Council Vacancies

An 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 a Statutory City Council, Minnesota Cities, Oct. 2000.

While a council might identify and declare the facts giving rise to a vacancy, for all practical purposes they occur automatically and are not based upon any removal action. Because the council must fill vacancies in elective offices, it should determine whether a vacancy exists. After investigating the facts, the council should pass a resolution* declaring a vacancy and then fill it as soon as possible.

Minn. Stat. 412.02, subd. 2a. A.G. Op. 471-M (Oct. 30, 1986).

State law provides that statutory city councils make the appointment to fill a vacancy, except in the case of a tie vote when the mayor makes the appointment. That means all members of the council, including the mayor, can vote on the appointment. And as long as at least a quorum of the council is present, a majority vote of those present is sufficient to make the appointment. State law does not place any limitation on a mayors ability to make an appointment in the case of a tie vote. As a result, the mayor can appoint any qualified person willing to fill the vacancy even if that person was not the subject of the original appointment vote. If the vacancy is for the mayors office and the council casts a tie vote, the acting mayor should make the appointment. The acting mayor may not, however, appoint himself or herself. The council may appoint any individual who is eligible for election to that office. Generally, to be eligible a person must be a U.S. citizen, a resident of the city, a qualified city voter, and at least 21 years old. The council is not obligated to appoint any candidate previously defeated in an election for the office. A retiring councilmember may not vote on the appointment of the successor to that vacancy. A councilmember who is elected mayor, however, may participate in the appointment vote to fill the vacancy in his or her former council position.

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).

League of Minnesota Cities Handbook for Minnesota Cities Elected Officials and Council Structure and Role

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Vacancies on a Statutory City Council

By Susan Naughton

ne of your councilmembers submits a written resignation. What do you do? This article answers some of the most frequently asked questions about vacancies on a statutory city council. State law provides that a council vacancy shall be lled by council appointment until a special election, if required, can be held (Minn. Stat. 412.02, subd. 2a). The language of the state law is mandatory. As a result, a city must make its best effort to appoint a person to ll a council vacancy and cannot choose to leave a council position vacant until the term expires. State law does not require a council vacancy to be advertised. However, it is a good practice to provide some notice to the public before the council makes an appointment. This allows interested persons an opportunity to request consideration. Generally, a person must be a United States citizen, a resident of the city, and at least 21 years old to be eligible for appointment to ll a council vacancy. A city employee can be considered for appointment. However, if a city employee is appointed, it is possible that the two city positions may be incompatible. If a city employee is appointed to an incompatible ofce, he or she must resign from the other city position. A councilmember can be considered for appointment to ll a council vacancy in the position of mayor as long as the councilmember being considered does not participate in the appointment vote. State law provides that the council makes the appointment to ll a vacancy, except in the case of a tie vote, when the mayor makes the appointment. That means all members of the council, including the mayor, can vote on the appointment. However, the council-

member who submitted a written resignation should not participate in the appointment vote. As a practical matter, it may be useful to determine who the candidates for appointment are before voting takes place. As long as at least a quorum of the council is present, a majority vote of those present

The language of the state law is mandatory. As a result, a city must make its best effort to appoint a person to ll a council vacancy and cannot choose to leave a council position vacant until the term expires.
is sufcient to make the appointment. State law does not place any limitation on a mayors ability to make an appointment in the case of a tie vote. As a result, a mayor can appoint any qualied person willing to ll the vacancy even if that person was not the subject of the original appointment vote. When is a city also required to hold a special election to ll a council vacancy? The answer depends on whether ling has opened for the next regular city election and how long is left in the unexpired portion of the term at the time of the vacancy. If the vacancy occurs on or after the rst day to le as a candidate for the next regular city election or if less than two years remain in the unexpired term, the city does not need to hold a special election and the appointed person can serve out the remainder of the unexpired term. If the

vacancy occurs before the rst day to le as a candidate for the next regular city election and more than two years remain in the unexpired term, the city must hold a special election to ll the council vacancy at or before the next regular city election and the person elected will serve out the remainder of the unexpired term. If the council chooses to hold a special election to ll a vacancy at a time other than at the regular city election, it rst must adopt an ordinance specifying the circumstances under which such an election will be held. If a special election to ll a council vacancy is held at the same time as the regular city election, the names of the candidates for the council vacancy should be placed on the election ballot under a separate heading indicating it is a special election. The election ballot should state the date the term expires and any other information necessary to distinguish the ofce. The published and posted election notices should include references to the special election to ll the council vacancy. Finally, state law provides that the terms of elected city ofcials begin on the rst Monday in January following the election. However, the Minnesota Attorney General has advised that a person elected to ll a council vacancy in a statutory city is eligible to take an oath and assume ofce any time after receiving an election certicate.

Susan Naughton is research attorney with the League of Minnesota Cities.

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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. Dean Attorney at Law Kennedy & 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 Charter Commission 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 sixmonth 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.

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 of the 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 ultimate authority 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 public office. 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 or nonfeasance 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 of Minneapolis, 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 elective and 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 language allows 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.

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" is synonymous 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 court defined "recall" as "a procedure where an elected official may be removed at any time during his term of 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 to which 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 removed from 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 the legislature 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 home rule 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 be done 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

Must the reasons for removal of an elected city official pursuant to the charter amount to malfeasance or 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, March 29, 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 removed except 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 such removal. 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, Minnesota statutes authorizing removal of elected city officials pursuant to the charter, requires a vote of the electors. 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 for nonfeasance, 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 of the public official." While that statute is not directly applicable to removal of city officials, its definition 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.

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 that illness, 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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Mayors Power to Vote and Make Motions

By Rylee Retzer

ccasionally, cities inquire about the mayors role in council meetings. Specifically, cities might ask whether the mayor has power to vote at all times or in only certain instances such as breaking a tied council vote. Cities also wonder if the mayor, as presiding officer, has power to make and second motions at a council meeting. This article discusses the mayors power to vote and make motions, and clarifies the mayors power to break tie votes at a council meeting. The information applies only to standard plan and optional plan statutory cities. Home rule charter cities should consult their charters to determine the specific powers granted to their cities mayors. Power to vote. Statutory city mayors are councilmembers and therefore possess the same powers as any other councilmember, including the ability to vote. Minnesota law defines the position of mayor as being part of the city council. The various powers of a council are specifically set forth in Minnesota statute. As a member of the council, the mayor exercises these powers by voting on ordinances, resolutions, and motions to accomplish city goals. In addition to general council powers, the mayor may also possess some exclusive duties set forth by statute. These duties include the power to make some appointments, power to serve as presiding officer at council meetings, and the power to execute official documents, among other duties. Some cities that have a weak mayorcouncil believe the mayor only votes in certain instances, like breaking a tie vote. However, no power is taken from the mayor in a weak mayor-council. In fact, the mayors powers in a weak mayor-council are no greater than those of any other member of the

council, with exception to the few duties set forth by statute. The mayor in a weak mayor-council, therefore, still has the power to vote. Tie votes. The mayor in a statutory city is only authorized to break a tie vote when the council makes an appointment to fill a council vacancy. When a vote to fill the vacant council seat results in a tie vote, the mayor may appoint an individual to the vacant seat. The mayor has power to appoint any person he or she chooses. Aside from this exception, a statutory mayor does not have authority to break tie votes in any other circumstance. Tied council votes otherwise fail. In addition, the mayor should not abstain from a council vote and then cast a vote only if there is a tie. The mayor should exercise his or her right to vote with the council unless the mayor has a legitimate reason for abstaining, such as a conflict of interest. Motions. As with voting, the mayor has the same power to make and second motions. Again, the same reasoning applies: the mayor, as a member of the council, has the same power as a councilmember. Some confusion may arise among statutory cities regarding how procedural rules or bylaws, which may have been adopted, apply to mayors. For example, Roberts Rules of Order states that a chairperson has specific limited powers that do not include activities such as participating in debate. The rules go on to state that if the chairperson chooses to participate in a debate, he or she must temporarily step down from his or her position as chair. State law pre-empts these procedural rules, however, by

granting the mayor the same powers as council and fully equips councilmembers with the ability to exercise their powers through ordinance, motions, and resolutions. Further, Roberts Rules acknowledges that meetings of small boards or entities may not always find that every rule necessarily applies or is appropriate, since the rules were originally intended for a large legislative body. Additional information. For more information about the powers of statutory city mayors, please contact the LMC Research Department at (800) 925-1122. For further detailed discussion on mayoral powers, you may refer to the January 1994 Minnesota Cities magazine article, Duties and Powers of a Statutory Mayor. Additionally, you may access the Leagues Handbook for Minnesota Cities, available online at: www.lmnc.org. (Chapters 6 and 7 of the Handbook specifically address powers of the mayor and council.)

Rylee Retzer is research attorney with the League of Minnesota Cities. Phone: (651) 281-1226. E-mail: rretzer@lmnc.org.

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