law regarding incompatibility of offices? , . All persons in elected offices must be aware of this law. In addition, many city employees and appointed officials may also need to be aware of this law. 6. When are offices incompatible? Generally, positions are incompatible when one or more of the following conditions exist: . If one position: · hires or appoints the other. · performs functions that are inconsistent with the other. · makes contracts with the other. · approves the official bond of the other. 4 League of Minnesota Cities . If a specific statute or charter provision: . states that one person may not hold two or more specific positions. . requires that the officer may not take another position. . requires that the officer devote full-time to the position. 7. What are common problems in applying the laws? ? . Most questions seem to come from situations involving a non-contractual interest of a councilmember. These are some of the more common: . Self-appointment. City officials may not generally appoint themselves to a position. . Contracts with relatives of a councilmember. Generally, a contract with a councilmember's relative is not prohibited unless the councilmember has a financial interest in the relative's business or income. . Zoning of a councilmember's land. Generally, a city council is not prohibited from rezoning property owned by a councilmember. Because the rules for participating can vary on a case-by-case basis, cities should consult with their city attorneys before taking council action. . Local improvements. A councilmember is probably not prohibited from petitioning for an improvement that will benefit his or her property. Because the rules for participating can vary on a case-by-case basis, cities should consult with their city attorneys before taking council action. . Issuing licenses to councilmembers. Because the rules for participating can vary on a case-by-case basis, cities should consult with their city attorneys before taking council action. State rule prohibits a councilmember from voting on a liquor license application from a spouse or relative. 8. What happens if the city doesn't follow the conflict of interest laws? @ . Contracts. Any contract that has been made illegally is generally void. In addition, every public officer who violates the conflict of interest law can be found guilty of a gross misdemeanor, which has a penalty of a fine of up to $3,000 and imprisonment for up to one year. . Incompatible offices. If a public officer accepts a position that is incompatible with his or her office, the first office is automatically vacated. Official Conflict ofInterest 5 · Non-contractual situations. Although the outcomes of these types of situations are less clear, a council decision could be reversed. There is also the potential of personal liability for the officials who are involved. 9. Where can cities get further information? ~ - The League of Minnesota Cities has several publications that discuss issues related to conflict of interest in more detail. Call the League's Research Department for further information, (651) 281-1200 or (800) 925-1122. 6 League of Minnesota Cities Table of Contents Conflict of Interest Highlights ............. .... ........... ........ ............. ................................. ........... ......... ........... .....3 Part I. Introduction...................................................................................................................... .. ........... 9 Part II. Prohibited gifts, economic disclosure, and political activities ...................................................... 9 A. Prohibited gifts.................................................................................................................... ...... 9 B. Conflict of interest and economic disclosure in metropolitan-area cities with populations over 50,000................................................................................................................................ . ..... 11 C. Statements of economic interest for trustees of public pension plans..................................... 13 D. Lobbyist regulations................................................................................................................ 14 E. Leave during political candidacy......... ............ ..................... .............. ............................. ........ 14 Part III. Conflict of interest in contracts...... .................................... ......................................................... 15 A. All cities............................................................................................................................. ..... 15 B. Statutory cities ........................................................................................................................ 21 C. Home rule charter cities ................. ........................... ..... ........... .................. ............... .............21 D. Specific kinds of contracts ........... ................... ............................. ................... ........................ 21 E. Contracts made in violation of the statutes.............................................................................. 26 Part IV. Conflict of interest in non-contractual situations........................................................................ 27 A. In general..... .......... ................ ........... ............. ........... ......... ......... ............... ............... ..............27 B. Disqualifying interest factors ................. ........... ............. ................... ........... ........................... 28 C. Specific situations .......... ....... ........... ............. ... ................ ........... ................ ................. ........... 28 D. Effect of disqualifying interest on action ...... ........... ................................ ........... .................... 34 E. Conflict of interest checklist...... .................. .......... ........ ............ .................................... ..........34 Part V. Incompatibility of offices ...... ........... ................................ ................................. ..........................35 A. In general ................................................................................................................................ 35 B. Elements of incompatible offices ...... ..... ............................ .......... ................................. ..........35 C. Violation of the incompatibility law...... ........... ........................................... ........................... 36 D. Specific offices........................................................................................................................ 36 Part VI. Model forms ............................................................................................................................... 39 Official Conflict of Interest 7 Minn. Stat. ~ 471.895. Official Conflict ofInterest Part I. Introduction State law sets many standards for public officers. Some of the most important and misunderstood are the laws addressing conflicts of interest. There are several different laws of which public officials should be aware. Generally, these laws do the following: . Prohibit public officials from accepting gifts. . Require disclosure of conflicts of interest and economic reporting. . Require certain reporting by lobbyists. . Prohibit conflicts of interest. . Prohibit officials from holding incompatible offices. As broad as these laws are, situations can arise that may not be clearly covered by them. While this document discusses the general principles behind these various laws, it is important to remember that the appearance of impropriety or of a conflict of interest can also be damaging to a councilmember's image and the city's reputation, even if the act is not specifically prohibited by law. Part II. Prohibited gifts, economic disclosure, and political activities A. Prohibited gifts 1. All Minnesota cities, in general Elected and appointed "local officials" may not receive a gift from any "interested person." An "interested person" is a person, or representative of a person or an association, who has a direct fmancial interest in a decision that a local official is authorized to make. This law applies to all cities in Minnesota. The law clearly applies to councilmembers. However, since there is no definition of the term "local official," it is not known if the law covers all city employees or just certain high level employees, such as city managers or administrators. Until further clarification of the law, the safest course of action is to assume the law applies to all employees, regardless of their duties. 9 Minn. Stat. ~ 47] .895, subd. 3. Minn. Stat. ~ 471.895; Minn. Stat. ~~ IOA.07]; IOA.O], subd.21. 10 2. Exceptions for all Minnesota cities The following types of gifts are permitted under exceptions to the gift law: · Lawful campaign contributions. · Services to assist an official in the performance of official duties. These types of services include such things as providing advice, consultation, information, and communication in connection with legislation and services to constituents. · Services ofinsignijicant monetary value. · A plaque or similar item. These items are permitted if given to recognize individual services in a field of specialty or a charitable cause. · A trinket or item ofinsignijicant monetary value. · Informational material of unexceptional value. · Food or beverage given at a reception, meal or meeting by an organization before whom the recipient makes a speech or answers questions as part of a program. This exception is only available if the location of the reception, meal or meeting is away from the recipient's place of work. · Gifts given because of the recipient's membership in a group. However, the majority of the members of the group must not be local officials. In addition, the gift is only acceptable if an equivalent gift is given to the other members of the group. · Gifts between family members. However, the gift may not be given on the behalf of someone who is not a member of the family. · To national or multi-state organization conference attendees. The majority of dues paid to the organization must be from public funds, and the gift must be food or a beverage given at a reception or meal in which an equivalent gift is offered to all other attendees. 3. Metropolitan cities with populations over 50,000 Metropolitan cities with a population over 50,000 are subject to an additional law. Local officials in these cities are also prohibited from receiving gifts from "lobbyists." A "lobbyist" is defmed as: . Someone engaged in lobbying in the private or public sector; or, A city employee or non-elected city official who spends more than 50 hours in any month attempting to influence governmental action. . League of Minnesota Cities Minn. Stat. ~ IOA.oI, subd. 22, Minn. Stat. ~ IOA.07. A "local official" is an elected or appointed city official or a city employee with authority to make, recommend or vote on major decisions on the expenditure or investment of public funds. B. Conflict of interest and economic disclosure in metropolitan-area cities with populations over 50,000 1. Conflict of interest disclosure Elected and appointed officials of metropolitan cities with populations over 50,000 must disclose certain information if they will be involved in a decision that will affect their financial interests. The law affects elected or appointed city officials, or city employees with authority to make, recommend or vote on major decisions regarding the expenditure or investment of public funds. The law applies if the official or employee must make a decision or take an action that substantially affects his or her financial interests or those of a business with which he or she is associated. However, there is an exception if the effect is no greater for the interested business than for others in that business, occupation, or position. The interested official or employee must do the following: . Prepare a written statement describing the matter requiring action or decision and the nature of the potential conflict of interest. . Deliver a copy of the notice to his or her superiors. 1. If the official is an employee, he or she must deliver a copy of the statement to his or her immediate superior. ii. If the official is directly responsible only to the city council, it should be given to the city council. iii. If the city official is appointed, written notice should go to the chair of the unit. If the potential conflict involves the chair, the written notice should go to the appointing authority (in most cases, the city council). iv. If the official is an eleCted official, the written statement should go to the presiding officer (the mayor, in most instances). v. If the potential conflict involves the mayor, the written notice should go to the acting presiding officer. . If a potential conflict of interest arises and there isn't time to comply with the above requirements, the city official must orally inform his or her superior or the city council. Official Conflict oflnterest 11 Minn. R. 4515.0500. Minn. Stat. S IOA.oI, subd.29. Minn. Stat. S IOA.09, subds. 6a, I. Minn. Stat. S IOA.09, subd. 5. Minn. Stat. S IOA.09, subd. 6; Minn, R. 4505.0900. Minn. Stat. S 3838.053. · The employee's superior must assign the matter to another employee who does not have a potential conflict of interest. · If there is no immediate superior, the city official must abstain from influence over the action or decision, if possible, in a manner prescribed by the Campaign Finance and Public Disclosure Board (Public Disclosure Board). · If the city official is not permitted to abstain or cannot abstain, he or she must file a statement describing the potential conflict and the action taken. The city official must file this statement with the city council within a week of the action. 2. Statements of economic interest a. Information required City officials in cities within the seven-county metropolitan area with populations over 50,000 (as determined by the most recent federal census, a special U.S. census, an estimate by the Met Council, or the state demographer) must file a statement of economic interest. The statement must be filed with the local official's governing body and the Public Disclosure Board and must report the following information: · Their name, address, occupation, and principal place of business. · The name of each associated business (and the nature of that association). · Option-based, direct, or indirect interests in all real property within the state (except homestead property). · Interests in horse-race-track property or racehorses in or out of the state. City officials can get a form for the disclosure of economic interests from the Public Disclosure Board. Officials must then file supplementary statements each year by April 15 , and a final statement upon leaving office. There are similar additional requirements for elected officials of cities in Hennepin County with populations greater than 75,000. b. Time for filing An individual must file a statement of economic interest with the Public Disclosure Board by the following dates: · Within 60 days of accepting employment as a local official; or, · Within 14 days after filing an affidavit of candidacy or petition to appear on the ballot for an elective office. 12 League of Minnesota Cities Minn. Stat. S IOA.09, subd. 2. More information is available on the Campaign Finance and Public Disclosure Board's web site at: www.cfboard.state.mn. us. Minn. Stat. S 356A.06, subd. 4 (c). Minn. Stat. S 356A.06, subd. 4. Official Conflict ofInterest c. Notification Upon receiving an affidavit of candidacy or a petition to appear on the ballot from someone who is required to file a statement of economic interest, the county auditor must notify the Public Disclosure Board. Likewise, an official who nominates or employs a city official who is required to file a statement of economic interest must also notify the Public Disclosure Board. The county auditor, or nominating/employing official, must provide the Public Disclosure Board with the following information: . The name of the person required to file the statement of economic interest. . The date of the affidavit of candidacy, petition or nomination. The city official must also file the statement with the city counciL The city council must maintain these statements as public data. For more information, contact the Public Disclosure Board at (651) 296-5148. C. Statements of economic interest for trustees of public pension plans 1. Information required Each member of the governing board of a public pension plan must file a statement of economic interest with the plan. This includes the trustees of local relief association pension plans (both regular trustees and ex-officio trustees, such as the mayor and clerk). The statement must include the following: . The person's principal occupation and place of business. . Whether or not the person has an interest of lO percent or more in an investment security brokerage business, a real-estate-sales business, an insurance agency, a bank, a savings and loan, or another [mancial institution. . Any relationship or [mancial arrangement that could give rise to a conflict of interest. 2. Time for filing The statement must be filed annually with the plan's chief administrative officer. It must be available for public inspection during regular office hours at the pension plan's office. Information must also be filed each year by Jan. 15 with the Public Disclosure Board. 13 Minn. Stat. 9 10A,04, Minn. Stat. 99 10A.oJ, subd. II; IOA.04, subd. 2. Minn. Stat. 9 10A.04, subd. 4 (c). See Part II - A - Prohibited gifts. Minn. Stat. 9 IOA.oJ, subd.33. 5 V.S.c. 99 1502-3; Minn. Stat. 9 2118.09. Martin v. ftasca County, 448 N,W.2d 368 (Minn, 1989). Minn. Stat. 9 43A.32; 5 V.S.C. 99 1501.2; 5 V.S.C. 9 7324. 14 D. Lobbyist regulations State law contains broad lobbyist reporting requirements. Lobbyists who attempt to influence the actions of metropolitan governmental units must report expenditures for these activities in addition to expenditures for state legislative and administrative lobbying activities. City employees and non-elected city officials who spend more than 50 hours in any month on lobbying activities must register and submit reports of lobbying expenses to the Public Disclosure Board each year by Jan. 15 and June 15. These reports must include gifts and items or benefits valued at $5 or more that lobbyists give to local officials, state lawmakers or other public office holders. Campaign contributions to a candidate are excluded from this particular reporting requirement. However, cities should note that even though the reporting requirement applies at the $5 amount, this does not necessarily exempt lesser amounts from the gift law. Associations that spend more than $500 for lobbying, or $50,000 or more to influence public policy decisions at the metropolitan or state level, must also file spending reports. These reports must indicate the levels of total spending for both local and state lobbying activities. E. Leave during political candidacy The extent to which a city can control the political activities of its employees is unclear. State law prohibits public employees from using their official authority or influence to compel a person to apply for membership or become a member of a political organization, to payor promise to pay a political contribution, or to take part in political activity. State law also prohibits a political subdivision from imposing or enforcing additional limitations on the political activities of employees. However, the Minnesota Supreme Court has held that a county could adopt a policy to require employees to take an unpaid leave during a political candidacy. The court also held that a county employee who was a candidate for a county office had no due process right to a hearing before being placed on unpaid leave. The court reasoned that a local government has an interest in prohibiting government employees from certain political activity. As a result, a legislative body could prohibit a government employee from becoming a candidate for elective office to prevent potential conflict in the workplace between the employee and the supervisor-incumbent during the campaign, and also to prevent any coercion of fellow employees and subordinates to assist in the political campaign. For these reasons, the court stated that a local government could suspend, or even discharge, a government employee who seeks elective office.. League of Minnesota Cities Minn. Stats. ~~ 10A.20, subd. II; 211B.09-.10; 18 U.S,c. ~~ 600-601; 5 U.S.c. ~ 1503. Minn. Stat. ~ 471.87. A.G, Op. 90-E.5 (Nov. 13,1969); A.G, Op. 90e-6 (June 15, 1988), A,G. Op, 90e-6 (June 15, 1988), A.G. Op, 470 (June 9, 1967). Minn. Stat. ~ 471.881. Official Conflict of Interest It is important to note that the court did not discuss whether such a policy may also be applied to the incumbent who was running for re-election. The court also did not consider several statutes that appear to limit the restrictions employers may impose on their employees' political activities. Cities should exercise caution when adopting a policy to regulate the political activities of employees. Part III. Conflict of interest in contracts A. All cities 1. In general Generally, public officers may not have a personal financial interest in a sale, lease or contract they are authorized to make in their official capacity. A "public officer" certainly includes a mayor, a councilmember or an elected official. In some circumstances, the designation may also include appointed officers and employees who are able to influence contracting decisions. The attorney general has advised that the conflict of interest law applies to any councilmember "who is authorized to take part in any manner" in the making of the contract. Simply abstaining from voting on the contract will not allow the contract to be made. The attorney general reasoned that if the Legislature had only wanted to prohibit a contract with an interested officer who votes on the contract, it would not have used the word "authorized." A literal reading of the statute might suggest that it does not apply to city officers who are unable to make a contract on behalf of the city. However, the attorney general has given the statute a broad interpretation, which could mean the statute affects more officials than just those who actually make the decision to enter into the contract. As a result, it may be wise to take a conservative approach regarding contracts with any city official. The clerk in a Standard Plan statutory city, or in a home rule charter city having a similar plan of government, is a member of the council but occupies a peculiar position. He or she is subject to the conflict of interest statutes and may not be interested in a contract with the council. However, the council is allowed to impose duties on the clerk in addition to those assigned by statute, and the council may fix the clerk's compensation for those duties. 2. Exceptions and the procedures to use them There are several important exceptions to the conflict of interest law on contracts. These exceptions apply to all cities, despite any other statutes or charter provisions. ~ 15 Minn. Stat. 9471.88, subd. I; 1989 Street Improvement Program v. Denmark Township, 483 N.W.2d 508 (Minn. App. 1992). 1989 Street Improvement Program v, Denmark Township, 483 N.W.2d 508 (Minn. App, 1992). See Part IV - E - Conflict of interest check list. Minn. Stat. 9 471.88, subd. 2. Minn. Stat. ch. 1I8A. Minn. Stat. 9471.88, subd. 3. Minn. Stat. 933IA.04. 16 Generally, an exception may only be used when approved by unanimous vote of the council. In the past, it has been unclear whether this meant an interested officer should vote or abstain. However, a 1992 decision by the Minnesota Court of Appeals suggests that an interested officer should abstain from voting, even when not expressly required to do so under the law. The case dealt with a local improvement that was to be paid for with special assessments. Two members of the town board owned properties that would be specially assessed. The two interested board members abstained from voting on whether the improvement should occur. The remaining three board members approved the project. The township was challenged because the project had not received the required four-fifths majority vote of the board. However, the court said the two interested board members were correct not to have voted on the project since their interests disqualified them from voting. As a result, the remaining three board members' votes were sufficient to unanimously approve the project. An interested officer should disclose his or her interest at the earliest stage and abstain from voting or deliberating on any contract in which he or she has an interest. The remainder of the council must unanimously approve the contract. There are also additional requirements for some of the exceptions that are discussed below. The following exceptions are allowed if the proper procedure is followed: · The designation of a bank or savings association as an authorized depository for public funds and as a source of borrowing. No restriction applies to the designation of a depository or the deposit of public funds in the depository as long as the funds are protected in accordance with state law. Procedure. The following must occur to use this exception: 1. The council must approve the designation by unanimous vote. ii. The official who has an interest in the bank or savings association must disclose this fact, and it must be entered in the council meeting minutes. The official must make this disclosure when the bank or savings association is fITst designated or when the official is fITst elected (if that occurs later). The disclosure serves as notice of the interest and is only necessary once. 111. The interested officer should abstain from voting on the matter. · The designation of an official newspaper or the publication of official matters in the newspaper. This exception applies only if the interested official's newspaper is the only publication qualified to be the official newspaper. League of Minnesota Cities Minn. Stat. S 471.88, subd.4. Minn. Stat. S 471.88, subd. 5. Minn. Stat. S 471.345; See League research memo Competitive Bidding Requirements in Cities (130B1.3) for more information. See Part V - Incompatibility of offices. Minn. Stat. SS 471.88, subd. 5; 471.89. See Forms I and 2 for sample resolutions, Official Conflict ofInterest Procedure. The following must occur to use this exception: 1. The council must approve the designation by unanimous vote. 11. The interested officer should abstain from voting on the matter. . A contract with a cooperative association of which the official is a shareholder or stockholder, but not an officer or manager. Procedure. The following must occur to use this exception: 1. The council must approve the contract by unanimous vote. ii. The interested officer should abstain from voting on the matter. . A contract for goods or services if competitive bids are not required by law. Generally, a city must use competitive bidding if the amount of a contract for the sale, purchase or rental of supplies, materials or equipment or for the construction, alteration, repair or maintenance of real or personal property is more than $50,000. This exception appears to apply to contracts that do not have to be competitively bid, like contracts for professional services or employment. A city may want to seek a legal opinion if it is unsure about whether this exception applies to a particular situation. Procedure. The following must occur to use this exception: i. The council must approve the contract by unanimous vote. 11. The interested officer should abstain from voting on the matter. 111. The council must pass a resolution setting out the essential facts, such as the nature of the officer's interest and the item or service to be provided, and stating that the contract price is as low or lower than could be found elsewhere. 17 See Form 3 for sample affidavit. Minn. Stat. ~ 471.89, subd. 2. See Forms 2 and 3. Minn. Stat. ~ 471.88, subd. 6. A.G. Op. 358-E-4 (Jan. 19, 1965); A.G, Op. 358-e-9 (April 5, 1971); A.G. Op, 90-E (April 17 , 1978). Also see Part V - Incompatibility of offices. Minn. Stat. ~ 471.88, subd.7. 18 IV. Before a claim is paid, the interested officer must file an affidavit with the clerk that contains the following: · The name and office of the interested officer. · An itemization of the commodity or services furnished. · The contract price. · The reasonable value. · The interest of the officer in the contract. · That, to the best of the officer's knowledge and belief, the contract price is as low or lower than the price that could be obtained from other sources. In the case of an emergency when the contract cannot be authorized in advance, payment of the claims must be authorized by a resolution (see above) in which the facts of the emergency are also stated. · A contract with a volunteer fire department for the payment of compensation or retirement benefits to its members. There is still some question as to whether this exception applies to both municipal and independently operated fire departments. A literal reading of the statute suggests it applies only to an actual contract. Since cities do not usually contract with a municipal fire department, there is a possibility this exception may only apply to contracts with an independent frre department. However, the attorney general has issued mixed opinions, some of which imply the exception can apply to both kinds of fire departments. A councilmember should also consider whether serving the city in two functions would result in incompatible offices. v. Procedure. The following must occur to use this exception: 1. The council must approve the contract by unanimous vote. 11. The interested officer should abstain from voting on the matter. · A contract with a municipal band for the payment of compensation to its members. Procedure. The following must occur to use this exception: 1. The council must approve the contract by unanimous vote. The interested officer should abstain from voting on the matter. ii. League of Minnesota Cities Minn. Stat. 9471.88, subds. 9, 10. Minn. Stat. 9471.88, subd. 11. Minn. Stat. 9471.88, subd. 12. Minn. Stat. 9471.88, subd. 13. Minn. Stat. 9471.88, subd. 14. Official Conflict of Interest . Contracts between an import/export firm and an economic development authority (EDA), port authority, or seaway port authority when a commissioner is employed by the firm. Procedure. The following must occur to use this exception: 1. The authority must approve the contract by unanimous vote. ii. The interested officer must abstain from voting on the matter. . Bank loans or trust services between a bank and a public housing authority, port authority, or EDA when the bank employs one of the commissioners. Procedure. The following must occur to use this exception: 1. The authority must approve the contract by unanimous vote. ii. The commissioner must disclose the nature of those loans or trust services of which he or she has personal knowledge. 111. The disclosure must be entered into the meeting minutes. IV. The interested officer should abstain from voting on the matter. . A contract for construction materials or services, or both, by sealed bid process if the city has a population of 1,000 or less and the sealed bid process is used. Procedure. The following must occur to use this exception: 1. The council must approve the contract by unanimous vote. 11. The interested officer may not vote on the question of the contract when it comes before the governing body for consideration. . A contract to rent space in a public facility at a rate equal to that paid by other members of the public. Procedure. The following must occur to use this exception: i. The council must approve the contract by unanimous vote. 11. The interested officer must abstain from voting on the matter. . An application for a grant offered by a local development organization (BRA, EDA, community action program, port authority or private consultant). 19 Minn. Stat. ~ 471.88, subd. 15, Minn. Stat. ~ 471.88, subd.17. Minn. Stat. ~ 471.88, subd. 18. 20 Procedure. The following must occur to use this exception: i. The authority must approve the application by unanimous vote. 11. The interested officer must abstain from voting on the matter. 111. The interested officer must disclose that he or she has applied for a grant. IV. The interest must be entered into the official minutes. · A utility franchise agreement. Procedure. The following must occur to use this exception: i. The council must approve the franchise agreement by unanimous vote. 11. The interested officer must abstain from voting on any franchise matters. 111. The reason for the interested councilmember's abstention must be recorded in the meeting minutes. · An application for a federal or state grant. Procedure. The following must occur to use this exception: 1. The grant must be for housing, community, or economic development. ii. The interested officer must abstain from voting on measures related to the grant. · Loans or grants from certain federal funding programs that benefit officers of small cities in 5t. Louis County. Procedure. The following must occur to use this exception: 1. The city must have a population of 5,000 or less and be located in St. Louis County. The city must be administrating a loan or grant program with community development block grant funds or federal economic development administration funds for property owners in the city. The officer receiving the loan or grant must disclose in the official minutes that they have applied for the funds. The interested officer must abstain from voting on the application. ii. iii. IV. League of Minnesota Cities Minn. Stat. 9471.88, subd. 19. Minn. Stat. 9 412.311. Minn. Stat. 9471.881. A,G. Op. 90a-2 (April 14,1960); A.G. Op, 90E-5 (Aug. 30,1949). A.G. Op. 90E-l (May 12, 1976). Official Conflict ofInterest . A loan from an BRA to an BRA officer. Procedure. The following must occur to use this exception: 1. The loan must be from state or federal loans or grants administered by the HRA. 11. The public officer must first disclose as part of the official minutes that they have applied for the funds. iii. The public officer must abstain from voting on the application. B. Statutory cities Statutory cities must consider an additional law. The law provides that no member of a statutory city council may be directly or indirectly interested in any contract the council makes, except for the limited exceptions discussed previously. This law may apply to some situations where the general law does not. For example, even though the actual contract is not made with a councilmember, the fact that he or she has an indirect interest in it could violate this law. c. Home rule charter cities Many home rule charters contain provisions on conflict of interest in contracts. Some of these go beyond the statute to include any city official, even though the official has no part in making the contract. These charter provisions may apply to situations where the statute does not. However, the exceptions discussed previously apply to all cities, despite any other statute or city charter. (Because charter provisions vary from city to city, they are not covered in this document.) Some home rule charters contain provisions preventing all officers and employees from being interested in a contract with the city. Such a provision evidently applies to every city officer or employee whether or not he or she has a part in making contracts. D. Specific kinds of contracts The unlawful interest statutes apply to all kinds of contracts, formal or informal, for goods and services. The statute applies not only when the city is the buyer, but also when the city is the seller. 1. Prohibited interest The law would appear to prohibit a contract with a public official who has had the opportunity to influence the terms of the contract or the decision of the governing body. 21 Minn. Stat. S 471.88, subd. 5. See Part V - Incompatibility of offices. AG, Op. 90a-1 (May 16, 1952), AG. Op. 90b (Aug. 8, 1969). AG. Op, 90-E-5 (Nov, 13, 1969), Singewald v. Minneapolis Gas Co., 274 Minn. 556, 142 N.W.2d 739 (1966); AG. Op. 90a-1 (Oct. 7, 1976). A.G. Op. 90a-1 (Oct. 7, 1976). 22 Even when a contract is allowed under one of the exceptions, such as for a "contract for which bids are not required by law" (which appears to include an employment contract), councilmembers should be cautious. Employing a councilmember as a city employee may still be prohibited under the "incompatibility of offices" doctrine. The attorney general has advised that a councilmember who holds stock in a corporation that enters into a contract with the city has an unlawful interest and that a councilmember who is a subcontractor on a contract has an unlawful interest. The attorney general has also advised that a member of a governing body that receives a percentage of the money earned by a court- reporting firm for jobs done under a contract with the city has an unlawful interest. On the other hand, the attorney general has advised that if a councilmember is an employee of the contracting firm and his or her salary is not affected by the contract, the council may determine that no personal financial interest exists. Thus, such a contract may be made and enforced in a home rule charter city with no charter provisions prohibiting direct or indirect interest. The Minnesota Supreme Court has held that employment by a company the city contracts with may give a councilmember an indirect interest in the contract. However, a more recent attorney general opinion concluded it is unclear whether mere employment always gives rise to a conflict of interest. The attorney general has said that factors other than employment may have to be considered to determine whether a prohibited interest is present. The attorney general concluded that a council may contract with a councilmember's employer if the following criteria are met: · The councilmember has no ownership interest in the firm. · The councilmember is neither an officer nor a director. · The councilmember is compensated with a salary or on an hourly wage basis and receives no commissions, bonus or other remuneration. · The councilmember is not involved in supervising the performance of the contract for the employer and has no other interest in the contract. More difficult questions sometimes occur when a councilmember takes office after a city has entered into a contract. If no conflict of interest can develop between the councilmember's public duty and his or her private interest in the contract during the contract, the councilmember can probably serve. However, if a conflict of interest can develop, the interested member may be prohibited from serving on the council. The attorney general has issued mixed opinions concerning the legality of these types of situations. League of Minnesota Cities A.G, Cp. (Aprill, 1975) (informalletter opinion), A,G. Op, 90E-l (May 12, 1976). A,G, Cp. 90a-l (March 30,1961). See Part V - Incompatibility of offices. See Part III - A - Exceptions and the procedures to use them. Minn. Stat. SS 471.88, subd. 5; 471.345; See League research memo Competitive Bidding Requirements in Cities (130B1.3) for more information. Also see Part V - Incompatibility of offices. Official Conflict of Interest In an informal letter opinion, the attorney general said the director of a malting company could assume office as a councilmember even though the city had entered into a 20-year contract with the company to allow it to use the city's sewage disposal plant. The contract also fixed rates for service subject to negotiation of new rates under certain circumstances. The attorney general said the councilmember could continue to serve as long as no new negotiations were required. However, no new agreement could be entered into as long as the interested councilmember held office. The law apparently prohibits making a contract with any public official who has had the opportunity to influence its terms. The attorney general has advised that a former councilmember could not be a subcontractor on a municipal hospital contract if he was a councilmember when the prime contract was awarded. However, in a different opinion, the attorney general advised that a councilmember was eligible for city office even though the councilmember was entitled to commissions on insurance premiums payable by the city. In this instance, the insurance contract was entered into before the person became a councilmember. The assumption of office by someone with a personal financial interest in an already existing contract raises concerns about possible conflicts of interest during the performance of the contract. In doubtful cases, the person faced with a possible conflict of interest situation should seek a legal opinion before assuming city office. 2. Employment of elected official by city The League is often asked if an elected city official can also be employed by the city. There are several issues that must be considered to determine whether this is permissible. First, it must be determined if the two positions are incompatible. If the two positions are incompatible, the individual may not serve in both positions. If the two positions are not incompatible, it must then be determined if there is an exception to the conflict of interest laws that allows the employment contract to be made. Even if an employment situation does not result in a formal written contract, the employment arrangement might be viewed like a contract under the conflict of interest law. There is an exception to the conflict of interest law that allows a contract to be made with an interested official if the contract is not required to be competitively bid. This exception appears to permit a city to hire an elected official as an employee, since contracts for professional services and employment are not required to be competitively bid. A city may want to seek a legal opinion if it is unsure whether this exception applies to a particular situation. 23 AG. Op, 358-e-4 (Jan, 19, 1965); AG. Op. 358-e-9 (April 5, 1971); AG, Op, 90-E (April 17, 1978). Also see Part V - D - Offices that have been found incompatible. See Part IV - Conflict of interest in non- contractual situations, Minn. Stat. S 519.02. A,G, Op. (June 28, 1928); AG. Op. (July 14, 1939); AG. Op. 90-C-5 (July 30, 1940). A.G. Op, 90-b (April 5, 1955). 24 It is also not clear whether this statutory provision provides an exception to the common law incompatibility rules. The attorney general seemed to think that it did in a 1965 opinion that considered a situation involving a councilmember serving as a city volunteer firefighter. However, later attorney general opinions have not always been consistent in this interpretation, at least with regard to elected officials who are also firefighters. Although fact differences in these other attorney general opinions may partially explain the different results, a city may still want to get an opinion from its city attorney or from the attorney general if it is considering whether a particular city position would be incompatible with an elected office. 3. Validity of contracts with relatives of city officials The conflict of interest laws do not address family relationships as constituting possible conflicts. The courts of other states generally have held that family relationship alone has no disqualifying effect on the making of a contract. There must be proof that a councilmember has a financial interest in the contract. Cases dealing with non-contractual situations are similar. In the cases dealing with non-contractual situations, the mere fact of family relationship, other than that of husband and wife, has not generally resulted in a disqualifying interest. While it is easier to find that a councilmember has a personal fmancial interest in a contract with his or her spouse, a marital relationship alone may not make the contract invalid. In other states, courts have held that a public body is not prohibited from appointing the spouse of one of its members as long as under the state law the spouse's earnings are his or her own property. A contract with the councilmember's spouse in a statutory city may involve a violation of the law if the councilmember has a direct or indirect interest in it. The attorney general has construed the law broadly to hold such contracts invalid. If the money earned under the contract is used to support the family, the councilmember derives some benefit. In this type of situation, the attorney general has held that there is an indirect interest in the contract on the part of the councilmember. Therefore, the contract is void. The law gives husbands and wives various interests in their spouse's estate. The attorney general once held these interests alone would prohibit contracting with the spouse of a city official. However, in more recent opinions, the attorney general has taken the position that each case turns on its individual facts. In short, the mere fact of the relationship does not affect the validity of the contract. League of Minnesota Cities Minn. Stat. ~ 519.05. A.G. Op. 90a-1 (Dec. 9, 1976). Minn. Stat. ~ 363.03, subd. 1(2). Also see Part IV - C - Family connections. Minn. Stat. ~ 15.054. Minn. Stat. ~ 15.054. Official Conflict ofInterest Under existing law, spouses are liable for each other's support for necessities. If a spouse who contracts with the city uses the earnings from the contract individually and not to support the family, the contract probably would not be invalid simply because the spouse is a councilmember. However, if the facts tend to show otherwise, the legality of the contract will be doubtful. The attorney general has advised local governing bodies to avoid the suspicion and criticism that may result from such contracts. Although a prohibited interest in contracts does not necessarily arise when the spouse of a city employee is elected councilmember, the opinion carefully avoids any statement about future action of the council on the existing employment relationship. It should be noted that the Minnesota Human Rights Act prohibits discrimination in employment based upon marital status. Cities should exercise caution when making inquiries into the marital status of employees or applicants for city positions. 4. Sale of government-owned property a. In general Officers and employees of the state or its subdivisions are prohibited from selling government-owned property to another officer or employee of the state or its subdivisions. However, the law does not apply to the sale of items acquired or produced for sale to the general public in the ordinary course of business. In addition, the law allows government employees and officers to sell public property if the sale is in the normal course of their duties. b. Exceptions There are also exceptions to this prohibition. Personal property owned by the state or its subdivisions and no longer needed for public purposes can be sold to an employee (but not to an officer) under certain conditions. These conditions are: . There has been reasonable public notice and the property is sold by public auction or sealed bid. . The employee is the highest responsible bidder. . The employee who buys the property must not be directly involved in the auction or sealed response process. There is no exception that allows the sale of city-owned real estate to a city officer or employee. 25 Minn. Stat. ~ 471.87. Minn. Stat. ~ 609.0341, subd. I. A.G. Op. 90a-1 (April 22, 1971). City ofChaska v. Hedman, 53 Minn. 525, 55 N.W. 737 (1893); Currie v. Sch. Dist. No. 26, 35 Minn. 163,27 N.W. 922 (1886); Bjelland v. City of Mankato, 112 Minn. 24, 127 N.W. 397 (1910). Stone V. Bevans, 88 Minn. 127,92 N.W. 520 (1902); City of Minneapolis V. Canterbury, 122 Minn. 301,142 N.W. 812 (1913); Currie v. Sch. Dist. No. 26, 35 Minn. 163,27 N.W. 922 (1886); Singewald v. Minneapolis Gas. Co., 274 Minn. 556, 142 N.W.2d 739 (1966). Stone v. Bevans, 88 Minn. 127,92 N.W. 520 (1902). Frisch V. City ofSt. Charles, 167 Minn. 171,208 N.W. 650 (1926); Mares V. Janutka, 196 Minn. 87, 264 N.W. 222 (1936). 26 E. Contracts made in violation of the statutes A public officer who violates the conflict of interest law is guilty of a gross misdemeanor and can be fined up to $3,000 and imprisoned up to one year. Any contract made in violation of the conflict of interest law is generally void. Public officers, who knowingly authorize a prohibited contract even though they do not receive personal benefit from it, may also be subject to the criminal penalties of state law. When a city enters into a contract that has subject matter beyond the city's corporate powers, there will generally be no city liability for the contract. Even when the contract is within the city's corporate powers, any contract made in violation of the unlawful interest statutes is generally void. As a result, such a contract cannot be the basis of a lawsuit. However, a city may be enjoined from performing an illegal contract. If a contract is invalid, it does not matter that the interested councilmember did not participate in the vote or discussion. Likewise, it does not matter that the interested councilmember's vote was not essential to the council's approval of the contract. It is the existence of the interest that is important. Even if the councilmember acted in good faith and the contract was fair and reasonable, the contract is generally void if it is prohibited because of a conflict of interest. When a prohibited contract is made with an interested councilmember, the councilmember may not recover on the contract. Nor may a councilmember recover value on the basis of an implied contract. If a councilmember has already received payment, restitution to the city can be compelled. For example, if the mayor is paid for services to the city under an illegal contract, a taxpayer could sue to recover the money for the city. It does not matter that the mayor was not present at the meeting at which the agreement for compensation was adopted. If a councilmember has made an unlawful sale of goods to the city and the goods can be returned, a court will probably order it and prohibit any payment for the goods. This might be ordered when a lot has been purchased from a councilmember and no building has been erected on it, or if supplies, such as lumber, have been bought and not yet used. However, if the goods cannot be returned and if the contract was not beyond the powers of the city and there was no fraud or collusion in the transaction, the court will determine the reasonable value of the property and permit payment on the basis ofthe value received. League of Minnesota Cities 56 Am. Jur. 2d Municipal Corporations ~ 142. Official Conflict ofInterest In case of doubt, it is wise to assume a city cannot contract with one of its officers. If the contract is necessary, a legal opinion or court ruling should be secured before proceeding. The safest course of action is to assume that a contract prohibited under the conflict of interest statutes is void, whether or not the interested councilmember has participated in the transaction. Part IV. Conflict of interest in non-contractual situations A. In general While the laws discussed previously relate only to contracts with interested officials, courts throughout the country, including the Minnesota Supreme Court, have followed similar principles in non-contractual situations. Any official who has personal financial interest in an official non-contractual action is generally disqualified from participating in the action. This is especially true when the matter concerns the member's character, conduct or right to hold office. Another situation may be when the official's own personal interest is so distinct from the public interest that the member cannot be expected to represent the public interest fairly in deciding the matter. In applying the disqualification rules in non-contractual situations, the courts have sometimes made a distinction between judicial and quasi-judicial acts on the one hand, and legislative and administrative acts on the other. However, this distinction has not been consistently applied in particular cases. In general, when an act of a council is judicial, no member who has a personal interest may take part. Some would argue that the member's participation makes the decision voidable, even if his or her vote was not necessary to make the decision. Some of the cases discussed in the next section indicate how this distinction has been applied. When there is a disqualifying personal interest, the action is not necessarily void. In contrast to the rules regarding conflict of interest in contract situations, the official action may be valid if the disqualified official does not participate and the required number of non-interested councilmembers approve the action. 27 Lenz v. Coon Creek ij1atershedD~t,278 Minn. 1, 153 N.W.2d 209 (1967). Gonsalves v. City of Dairy Valley, 71 Cal. Rptr. 255 (Cal. Ct. App. 1968). Lenz v. Coon Creek ij1atershed Dist., 278 Minn. 1, 153 N.W.2d 209 (1967). Township Bd. of Lake Valley Township v. Lew~, 305 Minn. 488, 234 N.W.2d 815 (1975). 28 B. Disqualifying interest factors The Minnesota Supreme Court has listed several factors to consider in determining if a disqualifying interest exists: · The nature of the decision. · The nature of the financial interest. · The number of interested officials. · The need for the interested officials to make the decision. In one case, it was held that when an administrative body had a duty to act on a matter and was the only entity capable of acting on the matter, the fact that members may have had a personal interest in the result did not disqualify them from performing their duties. In that case, councilmembers owned stock in a corporation seeking a special use permit. · Other means available. Another relevant factor is whether or not other means are available to ensure officials will not act arbitrarily to further their self interest, such as an opportunity for review. In one case, the court took into account the fact that a decision by a board of managers could be appealed to the state water resources board. The court referred to the same factor in another decision regarding a town board decision to establish a road. In upholding the town board's decision, the court said that the availability of appeal to the district court would adequately protect owners of the affected land from any possible prejudice. c. Specific situations There is far from complete agreement among the various courts on the kinds of interest and the situations that prevent an interested official from taking part in non-contractual official actions. A summary of some of these situations follows: 1. Determination of an official's right to office On the theory that no person should be the judge of his or her own case, courts have generally held that an officer may not participate in proceedings involving his or her status. Thus, city councilmembers are probably prohibited from judging themselves on an offense in which the majority of the council participated. Likewise, determination of a councilmember's residency may be one such issue from which an interested officer should abstain. League of Minnesota Cities Minn. Stat. ~ 471.46. Minn. Stat. ~ 415.15. See Part V - Incompatibility of offices. Minn. Stat. ~ 415.11. A.G. Op. (ApriI14, 1975) (informalletter opinion). AG. Op. 90a-l (Dec. 9, 1976). Minn. Stat. ~ 363.03, subd. 1(2); Also see Part III - D - Validity of contracts with relatives of city officials. Official Conflict ofInterest 2. Self-appointment Generally, city officials may not appoint a councilmember to an elected position, even if he or she resigns before the appointment is made. However, a councilmember may be appointed to the position of mayor or clerk, but the councilmember may not vote on the appointment. Likewise, resigning councilmembers may not vote on their successors. In the situation of appointment to a non-elective position, the general rule is that the official has a self-interest and he or she is disqualified from participating in the decision. Whether the councilmember serving the city in a second function creates an incompatibility must also be considered. 3. Fixing official's own compensation State law authorizes a council of any second, third or fourth class city in Minnesota to set its own salary and the salary of the mayor by ordinance. However, the change in salary cannot begin until after the next regular city election. Since every councilmember has a personal interest in determining his or her compensation, the need for interested officials to make the decision is determinative in this situation. A special situation is involved in setting the clerk's salary in a Standard Plan statutory city. In these cities, the clerk is elected and is thus a voting member of the council. The other four councilmembers may vote on the clerk's compensation without any disqualifying self-interests. However, it is probably best for the clerk not to vote on his or her own salary. 4. Family connections In an informal letter opinion, the attorney general has advised that a councilmember was not disqualified from voting on a rezoning because his father owned legal title to the tract in question. The attorney general has also advised that a prohibited interest does not necessarily arise when the spouse of a city employee is elected mayor. The opinion carefully avoids any statement about future action of the council on the existing employment relationship. It should be noted that the Minnesota Human Rights Act prohibits discrimination in employment based upon marital status. Cities should exercise caution when making inquiries into the marital status of employees or applicants for positions with the city. 29 AG. Op. 430 (April 28, 1967). AG. Op. 90e (Aug. 25, 1997). Petition of Jacobson, 234 Minn. 296, 48 N.W.2d 441 (1951); Lenz v. Coon Creek ij1atershed D~t., 278 Minn. 1, 153 N.W.2d 209 (1967). Petition of Jacobson, 234 Minn. 296, 48 N.W.2d 441 (1951). Lenz v. Coon Creek ij1atershed D~t., 278 Minn. 1, 153 N.W.2d 209 (1967). 30 5. Business connections Other types of business interests may also be prohibited, indirect interests even though there is not a personal financial interest under the general law. The attorney general has advised that a housing authority commissioner had a conflict of interest when the commissioner was also a foreman who would aid a contractor in making a bid to the housing authority. In a different opinion, the attorney general found that a mayor or councilmember would not be disqualified from office because he was an employee of a nonprofit corporation that provided public access cable service to the city. However, the attorney general also concluded that the individual must abstain from participating in any actions related to the cable franchise. 6. Land issues Since a city council must deal with land matters, it is almost inevitable one of these decisions may affect property that is owned or used by one of its members. a. Local improvements and special assessments A councilmember owning land to be benefited by a local improvement is probably not prohibited from petitioning for the improvement, voting to undertake it, or voting to adopt the resulting special assessment. Although one Minnesota decision took a different view on a county ditch proceeding, it seems to have been sharply limited as a precedent by a later case. The two cases can also be distinguished on their facts. The first case concerned a proposed county ditch that bypassed a county board member's property. Although the board member participated in preliminary proceedings before the board regarding the feasibility of the improvement, he did not attend the final hearing. The court vacated the county board's order establishing the proposed ditch since the preliminary proceedings may have had a substantial effect on later actions taken at the final hearing. The court also said the board member should not have participated in any of the proceedings regarding the project. The court in the second case found there was no disqualifying conflict of interest when four of the five managers of a watershed district owned land that would be benefited by a proposed watershed district improvement project. The court recognized the situation was similar to those where members of a city council assess lands owned by them for local improvements. As a result, the court found this potential conflict of interest did not disqualify the district board members from participating in the improvement proceedings. League of Minnesota Cities AG. Op. 59a-32 (Sept. 11, 1978). A.G. Op. 471-f(Sept. 13, 1963). Official Conflict ofInterest It is possible a councilmember's property ownership might result in a more favorable treatment of that property in an assessment project. If that happened, the assessment might be challenged for arbitrariness and set aside whether or not the councilmember participated in the assessment proceedings. b. Zoning The attorney general has advised that a council is not prevented from rezoning property owned by a councilmember or by his or her client. However, the councilmember may not participate in the council proceedings involving the rezoning. In an earlier opinion, the attorney general said it was a question of fact whether a town board member had a disqualifying interest for having sold land that was the subject of rezoning. However, the attorney general appeared to assume that if the board member had a sufficient interest in the land, the member would be disqualified from voting on the rezoning. i. Property ownership Whether or not property ownership disqualifies a councilmember from participating in council action will depend, to some extent, on the amount of that interest compared to all land affected by the decision. At one extreme is adoption of a new zoning ordinance or a comprehensive revision of an existing ordinance that may have an impact on all property in the city. In this situation, the interest is not personal and the councilmember should be able to participate. If this wasn't allowed, no such ordinance could ever be adopted since all councilmembers may be property owners. At the other extreme is the application for a zoning variance or special use permit applying only to a councilmember's property. In this instance, there is such a specific interest that it will probably disqualify the member from participating in the proceedings. However, the councilmember should still be able to submit the required application to the city. Between these two extremes are those proceedings affecting some lots or parcels, only one of which a councilmember owns. In such cases it is a question of fact whether the councilmember is disqualified from voting. If the councilmember chooses to vote, the council must decide whether the member should be disqualified-a decision which is subject to review in the courts if challenged. There will be many situations where the right to vote is doubtful enough that an interested councilmember should refrain from participating. 31 ij1ebster v. Bd. of County Comm'rs of ij1ashington County, 26 Minn. 220, 2 N.W. 697 (1897). Rowell v. Bd. of Adjustment of the City of Moorhead, 446 N.W.2d 917 (Minn. App. 1989). ij1ebster v. Bd. of County Comm'rs of ij1 ashington County, 26 Minn. 220, 2 N.W. 697 (1897). Township Bd. of Lake Valley Township v. Lew~, 305 Minn. 488, 234 N.W.2d 815 (1975). AG. Op. 396g-16 (Oct. 15, 1957); See also, Petition of Jacobson, 234 Minn. 296, 48 N.W.2d 441 (1951). 32 n. Condemnation There is little doubt a councilmember's ownership ofland is so direct and significant as to preclude his or her participation in a resolution to condemn the land. The Minnesota Supreme Court has not ruled directly on this question. However, it did not disqualify a county board member from participating in condemnation proceedings to establish a highway when the board member owned land adjoining the proposed highway. The court suggested the decision might have been different if the owner had been entitled to damages if the highway had gone through his property. ill. Church affiliation The Minnesota Court of Appeals held that a zoning board member who was also a member of a church was not disqualified from voting on a zoning variance requested by that church. The court found the nature of the financial interest could not have influenced the voting board member. The person's membership in the church, without evidence of a closer connection, was not a sufficiently direct interest in the outcome of the matter to justify setting aside the board's zoning action. C. Streets i. Establishing streets and highways It appears that a councilmember who owns land near an area where a street may be opened would not be prohibited from voting on the matter. The Minnesota Supreme Court has held that a county board member who owned land adjoining a proposed county highway did not have a disqualifying interest preventing him from voting on the establishment of the highway. The board member's interest was similar to that of the rest of the public and differed only in degree. A different decision may have been reached had the highway gone though any of the commissioner'.s land. The Minnesota Supreme Court also refused to disqualify a town board supervisor that asked a landowner to circulate a petition for a road. The court reasoned that by its very nature, the decision to establish a town road is of interest to all local citizens, including town board members, who often may be in the best position to be aware of the need for a road. The court also stated that the ability of affected property owners to appeal to the district court would adequately protect them from any possible prejudice. n. Street vacation It is arguable that a street vacation is not essentially different from the establishment of a street, where abutting owners have been held not to have a disqualifying interest. However, the attorney general advised that a councilmember who had an interest in property abutting a street proposed for vacation could not participate in the vacation proceedings. League of Minnesota Cities A.G. Op. 218-R (April 29, 1952). E.T.O., Inc. v. Town of Marion, 375 N.W.2d 815 (Minn. 1985). Minn. R. ~ 7515.0430, subp.5. Official Conflict ofInterest 7. Urban renewal An interest in property subject to an urban renewal decision may be grounds for disqualification. However, when the property is within the area of a larger urban renewal program, but not in the project area subject to the decision, it is arguable the councilmember would not be disqualified from voting. Since there have been no Minnesota cases addressing this issue, councilmembers with these types of interests may wish to abstain from voting on these matters or seek an attorney general opinion regarding the legality of their participation. 8. Licenses Although there have been no Minnesota cases directly on the subject, it seems obvious that when a councilmember is an applicant for a license to be granted by the council, there is enough of a personal [ffiancial interest that the member should not take part in the decision on the application. If a general licensing ordinance is the subj ect of the action, even a councilmember who does not hold a license may have a possible conflict of interest that could disqualify him or her from voting. The attorney general said that a councilmember who was a part-time employee of a liquor licensee could not vote on the question of reducing the liquor license fee if it could be shown that the councilmember was personally interested. For example, if the fee reduction would affect the councilmember's compensation or continued employment, he or she would obviously have a personal financial interest in the decision. However, whether an individual's personal interest is sufficient to disqualify him or her from voting on the decision is a fact question that must be determined on a case-by-case basis. In a similar case, the Minnesota Supreme Court held that since a town board member owned property across from a bar that was subject to a liquor license renewal decision, he was disqualified from voting on the license renewal. The town board member stated his property had been devalued by $100,000 since the bar opened, and he was elected to the board based largely on his opposition to the bar. The court stated, "A more direct, admitted, financial interest is hard to imagine." A state rule prohibits a councilmember from voting on a liquor license for a spouse or relative. The rule does not define who is included as a "relative," so cities may need to consult with their city attorney for guidance in specific situations. 33 Nodes v. City of Hastings. 284 Minn. 552, 170 N.W.2d 92 (1969). I989 Street Improvement Project v. Denmark Township. 483 N.W.2d 508 (Minn. App. 1992). 34 D. Effect of disqualifying interest on action A contract that is prohibited due to a conflict of interest is generally void. However, actions taken in a non-contractual situation, where a councilmember has a disqualifying interest, may be valid if the result would have been the same without the interested official's vote. For example, the Minnesota Supreme Court considered a case involving a decision by a three- member civil service commission to terminate a police officer for failing to pay his financial debts. The court held that it would have been a "better practice" for the commission member who had been a creditor of the officer to have disqualified himself and abstained from voting. However, the court held that the interested commission members' participation in a unanimous decision did not invalidate the commission's decision. Councilmembers who have a disqualifying interest in a matter are generally excluded when counting the number of councilmembers necessary for a quorum, or for the number necessary to approve an action by a four-fifths vote, such as approving a special assessment. E. Conflict of interest checklist · Consult with the city attorney. · Disclose the interest. 1. Make disclosure at the earliest stage preceding the discussion. · Make oral disclosure to the governing body or board. · Make written disclosure. ii. Don't participate in discussions leading up to the decision. · Don't vote or take any official action unless the city attorney decides there is no prohibited conflict of interest. . Don't influence others. i. Don't participate in the discussion, either at the time of the vote or earlier. ii. Leave the room when the governing body is discussing the matter. League of Minnesota Cities See McCutcheon v. City of St. Paul, 216 N.W.2d 137 (1974). State v. Sword. 157 Minn. 263, 196 N.W. 467 (1923); Kenney v. Goergen, 36 Minn. 190,31 N.W. 210 (1886). 5 U.S.c. ~~ 7323(a)(3); 7322(2). (More information about the Hatch Act (5 U.S.C. ~~ 7321-7326) is available at: www.osc.gov/hatchact. htm). Official Conflict of Interest Part v. Incompatibility of offices A. In general The question of whether a city official can also serve the city in some other capacity is quite complicated. One must look at both the statutory law, and the common law that has been developed through Minnesota court decisions. All individuals in elected office are prohibited from holding incompatible offices. In addition, many appointed officials may need to consider this law if taking a position that may conflict with their city responsibilities. The common law doctrine of incompatibility applies to the functions of two inconsistent offices. However, there is no clear definition of what constitutes an "office" for the purpose of this law. Certainly it would include all elected offices. It may also include appointed offices such as city administrators, managers, and police chiefs. Generally, an office has greater responsibility, importance, and independence than mere city employment. State laws generally do not prevent a person from holding two or more governmental positions. However, without specific statutory authority, government officials cannot hold more than one position if the functions are incompatible or if the jobs create a conflict between two different public interests. Federal employees are generally prohibited from being candidates in local partisan elections. An election is considered "partisan" if candidates are elected as representing political parties. State employees generally can run for and hold local elected office as long as there is no conflict with their regular state employment. The Minnesota Department of Employee Relations will determine whether a conflict exists. B. Elements of incompatible offices Positions are generally incompatible when one or more of the following conditions exist: 35 See Kenney v. Goergen, 36 Minn. 190,31 N.W. 210 (1886); State v. Sword, 157 Minn. 263,196 N.W. 467 (1923); Minn. Stat. ~ 471.46; AG. Op. No. 256 (1936); AG. Op. No. 235 (1928); AG. Op. No. 234 (1928). AG. Op. 471-M (Dec. 11, 1957). · If the holder of one position (or the group or board of which the person is a member): 1. Hires or appoints the other. ii. Sets the salary for the other. 111. Performs functions that are inconsistent with the other. IV. Makes contracts with the other. v. Approves the official or fidelity bond of the other. · If a specific statute or charter provision: 1. States that one person may not hold two or more specific positions. 11. Requires that the officer may not take another position. iii. Requires that the officer devote full-time to the position. C. Violation of the incompatibility law An individual generally can run for election to a position that is incompatible with the position the person already holds without resigning from the first position. However, when an official qualifies for a second and incompatible position (by taking an oath and filing a bond, if necessary), he or she automatically resigns from the first position, which then becomes vacant. D. Specific offices It is important to remember that incompatibility depends on the nature of the offices and their relationship to one another. A city official who is considering seeking an additional office should obtain a legal opinion on the compatibility of the two offices. The attorney general has found the following offices to be incompatible: A.G. Op. 358e-7 . Councilmember and city treasurer (March 5, 1965). AG. Op. 358e-9 (Dec. . Mayor and school board member 13, 1939). AG. Op. 218-R (Feb. . Mayor and municipal liquor store manager. 25, 1946). AG. Op. 358e-3 . Councilmember and city attorney (March 6,1946). A.G. Op. 358-e-9 . Councilmember and fire chief (ApriI5, 1971). 36 League of Minnesota Cities A.G. Op. 358-e-4 (Jan. 19,1965); Minn. Stat. ~ 471.88, subd. 6. A.G. Op. 358-e-9 (AprilS, 1971). AG. Op. 90-E (April 17,1978). Minn. Stat. ~ 412.152. Minn. Stat. ~ 410.33. Official Conflict ofInterest In 1965, the attorney general advised that a councilmember could also be a member of a volunteer city fire department under the exception to the conflict of interest law that permits contracts with a volunteer fIre department for payment of compensation or retirement benefits. But in 1971, the attorney general advised that the fire chief of a municipal fIre department automatically vacated the office of fIre chief when he accepted a seat on the city council. This opinion did not mention the exception listed in the conflict of interest law or the 1965 opinion. In 1978, the attorney general considered the issue again and advised that the exception to the conflict of interest law allows a councilmember to be a member of an independent volunteer fire department when a contract for compensation or retirement benefits is negotiated, as long as the procedural requirements for the exception are followed. The attorney general also explained that the reason for the different results in the two earlier opinions was because the 1965 opinion involved a fire department member who was not an officer and the 1971 opinion involved a fIre department member who was the fIre chief. In 1997, the Minnesota Legislature attempted to clarify the issue by creating a statute to offer some guidance regarding the positions of mayor and fire chief. The statute says that a statutory city mayor may also be the fIre chief of an independent, nonprofit frrefighting corporation that serves the city. Although the statute is specifically for statutory cities, home rule charter cities may be able to use it if their charters are silent on the matter. Basically, the statute says the mayor and fire chief positions are not incompatible as long as the following conditions are met: . The mayor does not appoint the fire chief. . The mayor does not set the salary or the benefits of the frre chief. . Neither office performs functions inconsistent with the other. . Neither office (in its official capacity) contracts with the other office. . The mayor does not approve the fidelity bond of the frre chief. The statute remains unclear on several points, however. It does not address council positions other than the mayor. It also appears to be limited to independent, nonprofit frre departments, so city departments (whether volunteer or salaried) are not addressed. And although it 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. Because each city may have a different relationship with its frre department, a city may want to get a legal opinion from its attorney or from the attorney general before allowing a councilmember to serve as a volunteer firefighter with any sort of supervisory powers. The attorney general has found the following offices to be compatible: 37 AG. Op. 358e-9 (Feb. 10, 1912). A.G. Op. 90e (Aug. 25, 1997). A.G. Op. 358e-3 (July 29, 1997). AG. Op. No. 420 (1921). See Compatibility of Offices (House Research Information Brief). 38 · Councilmember and county treasurer · Councilmember and officer of nonprofit, public-access, cable-service provider · Assistant county attorney and city attorney · City attorney and charter commission member In conclusion, whether two offices are incompatible will depend upon the responsibilities of each of the offices and their relationship. A city with questions may wish to contact the League at (651) 281-1200 or (800) 925- 1122 for further information, or secure a legal opinion from its city attorney or the attorney general. The League has available a document that lists many of the different public offices/employment and whether they have ever been found to be incompatible. League of Minnesota Cities Part VI. Model forms Form 1 Model resolution to contract with a councilmember (under Minn. Stat. ~~ 471.88, subd. 5 and 471.89, subd. 2) Whereas, the city of desires to purchase the following (goods / merchandise / eQuivment / services): (describe in detaiD; And Whereas, (name of interested officiaD is the (office held bv interested official) of the city and will be financially interested in the contract; And Whereas, it is determined that the contract price of $ which the goods can be obtained elsewhere at this time; And Whereas, the contract is not one that is required to be competitively bid; is as low as, or lower than, the price at Now be it resolved by the city of , Minnesota that the city clerk is directed to make the above-mentioned purchase on behalf of the city from (name of interested officer) for a price of $ It is also resolved that the mayor and city clerk are directed to issue an order-check to pay the claim on the filing of an affidavit of official interest by the interested official as required under Minn. Stat. ~ 471.89. This resolution is passed to comply with the provisions of Minn. Stat. 99471.87-.89. Passed by unanimous vote of the city council on (dav and date). Mayor Clerk Official Conflict ofInterest 39 Form 2 Model resolution ratifying contract in emergency (under Minn. Stat. ~~ 471.88, subd. 5 and 471.89, subd. 2) Whereas, on (day and date), the city of purchased the following (goods / merchandise / equipment / service) from (name of company or person with whom the contract was made): (specify the type of goods, merchandise, equipment, or services that were bought); And Whereas, (name of interested official) was the (office held by interested official) on this date and was personally interested fmancially in the contract; And Whereas, the purchase could not be authorized in advance because of the following emergency: (specify emergency); And Whereas, the contract price of $ paid for such goods is as low, or lower than the price at which they could be obtained elsewhere at the time the purchase was made; And Whereas, the contract is not one that is required to be competitively bid; Now be it resolved by the city of , Minnesota that the above-mentioned purchase by the city and the claim of the vendor based on it are confIrmed and the mayor and clerk are directed to issue an order-check to pay the claim on the filing of an affidavit of official interest by the interested officer as required under Minn. Stat. S 471.89. This resolution is passed to comply with the provisions of Minn. Stat. SS 471.87-.89. Passed by unanimous vote of the council on (dav and date). Mayor Clerk 40 League of Minnesota Cities Form 3 Model affidavit of official interest in claim (under Minn. Stat. ~~ 471.88, subd. 5 and 471.89, subd. 3) STATE OF MINNESOTA ) COUNTY OF ) I, (Name of interested officer), being duly sworn state the following: I) 2) I am (office held bv interested official) of the city of , Minnesota. 4) On (dav and date), the following (floods / merchandise / equipment / services) were furnished by (name of business or individual with whom the contract was made) to the city of : (specifY the tvpe of goods. merchandise. equipment. or services that were purchased). The contract price for such (goods / merchandise / equipment / services) was $_ and their reasonable value was $ At the time such (floods / merchandise / equipment / services) were furnished to the city, I had the following personal financial interest in this contract: (specify the nature of the personal financial interest) To the best of my knowledge and belief the contract price is as low as, or lower than the price at which the (goods / merchandise / equipment / services) could be obtained from other sources. 3) I further state that this affidavit constitutes a claim against the city for the contract price, that the claim is just and correct, and that no part of the claim has been paid. (signature ofinterested official) Subscribed and sworn to before me this day of (month), (vear). (siflnature of notarv) Official Conflict ofInterest 41 . The League of Minnesota Cities provides this publication as a general informational memo. It is not intended to provide legal advice and should not be used as a substitute for competent legal guidance. Readers should consult with an attorney for advice concerning specific situations. @ 2004 League of Minnesota Cities Research Foundation. All rights reserved. . L-e- of Minnuot<J Cities Cities pt'OttWting ..-11ence League of Minnesota Cities 145 University Avenue West St. Paul, MN 55103-2044 (651) 281-1200 (800) 925-1122 Fax (651) 281-1299 www.lmnc.org . Meeting Highlights 1. What is a meeting? ? . There is no statutory defInition of a meeting. Generally, a meeting is a gathering of a quorum of public officials where they discuss, decide or receive information about public business. 2. What is the open meeting law? The open meeting law requires that meetings of public bodies be open to the public. The law also requires that notice be given before the meeting and minutes be taken at the meeting. 3. To what groups does it apply? The open meeting law applies to all public bodies, including city councils, committees, sub-committees, boards, commissions (appointed or elected), firefighter relief associations, economic development authorities, and housing and redevelopment authorities. 4. To what gatherings does it apply? The open meeting law applies to all meetings, hearings, executive sessions, work sessions, retreats, and any other gathering of a quorum of public officials where they discuss, decide or receive information about public business. 5. Are there any meetings that may be closed? y" Some meetings are permitted to be closed; however, the notice requirements of the meeting must still be followed. The following meetings may be closed. Before closing a meeting under these exceptions, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. . Meetings to consider strategies for labor negotiations. The meeting must be tape-recorded. The tape must be kept for two years and is considered public information after the agreement is fmalized. . Attorney-client privilege. A meeting may be closed to discuss active, threatened or pending litigation with the city's attorney if a balancing of the purposes served by the attorney-client privilege against those served by the open meeting law dictates the need for absolute confidentiality. Meetings of City Councils 3 y" ~ · Employee performance evaluations. The public body must identify the individual to be evaluated prior to closing the meeting. At the next open meeting, the council must summarize its conclusions regarding the evaluation. Although this type of meeting may be closed, it must be open at the request of the individual who is the subject of the meeting, so advance notice to the individual is needed. 6. Are there any meetings that must be closed? The following meetings must be closed. Before closing a meeting under these exceptions, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. · Preliminary consideration of allegations or charges against an individual subject to the council's authority. If members decide that discipline is warranted, further meetings must be open. The meeting must be open at the request of the individual who is the subject of the meeting, so advance notice to the individual is needed. · Portions of a meeting at which some not-public data is discussed. Such data includes data that would identify victims or reporters of domestic abuse, criminal sexual conduct, and other specific data. 7. What are the notice requirements for a meeting? · Regular meetings. A schedule of the regular meetings must be kept on file in the city office. If the city decides to hold a meeting at a different time or place, it must give notice for a special meeting. · Special meetings. A city must post written notice of a special meeting on its principal bulletin board or on the door of its usual meeting room if it doesn't have a bulletin board. The notice must also be mailed to each individual who has filed a written request for notice of special meetings. This must be done at least three days before the meeting. As an alternative to mailing or delivering notice, the city can publish the notice in the official newspaper. · Closed meetings. The notice requirements for closed meetings are the same as those for open meetings. · Emergency meetings. An emergency meeting is a special meeting to deal with a matter that requires immediate consideration by the public body. Posted or published notice of an emergency meeting is not required. However, the city must make a good faith effort to notify each news medium that has filed a written request for notice. Notice must be given by telephone or any other method to notify members of the public body. 4 League of Minnesota Cities . Recessed or continued meetings. When a meeting is recessed or continued to another time or place, no additional notice is needed if the time and place of the recessed or continued meeting was established during the previous part of the meeting and recorded in the minutes of that part of the meeting. 8. What are common problems in applying the law? ? . . Data practices. A council generally cannot close a meeting to discuss not- public data, except under a few limited circumstances. . Council liaisons. A council liaison can be used to gather information and report on it to the council. However, cities sometimes can get into trouble if they send more than one member of the council to such functions. . Serial meetings. Meetings of less than a quorum of councilmembers that are held in a serial fashion to discuss city business and arrive at a decision would likely be considered a violation of the open meeting law. . Social gatherings. Generally, a social gathering of a quorum will not constitute a meeting. But if a quorum of councilmembers discusses any city business at a social gathering, it would likely be considered a violation of the open meeting law. . Technology trouble. Communication through telephone conversations, e- mail, and other technology can constitute a violation of the open meeting law if city business is discussed with a quorum of other councilmembers. 9. What if the open meeting law is intentionally violated? Intentional violations of the law can result in the following: @ . Up to a $300 fme. . Attorney fees of up to $13,000. . Removal from office. . Possible invalid action. 10. What about voting at meetings? Many questions arise concerning how to count votes at council meetings. The following topics are some of the more common ones: . Vacancies. Generally, a vacancy temporarily reduces the size of the council. Meetings of City Councils 5 ;:9 ~ - 6 · Absences. Generally, an absence does not reduce the number of votes needed to pass an ordinance. · Abstentions. There is no specific law that clarifies whether an abstention serves to defeat or help pass a motion. How the vote is counted may depend upon the reason for the abstention. · Voting by telephone or proxy. A councilmember may not vote by telephone or proxy. · Audience participation. Councils should not take a vote of audience members on matters before the council. Such votes are not binding on the council, and often lead to criticism and misunderstanding by the public. 11. What is required to be in the minutes? The city clerk has discretion as to how to take the minutes; however, certain information must be included in them. In addition, cities should include any findings of facts and conclusions made by the council. Specific reasoning behind a conclusion should also be included. The following information must be included in the minutes: · The members who are present. · The people who make and second motions. . Roll call vote on motions. · Subject matter of proposed resolutions or ordinances. · Whether the motion, ordinance or resolution is defeated or adopted. . The votes of each member. 12. Must the minutes be published? All statutory cities with populations of 1,000 or more must publish their minutes or a summary of them in their official newspaper within 30 days of the meeting. However, these cities may mail a copy to any resident upon request instead of publishing them. Statutory cities with populations less than 1,000 do not need to meet either of these requirements. Home rule charter cities should consult their charters for any requirements. 13. Where can cities get further information? The League of Minnesota Cities has several publications available that discuss issues relating to meetings in more detail. Call the League's Research and Information Service at (651) 281-1200 or (800) 925-1122 for further information. League of Minnesota Cities Table of Contents Meeting Highlights........................................................................................................................... ................ ......... 3 Part I. Introduction.................................................................................................................. ........... ...................9 Part II. Meetings and hearings ............................. ........... ........................................... ........... .................................9 A. Meetings ........................................................................... ................................................ ................ ......... 9 B. Hearings............................................................................................................................... .................... 10 Part III. The open meeting law. .................. ......... ................................ .......... .......................................... .............. 12 A. Groups to which the law applies ............................................. ........................................................ ......... 12 B. What is a meeting? .............................. ............... .................. .......... .................................................. ........ 12 C. Gatherings to which the law applies ........................................................................................................13 D. Exceptions and the procedures to use them .............................................................................................13 E. Notice requirements...................................................................................................................... ........... 16 F. Written materials........................................................................................................................... ........... 18 G. Common problems in applying the law ...................................................................................................18 H. Intentional violations of the open meeting law ............................ ............................................................ 23 Part IV. Scheduling meetings........................................................................................................... ............... ......23 A. Who may call a council meeting? ............................................................................................................ 23 B. When meetings may not be scheduled ...................................................... ........... .................................... 24 Part V. Minutes.......................................................................................................................... .......................... 24 A. Responsibility for taking minutes ...................... .......................... ................................................... .........24 B. Required contents. ............................................................................................................ ............... ......... 24 C. Other items that should be in the minutes ........................................................... ..................................... 25 D. Approval of minutes by council...... .............. .......... .......... .......... .............................. ............................... 25 E. Publication............................................................................................................................. .................. 26 Part VI. Holding meetings............................................................................................................................. ........ 26 A. Parliamentary procedure.......... ....... .............................................................. ........................ ............... ....26 B. Preserving order........................................................................................................ ...............................27 C. Participation in meetings......................................................................................... ................................. 27 D. Attendance of councilmembers ...... .......... ............ ............. .................... ........... ....................................... 35 E. Meeting room......................................................................... ................................. ......................... ........ 38 F. Broadcasting and recording of meetings .......................... ..................... ........... ........................................39 Part VII. Table of motions.............. ........................................................................................................................ 40 Part VIII. Model bylaws .................... ............... ................................................................................... .................... 42 Meetings of City Councils 7 See Part III - The open meeting law. Minn. Stat. ~~ 412.191, subd. 2; 13D.04, subd. 1. See Part IV - A - Who may call a meeting? Meetings of City Councils Part I. Introduction This memo discusses city council meetings. However, much of what is addressed may also apply to city boards, commissions, and other public bodies. Where the discussion is specific to statutory cities, home rule charter cities should consult their charters. The discussion on the open meeting law applies to all city councils, city boards, commissions, and other public bodies. Part II. Meetings and hearings A. Meetings Generally, a meeting is a gathering of a quorum of public officials to discuss, decide or receive information on matters over which they have authority. The members of the public usually do not speak at a meeting, although some city councils will occasionally recognize a member of the audience. 1. Types of meetings There are basically two different types of meetings: . Regular meetings. Regular meetings of a statutory city council are held at times established by council rules. A council will typically meet once a month on a particular day, although some councils may have regular meetings scheduled more frequently. Home rule charter cities should consult their charters and any council rules concerning the scheduling of regular meetings. . Special meetings. Special meetings are meetings held at times or places that are different from the regularly scheduled meetings. These are often scheduled to deal with specific items that need to be addressed before the next regular meeting. Generally, any matter can be transacted at a special meeting that can be addressed at a regular meeting. There are different types of special meetings, such as emergency meetings and continued meetings, which are discussed in more detail in a later section of this memo. 9 Minn. Stat. ~~ 412.02, subd. 2; 645.44, subd. 5. Minn. Stat. ~ 412.121. Minn. Stat. ~ 412.831. Minn. Stat. ~~ 427.01-.02; 118A02, subd. 1; 427.09. See Part II1 - E - Notice requirements. 10 2. First meeting of the year There is no date set by statute for the first meeting of the year. In most statutory cities, the date is set by an ordinance establishing rules of procedure for the council. A home rule charter city should consult both its charter and any ordinances that establish procedural rules for the council. The term of office for new statutory city councilmembers begins on the first Monday in January. The first meeting is usually held on or shortly after this date. In the meantime, all previously chosen and qualified councilmembers shall serve until their successors qualify. The first day of a new term in a home rule charter city is generally set by the charter. The following things must be done at the ftrst meeting of the year: · Appoint an acting mayor. · Select an official newspaper. · Select an official depository for city funds. (This must be done within 30 days of the start of the city's fiscal year.) In addition, although not required by statute, many city councils will also do the following at the first meeting of the year: · Review council's bylaws and make any needed changes. · Assign committee duties to members. · Approve official bonds that have been filed with the clerk. Home rule charter cities may have additional requirements for their ftrst meeting of the year in their charters. B. Hearings A public hearing is a meeting that is held where members of the public get to express their opinions. The council is there to regulate the hearing and make sure that people who want to speak on the issue get the opportunity. The council does not deliberate or discuss matters at the public hearing part of this type of meeting. Instead, they listen to the public, although once the public comment period is finished, the council will often wrap up the meeting. It should also be noted that in order to recess or continue a meeting of this sort, the council should not formally end the public comment part of the hearing. There are two types of hearings, those that are discretionary and those that are required by a specific statute, ordinance or charter provision. League of Minnesota Cities Minn. Stat. ~ 412.851. Minn. Stat. ~ 414.033, subd. 2b. Minn. Stat. ~ 429.031, subd. 1. Minn. Stat. ~ 429.061. Minn. Stat. ~ 444.18, subd. 3. Minn. Stat. ~ 469.003, subd. 2. Minn. Stat. ~ 469.093, subd. 1. Minn. Stat. ~ 469.065, subd. 2. Minn. Stat. ~ 469.105, subd. 2. Minn. Stat. ~ 469.107, subd. 2. Minn. Stat. ~ 340A602. Minn. Stat. ~ 275.065, subd. 6. Minn. Stat. ~ 462.357, subd. 3. Minn. Stat. ~ 462.358, subd. 3b. Minn. Stat. ~ 462.3595, subd. 2. Meetings of City Councils 1. Discretionary hearings Many city councils will hold public hearings even when a law does not require it. Generally, hearings of this type are for the purpose of allowing the public to comment on a specific issue. Such hearings can be helpful in raising concerns over an issue that the council may not have considered before. 2. Required hearings When a specific statute, ordinance or charter provision requires that the council hold a public hearing, the notice requirements must be followed carefully. Often there are special notice requirements that are more substantial than the notice that is needed for a simple special meeting. For example, zoning-ordinance amendments and special assessments have special notice requirements. The following are several of the more common matters that require public hearings: . Street vacation. . Annexation by ordinance. . Local improvement projects that will be paid for with special assessments. . When special assessments are made to property. . Purchase and improvement of waterworks, sewers, drains, and storm sewers. . Adoption of a housing redevelopment authority (HRA) resolution. . Adoption of an economic development authority (EDA) enabling resolution. . Sale of port authority land. . Sale of EDA land. . Increase of levy for an EDA. . Continuation of a municipal liquor store after a net loss for two of three consecutive years. . Truth in taxation. . Adoption or amendment of a zoning ordinance. . Subdivision applications. . Granting of a conditional use permit. 11 Minn. Stat. ~ 410.12, subd. 7. Minn. Stat. ~ 13D.OJ. Rupp v. Mayasich, 533 N.W.2d 893 (Minn. App. 1995). See Part III - E - Notice requirements; and Part V - B - Required contents. Minn. Stat. ~ 13D.Ol, subd. J. Southern Minnesota Municipal Power Agency V. Boyne, 578 N.W.2d 362 (Minn. 1998). 12 · Adoption of a charter amendment by ordinance. There are other situations that may require public hearings. Contact the League for further information if you are unsure about a particular situation. Part III. The open meeting law The Minnesota open meeting law generally requires that all meetings of public bodies be open to the public. However, there are some limited exceptions under which some meetings may be closed. This presumption of openness serves three basic purposes: · To prohibit actions from being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning decisions of public bodies or detect improper influences. · To ensure the public's right to be informed · To afford the public an opportunity to present its views to the public body. The open meeting law also contains some specific notice and record-keeping requirements, which are discussed in detail in later sections of this document. A. Groups to which the law applies The open meeting law applies to all governing bodies of any school district, unorganized territory, county, city, town or other public body, and to any committee, sub-committee, board, department or commission thereof. Thus, the law applies to meetings of all city councils, planning commissions, advisory boards, firefighter relief associations, economic development authorities, and housing redevelopment authorities, among others. The Minnesota Supreme Court has held, however, that the governing body of a municipal power agency, created under Minn. Stat. ~~ 453.51-453.62, is not subject to the open meeting law because the Minnesota Legislature granted these agencies authority to conduct their affairs as private corporations. B. What is a meeting? There is no statutory definition of the term "meeting" for the purpose of the open meeting law. Minnesota courts have generally ruled that a meeting is a gathering of a quorum of public officials to discuss, decide or receive information on matters over which they have authority. League of Minnesota Cities See Part III - G - Common problems in applying the law. Moberg v. Indep. Sch. D~t. No. 28I, 336 N.W.2d 510 (Minn. 1983). Minn. Stat. ~~ 412.191, subd. 1; 645.08 (5). Because the term "meeting" has not been clearly defmed, the issue of whether or not a meeting has been held must be decided on a case-by-case basis. Some examples of cases are discussed in further detail in a later section of this memo. C. Gatherings to which the law applies The open meeting law applies to any gathering of a quorum or more of public officials where the members discuss, decide or receive information as a group on issues relating to the official business of the public body. A "quorum" is a majority of the members of a statutory city council. A majority of the qualified members of any board or commission also constitutes a quorum. Home rule charter cities may have different quorum requirements in their charters. Thus, the open meeting law would apply to any of the following types of gatherings: . Regular and special meetings. . Public hearings. A.G. Op. 63-A-5 (June 13, 1957); . Executive sessions. Minn. Stat. ~ 13D.Ol, subd. 1. See Part III - G - Common problems in applying the law. Minn. Stat. ~ 13D.Ol, subd. 3. Meetings of City Councils . Work sessions. . Retreats. D. Exceptions and the procedures to use them There are some exceptions to the open meeting law. Under certain circumstances, some meetings may be closed. There are also some meetings that must be closed. Before a meeting can be closed under any of the exceptions, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. 1. Meetings that may be closed There are some meetings that the public body may close if it chooses. The following types of meetings may be closed: 13 Minn. Stat. ~~ 13D.03; 13D.oI, subd. 3. 14 . Meetings to consider strategies for labor negotiations under PELRA. Although a meeting to consider strategies for labor negotiations may be closed, the actual negotiations must be done at an open meeting if a quorum of the council is present. Procedure. The following must be done to use this exception: 1. Before closing the meeting, the council must decide to close the meeting by a majority vote at a public meeting. ii. Before closing the meeting, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. Hi. A written roll of all people present at the closed meeting must be available to the public after the closed meeting. IV. The meeting must be taped. v. The tape must be kept for two years after the contract is signed. vi. The tape becomes public after the labor agreement is finalized. If an action claiming that other public business was transacted at the closed meeting is brought during the time that the tape is not public, the court will review the record privately. If it finds no violation of the open meeting law, the action will be dismissed and the recording will be preserved in court records until it becomes available to the public. If the court determines that there may have been a violation, the entire recording may be introduced at the trial. However, the court may issue appropriate protective orders requested by either party. League of Minnesota Cities Minn. Stat. ~~ 13D.05, subd. 3(a); 13D.OI, subd. 3. Minn. Stat. ~ 13D.05, subd. 3(b). Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002). Northwest Publications, Inc. v. City of St. Paul. 435 N.W.2d 64 (Minn. App. 1989). Minn. Stat. ~ 13D.oI, subd. 3; See The Free Press V. County of Blue Earth. 677N.W.2d471 (Minn. App. 2004) (holding that a statement that a meeting was being closed under the attomey-client privilege to discuss "pending litigation" did not satisfy the requirement to "describe the subject to be discussed" at the closed meeting). Meetings of City Councils Meetings to evaluate the performance of an individual subject to the public body's authority. Procedure. The following must be done to use this exception: 1. The public body must identify the individual to be evaluated prior to closing the meeting. 11. The meeting must be open at the request of the individual who is the subject of the meeting, so some advance notice to the individual is needed in order to allow the individual to make an informed decision. 111. Before closing the meeting, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. IV. At the next open meeting, the public body must summarize its conclusions regarding the evaluation. The council should be careful not to release private or confidential data in its summary. . Attorney-client privilege. Meetings between the governing body and its attorney to discuss active, threatened, or pending litigation may be closed when the balancing of the purposes served by the attorney-client privilege against those served by the open meeting law dictates the need for absolute confidentiality. The need for absolute confidentiality should relate to litigation strategy, and will usually arise only after a substantive decision on the underlying matter has been made. This privilege may not be abused to suppress public observations of the decision-making process, and does not include situations where the council will be receiving general legal opinions and advice on the strengths and weaknesses of a proposed underlying action that may give rise to future litigation. . Procedure. The following must be done to use this exception: 1. Before closing the meeting, the council must state on the record the specific grounds permitting the meeting to be closed and describe the subject to be discussed. The council should also describe how a balancing of the purposes of the attorney-client privilege against the purposes of the open meeting law demonstrates the need for absolute confidentiality . 11. The council must actually communicate with its attorney at the meeting. 2. Meetings that must be closed There are some meetings that the law requires to be closed. The following meetings must be closed: 15 Minn. Stat. ~~ 13D.05, subd. 2(b); 13.43, subd. 2(4). Minn. Stat. ~~ 13D.Ol, subd. 3; 13D.05, subd. 2(b). Minn. Stat. ~ 13D.05, subd. 2(a). Minn. Stat. ~~ 13D.01, subd. 3; 13D.05, subd. 2(a). Minn. Stat. ~ 13D.04. 16 · Meetings for preliminary consideration of allegations or charges against an individual subject to the public body's authority. While the law permits the council to announce that it is closing a meeting to consider charges against an individual, it is still the best practice not to refer to that individual by name. The council should state only that it is closing the meeting to give preliminary consideration to allegations against someone subject to its authority. However, if someone requests the name of the employee who is the subject of the closed meeting, the name will probably have to be furnished since the existence and status of any complaints against an employee are public data. Procedure. The following must be done to use this exception: i. Before closing the meeting, the council must state on the record the specific grounds for closing the meeting and describe the subject to be discussed. 11. The meeting must be open at the request of the individual who is the subject of the meeting. Thus, the individual should be given advance notice of the existence and nature of the charges against him or her, so that the individual can make an informed decision. 111. If the public body decides that discipline of any nature is warranted regarding the specific charges, further meetings must be open. (Note: There is a special provision dealing with allegations of law enforcement personnel misconduct; see next discussion under ii.) · Portions of meetings at which any of the following data is discussed: i. Data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse or maltreatment of minors or vulnerable adults. ii. Internal affairs data relating to allegations of law enforcement personnel misconduct or active law enforcement investigative data. iii. Educational data, health data, medical data, welfare data or mental health data that are not-public data. Procedure. Before closing the meeting, the council must state on the record the specific grounds for closing the meeting and describe the subject to be discussed. E. Notice requirements Public notice must be given of all meetings of a public body. The notice requirements differ depending on the type of the meeting. League of Minnesota Cities Minn. Stat. ~ 13D.04, subd. 7. Minn. Stat. ~ 412.191, subd. 2. Minn. Stat. ~ 13D.04, subd. 1. Minn. Stat. ~~ 13D.04; 412.191, subd. 2. Minn. Stat. ~ 13D.04, subd. 1. Minn. Stat. ~ 13D.04, subd. 2; Rupp V. Mayasich, 533 N.W.2d 893 (Minn. App. 1995). Minn. Stat. ~ 412.191, subd. 2. Minn. Stat. ~~ 645.15; 331A.08. Meetings of City Councils However, if a person receives actual notice of a meeting at least 24 hours before the meeting, all notice requirements under the open meeting law are satisfied, regardless of the method of receipt. It should also be noted that statutory cities have some additional requirements for mailing notice to their councilmembers regarding special meetings. There may also be additional notice requirements for home rule charter cities to consider. These cities should consult their charters for more information. 1. Regular meetings A schedule of the regular meetings must be kept on file in the city office. If the city decides to hold a meeting at a different time or place, it must give the notice required for a special meeting. Cities must keep a schedule of the regular meetings of the council on file at the primary office of the council. This requirement can be complied with by posting the regular meeting schedule in a convenient public location. Any meeting held at a time or place different from that specified in the regular schedule must be treated as a special meeting. 2. Special meetings A special meeting is a meeting that is held at a time or location different from that of a regular meeting. A city must post written notice of a special meeting on its principal bulletin board or on the door of its meeting room if it doesn't have a bulletin board. If notice is posted on a bulletin board, the bulletin board must be located in a place that is reasonably accessible to the public. The notice must give the date, time, place, and purpose of the meeting. It must also be mailed to each individual who has filed a written request for notice of special meetings. As an alternative to posting the notice, the city can publish notice in the official newspaper at least three days before the meeting. In statutory cities, the clerk must mail notice of special meetings to all councilmembers at least one day before the meeting. In calculating the number of days for providing notice, do not count the fIrst day that the notice is given, but do count the last day. If the last day is a Saturday, Sunday or a legal holiday, that day is omitted from the calculation and the following day is considered the last day (unless, of course, it happens to be a Saturday, Sunday or legal holiday). 17 Minn. Stat. ~ 13D.04, subd. 3. Minn. Stat. ~ 13D.04, subd. 4. Minn. Stat. ~ 13D.04, subd. 5. See Part III - D- Exceptions and the procedures to use them. Minn. Stat. ~ 13D.Ol, subd. 6. 18 3. Emergency meetings An "emergency meeting" is a special meeting to deal with a matter that requires immediate consideration by the public body. Posted or published notice of an emergency meeting is not required. However, the city must make a good faith effort to notify each news medium that has filed a written request for notice. Notice must be given by telephone or any other method to notify members of the public body. The notice must include the subject of the meeting. 4. Recessed or continued meetings No additional notice is needed for a recessed or continued meeting if all of the following criteria are met: · The meeting is a recessed or continued session of a previous meeting. · The time and place of the meeting was established during the previous meeting. · The time and place of the meeting was recorded in the minutes of the previous meeting. 5. Closed meetings The same notice requirements apply to closed meetings as to open meetings. Additionally, advance notice to an individual who will be the subject of such a meeting is needed under certain circumstances (such as to employees who are the subject of performance evaluations and disciplinary proceedings). F. Written materials At least one copy of the materials made available to the council at or before the meeting, must also be made available for inspection by the public. However, this does not apply to not-public data or materials relating to the agenda items of a closed meeting. G. Common problems in applying the law There are many situations for which the open meeting law is unclear. This section provides an overview of some of the more common situations and how the law may be applied. League of Minnesota Cities Minn. Stat. ~ 13D.05, subds. l(a), 2(a). Minn. Stat. ~~ 13D.05, subd. 2(a); 13.03, subd. 11. Minn. Stat. ~ 13D.05, subd. 1 (b). Minn. Stat. ~ 13D.05, subd. 1 (c). Channel IO, Inc. v. Indep. Sch. Dist. No. 709,298 Minn. 306,215 N.W.2d 814 (1974). See Part III - G - Serial gatherings. Mankato Free Press V. City of North Mankato, No. CI-96-100036 (Fifth Jud. Dist. 1996). Mankato Free Press v. City of North Mankato, 563 N.W.2d 291 (Minn. App. 1997). Mankato Free Press v. City of North Mankato, No. C9-98-677 (Minn. App. Dec. 15,1998) (unpublished opinion). Meetings of City Councils 1. Data practices Generally, meetings may not be closed to discuss data that is not public. However, the public body must close any part of a meeting at which certain types of not-public data are discussed (such as active law enforcement investigative data, police internal affairs data, and certain victim, health, medical or welfare data). If not-public data is discussed at an open meeting when the meeting is required to be closed, it is a violation of the open meeting law. Discussions of some types of not-public data may also be a violation of the Data Practices Act. However, not-public data may generally be discussed at an open meeting without liability or penalty ifboth of the following criteria are met: . The disclosure relates to a matter within the scope of the council's authority. . The disclosure is necessary to conduct the business or agenda item before the public body. Data that is discussed at an open meeting retains its original classification under the Data Practices Act. However, a record of the meeting is public, regardless of the form. It is suggested that not-public data that is discussed at an open meeting not be specifically detailed in the minutes. 2. Interviews The Minnesota Supreme Court has held that a school board must interview prospective employees for administrative positions in open sessions. The court said that the absence of a statutory exception indicated that the Legislature had decided that such sessions should not be closed. The reasoning would seem to apply to city council interviews of prospective officers and employees as well, if a quorum is present. In 1996, a district court found that it was not a violation of the open meeting law for candidates to be serially interviewed by members of a city council in one-on-one closed interviews. In this case, five city councilmembers were present in the same building but each was conducting separate interviews in five different rooms. Because there was no quorum present in any of the rooms, the court found there was no meeting. The decision, however, was appealed. In 1997, the Minnesota Court of Appeals reversed the district court's decision and remanded the case back to it for a factual determination on whether the city used the one-on-one interview process in order to avoid the requirements of the open meeting law. On remand, the district court found that the private interviews were not conducted for the purpose of avoiding public hearings. The case was again appealed. In an unpublished decision, the court of appeals agreed. 19 The implication of this decision appears to be that if serial meetings are held for the purpose of avoiding the requirements of the open meeting law, it will constitute a violation of the law. Cities that are considering holding private interviews with job applicants should first consult their city attorney. 3. Executive sessions A.G. Op. 63-A-5 (June 13, 1957). The attorney general has advised that executive sessions of a city council must be open to the public. AG. Op. 10-b (July 3, 1975). AG. Op. 63a-5 (Aug. 28, 1996). Sovereign v. Dunn, 498 N.W.2d 62 (Minn. App. 1993). Thuma v. Kroschel, 506 N.W.2d 14 (Minn. App. 1993); AG. Op. 63a- 5 (Aug. 28, 1996). St. Cloud Newspapers, Inc. v. District 742 Cmty. Sch., 332 N.W.2d 1 (Minn. 1983). Moberg v. Indep. Sch. Dist. No. 28I, 336 N.W.2d 510 (Minn. 1983). 20 4. Committees and liaisons The attorney general has advised that citizens' advisory panels that are appointed by a governing body are also subject to the open meeting law. Many city councils create committees to make recommendations to the council. Commonly, such committees will be responsible for researching a particular area and submitting a recommendation to the council for its approval. Such committees are usually advisory, and the council is still responsible for making the fmal decision. City councils routinely appoint individual councilmembers to act as liaisons between the council and particular committees. These types of meetings may also be subject to the open meeting law if the committee contains a quorum or more of the council or has decision-making authority. In addition, notice for a special council meeting may be needed if a quorum of the council will be present at the meeting and participating in the discussion. For example, when a quorum of a city council attended a meeting of the city's planning commission, the Minnesota Court of Appeals ruled that there was a violation of the open meeting law, not because of the councilmembers' attendance at the meeting, but because the councilmembers conducted public business in conjunction with that meeting. Based on that decision, the attorney general has advised 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. The attorney general warned, however, that the additional councilmembers should not participate in committee discussions or deliberations absent a separate notice of a special city council meeting. 5. Chance or social gatherings Chance or social gatherings of a quorum are not considered meetings under the open meeting law and are therefore exempt from it. However, a quorum may not, as a group, discuss or receive information on official business in any setting under the guise of a social gathering. League of Minnesota Cities Hubbard Broadcasting, Inc. v. City of Afton, 323 NW.2d 757 (Minn. 1982). Moberg v. Indep. Sch. Dist. No. 28I,336N.W.2d51O(Minn. 1983). Also see Part III - G - Interviews and Technology trouble. Mankato Free Press v. City of North Mankato, 563 N.W.2d 291 (Minn. App. 1997). Mankato Free Press v. City of North Mankato, No. C9-98-677 (Minn. App. Dec. 15, 1998) (unpublished opinion). A.G. Op. 63a-5 (Feb. 5, 1975). Moberg v. Indep. Sch. Dist. No. 28I, 336 N.W.2d 510 (Minn. 1983). See Part III - G - Serial gatherings. Meetings of City Councils In 1982, the Minnesota Supreme Court held that a conversation between two councilmembers over lunch regarding an application for a special use permit did not violate the open meeting law because a quorum was not present. 6. Serial gatherings The Minnesota Supreme Court has noted that meetings of less than a quorum held serially to avoid public hearings or to fashion agreement on an issue may violate the open meeting law. In short, this type of situation is a circumvention of the statute. As such, councilmembers should avoid this type of practice. A 1997 Minnesota Court of Appeals decision also indicates that serial meetings could violate the open meeting law. In this decision, the court looked at a situation where the members of a city council 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 remanded the decision back to the district court for a determination of whether the councilmembers had used this interview process for the purpose of avoiding the open meeting law requirements. On remand, the district court found that the private interviews were not conducted for the purpose of avoiding the open meeting law requirements. This decision was also appealed, and the court of appeals, in a 1998 unpublished decision, agreed. A city that wants to hold private interviews with job applicants should first consult with its city attorney. 7. Training sessions The attorney general has advised that a city council's participation in a non- public training program devoted to developing skills is not covered by the open meeting law. However, the opinion also stated that if there were to be any discussions of city business by the attending members, either outside or during the training session, it could be seen as a violation of the statute. 8. Technology trouble The open meeting law does not address situations that may occur as a result of communication through telephone calls, letters, e-mail or similar technology. The Minnesota Supreme Court found that the open meeting law did not apply to letters or to telephone conversations between less than a quorum. While it is possible that a similar decision might be reached concerning the use of e-mail and other forms of technology, it should be stressed that if a quorum of members are involved in the communication, it would likely be considered to be a violation the law. 21 Moberg v. Indep. Sch. Dist. No. 28I, 336 N.W.2d 510 (Minn. 1983). See 1996 Updatefor City Attomeys--Technology: Potential Uses & Abuses. Minn. Stat. ~ 13D.02. 22 In addition, serial discussions between less than a quorum of the council that are used to deliberate matters that should be dealt with at an open meeting would likely violate the open meeting law. Therefore, city councils and other groups to which the open meeting law applies should not use letters, telephone conversations, e-mail, and other such technology if the following circumstances exist: · A quorum of the council is involved. · Information relating to official city business is being discussed. A meeting may be conducted using interactive television under certain circumstances. When a council meeting is conducted via interactive television, each councilmember participating in the meeting, wherever he or she is located, is considered present at the meeting for purposes of determining quorum and participation. A meeting may be conducted via interactive television if the following conditions are met: · All members of the council participating in the meeting, wherever their physical location, can hear and see one another and also hear and see all discussion and testimony presented at any location at which at least one councilmember is present. · Members of the public present at the council's regular meeting location can hear and see all discussion, testimony, and council votes. · At least one member of the council is physically present at the regular meeting location. · Each location at which a councilmember is present is open and accessible to the public. · In addition to the notice required for the meeting, if it were not held via interactive television, the city must also post notice at the regular meeting site and at each of the sites from which a councilmember will be participating in the meeting. If interactive television is used to conduct a meeting, the council must allow a person, to the extent practical, to monitor the meeting electronically from a remote location. The council may require the person to pay for the documented marginal costs that the city incurs as a result of the additionaloconnection. League of Minnesota Cities Minn. Stat. ~ 13D.06, subds. 1,4. Minn. Stat. ~ 13D.06, subd. 3. Claude v. Collins, 518 N.W.2d 836 (Minn. 1994). Quast v. Knutson, 276 Minn. 340, 150 N.W.2d 199 (1967). Sullivan v. Credit River Township, 217 N.W.2d 502 (Minn. App. 1974); In re D &A TruckLine, Inc., 524 N.W.2d 1 (Minn. App. 1994); Lac Qui Parle-Yellow Bank Watershed D~t. v. Wollschlager, No. C6-96-1023 (Minn. App. Nov. 12, 1996) (unpublished opinion). Minn. Stat. ~ 13D.06, subd. 4(c). Minn. Stat. ~ 412.191, subd. 2. Meetings of City Councils H. Intentional violations of the open meeting law A public officer who intentionally violates the open meeting law can be fined up to $300. This fine may not be paid by the public body. In addition, a court may also award reasonable costs, disbursements, and attorney fees up to $13,000 to the person who brought the violation to court. After three intentional violations of the open meeting law, a public official must be removed from office and may not serve in any other capacity with that public body for a period of time equal to the term of office the person was serving. However, removal is only required if the conduct constitutes malfeasance or nonfeasance. The statute is not clear on whether actions taken at an improper meeting would be invalid. The Minnesota Supreme Court once held that an attempted school district consolidation was fatally defective when the initiating resolution was adopted at a meeting that was not open to the public. However, in more recent decisions, the Minnesota Court of Appeals has refused to invalidate actions taken at improperly closed meetings because it found that the law was directory rather than mandatory. In an unpublished opinion, the court stated that "even a violation of the open meeting law will not invalidate actions taken at that meeting." A public body may pay any costs, disbursements, or attorney fees incurred by or awarded against any of its members for an action under the open meeting law. Part IV. Scheduling meetings A. Who may call a council meeting? A special meeting may be called by the mayor of a statutory city. Additionally, a special meeting may be called by any two members of a five-member council or three members of a seven-member council. The special-meeting request should be in writing and filed with the clerk. Home rule charter city councils may have additional limitations and powers regarding special meetings in their charters. 23 Minn. Stat. ~ 202A19, subd. 1. Minn. Stat. ~ 204C.03, subd. 1. Minn. Stat. ~ 645.44, subd. 5. Minn. Stat. ~ 15.17. Minn. Stat. ~ 412.151, subd. 1. Whalen V. Minneapolis Special Sch. Dist. No. I, 309 Minn. 292, 245 N.W.2d 440 (1976). B. When meetings may not be scheduled City council meetings may not be held at any of the following times: · After 6 p.m. on the evening of a major political party precinct caucus. · Between 6 p.m. and 8 p.m. on a day when there is an election being held within the city's boundaries. · On any legal holiday. (Note: "Legal holidays" include: New Year's Day, Martin Luther King's Birthday, President's Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. However, political subdivisions have the option of determining whether Columbus Day and the Friday after Thanksgiving are holidays. If it is determined that Columbus Day and the day after Thanksgiving are not holidays, a meeting may be scheduled on these days.) Home rule charter cities may have additional prohibitions in their charters as to when meetings may be scheduled. Part V. Minutes Municipal officers must keep all records necessary to provide a full and accurate knowledge of their official activities. A. Responsibility for taking minutes A statutory city clerk must keep a minute book. Generally, he or she has wide discretion as to how to keep the minutes. A verbatim record of everything that was said is not normally required. However, in any case where the law or charter requires a verbatim record, the use of a tape recorder instead of a court reporter to accomplish that objective is probably valid. B. Required contents The following items must be included in the minutes: Minn. Stat. ~~ 13D.oI, subd. 4; . The members of the public body who are present. 331A.Ol, subd. 6; 15.17, subd. 1. Minn. Stat. ~~ 412.151, subd. 1; . The members who make or second motions. 412.191, subd. 3; 331A01, subd. 6. Minn. Stat. ~~ 331AOl, subd. 6; . Roll call vote on motions. 412.151, subd. 1; 412.191, subd. 3. 24 League of Minnesota Cities Minn. Stat. ~~ 331A01, subd. 6; 412.151, subd. 1. Minn. Stat. ~~ 331A.Ol, subd. 6; 412.191, subd. 3. Minn. Stat. ~~ 13D.oI, subd. 4; 33IA.Ol, subd. 6; 412.151, subd. 1; 412.191, subd. 3. Swanson v. City of Bloomington, 421 N.W.2d 307 (Minn. 1988). Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992). Minn. Stat. ~ 412.151, subd. 1. Meetings of City Councils . Subject matter of proposed resolutions or ordinances. . Whether the resolutions or ordinances are defeated or adopted. . The votes of each member, including the mayor. Home rule charter cities may have additional requirements in their charters. C. Other items that should be in the minutes Although not generally required by statute, several court decisions suggest that including certain information in the minutes can help to defend a city's action should a lawsuit occur. The following types of data are examples of information that should be included in the minutes: . Findings of fact. Case law requires them for land use decisions and some personnel decisions. . The council's conclusions. Case law requires them for land use decisions and some personnel decisions. . The specific reasons behind the council's conclusions. Examples would include such things as the economical, social, political or safety factors that were considered when the council made a particular decision. . Signature of clerk and mayor. Because minutes would likely be considered to be official papers of the city, they should be signed by the clerk. And although the law does not require it, in many cities the mayor also signs the minutes after they are approved by the counciL D. Approval of minutes by council Although it is not statutorily required, the council generally approves the minutes at the next council meeting. After the minutes have been approved, they become the official permanent record of the council meeting. Problems sometime arise when someone requests a copy of the minutes before they have been approved by the council. The clerk must give out such information if someone requests it, but should make it clear that the minutes will not be officially approved until the next meeting. 25 Minn. Stat. ~ 412.191, subd. 3. Minn. Stat. ~ 412.191, subd. 3. Minn. Stat. ~ 331AOl, subd. 10. If the city publishes or mails the minutes, the council has two options. First, it may wait to publish them until after council approval. Second, the published minutes may include a notation that they are unofficial. Statutory city clerks who publish unofficial minutes usually do so because the council meets only once a month and the minutes must be published within 30 days. E. Publication A statutory city with a population of 1,000 or more must publish the council's official proceedings or a summary of them in its official newspapers within 30 days after every regular and special meeting. However, a less expensive alternative is also available. Instead of publishing the minutes, the city may mail a copy, at city expense, to any resident upon request. Statutory cities of less than 1,000 population are exempt from both of these requirements. Home rule charter cities should check their charters for any publication requirements. If a statutory city chooses to publish a summary or condensed version of the official minutes, it must meet the following criteria: · It must be written in a clear and coherent manner. · It must avoid the use of technical or legal terms not generally familiar to the public. · The publication must indicate that it is only a summary. · The publication must indicate that the full text of the minutes is available for public inspection at a designated location. Part VI. Holding meetings A. Parliamentary procedure Minn. Stat. ~ 412.191, subd. 2. A statutory city council has the power to regulate its own procedure. Home rule charter cities may have similar provisions in their charters or the charter may spell out how meetings are to be conducted. See Part VII - Table of motions and Procedural rules are usually provided for in the rules or bylaws adopted by the Part VIII - Model bylaws. council. Adoption of council rules may be supplemented by the use of a standard work on parliamentary procedure, such as Robert's Rules of Order. Because of the small size of most city councils, procedures at council meetings, particularly in discussions, tend to be quite informal and many cities prefer to keep things simple and use just the basic rules regarding motions and voting, rather than adopting a more complex set of procedures. Whatever rules the council adopts, it should follow them. Although the council can vote to change or suspend its rules if the occasion calls for it, it is probably better to stick with the adopted rules except on rare occasions. 26 League of Minnesota Cities Minn. Stat. ~ 412.191, subd. 2. Minn. Stat. ~ 609.72, subd. 1(2). State V. Guy, 242 N.W.2d 864 (Neb. 1976). Minn. Stat. ~ 412.191, subd. 1. Minn. Stat. ~~ 412.191, subd. 2; 412.121. Meetings of City Councils B. Preserving order A statutory city council is authorized to preserve order at its meetings. The mayor, as the presiding officer, is also vested with some authority to prevent disturbances. While council meetings must be open to the public, no one who is noisy or unruly has a right to remain in the council chambers. When the council decides that a disorderly person should not remain in the meeting hall, the police may be called upon to execute the orders of the presiding officer or the council. No matter how disorderly the meeting, it will still be a legal meeting and any action taken at it in proper form will be valid. If the whole audience becomes so disorderly that it is impossible to carry on a meeting, the mayor has the right and duty to declare the council meeting adjourned to some other time (and place, if necessary). The members of the council can also move for adjournment. If the mayor is not conducting the meeting in an orderly fashion, there is relatively little the other councilmembers can do to control the action of the presiding officer. However, a majority of the council can force adjournment whenever they feel it is necessary. A person who disturbs a lawfully held public meeting is guilty of disorderly conduct. Any conduct that disturbs or interrupts the orderly progress of council proceedings is a disturbance that may be prevented, or punished if an ordinance violation is involved, without infringing on constitutional rights. C. Participation in meetings 1. Mayor The mayor of a statutory city is a member of the council, and has the same right to vote and make and second motions at meetings as the other councilmembers. The mayor is the presiding officer of the meeting. In the absence of the mayor, the acting mayor must perform the duties of the mayor. The acting mayor is chosen at the ftrst meeting of each year. In some charter cities, the mayor might abstain from voting or participating unless there is a deadlock. This practice can help to preserve the neutrality of the chair of the meeting. However, counting votes at a meeting where a member abstains can sometimes be tricky. In some charter cities the mayor has veto power. Charter cities should consult their charters for more information. 27 Minn. Stat. ~ 412.191, subd. 1. Minn. Stat. ~ 412.651, subd. 5. See League research memo Official Conflict of Interest (140a.3) for more information. Minn. Stat. ~ 471.88. Lenz v. Coon Creek ij1atershed D~t., 278 Minn. 1, 153 N.W.2d 209 (1967). See Part II - Meetings and hearings. 28 2. Clerk In a Standard Plan statutory city, the clerk is an elected member of the council. As such, he or she has the same voting powers and other privileges, as do the other councilmembers. Like the mayor, the clerk in a Standard Plan city is able to make and second motions. In Plan A or Plan B statutory cities, the clerk is not a member ofthe council, and therefore, cannot vote or participate in council proceedings. Again, home rule charter cities may have different provisions in their charters. 3. City managers In a Plan B city, the city manager must attend all council meetings. He or she has the right to take part in the discussions, but not to vote. The council has the power to exclude the city manager from any meeting at which the manager's removal is considered. 4. Councilmembers with disqualifying interests Sometimes, a councilmember may have a personal interest in a matter that the council must address, like licenses, zoning matters, special assessments or actual contracts. If it is determined that an individual councilmember has such an interest, the individual might be disqualified from participating in the decision. Under some circumstances, state statutes require that the interested councilmember abstain from voting. Under other circumstances, the law is less clear. However, a Minnesota Supreme Court decision suggests that an officer with a disqualifying interest should abstain from voting even when not expressly required to under the statutes. 5. Audience participation Audience members are not normally able to take an active part in the council's discussion at a meeting. Only the council can make motions and vote at a council meeting. Audience members may not speak unless they have been recognized by the chair. Many city councils have scheduled a portion of their meeting for public comment. These are often referred to as "open forums." During this part of the meeting, the chair of the council will recognize members of the audience to speak briefly on topics that concern them. If a large number of audience members wish to speak, the meeting may not progress efficiently. Likewise, if one person spends a long time expressing his or her view, others may not get the opportunity to present their views. The following sections discuss ways to address some of these problems. League of Minnesota Cities Minn. Stat. ~ 13D.OI, subd. 4. A.G. Op. 471e (Sept. 18, 1962), A.G. Op. 471e (Aug. 20, 1962). Meetings of City Councils a. Limiting time Some councils have addressed this problem by placing a limit on the amount of time audience members are allowed to speak at a meeting. For example, the council may ask people to limit their remarks to no more than three minutes or allow only a specified number of people to speak. A number of cities have established rules or guidelines that citizens must follow when speaking at a meeting. Often, the speaker must notify the city at least one day in advance so that he or she can be put on the agenda. At the time that the person notifies the city of his or her desire to speak at the meeting, he or she is given a copy of the "rules of conduct," which lists the time limit for speaking and any other city limitations. This gives the person time to plan his or her speech so that it will fit within the time limit. The mayor then reminds the speaker of the time limit before the speaker begins to speak. Some cities will have a clock visible to the speakers so they can see when their time for speaking is over. b. Limiting topic Another option may be to limit the scope of comments to those matters being addressed by the council at the specific meeting. While this may be a way to focus the meeting on the matters being addressed by the council, it might also keep people from making the council aware of any new issues. Cities considering this approach might need to allow for other ways for people to bring up other topics. Some cities will establish general rules outlining when citizens may speak at council meetings. Often these guidelines will require that the topic be identified in writing a few days before the actual meeting. The specific topic and the speaker's name are then put on the agenda. Such procedures are helpful in allowing the council to plan an efficient meeting and to prepare a response to the issue (if needed). It also helps to remind the speaker that he or she may only address those issues on the agenda. 6. Voting City councils meet to discuss matters relating to city business and to make decisions for the city. When a matter is brought to a vote, the votes must be recorded in the minutes. The vote of each individual councilmember (including the mayor) must also be recorded on each appropriation of money, except for the payment of judgments, claims, and amounts fIxed by statute. Because of this requirement, city councils may not vote by secret ballot on matters addressed at council meetings unless the vote can be taken in such a manner that would comply with the statute's requirement. 29 Minn. Stat. ~~ 412.191, subd. 1; 645.08 (5). Minn. Stat. ~ 462.357, subd. 2. Minn. Stat. ~ 462.355, subd. 3. Minn. Stat. ~ 462.354, subd. 1. Minn. Stat. 9 462.356, subd. 2. 30 a. Counting votes Most of the time, a city council acts by majority vote; however, sometimes a simple majority vote is not enough for a matter to pass. Depending upon the matter before the council, more votes may be needed. Likewise, a home rule charter city may have additional requirements in its charter. i. Entire council is present When the entire council is present and all members vote, it is generally simple to determine if a matter has passed. · Achieving a quorum. A majority of the members of a statutory city council shall constitute a quorum. Obviously, when all members are present, a quorum has been achieved. · Motions and resolutions. A majority of the quorum is needed to pass most motions and resolutions. Since most statutory cities have a five-member council, this means that three votes are normally needed if all members are present and voting. In a statutory city with a seven-member council, it would take at least four votes to pass most motions or resolutions. · Most ordinances. A simple majority vote of an entire statutory city council is needed to pass most ordinances, regardless of the number of councilmembers present. This means that three votes are needed to pass an ordinance in a city with a five-member council. In a statutory city with a seven-member council, four votes are needed to pass most ordinances. However, some ordinances require more than a simple majority vote. · Situations where statutes require extraordinary votes. Several statutes require more than a simple majority to take certain kinds of actions. The following are some examples: · Adoption or amendment of zoning ordinances that change existing zoning from residential to commercial or industrial. · Adoption or amendment of comprehensive plans. · Abolishment of a planning agency. · Some capital improvements and acquisition or disposal of real property if the city has a comprehensive plan. League of Minnesota Cities Minn. Stat. ~ 471.88. See League research memo Official Conflict of Interest (140a.3). Minn. Stat. ~ 429.031, subds. 1,2. Minn. Stat. ~ 410.12, subds. 6, 7. Minn. Stat. ~ 412.191, subd. 4. Minn. Stat. ~ 412.501. Minn. Stat. ~ 412.851. Minn. Stat. ~ 412.221, subd. 16. State v. Hoppe, 194 Minn. 186, 260 N.W. 215 (1935); AG. Op. 63-b-14 (Oct. 6, 1982); A.G. Op. 161-A-20 (July 3, 1974); A.G. Op. 63-b-14 (Jan. 14, 1970). Minn. Stat. ~~ 412.191, subd. I; 645.08(5). . Contracts that are allowed even though one of the officers has a personal financial interest. Generally, a councilmember may not have a fmancial interest in a city contract. However, the statutes allow certain exceptions to this rule. If such a contract is permitted under an exception, the statute requires that it be approved by unanimous vote of the council. In some cases, the interested officer must abstain from voting, but it is probably advisable for him or her to refrain from participating in the discussion and voting, regardless of whether the statute specifically requires it. . Some local improvements that will be paid for with special assessments. . Some types of charter amendments. . Summary publication of ordinances in statutory cities. . Abolishing or changing the size of a statutory city park board. . Some street vacations. . Abolishment of a hospital board. Home rule charter cities may have other supermajority vote requirements in their charters. ii. Vacancies A vacancy temporarily reduces the size of the council; therefore, when there is a vacancy on a five-member council, the entire council consists of four people. For actions that require approval by a specified portion ofthe council, the required number of votes is calculated using the current number of seats that are filled. . Achieving a quorum. Since a majority of a statutory city council is needed to achieve a quorum, a vacancy can affect the number of members that must be present in order to hold a meeting. One vacancy on a five-member council would not reduce the number of members needed to achieve a quorum (since both a majority of five and a majority offour is three). However, if there were two vacancies on a five-member council, the council would consist of three members and a majority of the council would be two members. . Motions and resolutions. Since most motions and resolutions must be approved by a majority of those present at a meeting, a vacancy will have basically the same effect as an absence. A majority of those present must vote to approve in order for most motions and resolutions to pass. Meetings of City Councils 31 AG. Op. 63a-l1 (Oct. 20,1966). Tracy Cement Tile Co. v. City of Tracy, 143 Minn. 415,176 N.W. 189 (1919). Minn. Stat. ~~ 412.191, subd. 1; 645.08(5). Jensen v. Indep. Consolo Sch. Dist. No. 85, 160 Minn. 233,199 N.w. 911 (1924); A.G. Op. 471-M (Oct. 30,1986); AG. Op. 161-A-20 (June 3,1987); Minn. Stat. ~ 645.08(5). Minn. Stat. ~ 412.191, subd. 4. · Most ordinances. Since most ordinances must be approved by a majority of the entire council, vacancies on the council can affect the number of votes needed to pass an ordinance. For example, if there were two vacancies on a five-member council, the entire council would consist of three members. In this case, a majority of the entire council would be two rather than three. · Situations where statutes require extraordinary votes. If a statute or charter provision requires a specific number of votes (rather than a percentage of the council), the vacancy probably won't affect the required numbers of votes. ill. Absences A councilmember's absence from a meeting does not affect the number of votes needed if a statute requires an affirmative vote by a specified portion of the entire council. · Achieving a quorum. Absences can certainly affect the ability of a city council to achieve a quorum, since a majority of a statutory city council is needed to achieve a quorum. For example, if one or two members of a five-member council are absent, the three remaining councilmembers would constitute a quorum. However, if three members were absent, the remaining two members would not be able to hold a meeting because a quorum would not be present. · Motions and resolutions. Since most motions and resolutions must be approved by a majority of those present in order to pass, an absence can affect the number of votes needed. The general rule is that if a quorum is present, a majority of the quorum can pass any action except those where a statute or charter provision requires a larger number. The fewer members present, the fewer needed to constitute a majority. For example, if two members of a five-member council are absent, the remaining three constitute a quorum. A 2-1 vote is sufficient to pass most motions at such a meeting. However, if all five members were present, at least three votes would be needed to pass the same motion. · Most ordinances. The absence of a councilmember from a meeting does not affect the number of votes needed if the statutes require that a specified portion of the entire council is needed to approve an action. For example, it takes a majority of the entire council to pass an ordinance in a statutory city. In most statutory cities, a majority is three votes. If one councilmember were absent, it would still take a majority of the entire council (or three votes) to pass the ordinance. · Situations where statutes require extraordinary votes. The absence of a member will not affect the number of votes needed if a statute requires approval by a specific number of votes or a certain portion of the entire council. 32 League of Mionesota Cities A.G.Op. 161-A-20 (June 3,1987); A.G. Op. 471-M (Oct. 30, 1986). Ram Dev. Co. v. Shaw, 309 Minn. 139,244 N.W.2d 110 (1976). 1989 Street Improvement Program v. Denmark Township, 483 N.W.2d 508 (Minn. App. 1992). Meetings of City Councils iv. Abstentions Sometimes a councilmember who is present at a meeting will choose not to vote on a matter before the council. In some home rule charter cities, a mayor might not vote unless there is a tie. If a councilmember or mayor does not vote, it is recorded in the minutes as an abstention. How the abstention should be considered can sometimes depend upon the reason for the member's abstention. . Achieving a quorum. Whether or not a councilmember abstains would not appear to have an effect on whether or not a quorum exists, and the meeting may be held. . Motions and resolutions. Generally, a motion or resolution is passed if the majority of those voting vote in favor of it. It's not entirely clear, however, if a court would apply this rule to the extreme case where a quorum is present but because of abstentions the number of affirmative votes is less than a majority of the quorum. Again, it may depend upon the reason behind the abstention. . Most ordinances. An abstention by one or more councilmembers does not reduce the number of votes needed if a statute or charter provision specifies a certain number of votes. For example, in a statutory city with a five-member council, three affirmative votes are needed to pass most ordinances; two "yes" votes and three abstentions are not enough. However, if the abstention is required because a councilmember is disqualified from voting (such as when one member has a personal interest in the matter being considered by the council), the abstention is treated like a vacancy. In this type of situation, the size of the council is temporarily reduced. . Situations where statutes require extraordinary votes. An abstention by one or more councilmembers does not reduce the number of votes needed if the statutes require the affirmative vote ofa specific number or proportion of the entire council. For example, in a case where a seven- member board attempted to pass a zoning amendment that required a two- thirds vote of its members, three members abstained and four voted in favor of the amendment. The court ruled that this vote was not sufficient to pass the ordinance. Councilmembers who have a disqualifying interest are generally excluded when counting the number of votes needed to approve an action by a supermajority vote. An example of such a situation was a local improvement project where two town board members owned property that was going to be assessed for the improvement. The court found it was proper for the two to abstain in this case and that three affirmative votes were sufficient to meet the four-fifths majority vote requirement. 33 Although councilmembers may be tempted to abstain from voting on a controversial matter, they should remember that the abstention will ultimately tend to pass or defeat the matter. The best advice is to avoid the kinds of problems that can arise from abstentions and vote, unless an abstention is required because a councilmember has a personal interest in the matter. Minn. Stat. ~ 13D.02. b. Long-distance voting Although the open meeting law permits meetings to be held by interactive television, the use of other types of technology have not yet been authorized. i. Voting by proxy Sometimes councilmembers who are not able to be at a meeting want to vote on a matter that will be addressed at the meeting. However, state law does not permit a statutory city councilmember to vote by proxy. Home rule charter cities may find permission in their charters. ii. Voting by phone Likewise, state law does not authorize a councilmember to phone in his or her vote or participate in the meeting by conference call, facsimile or e-mail. 7. Agendas City clerks generally prepare agendas for council meetings. The agendas are then given to councilmembers and other interested individuals such as department heads and citizens. The agenda establishes the order in which the matters are to be addressed during the meeting. a. Consent agenda The consent agenda or consent calendar is used by many city councils to help shorten the length of the meetings by using time more efficiently. A consent agenda typically groups together many items that are routine and not controversial. Although the council must take action on these items, they do not require further discussion. Examples of items typically included in a consent agenda are the approval of the minutes, the setting of the next meeting date, approval of routine expenditures, and the final approval of licenses and permits. The council generally approves all items on the consent agenda with the passage of one motion. If there is any item on the consent agenda that a councilmember feels warrants further discussion, it is removed from the consent agenda and dealt with individually. It may be placed anywhere within the regular agenda. 34 League of Minnesota Cities Minn. Stat. ~~ 13D.04, subd. 1; 412.191, subd. 2. Minn. Stat. ~ 13D.04, subd. 2. See Part III - E - Notice requirements. Minn. Stat. {I 130.04, subd. 3. See Part III - E - Notice requirements. Meetings of City Councils The consent agenda may be a valuable tool for city councils that have to deal with many routine matters. Some city councils may need to amend their bylaws to allow the use of this procedure. b. Discussing items not on the agenda Whether the council can discuss an item that was not included on the agenda is a question that may not have a clear answer. In part, the answer may depend upon the type of meeting that is being held and the type of meeting rules the council has adopted. Cities should fIrst check any rules that have been adopted by the council and any charter provisions, if the city is a home rule charter city. These local items may give more specific guidance where the statutes are vague. . Regular meetings. The statutes are basically silent on the ability of the council to address items that are not on the agenda at a regular meeting. However, it seems to be common practice for councils to address items that were not originally on the agenda of a regular meeting through a miscellaneous item on the agenda. . Special meetings. A city must give notice of a special meeting to the public. This notice must include the date, time, place, and purpose of the meeting. Since the notice of the meeting should announce its purpose, councilmembers should deal only with that specific issue. . Emergency meetings. Although these types of meetings are very rare, the law seems to be clear. The law requires that notice must include the subject of the meeting. The law also states that if matters not directly related to the emergency are discussed or acted upon in an emergency meeting, the meeting minutes shall include a specific description of the matters. Surprisingly, the statute seems to give the council more leeway to take up other matters at an emergency meeting than at other types of meetings. However, it is suggested that discussion of topics other than the emergency should be avoided. In conclusion, it is advisable for city councils to only deal with the specific items on the agenda for all but regular meetings. Councilmembers may lose a great deal of credibility with the public if people believe they are trying to circumvent the law. D. Attendance of councilmembers It is important for all councilmembers to attend their city council meetings. When members are absent from a meeting, it can be difficult for the council to conduct business. Such difficulties can include the inability of the council to achieve a quorum, the difficulty in getting the needed number of votes to approve an action, and the difficulty in counting votes. 35 Minn. Stat. S~ 412.191, subd. I; 645.08 (5). Minn. Stat. ~ 211B.I0, subd. 2. AG. Op. 471-E (Jan. 21, 1942). Minn. Stat. ~ 412.191, subd. 2. Minn. Stat. Ch. 586. 36 In statutory cities, a majority of all the councilmembers constitutes a quorum. This means that at least three members of a five-member council or four members of a seven-member council must be present in order for the council to hold a meeting. Home rule charter cities may have different quorum requirements in their charters. 1. Time off from employment An elected official must be given time off from employment to attend meetings that are required because of the office. The time off may be with or without pay. If the time off is without pay, the employer must make an effort to allow the person to make up the hours at another time when he or she is available. An employer cannot retaliate against an employee who must take time off to attend such meetings. 2. Non-attendance Sometimes, a city council will find that a councilmember is not attending council meetings. There may be a variety of reasons for the absences, such as illness, extended vacations or refusal to attend. Whatever the reason, such extended absences can make it difficult for the council to do its job. This section discusses some of the things city councils can consider to remedy this type of problem. a. Reprimands The attorney general has indicated a city council could reprimand a councilmember for missing meetings. The council would do this by passing a resolution. While such a reprimand might create political pressure and embarrassment for the absent councilmember, it won't necessarily compel him or her to attend meetings. b. Compelling attendance State law authorizes a statutory city to compel the attendance of its members and punish them for non-attendance. Unfortunately, it is not clear how this power should be exercised. It might be possible to compel the attendance of a councilmember through a mandamus action, which is a court order to force a public officer to perform a specific duty of his or her office. This type of remedy may be pursued by the city, individual councilmembers or a citizen. However, city officials should consult with their city attorney before considering this approach. League of Minnesota Cities Minn. Stat. ~ 43A17, subd. 10. Minn. Stat. ~ 412.191, subd. 2. Minn. Stat. ~ 412.02, subd. 2b. Minn. Stat. ~ 410.33. A.G. Op. 450-A-ll (March 6, 1957). Meetings of City Councils c. Council pay State law prohibits cities from diminishing a councilmember's pay for absences because of illness or vacation. As a result, if the council's salary is set at a monthly or annual salary, the councilmembers are entitled to receive that pay whether or not they attend meetings. On the other hand, it might be possible to set council compensation on a per- meeting basis. It should be noted that this state statute has not yet been interpreted by the courts or the attorney general. d. Fines A system of fines may be an option a statutory city council could use to punish a councilmember for non-attendance. If a city wants to use this approach, it should adopt an ordinance or rule establishing a system of fines for missing meetings. However, as discussed above, a city cannot diminish a councilmember's salary for absences that are the result of illness or vacation. e. Temporary replacement of councilmembers Statutory cities have an option to temporarily replace a councilmember under certain circumstances. A vacancy in the office of mayor or councilmember may be declared by the council if either of the following occurs: . An officeholder is unable to serve in the office or attend council meetings for a 90-day period because of illness. . An officeholder refuses to attend council meetings for a 90-day period. If either of these conditions occurs, the council may declare a vacancy to exist and fill it at a regular or special council meeting. The vacancy may be filled for the remainder of the unexpired term or until the person is able to resume duties and attend council meetings, whichever is earlier. When the person is able to resume duties and attend council meetings, the council shall by resolution remove the temporary officeholder and restore the original officeholder. Although there is no statute that specifically addresses this power for home rule charter cities, home rule charter cities may use the same statute if their charter is silent on the matter. f. Abandonment of office Continued failure to attend council meetings may be grounds for a city council to fmd that an office has been abandoned and declare that the office is vacant. The attorney general has described abandonment as a form of resignation, and indicated that the officer's intent is a key issue in determining whether there has been an abandonment of the office. 37 A.G. Op. 434-A-2 (July 14, 1955); Whether an office has actually been abandoned is a question of fact that must Also see previous section. be determined on a case-by-case basis. The attorney general has said that mere absence by itself does not mean that the office has been abandoned. Following a 90-day period, the office may be declared vacant and the officer replaced on a temporary basis. There are no clear guidelines as to how long a councilmember must be absent in order for the office to be considered permanently vacant. AG. Op. 434-A-2 (July 14, 1955). If the city council believes that the absent councilmember has abandoned the office, it can pass a resolution making this finding. The council should fIrst give the absent councilmember notice and an opportunity to be heard. A city council that is considering declaring an office vacant due to abandonment should first consult with its city attorney. Minn. Stat. ~ 609.43. Minn. Stat. .~ 351.02. Minn. Stat. ~~ 144.414, subd 1; 144.412. Minn. Stat. ~ 144.415. Minn. Stat. ~ 144.416. 38 g. Criminal penalties It is a gross misdemeanor for a public officer to intentionally fail to perform a known mandatory, nondiscretionary, ministerial duty of his or her office. It is arguable that attending council meetings might fall into this category of duties for councilmembers. This type of remedy may be an extreme measure. Conviction may constitute a violation of the councilmember's oath of office, which would result in the office being vacant. Again, a city council that is considering this remedy should first consult with its city attorney. E. Meeting room 1. Smoking The Minnesota Clean Indoor Air Act prohibits smoking at a public meeting except in a designated smoking area. This law protects the public health, comfort, and environment by prohibiting smoking in areas where children or ill or injured people are present, and by limiting smoking in public places and at public meetings to designated smoking areas. A smoking area may be designated except in places where smoking is prohibited by the fIre marshal, another law, rule, ordinance or charter provision. When a smoking area is designated, existing physical barriers and ventilation systems must be used to minimize the toxic effect of smoke in adjacent non-smoking areas. No public place may be designated as a smoking area in its entirety. A city must make reasonable efforts to prevent smoking in the public place by posting appropriate signs, arranging seating to provide a smoke-free area, asking smokers to refrain from smoking on request of a client or employee suffering discomfort from the smoke, or using any other appropriate means. League of Minnesota Cities Minn. Stat. ~ 144.417, subds. 2, 3. People who violate this law are guilty of a petty misdemeanor. Additionally, the state commissioner of health, a local health board or any affected party may pursue a court order to enjoin repeated violations. Minn. Stat. ~ 363.03, subd. 4. 42 U.S.c. ~~ ]2101-]2213. A.G. Op. 63a-5 (Dec. 4, 1972). Minn. Stat. ~~ 13.03, subd. 1; 13.02, subd. 7; 13D.03, subd. 2(b). See Part III - D - Exceptions and the procedures to use them. Minn. Stat. ~ 13D.03, subd. 2(a). See Part III - D - Exceptions and the procedures to use them. 42 U.S.c. ~~ 12101-12213. See Part VI - E - Meeting room. Meetings of City Councils 2. Accessibility Both the meeting and the meeting room must be accessible. To ensure accessibility, the meeting should be located in a room that all people, including people with mobility impairments, will be able to reach. Cities may also need to have individuals sign for people with hearing loss and have written materials available in large print, Braille or audio cassette for people with sight impairments. F. Broadcasting and recording of meetings The attorney general has advised that the public may tape record a meeting if it will not have a significantly adverse effect on the order of the meeting or impinge on constitutionally-protected rights. Neither the public body nor any member may prohibit dissemination or broadcast of the tape. A city may tape record or videotape a meeting. The tape is a city record and must be kept in accordance with the city's record retention policy. As a city record, such a tape must also be made available to the public if it contains public data. If the tape is of a closed meeting, it is generally not available to the public. Tapes of meetings that have been closed to consider labor negotiations under PELRA will become public after the labor agreement has been fmalized. Even though video tapes and sound recordings may indicate verbatim what occurred at a meeting, they are not the official record of the meeting. The approved minutes are the official record of the meeting. Although cities are not generally required to tape record meetings, closed meetings at which a city council discusses strategies for some labor negotiations must be taped. Some cities choose to tape all closed meetings in order to have a record of what happened at the closed meeting. Such a record may be useful in establishing that councilmembers did not use the closed meeting to discuss matters that should have been discussed at an open meeting. Many cities broadcast their council meetings over cable television. Such broadcasts may need to be closed-captioned or signed in order to be accessible for those with hearing impairments. It is unclear whether this cost should be paid by the city or the cable company. Cities should consult their cable franchise agreements for clarification. 39 Part VII. Table of motions (Note: Also see discussion under Part VI - A. Parliamentary procedure) There are three basic types of motions: privileged motions, subsidiary motions, and main motions. Privileged motions take precedence over subsidiary motions; subsidiary motions take precedence over main motions. The following charts of motions are listed in order of precedence and are based upon Robert's Rules of Order Newly Revised, 10th Edition (2000): Chart A: Privileged motions-A privileged motion is a motion that does not relate to the business at hand. Such a motion usually deals with items that require immediate consideration. Can Votes Requires interrupt required Can be Motion a second speaker Debatable Amendable to pass reconsidered Fix a time to adjourn. ~ ~ Majority ~ To adjourn. ~ Majority Recess. (A motion to take ~ ~ Majority an intermission.) Raise a question of ~ Usually, privilege. (A motion no vote is referring to a matter of taken. personal concern to a The chair member. Examples are decides. asking to have the heat turned up, the windows opened, less noise, or requesting that the motion be stated again.) Call for the orders of the ~ Usually; day. (Forces the no vote is consideration of a taken. postponed motion.) The chair decides. 40 League of Minnesota Cities Chart B: Subsidiary motions--A subsidiary motion is a motion that assists the group in disposing of the main motion. Can Votes Requires interrupt required Can be Motion a second speaker Debatable Amendable to pass reconsidered Lay on the table. (To ./ Majority postpone discussion temporarily. ) Previous question or call ./ 2/3 ./ for the question. (To stop debate and force an immediate vote.) Postpone to a definite ./ ./ ./ Majority ./ time. Commit or refer. (A ./ ./ ./ Majority If group has motion to refer to a smaller not begun committee.) consideration of a question. Amend. ./ ./ ./ Majority y Postpone indefinitely. ./ ./ Majority Affirmative vote only Chart C: Main motions-A main motion is a formal proposal that is made by a member that brings a particular matter before the group for consideration or action. Can Votes Requires interrupt required Can be Motion a second speaker Debatable Amendable to pass reconsidered Any general motion, ./ ./ ./ Majority ./ resolution, or ordinance. Take from the table. ./ Majority Reconsider. (To reconsider ./ ./ ./ Majority a motion already passed/defeated. ) Appeal or challenge a ./ ./ Depends Majority ./ ruling ofthe chair. Rescind. (A motion to ./ ./ ./ Varies, Negative vote strike out a previously based on only adopted motion, resolution, motion bylaw, etc.) Meetings of City Councils 41 Part VIII. Model bylaws (Note: Also see discussion under Part VI - Holding Meetings) Ordinance No. AN ORDINANCE ESTABLISHING RULES FOR THE ORGANIZATION AND PROCEDURE OF THE CITY COUNCIL OF The city council of (name of city) ordains: Section 1. Meetings Subdivision 1. Regular meetings. Regular meetings of the city council shall be held on the (day) of each calendar month at (time) p.m. Any regular meeting falling upon a holiday shall be held on the next following business day at the same time and place. The city clerk shall maintain a schedule of regular meetings. This schedule shall be available for public inspection during regular business hours at the city clerk's office. All meetings, including special emergency meetings, shall be held in the city hall. Comment: Specifj; the day and time in the blanks, e.g., "the first Tuesday" of each month at "8:00p.m." In statutory cities, the time andfrequency of council meetings is a matter of council discretion. Home rule charter cities may have other requirements in their charters. Subd. 2. Special meetings. The mayor or any two (three, if a seven-member council) members of the council may call a special meeting of the council upon at least 24 hours written notice to each member of the council. This notice shall be delivered personally to each member, or left at the member's usual place of residence with some responsible person. Similar written notice shall be mailed at least three days before the meeting date to those who have requested notice of such special 42 meetings. This request must be in writing and filed with the city clerk, designating an official address where notice may be mailed. Such request will be valid for one year. Comment: In cities with a five-member council, two members may call a special meeting. In cities with a seven-member council, three members may call a special meeting. The procedure specified here conforms to the requirements of the open meeting law. Although the statute permits notice to be mailed to councilmembers, personal delivery is preferable. Subd. 3. Emergency meetings. The mayor or any two councilmembers (three councilmembers if a seven-member council) may call an emergency meeting when circumstances require the immediate consideration of a matter by the council. Notice may be in writing personally delivered to councilmembers or may be in the form of personal telephone communication. Notice must include the date, time, place, and purpose of such a meeting. Where practical, the clerk shall make an effort to contact news gathering organizations that have filed a request to receive notice of special meetings. Comment: This procedure conforms to the open meeting law. The meeting must be a true emergency and must not be simply a ruse to get around the more stringent notice requirements of special meetings. Posted or published notice is not required, although it is a good idea to post such notice. Subd. 4. Initial meeting. At the first regular council meeting of January of each year, the council shall do the following: I) Designate the depositories of city funds; 2) Designate the official newspaper; 3) Choose an acting mayor from the councilmembers who shall perform the mayor's duties during the mayor's absence, disability from the city or, in League of Minnesota Cities case of vacancy in the office of mayor, until a successor has been appointed and qualifies; 4) Appoint necessary officers, employees, and members of boards, commissions, and committees. Comment: In some cities, an organizational meeting is held on the first Monday of January. If this is done, the council may wish to change the language of the first sentence accordingly. It is not really necessary to specify what should be done at an organizational meeting, but if it is included in the rules, it will serve as a reminder. Home rule charter cities may have additional requirements in their charters. Subd. 5. Public meetings. Except as otherwise provided in the open meeting law, all council meetings, including special, emergency, and adjourned meetings and meetings of all council committees shall be open to the public. Comment: The open meeting law requires open meetings with very few exceptions. Special care is needed in order not to violate this statute when dealing with employment issues. Section 2. Presiding officer Subdivision 1. Who presides. The presiding officer shall be the mayor. In the absence of the mayor, the acting mayor shall preside. In the absence of both, the clerk shall call the meeting to order and shall preside until the councilmembers present at the meeting choose one of their number to act temporarily as presiding officer. Comment: This provision may need adaptation for a home rule charter city where the mayor is not a member of the council. Subd. 2. Procedure. The presiding officer shall preserve order, enforce the rules of procedure herein prescribed and determine without debate, subject to the final decision of the council on Meetings of City Conncils appeal, all questions of procedure and order. Except as otherwise provided by statute or by these rules, the proceedings of the council shall be conducted in accordance with Robert's Rules of Order, Newly Revised, 10th Edition. Subd. 3. Appeals. Any member may appeal to the council from a ruling of the presiding officer. If the appeal is seconded, the member may speak once solely on the question involved and the presiding officer may explain his or her ruling, but no other councilmember shall participate in the discussion. The appeal shall be sustained if it is approved by a majority of the members present. Comment: This is covered by Robert's Rules, but it may be desirable to cover the matter in council rules so members are aware of the possibility of appeal. A majority or tie vote sustains the decision of the chair. When the presiding officer is a member of the council, he or she can vote on the appeal. Subd. 4. Rights of presiding officer. The presiding officer may make motions, second motions, or speak on any question except that on demand of any councilmember the presiding officer shall pass the chair to another councilmember to preside temporarily. Section 3. Minutes Subdivision 1. Who keeps. Minutes of each council meeting shall be kept by the clerk or in the clerk's absence, the deputy clerk. In the absence of both, the presiding officer shall appoint a secretary pro tem. Ordinances, resolutions, and claims need not be recorded in full in the minutes if they appear in other permanent records of the clerk and can be accurately identified from the description given in the minutes. Comment: In a home rule charter city, the subdivision should conform to any applicable charter provisions. Subd. 2. Approvals. The minutes of each meeting shall be reduced to typewritten form, 43 shall be signed by the clerk, and copies shall be delivered to each councilmember as soon as practicable after the meeting. At the next regular meeting following such delivery, approval of the minutes need not be read aloud, but the presiding officer shall call for any additions or corrections. If there is no objection to a proposed addition or correction, it may be made without a vote of the council. If there is an objection, the council shall vote upon the addition or correction. If there are no additions or corrections, the minutes shall stand approved. Subd. 3. Publication. The clerk shall publish a condensed version of the official minutes within 30 days of a regular or special meeting, which includes a summary of the action on motions, resolutions, ordinances, and other official proceedings. Section 4. Order of business. Subdivision 1. Order established. Each meeting of the council shall convene at the time and place appointed. Council business shall be conducted in the following order: I) Call to order 2) Roll call 3) Approval of minutes 4) Public hearings 5) Petitions, requests, and communications 6) Ordinances and resolutions 7) Reports of officers, boards, committees 8) Unfmished business 9) New business 10) Miscellaneous ll) Adjournment Comment: The order of business will vary considerably from one place to another. The order set forth here is merely illustrative. In some cities, citizens may address the council at some specified time during the meeting. If this 44 practice is to be followed, an item entitled "Comments and suggestions from citizens present" can be added. Subd. 2. Varying order. The order of business may be varied by the presiding officer, but all public hearings shall be held at the time specified in the notice of the hearing. Subd. 3. Agenda. The clerk shall prepare an agenda of business for each regular council meeting and file a copy in the office of the clerk not later than (number) days before the meeting. The agenda shall be prepared in accordance with the order of business and copies shall be delivered to each councilmember and to (others) as far in advance of the meeting as time for preparation will permit. No item of business shall be considered unless it appears on the agenda for the meeting or is approved for addition to the agenda by a unanimous vote of the councilmembers present. Comment: In smaller cities, it may not be necessary to prepare a formal agenda for each meeting. However, an agenda does inform the councilmembers and citizens of the matters which will come before the council and also helps to make certain that all business that needs to be transacted will be considered Preparation of the agenda should follow a definite schedule, so that anyone desiring to submit a matter for council consideration will know when it should be given to the clerk. Deadlines for inclusion of items should allow sufficient time for the clerk to prepare the agenda. Some have suggested that the clerk should be allowed one or two working days for this purpose. In some cities, copies of the agenda are also furnished to the city attorney, department heads, the news media, and the public. Subd. 4. Agenda materials. The clerk shall see that at least one copy of printed materials League of Minnesota Cities relating to agenda items is available to the public in the meeting room while the council considers their subject matter. The agenda item shall not be considered unless this provision is complied with. This section does not apply to materials that are classified as other than public under the Minnesota Government Data Practices Act or materials from closed meetings. Comment: The open meeting law subjects a councilmember who intentionally violates this requirement to a civil penalty of up to $300. This provision of the ordinance places responsibility with the city clerk to see that the materials are available when the law requires it. The provision relating to the clerk is optional, there is no such provision in the statute. Section 5. Quorum and voting. Subdivision 1. Quorum. At all council meetings a majority of the elected council- members shall constitute a quorum for the transaction of business, but a smaller number may adjourn from time to time. The council may punish non-attendance by a fme not exceeding $ (dollar amount) for each absence from any meeting unless a reasonable excuse is offered. Comment: This quorum requirement is flXed for statutory cities by Minn. Stat. ~ 412.191, subd. 1 and is usually the same in home rule cities. The provision that establishes a fine for non-attendance is authorized by the statutory provision empowering the council to punish non- attendance. (Minn. Stat. ~ 412.191, subd. 2.) Home rule charters usually give the council similar authority. Subd. 2. Voting. The votes of the members on any question may be taken in any manner, which signifies the intention of the individual members, and the votes of the members on any action taken shall be recorded in the minutes. The vote of each member shall be recorded on each appropriation of money, except for Meetings of City Councils payments of judgments, claims, and amounts fixed by statute. If any member is present but does not vote, the minutes, as to that member's name, shall be recorded as an abstention. Comment: The requirement that each vote be recorded on actions taken and on appropriations is taken verbatim from the open meeting law, Minn. Stat. ~ 13D. 01. The last sentence dealing with vote abstentions is optional. Some rules require the member to vote unless excused by a majority (or a supermajority) of the other members. Subd. 3. Votes required. A majority vote of all members of the council shall be necessary for approval of any ordinance unless a larger number is required by statute. Except as otherwise provided by statute, a majority vote of a quorum shall prevail in all other cases. Comment: In statutory cities, state law requires that a majority of all councilmembers approve an ordinance, Minn. Stat. ~ 412.191, subd. 4. Most home rule charters have similar requirements, which sometimes extend to resolutions as well. In home rule charter cities, the last sentence may appropriately begin, "Except as otherwise provided by statute or charter. " Ordinances, resolutions, motions, petitions, and communications. Subdivision 1. Readings. Every ordinance and resolution shall be presented in writing. An ordinance or resolution need not be read in full unless a member of the council requests such a reading. Comment: In statutory cities, the council may pass an ordinance at the same meeting at which it is introduced, but requiring that the ordinance be first brought up at least a week before it isjadopted seems desirable even though a council may still be able to pass a valid ordinance without meeting the two- Section 6. 45 reading requirement. Most charters require at least two readings except in emergency ordinances. Subd. 2. Signing and publication proof. Every ordinance and resolution passed by the council shall be signed by the mayor, attested by the clerk, and filed by the clerk in the ordinance or resolution book. Proof of publication of every ordinance shall be attached and filed with the ordinance. Subd. 3. Repeals and amendments. Every ordinance or resolution repealing a previous ordinance or resolution or a section or subdivision thereof shall give the number, if any, and the title of the ordinance or code number of the ordinance or resolution to be repealed in whole or in part. Each ordinance or resolution amending an existing ordinance or resolution or part thereof shall set forth in full each amended section or subdivision as it will read with the amendment. Subd. 4. Motions, petitions, communications. Every motion shall be stated in full before the presiding officer submits it to a vote and shall be recorded in the minutes. Every petition or other communication addressed to the council shall be in writing and shall be read in full upon presentation to the council unless the council dispenses with the reading. Each petition or other communication shall be recorded in the minutes by title and filed with the minutes in the office of the clerk. Comment: The statutory city code does not define ordinances, resolutions, and motions, nor indicate in most cases where the council should use them. An ordinance should be usedfor regulatory legislation, including any which includes provisions for a penalty of fine or imprisonment. The local improvement code requires many of the procedural steps to be made by resolution. Otherwise, councils frequently take most administrative action by motion. 46 Proceedings simply in the form of a motion duly adopted and entered in the minutes are frequently held to be equivalent to a resolution and probably this is sufficient for most administrative acts. Section 7. Committees. Subdivision 1. Committees designated. The following committees shall be appointed by the council at the first regular council meeting in January of each year: I) Auditing committee 2) Personnel committee 3) Purchasing committee 4) Public reporting committee Comment: This committee structure is illustrative only. In the absence of specific charter provisions, which are rare, the council determines the number and kind of committees. In general, the council should not set up committees on the basis of line functions, e.g., streets, since this is likely to involve them in administrative matters. In some small cities with no administrative staff this may, however, be unavoidable. It is better to have as few standing committees as possible, and set up special committees on particular subjects when necessary. Instead of setting forth the committee structure, some rules provide: "The council may create such committees, standing or special, as it deems necessary. Committees shall consist of as many members and peiform such duties, as the council may require." In some cities, the council itself appoints the committees, although selection by a group is often difficult. League of Minnesota Cities Subd. 3. Referral and reports. Any matter brought before the council for consideration may be referred by the presiding officer to the appropriate committee or to a special committee that the presiding officer appoints for a written report and recommendation before it is considered by the council as a whole. A majority of the members of the committee shall sign the report and file it with the clerk prior to the council meeting at which it is to be submitted. Minority reports may be submitted. Each committee shall act promptly and faithfully on any matter referred to it. Section 8. Suspension or amendment of rules. These rules may be suspended or amended only by a two-thirds vote of the members present and voting. Mayor Clerk Meetings of City Councils 47 .5 City of Farmington 325 Oak Street, Farmington, MN 55024 (651) 463-7111 Fax (651) 463-2591 www.ci.farmington.mn.us TO: Mayor and Councilmembers City Administrator ~ FROM: Daniel M. Siebenaler, Police Chief SUBJECT: Traffic issues DATE: January 19, 2005 INTRODUCTION Staff is asking for Council direction in a number of areas related to traffic. I have prepared information for those items identified. DISCUSSION Le2islation Two items have been identified for possible legislative action. Council has no authority to act independently in either of these areas. Each would require some type of modification to State law. . Residential speed limits. Under existing state law the standard residential speed is 30 MPH. There are some limited exceptions to that law such as School and Hospital zones. The city Attorney will be prepared to discuss Minnesota Statutes related to speed limits. Question: Should staff pursue legislation that would authorize municipalities to post a maximum citywide residential speed limit of 25 MPH? . Photographic enforcement. In order to utilize photographic enforcement the state would have to approve Enabling Legislation, that is a state law that would allow the use of photographic evidence to enforce traffic laws. There are two types of photographic enforcement being used in different parts of the United States and fairly commonly in other parts of the world. In each of these examples a ticket is written to the registered owner of the vehicle who is presumed to be the driver. The burden of proof is put on the owner to demonstrate that he/she was not the driver and identify who actually was driving. This concept is currently used in Minnesota when a bus driver reports a school bus stop ann violation. Photographic enforcement has been presented to the state legislature in the past without making it through committee but could be presented again. 1. The first option would be Stop Light cameras. These cameras are installed at stoplights and activate when the light turns red. Any vehicle entering the intersection after that change is in violation. 2. The second option is in speed enforcement. These cameras are mounted in trailers with radar and camera equipment. If a vehicle passes the trailer at a speed higher than the established threshold a ticket is automatically generated. . Quota Law. The State of Minnesota has a Quota Law that prohibits a police supervisor from using traffic enforcement activity in the evaluation of an officer's performance. Basically limiting the authority to order traffic enforcement. Should staff pursue the repeal of Minnesota's Quota Law? Si2ns On nearly a weekly basis staff receives requests for a variety of signs. Based on the direction given by past City Councils staff has responded to those requests. Staff will address the most common requests as well as the history and philosophy of each. Staff will request direction from the City Council for the response to future requests. In order to assist the Council in making informed decisions staff will provide additional information regarding the history and feasibility of suggested options as appropriate. . Children at Play. Staff receives an average of about two requests per month for Children at Play. It has been past practice that the City of Farmington does not erect theses signs. The basis for this approach is twofold. 1. The number of requests received would tend to place a Children at Play sign on nearly every street in the city. The cost of such a policy could become very high in both initial installation and ongoing maintenance. 2. Marketing research shows that posted signs become Invisible after a short period of time. That is after a short period of time drivers tend not to see those signs they pass on a regular basis. Some research indicates the effectiveness may be as little a six weeks. As an example of both of these criteria, recently the City of Apple Valley made a decision to remove all Children at Play signs from public rights of way. The city removed over 300 signs (proliferation). The public reaction to the removal was exactly one phone calL It appears that people did not notice that the signs were gone. . Speed limit signs. Staff routinely receives requests for the posting of speed limit signs in residential areas. It has been past practice that the city of Farmington does not routinely post residential speed limit signs for the following reasons. 1. The Statutory speed limit in residential areas is 30 miles per hour. 2. Posting signs tends to remind drivers that they can actually increase their speed to 30 MPH. Normal residential speeds average between 24 and 26 MPH. In one actual area studied both before and after the installation of speed limit signs the City of Farmington found an increase in the lower end speeds which in turn increased the average speed traveled overalL . Stop signs. Staff routinely receives requests for the placement of stop signs. It has been past practice of the City of Farmington to follow MnDOT warrants in the justification of signage in order to maximize safety and consistency as well as limit the City's liability. Therefore the city has chosen to conduct a formal traffic engineers study in response to each request. In some cases it has been self-evident that warrants would not be met but studies were conducted anyway. Does the Council wish to delegate some of these obvious cases to staff level or should the city continue to conduct formal studies in each case? . Crosswalks. State law allows the painting of crosswalks at intersections where pedestrian-ways (sidewalks or bikepaths) are located on both sides of the roadway. Where those pedestrian-ways exist on both sides of the roadway the law assumes the existence of a crosswalk with or without traffic control. It has been past practice of the City of Fannington to mark crosswalks only in conjunction with controlled intersections. The City has made limited exceptions near parks and at a major trail crossing on Esquire Way. 1. Painting crosswalks absent other traffic control devices creates the perception of pedestrian safety without actually providing that benefit. While state law grants right of way to pedestrians in crosswalks the physical safety of a pedestrian is not protected by painting a line on the roadway. 2. The lack of a painted crosswalk may actually increase safety by reducing the perception of safety and increasing the wariness of the pedestrian crossing a street. BUDGET IMPACT There is no standard cost that can be applied to the posting of various regulatory or advisory signs. Each installation would involve the cost of the sign, the post and the actual cost of installation. ACTION REQUESTED Staffis asking for Council discussion and direction on each of these issues. Respectfully submitted, (-- . /. / // . i - /'/).v7.. .Lu:. /c~, ~&R':--h.a,c./ "~;"-- i..--.c...(,'/'" ~ .".-/ ,-,' a.,.-/ Daniel M. Siebenaler Chief of Police ~ City of Farmington 325 Oak Street, Farmington, MN 55024 (651) 463-7111 Fax (651) 463-2591 www.ci.farmington.mn.us FROM: 11.0 v Mayor, Council Members, r, City Administrator W Lee Smick, AICP City Planner TO: SUBJECT: Setback Issues along Minor Collectors DATE: January 19,2005 INTRODUCTIONIDISCUSSION At the December 20, 2004 City Council meeting, Council Member Fitch suggested that front yard setbacks for homes along minor collector streets should be greater than the typical20-foot front yard setback currently required in the City Code. Mr. Fitch noted the following (see attached City Council minutes from December 20, 2004): 1. Larger setbacks would "allow more sight distance." 2. A "tunneling" effect occurs because of the current setbacks allowed on minor collector streets. Minor collector streets are intended to funnel traffic from local streets to arterial streets by direct routes. The City Code requires minor collector streets to be constructed at 38 feet in width with a 70- foot right-of-way (see Standard Detail Plate STR-06). Examples of minor collector roadways in the City include Everest Path, Embers Avenue, English Avenue, and 203rd Street. Minor collector streets are posted at 30 mph and designed both horizontally and vertically at the 30 mph design speed. The front yard setback requirement for the R-l Single-Family Residential District is 20 feet. In the recent past, however, Developers have chosen to increase the front yard setbacks for their developments to 25 feet. Developments such as Middle Creek, Middle Creek Estates, Vermillion Grove, and Tamarack Ridge have been constructed with 25-foot front yard setbacks. Meadow Creek, Prairie Creek, and Pine Ridge Forest were constructed with 20-foot front yard setbacks. The development with the largest setback is Troyhills where the front yard setback is 30 feet. An additional concern to the 20-foot front yard setback on minor collector streets is the stacking of parked cars in the driveway, possibly causing the rear car to encroach into the right-of-way. Compact cars typically range from 12-14 feet in length, passenger cars range from 15-17.5 feet in length, trucks range from 16-20.5 feet in length, and SUV's and vans range from 15-18 feet in length. As these lengths indicate, the stacking of cars within the 20-foot front yard setback is not feasible. Greater yard setback distances would allow for the stacking of parked cars on the driveway. ACTION REQUESTED At the City Council workshop on January 19,2005 staffwill suggest two options for the City Council to consider: 1. Direct staff to research larger setbacks on minor collector streets and present the results to the City Council. 2. Retain the City Code requirement for front yard setbacks of 20 feet. Respectfully submitted, Lee Smick, AICP City Planner Council Minutes (Regular) December 20,2004 Page 4 -~ automatically mailed. Unfortunately, the legislature sees that as "big brother" and won't allow that to happen, and it won't until the grass roots people come forward r-' and say this is what we want. We hired you, listen to us. We need this kind of support at the state legislature. They need to hear residents are tired of these kinds of issues. He asked Mr. Tilden to initiate this type of grass roots movement and get some action moving at the legislative level. Mr. Tilden stated he can do that and wanted to meet with Police Chief Siebenaler to see how to get started. This is the best thing he has heard all day. Councilmember Fitch stated he has driven that street a number of times since Mr. Tilden appeared. He noted the thoroughfare plan includes a connection to 203rd Street to the east. It makes him wonder when we discuss the curve and the calming effect towards Embers Avenue and apparently there is not much of a calming effect. He suggested for the next Council on the minor collector streets, to look at the setback policy and move the homes back further to allow more sight distance. When you drive the street, it feels like a tunnel. Councilmember Soderberg asked if the radar board has any effect on speeds. Police Chief Siebenaler stated it has a minimal effect. It is an educational tool. It does not record any speeds. In some cases it also acts as an encouragement and some drivers like to see how fast they can register. The radar board is not used in conjunction with the counters. Councilmember Soderberg stated the percentage is significant. He noted some communities have the sign. with the electronic speed r~." .,.... indicator on the sign. post. He did not recall the cost and the impact, but he would . like that reviewed. Staff will bring this back to Council along with the former study. 7. CONSENT AGENDA MOTION by Fogarty, second by Soderberg to approve the Consent Agenda as follows: a) b) c) d) e) Approved Council Minutes (12/6/04 Regular) Approved School and Conference - Administration Approved School and Conference - Administration Adopted RESOLUTION RIOI-04 Accepting Donation - Parks and Recreation Approved Collection Agreement with National Recycling Coalition and Nike, Inc. - Solid Waste Approved Temporary On-Sale Liquor License - Administration Adopted RESOLUTION RI02-04 Approving Gambling Event Permit- Administration Approved Appointment Recommendation Administration - Human Resources Adopted RESOLUTION RI03-04 Approving 2005 Non-Bargaining COLA Agreement - Human Resources Adopted RESOLUTIONS RI04-04 and RI05-04 Approving 2005 Tax Levy and Budget - Finance Received Information November 2004 Financial Report - Finance Adopted RESOLUTION RI06-04 Approving Charleswood Northeast Preliminary Plat - Community Development ~ f) g) h) i) j) k) 1) If II II II II I 35' 35' i I II l' I' I I , 19' 19' 8' Parking Design grade L- 1/4"/ft 2% ___ Mountable concrete curb and gutter 2"-type 2350 bituminous wear course 2"-type 2350 bituminous base course 12" class 5 agg. 100% crushed limestone quarry or recycled equal (MNDOT 3138). 12" minimum subgrade excavation and aggregate backfill (MNDOT 3149). CORRECTION W /DRAINTILE I I 35' 35' I I SUBGRADE I 19' 19' 8' .~ Parking I Design grade I NOTE: 2% ______ 1/4"Jft Mountable concrete , curb and gutter 12" Min. 4" perfor9te<;l, rigid thermoplastic ~ TP) draintile. (MNDOT 2502) 2"-type 2350 bituminous wear course 2"-type 2350 bituminous base course 12" class 5 agg. 100% crushed limestone quarry or recycled equal (MNDOT 3138). 36" subgrade excavation and aggregate backfill (MNDOT 3149). 1. Typical section shown is the minimum residential collector street requirement. See specifications for project specific details. 2. Top of curb is 0.07' below design <t grade. 3. Draintile shall be installed behind curb in all silty, loamy, and sandy clay soils when rear lot corners are above street centerline. Draintile to be installed as required to adequately drain all select granular fill areas. 4. Street shall be designed for a 40 mph design speed with maximum of 7.00% grade. 5. The City reserves the right to increase the street section based on soil conditions. 5. Saw & Seal according to MNDOT technical memorandum 98-05-MRR-03 and MNDOT Spec. 3725. I I I I I I STANDARD DETAILS TYPICAL RESIDENTIAL COLLECTOR STREET SECTION Lost Revision: JAN. 2004 I City Plate No. I ( FARMINGTON, MINNESOTA ) STR-06 tf:\STANDARDS\STANDARD PLATES\STR-06.DWG