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6.2. SR 11-13-2012 ,/ `" °` REQUEST FOR ACTION River TO ITEM NUMBER Mayor and City Council 6.2 AGENDA SECTION MEETING DATE PREPARED BY Work Session November 13, 2012 Cal Portner,City Administrator ITEM DESCRIPTION REVIEWED By Process for Filling Councilxnember Ward 1 Seat REVIEWED BY ACTION REQUESTED Discuss the process for filling Ward 1 Council vacancy. BACKGROUND/DISCUSSION With the election of Councilmember Zerwas to the Minnesota State House of Representatives,his Ward 1 Council seat will at the latest be vacant on January 8,2013. Attached is the LMC Handbook information regarding City Council vacancies. In order to begin the appointment process,the Council will need to approve a resolution declaring a vacancy. State statute allows for a Council appointment to fill the seat if there are two years or fewer remaining in the term. With more than two years remaining, statute requires a special election. If the Council so chose,a special election may be held with two or fewer years remaining if an ordinance is adopted specifying the circumstances in which an election shall be held. In any case, state statute does not allow a vacating Council Member to appoint the replacement. Representative-elect Zerwas may submit his resignation effective before the end of the year,requiring a special election. He may submit his resignation after January 1, 2013,which would allow for Council appointment. Or he may wait to be sworn in to his new seat,which vacates his current position. Upon vacating the seat, the Council must approve a resolution declaring a Council vacancy. At that point the council may begin the appointment process with final appointment completed consistent with the date of the vacancy. FINANCIAL IMPACT N/A ATTACHMENTS • League of Minnesota Cities Handbook Chapter 6 Excerpts Action Motion by Second by Vote r EREQ BY C:\Users\jmiller\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\GWL3I79K\Council ATIVE Vacancy.docx CHAPTER 6 D. Term limits Minn.Const.art.VII,§6. The Minnesota Constitution establishes the eligibility requirements for public Minn.coast.art.xlt,§§3,4. Minneapolis Term Limits office without authorizing the adoption of additional requirements.Therefore, Coalition v.Keefe,535 a charter city may not enact term limits as an eligibility requirement. N.W.2d 306(Minn.1995). E. Vacancies Minn.Stat.§351.02. Vacancies in an elective office in a statutory or home rule charter city may occur for the following reasons: 1. Death Minn.Stat.§351.02(1),(8). The vacancy exists as of the date of death. If the elected officer has not yet begun the term of office,the vacancy exists from the date the term would have started. 2. Resignation Minn.Stat.§351.02(2).Minn. A resigning elected public official must submit a written resignation to the Stat.§351.01,subs. 1. council.After receiving a resignation,the council should pass a resolution stating it has received and accepted the resignation,and declaring that a vacancy exists. Minn.Stat.§351.01,subds.2, Unless the resignation expressly states it is to take effect at a future date,the 3,in 4.See informal A.C.letter resignation will be effective when received by the council.If the resignation opinion dated March 3,2003 � �' � (advising that Minnesota law states it takes effect on a specified date,the vacancy occurs on that date if it does not require that a written has been received by the council or other official authorized by the council to resignation be"received"by the council during a formal receive documents on its behalf even if the council has not formally accepted meeting in order to be it at a council meeting.To withdraw a prospective resignation,the resigning effective). officer must submit a written statement of withdrawal in the same manner as the resignation. In order to be effective,the withdrawal must be received before the council accepts the resignation by resolution or before an officer authorized to receive it has issued a written acceptance. 3. Removal by operation of law In most situations, it is not possible to remove statutory elected officials before the end of their terms, for cause or otherwise. Cities should consult with their city attorneys before attempting removal of any elected official. Statutory city voters have no recall authority. Some home rule charters, however, give voters this option,but there remains some question as to whether this type of charter provision is constitutional. HANDBOOK FOR MINNESOTA CITIES This chapter last revised 08/30/2012 6:5 CHAPTER 6 Minn.Stat.§351.02(5). In certain situations,removal by operation of law can occur.A vacancy A.G.Op.490D(Nov. 18, occurs if an elected official is convicted of any"infamous"crime.An 1952). Minn.Stat.§609.02, infamous crime is a felony;that is,a crime for which a sentence of subd.2.Minn.Stat.§609.42. imprisonment for more than one year may be imposed. For example,bribery is a felony. Thus,a bribery conviction would result in the elected official's immediate removal from office.In addition,any public officer convicted of bribery is forever disqualified from holding public office. Minn.Stat.§609.43. Minn. Misconduct of a public officer or employee,as defined by law,is a gross Stat.§609.02,subd.a. misdemeanor. Therefore,a misconduct conviction is not an infamous crime, and does not automatically result in an elected official's removal from office. Minn.Stat.§351.02(5).Minn. A vacancy does occur,however,when an elected official is convicted of an V,3 68.05.Minn.coast. cart. offense involving a violation of the individual's official oath.Many offenses See,Minn.Stat.§§609.415- that are not felonies or"infamous"crimes may involve a violation of an .475. individual's oath and may result in a vacancy upon conviction. Minn.Stat.§13D.06,subd.3. A vacancy also occurs if a councilmember is found to have intentionally Brown v.Cannon Falls Twp., violated the open meeting law on at least three separate occasions.If a court 723 N.W.2d 31(Minn.App. 2006). finds a third, separate intentional violation, it must declare the position vacant and notify the appointing authority or clerk. 4. Termination of city residency Minn.Stat.§351.02(4). A vacancy occurs when a city councilmember ceases to be a resident of the city. Residence is a factual question the council must determine in each case. Voting in the city is only one indication of residence.The office holder's intent and availability to perform official duties are additional criteria that should be considered.A councilmember becomes a non-resident when the property where the councilmember lives is detached from the city. 5. Failure to qualify for office Minn.Stat.*351.02(6). An elected official may fail to qualify for office by refusing or neglecting to take the oath of office,to give or renew an official bond,or to deposit such oath or bond within the time prescribed by law. This type of vacancy is not automatic.A newly elected official may qualify at any time prior to the council declaring the office vacant. 6. Abandonment A.G.Op.99(Aug.26,1920). Whether an abandonment of office actually occurs is difficult to determine. The intent of the office holder is the controlling factor.The attorney general, while cautioning that this is a question of fact,has indicated that failure to participate in council activities for three months is sufficient grounds for declaring an abandonment of office. 6:6 This chapter last revised 08/30/2012 LEAGUE OF MINNESOTA CITIES CHAPTER 6 7. 90-day absence rule Minn.Stat.§412.02,subd.2b. A vacancy in the office of mayor or councilmember may be declared by the council when the office holder is unable to serve in the office or to attend council meetings for a 90-day period because of illness, or because of absence from or refusal to attend council meetings. If any of the preceding conditions occur,the council may, by resolution,declare a vacancy and then fill it at a regular or special council meeting. The appointed councilmember will serve for the remainder of the unexpired term,or until the absent councilmember is again able to resume duties and attend council meetings, whichever is earlier. When the absent councilmember is able to resume duties and attend council meetings,the council shall,by resolution,remove the temporary office holder and restore the original office holder. 8. Qualifying for a second or incompatible office See LMC information memo, If an officer accepts a second office that is incompatible with the first,the Official Conflict of Interest for more information. first office is automatically vacated. (Section J of this chapter discusses incompatible offices in more detail.) 9. Expiration of elected term Minn.Stat.§412.02,subd.2. Generally,the vacancy occurring at the conclusion of an incumbent's term of office is filled immediately by the successor. If no one has been elected,the incumbent fills the office until the council appoints a successor and that person qualifies for the office. 10. Habitual drunkenness Minn.Stat.§351.07. State law provides that the habitual drunkenness of any person holding office is good cause for removal from office. F. Filling vacancies Minn.Stat.§412.02,subd.2a. While a council might identify and declare the facts giving rise to a vacancy, A.G.Op.59a-30(July 24, for all practical purposes they occur automatically and are not based upon any 1996). removal action. Because the council must fill vacancies in elective offices,it See"Vacancies on a Statutory should determine whether a vacancy exists.After investigating the facts,the City Council,"Minnesota Cities,Oct.2000. council should pass a resolution declaring a vacancy and then fill it as soon as possible. Minn.Stat.§412.02,subd.2a. 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 A.G.Op.471-M(Oct.30, appointment.That means all members of the council,including the mayor, 1986). 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. HANDBOOK FOR MINNESOTA CITIES This chapter last revised 08/30/2012 6:7 CHAPTER 6 State law does not place_any limitation on a mayor's 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 Minn.Stat.§412.121.Minn. subject of the original appointment vote.If the vacancy is for the mayor's Stat.§471.46. 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. Minn.Const.art.VII,§6. 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. Minn.Stat.§415.15. A retiring councilmember may not vote on the appointment of the successor A.G.Op.471-M(Dec.27, to that vacancy. A councilmember who is elected mayor,however,may 1977). participate in the appointment vote to fill the vacancy in his or her former council position. Minn.Stat.§412.02,subd.2a. Under certain circumstances, individuals appointed to fill council vacancies serve on a temporary basis,and the city must hold a special election to elect a permanent replacement to fill the vacancy.Two factors determine whether an election is required: first,whether filing has opened for the next regular city election, and second,the length of the unexpired portion of the term at the time of the vacancy. Minn.Stat.§412.02,subd.2a. If the vacancy occurs on or after the first day to file 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. In the alternative, if the vacancy occurs before the first day to file 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 fill the council vacancy at or before the next regular city election,and the person elected will serve out the remainder of the unexpired term. Minn.Stat.§412.02,subd.2a. If the council chooses to hold a special election to fill a vacancy at a time other than at the regular city election,it must first adopt an ordinance specifying the circumstances under which such an election will be held. Minn.Stat.§412.02,subd.2. State law generally provides that the terms of elected city officials begin on A.G.Op.471-M(Nov.23, 1999). the first Monday in January'followin the election. However,the attorney general has advised that a person elected to fill a vacancy is eligible to qualify and assume office upon receipt of an election certificate. 6:8 This chapter last revised 08/30/2012 LEAGUE OF MINNESOTA CITIES