statutory council vacancies - mayoral authority

8/13/2019 Statutory Council Vacancies - Mayoral Authority

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League of Minnesota Cities Handbook for Minnesota Cities 8/19/2013Elected Officials and Council Structure and Role Chapter 6 | Page 8

Council VacanciesAn excerpt from the Handbook for Minnesota Cities

Minn. Stat. 412.02, subd.2a.

A.G. Op. 59a-30 (July 24,1996).

Also See Vacancies on aStatutory City Council,Minnesota Cities, Oct. 2000.

Minn. Stat. 412.02, subd.2a.

A.G. Op. 471-M (Oct. 30,1986).

Minn. Stat. 412.121.

Minn. Stat. 471.46.

Minn. Const. art. VII, 6.

Minn. Stat. 415.15.

A.G. Op. 471-M (Dec. 27,1977).

While a council might identify and declare the facts givingrise to a vacancy, for all practical purposes they occurautomatically and are not based upon any removal action.

Because the council must fill vacancies in elective offices, itshould determine whether a vacancy exists. Afterinvestigating the facts, the council should pass a resolution*declaring a vacancy and then fill it as soon as possible.

State law provides that statutory city councils make theappointment to fill a vacancy, except in the case of a tie votewhen the mayor makes the appointment. That means allmembers of the council, including the mayor, can vote on theappointment. And as long as at least a quorum of the council

is present, a majority vote of those present is sufficient tomake the appointment.

State law does not place any limitation on a mayors ability tomake an appointment in the case of a tie vote. As a result,the mayor can appoint any qualified person willing to fill thevacancy even if that person was not the subject of theoriginal appointment vote. If the vacancy is for the mayorsoffice and the council casts a tie vote, the acting mayorshould make the appointment. The acting mayor may not,however, appoint himself or herself.

The council may appoint any individual who is eligible forelection to that office. Generally, to be eligible a person mustbe a U.S. citizen, a resident of the city, a qualified city voter,and at least 21 years old. The council is not obligated toappoint any candidate previously defeated in an election forthe office.

A retiring councilmember may not vote on the appointmentof the successor to that vacancy. A councilmember who iselected mayor, however, may participate in the appointmentvote to fill the vacancy in his or her former council position.


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M I N N E S O T A C I T I E S 1O C T O B E R 2 0 0 0

O

By Susan Naughton

D I D Y O U K N O W ?

Vacancies on a Statutory City Council

ne of your councilmembers sub-mits a written resignation. Whatdo you do? This article answerssome of the most frequently askedquestions about vacancies on astatutory city council.

State law provides that acouncil vacancy shall be filled

by council appointment until a specialelection, if required, can be held (Minn.

Stat. 412.02, subd. 2a). The languageof the state law is mandatory. As aresult, a city must make its best effortto appoint a person to fill a councilvacancy and cannot choose to leave acouncil position vacant until the termexpires.

State law does not require a councilvacancy to be advertised. However,it is a good practice to provide somenotice to the public before the councilmakes an appointment. This allowsinterested persons an opportunity torequest consideration.

Generally, a person must be a UnitedStates citizen, a resident of the city, andat least 21 years old to be eligible forappointment to fill a council vacancy.A city employee can be consideredfor appointment. However, if a cityemployee is appointed, it is possiblethat the two city positions may beincompatible. If a city employee isappointed to an incompatible office, heor she must resign from the other cityposition. A councilmember can be con-sidered for appointment to fill a councilvacancy in the position of mayor as longas the councilmember being considereddoes not participate in the appointmentvote.

State law provides that the councilmakes the appointment to fill a vacancy,except in the case of a tie vote, whenthe mayor makes the appointment. Thatmeans all members of the council,including the mayor, can vote on theappointment. However, the council-

member who submitted a writtenresignation should not participate inthe appointment vote. As a practicalmatter, it may be useful to determinewho the candidates for appointment arebefore voting takes place. As longas at least a quorum of the council ispresent, a majority vote of those present

vacancy occurs before the first day tofile as a candidate for the next regularcity election and more than two yearsremain in the unexpired term, the citymust hold a special election to fill thecouncil vacancy at or before the nextregular city election and the personelected will serve out the remainderof the unexpired term. If the councilchooses to hold a special election to fill

a vacancy at a time other than at theregular city election, it first must adoptan ordinance specifying the circum-stances under which such an electionwill be held.

If a special election to fill a coun-cil vacancy is held at the same time asthe regular city election, the names ofthe candidates for the council vacancyshould be placed on the election ballotunder a separate heading indicating itis a special election. The election ballotshould state the date the term expiresand any other information necessary

to distinguish the office. The publishedand posted election notices shouldinclude references to the special elec-tion to fill the council vacancy.

Finally, state law provides that theterms of elected city officials begin onthe first Monday in January followingthe election. However, the MinnesotaAttorney General has advised that aperson elected to fill a council vacancyin a statutory city is eligible to take anoath and assume office any time afterreceiving an election certificate.

Susan Naughton is research attorney withthe League of Minnesota Cities.

is sufficient to make the appointment.State law does not place any limitationon a mayors ability to make an ap-pointment in the case of a tie vote. Asa result, a mayor can appoint any quali-fied person willing to fill the vacancyeven if that person was not the subjectof the original appointment vote.

When is a city also required to holda special election to fill a council vacancy?The answer depends on whether filinghas opened for the next regular cityelection and how long is left in theunexpired portion of the term at thetime of the vacancy. If the vacancyoccurs on or after the first day to fileas a candidate for the next regular cityelection or if less than two years remainin the unexpired term, the city doesnot need to hold a special election andthe appointed person can serve out theremainder of the unexpired term. If the

The language of the state law

is mandatory. As a result,

a city must make its best effort

to appoint a person to fill

a council vacancy and cannot

choose to leave a council position

vacant until the term expires.


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CITY OFFICERS: REMOVAL:City charter may not provide for removal of council member by

council. Grounds for removal of elected local official must amount to malfeasance or nonfeasance in

office. Minn. Const. art. VIII, 5; art. XII, 3, 4. Minn. Stat. 351.02, 351.14, 410.07, 410.20.

59a-30

July 24, 1996

John B. DeanAttorney at LawKennedy & Graven

470 Pillsbury Center

Minneapolis, MN 55402

Dear Mr. Dean:

In your letter to Attorney General Hubert H. Humphrey III you set forth substantially the following:

FACTS

The City of Richfield operates under a home rule charter adopted in 1964. Recently the CharterCommission submitted a proposed charter amendment regarding council member attendance at

regular council meetings. If amended, Section 2.05 of the charter would read, in relevant part, as

follows:

Section 2.05 Vacancies. Subdivision 1. Existence

. . .

(2) As soon as it is determined that a Council Member is ineligible because of any of the following

reasons: . . . (viii) failure of a council member to attend six regular council meetings during a six-month period which would constitute non-feasance in office, the Council shall by resolution at a

regular or special council meeting, declare a vacancy on the Council to exist. [Underlined material is

the amendment proposed by the charter commission].

You then ask substantially the following questions:

QUESTION ONE

Except in situations involving such matters as death, resignation or moving away of the elected

official, does the city have authority, through the proposed amendment, to provide for removal from

office, for any reason, without the vote of the electors of the city?

OPINION

Your question is answered in the negative.


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The specific situations which you mention in your question are all considered to create vacancies in

elective office pursuant to Minn. Stat. 351.02 (1994). These vacancies occur upon the happening ofthe specific event directly related to the officer's qualifications, ability, or willingness to hold the

office in question. While a governing body or other authority might identify and declare the facts

giving rise to these vacancies, for all practical purposes they occur automatically and are not based

upon any removal action. However, nowhere in Minn. Stat. 351.02 is the city given the ultimateauthority to declare a vacancy for any reason not explicitly stated in the statute.

Minn. Stat. 351.02(3) does provide that an office becomes vacant upon the incumbent's "removal"

from office, but does not set out the permissible grounds for removal from any particular publicoffice. Thus the authority and procedures for removal must be found elsewhere in statutes or charter.

C.f. Op. Atty. Gen. 475-h, April 30, 1985 (removal of transit commission appointees limited to

circumstances expressly listed in statute).

Article 8, 5 of the Minnesota Constitution addresses the removal of "inferior" officers. It states:

The legislature of this state may provide for the removal of inferior officers for malfeasance ornonfeasance in the performance of their duties.

This provision applies to elected municipal officials and has been interpreted to mean that such

officials cannot be removed except for malfeasance or nonfeasance in office. Sykes v. City ofMinneapolis, 124 Minn. 73, 77, 144 N.W. 453, 455 (1913). Thus, the legislature is given broad power

to provide for removal of elected local officials, so long as the basis therefor is "malfeasance" or

"nonfeasance" in office.

There is no constitutional requirement that removal of elected officials be by the vote of the electors.However, there does appear to be such a requirement in the state statutes authorizing removal of

elected officials pursuant to city charters.

Article 12, section 3 of the Minnesota Constitution provides that "the legislature may provide by law

for the . . . organization . . . of local government units and their functions . . . [and] for their electiveand appointive officers. . . ." Article 12, section 4 of the Minnesota Constitution provides that any

local government unit when authorized by law may adopt a home rule charter city. This languageallows the legislature to exercise control over the actions of a home rule charter city. The legislature

has specifically addressed the authority to provide for removal of elected city officials by charter

through the enactment of Minn. Stat. 410.20 (1994), which provides in part:

[S]uch commission may also provide for the recall of any elective municipal officer and for removal

of the officer by vote of the electors of such city.

This language indicates that the charter commission has the authority to provide for the "removal" of

elective officials only by the vote of the electors. However, there may be some question as to whether

the power to provide for "recall" might permit some process for removal without the vote of the

electors.


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We think it does not. While there appears no direct authority in Minnesota on the meaning of the term

"recall," examination of case law from other jurisdictions leads to the conclusion that "recall" issynonymous with "removal" and requires the vote of the electors. See generally, 36 Words and

Phrases, "Recall."

In Poprosky v. Shea, 21 Conn. App 351, 354, 573 A.2d 756, 758 (Conn. App. Ct. 1990), the courtdefined "recall" as "a procedure where an elected official may be removed at any time during his termof office by a vote of the people. . . ." In Collins v. Morris, 263 Ga. 734, 735, 438 S.E.2d 896, 897

(Ga. 1994), "recall" was defined as "a procedure whereby it is the voter themselves who make the

ultimate determination as to whether an official should retain his office for the duration of the term towhich he was elected." In Wallace v. Tripp, 358 Mich. 668,678, 101 N.W.2d 312, 314 (Mich. 1960),

the court looked to the definition of "recall" in Webster's New International Dictionary (2d Ed.)

which defined "recall" to be "the right or procedure by which a public official . . . may be removedfrom office, before the end of his term of office, by a vote of the people. . . ." The Wallace definition

appears in Black's Law Dictionary, 1433 (6th Ed. 1990), along with the following derived from Jones

v. Harlan, 109 S.W.2d 251, 254 (Tex. Civ. App. 1937): "A method of removal of official in which

power of removal is either granted to or reserved by the people."

Minn. Stat. 410.20 gives no indication that the term "recall" is intended to have a meaning other

than that related to the removal procedure requiring the vote of the electors. Thus, in our opinion,

"recall," as set out in Minn. Stat. 410.20, requires the vote of the electors.

Furthermore, it is our view that the removal provisions set out in Minn. Stat. 410.20 are the

exclusive methods for removal of elected officials which a charter may provide. The power of thelegislature to provide for the removal of officers is exclusive pursuant to art. 8, 5. State v. Essling,

268 Minn. 151, 128 N.W.2d 307, 311 (Minn. 1964), citing Sykes v. City of Minneapolis, 124 Minn.

73, 144 N.W. 453, 455, (Minn. 1913).

As the subject of removal of officers is within legislative control, where that body prescribes a

manner and method of removal, it is exclusive. Brandt v. Thompson, 91 Minn. 279, 97 N.W. 887

(1904). In this case, the legislature has prescribed a method of removing elected officials in a homerule charter city in Minn. Stat. 410.20. Following the holding in Brandt, the removal of elected

officials by the vote of the electors, as set out in Minn. Stat. 410.20, would be exclusive, and the

proposed charter amendment would not be permissible as it does not allow the electors to vote on the

issue.

This conclusion finds further support under the doctrine of expressio unius est exlusio alterius which

provides that, in statutory interpretation, there is an inference that all omissions should be understood

as exclusions. Sutherland Stat. Const. 47.23 (5th Ed). A statute which provides that a thing shall bedone in a certain way carries with it an implied prohibition against doing that thing any other way.

Sutherland Stat. Const. 47.23 (5th Ed). In this case, it means that because Minn. Stat. 410.20

allows for the removal of elected officials by the vote of the electors, the presumption arises that this

is the exclusive method of removal of elected officials.

QUESTION TWO


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Must the reasons for removal of an elected city official pursuant to the charter amount to malfeasanceor nonfeasance as is required in art. 8, 5 of the Minnesota Constitution?

OPINION

Your question is answered in the affirmative.

Minn. Stat. 410.07 provides that the charter commission "may provide for any scheme of municipal

government not inconsistent with the constitution. . . ." If the charter provisions are inconsistent with

constitutional provisions, the constitutional provisions are controlling. Op. Atty. Gen. 63A-1, March29, 1938. The legislature has complete power to remove an elected official from office or to authorize

such removal subject only to the limitations the constitution may impose on the particular office.

State v. Oehler, 218 Minn. 290, 16 N.W.2d 765 (1944). The prerequisites of removal are set out in

art. 8, 5 of the constitution which provides that elective municipal officers may not be removedexcept for malfeasance or nonfeasance in office. Jacobsen v. Nagel, 255 Minn. 300, 304, 96 N.W.2d

569, 572 (1959). The art. 8, 5 limitations on the removal of public officials from office apply

regardless of whether those limitations are explicitly acknowledged in statutes providing for suchremoval. Claude v. Collins, 518 N.W.2d 836, 842 (Minn. 1994). Thus it is our view that removal of

elected city officials pursuant to charter must be based upon malfeasance or nonfeasance in office.

QUESTION THREE

If the standard of art. 8, 5 is applicable, does the city have authority, through the proposed

amendment, to determine for itself what "acts" automatically constitute nonfeasance?

OPINION

We are not in a position to provide an absolute answer to your question. As noted above, Minnesotastatutes authorizing removal of elected city officials pursuant to the charter, requires a vote of theelectors. Thus no act of the officer could, standing alone, result in automatic removal for nonfeasance.

See also, Op. Atty. Gen. 1926, No. 68, p. 75 (county board had no authority to declare a vacancy in

office of coroner due to nonfeasance of the incumbent). Furthermore, while a charter could specify

particular conduct which, as a matter of law, would support removal of an elected official fornonfeasance, it does not appear that the language of the proposed amendment is necessarily sufficient

in that regard. The proposed language may be interpreted to say that missing six meetings in six

months constitutes nonfeasance per se without regard to the reasons the meetings were missed.

Minn. Stat. 351.14, subd. 3, which provides for removal of elected county officials, defines

"nonfeasance" as "the willful failure to perform a specific act which is a required part of the duties ofthe public official." While that statute is not directly applicable to removal of city officials, itsdefinition is consistent with the general rule that nonfeasance is the failure to do that which is the

officer's legal duty to do, without sufficient excuse. Jacobsen v. Nagel, 255 Minn. 300, 304, 96

N.W.2d 569, 573; Claude v. Collins, 518 N.W.2d 836, 842. This principle would require a

determination as to whether there was a valid reason to miss the meetings or at a minimum an

unrefuted assertion that no legitimate excuse has been presented by the council member.


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In Op. Atty. Gen. 450-A-11, March 6, 1957, we addressed a situation where the elected county

treasurer became ill and was absent from work for six months. We found no authority for holding thatillness, even though protracted, constitutes non-feasance on the part of the officer warranting his

removal from office. For similar reasons, it is our view that the missing of a number of meetings,

standing alone, would not be held to constitute nonfeasance in office.

Very truly yours,

HUBERT H. HUMPHREY III

Attorney General

KENNETH E. RASCHKE, JR.

Assistant Attorney General


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O

By Rylee Retzer

D I D Y O U K N O W ?

ccasionally, cities inquire aboutthe mayors role in council meet-ings. Specifically, cities might askwhether the mayor has power tovote at all times or in only certaininstances such as breaking a tiedcouncil vote. Cities also wonderif the mayor, as presiding officer,

has power to make and second motionsat a council meeting.

This article discusses the mayorspower to vote and make motions, andclarifies the mayors power to break tievotes at a council meeting. The infor-mation applies only to standard plan andoptional plan statutory cities. Homerule charter cities should consult theircharters to determine the specific powersgranted to their cities mayors.

Power to vote.Statutory city mayorsare councilmembers and thereforepossess the same powers as any othercouncilmember, including the abilityto vote. Minnesota law defines the posi-

tion of mayor as being part of the citycouncil. The various powers of a councilare specifically set forth in Minnesotastatute.

As a member of the council, themayor exercises these powers by votingon ordinances, resolutions, and motionsto accomplish city goals. In addition togeneral council powers, the mayor mayalso possess some exclusive duties setforth by statute. These duties includethe power to make some appointments,power to serve as presiding officer atcouncil meetings, and the power to

execute official documents, amongother duties.

Some cities that have a weak mayor-council believe the mayor only votes incertain instances, like breaking a tievote. However, no power is takenfrom the mayor in a weak mayor-coun-cil. In fact, the mayors powers in aweak mayor-council are no greaterthan those of any other member of the

Mayors Power t o Vot e and Make Mot ions

granting the mayor the same powers ascouncil and fully equips councilmemberswith the ability to exercise their powersthrough ordinance, motions, andresolutions. Further,Roberts Rulesacknowledges that meetings of smallboards or entities may not always findthat every rule necessarily applies or isappropriate, since the rules were origi-nally intended for a large legislative body.

Addit ional informati on.For moreinformation about the powers of statu-tory city mayors, please contact theLMC Research Department at (800)925-1122. For further detailed discus-sion on mayoral powers, you may referto the January 1994Minnesota Citiesmagazine article, Duties and Powersof a Statutory Mayor. Additionally,you may access the LeaguesHandbookfor Minnesota Cities,available online at:www.lmnc.org. (Chapters 6 and 7 oftheHandbookspecifically address powersof the mayor and council.)

Rylee Retzer is research attorney wi th theLeague of Minnesota Cities. Phone: (651)281-1226. E-mail : [email protected].

council, with exception to the few du-ties set forth by statute. The mayor in aweak mayor-council, therefore, still hasthe power to vote.

T ie votes.The mayor in a statutorycity is only authorized to break a tie votewhen the council makes an appointmentto fill a council vacancy. When a voteto fill the vacant council seat results ina tie vote, the mayor may appoint anindividual to the vacant seat. The mayorhas power to appoint any person he orshe chooses. Aside from this exception,a statutory mayor does not have authorityto break tie votes in any other circum-stance. T ied council votes otherwise fail.

In addition, the mayor should notabstain from a council vote and then

cast a vote only if there is a tie. Themayor should exercise his or her rightto vote with the council unless the mayorhas a legitimate reason for abstaining,such as a conflict of interest.

Motions.As with voting, the mayorhas the same power to make and secondmotions. Again, the same reasoningapplies: the mayor, as a member of thecouncil, has the same power as a council-member.

Some confusion may arise amongstatutory cities regarding how proceduralrules or bylaws, which may have been

adopted, apply to mayors. For example,Robert s Rules of Order states that a chair-person has specific limited powers thatdo not include activities such as partici-pating in debate. The rules go on tostate that if the chairperson chooses toparticipate in a debate, he or she musttemporarily step down from his or herposition as chair. State law pre-emptsthese procedural rules, however, by

statutory council vacancies - mayoral authority

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