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CHM 09/06/2016 CITY OF FRIDLEY CHARTER COMMISSION MEETING SEPTEMBER 6, 2016 CALL TO ORDER: Chairperson Reynolds called the Charter Commission meeting to order at 7:00 p.m. ROLL CALL: Members Present: Commissioners Gary Braam, Zach Crandall, Don Findell, Manuel Granroos, Ted Kranz, Rick Nelson, David Ostwald, Barb Reiland, Pam Reynolds, Members Absent: Commissioners Marion Flickinger, Novella Ollawore, Lois Scholzen, Cindy Soule, Avonna Stark and Richard Walch Others Present: Deb Skogen, City Clerk/Staff Liaison Jake Foster, City Management/Elections Intern Wally Wysopal, City Manager Bob Barnette, Councilmember at Large APPROVAL OF AGENDA Commissioner Kranz MOVED and Commissioner Reiland seconded a motion to add City Manager Wally Wysopal to the agenda under new business as Item 7A. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON REYNOLDS DECLARED THE MOTION CARRIED. Commissioner Nelson MOVED and Commissioner Braam seconded a motion to approve the amended meeting agenda. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON REYNOLDS DECLARED THE MOTION CARRIED. APPROVAL OF MINUTES Ms. Skogen said she had found two corrections to the minutes and recommended the Commission make those changes. The changes were on page 4: th 5 paragraph from the top, last sentence changing the word that to than. th 7 paragraph from the top, first sentence changing Chart to Charter Commissioner Braam MOVED and Commissioner Nelson seconded a motion approving the Charter Commission meeting minutes of May 2, 2016 as amended. ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 2 UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON REYNOLDS DECLARED THE MOTION CARRIED. ADMINISTRATIVE MATTERS A.By-Law Amendment Ms. Skogen stated that she had prepared the May 2, 2016 approved bylaws for their books. She said they had also received a copy in their packets. B.Update on Negotiations with CenturyLink Cable Franchise Ms. Skogen stated the negotiations were still underway with CenturyLink. City staff had met with Attorney Brian Grogan who is representing the City in the negotiations to review the latest franchise language changes proposed by CenturyLink. Attorney Grogan was going to put the final touches on the language and send it back to CenturyLink for them to review and set up a meeting. The hope is that the negotiations will go to the City Council in October. OLD BUSINESS A.Discussion of Chapter 2 Chairperson Reynolds wondered if the Commission had gotten information on Section 2.07 pertaining to oath of office. Ms. Skogen stated at the last meeting she had provided information that elected officials did not have to be given their oath at the first regular meeting in January. She said the oath could be administered at any time, even in an emergency situation. She said the practice of the City was to have the newly elected officers take their oath at the first regular meeting in January. Chairperson Reynolds asked Commissioner Nelson if that answered his question. st Commissioner Nelson said yes and by removing the December 31 date the language would work. The Commissioners began discussing Section 2.07.5 further for clarification and to make it easier to understand. Commissioner Zach Crandall recommended the following change: The term of Mayor and of each Councilmember shall begin after taking their oath of office…” Ms. Skogen said if the section looked confusing, the last sentence could be moved near the beginning of the paragraph. ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 3 After a lot of discussion about the term oath of office or swearing in, it was determined to use swearing in or sworn in vs. taking oath of office. It was also suggested that the last sentence, defining when the swearing in of officers took place, be its own section; and the definition of term would be in a separate section. After the discussion, the final amendments are as follows, and with the current no. 6 changing to 7: 5. The first order of business at the first official council meeting in each January that follows an election year shall be the swearing in of the newly elected members of the Council. 6. The term of Mayor and of each Councilmember shall begin after being sworn in following their election. Their term shall end upon the newly qualified elected officials being sworn in. The incumbent may shall remain in office until a successor has been duly qualified and accepts the office. The first order of business at the first official council meeting in each January that follows an election year shall be the swearing in of the newly elected members of the Council. Chairperson Reynolds asked if anyone had any changes to Section 2.03. Hearing none, she moved onto Section 2.04. Commissioner Findell asked to go back to page 5 of the minutes for clarification. He said the th language in the 4 paragraph from the bottom was confusing and wondered what the words “added capture” actually meant. Ms. Skogen said the Commissioners wanted more duties of the councilmember at large defined and to take some of those duties from the councilmember. The discussion of this section was to add language so the councilmember at large knew when filing for office that if the mayor were unable to serve, or there was a vacancy, they would be expected to become mayor. She said Commissioner Findell was most likely thinking of different terminology than she was. If you are doing any kind of writing or adding things, sometimes you are capturing an idea from someplace else and thought that might be what was meant in that sentence. Chairperson Reynolds wondered if they had to do anything to change the minutes. Commissioner Nelson said they could just clarify capture to define. Ms. Skogen would make that change. Commissioner Reiland wondered why the word shall was used in 2.04.2. Commissioner Nelson said that shall was a must and may was discretionary. Ms. Skogen said shall is the legal terminology for must and is used in state statute and other areas of the law. Commissioner Reiland said that was fine. The commissioners then began discussing residency requirements and remaining a resident. They felt if it was going to be in the councilmember at large section, it should also be in under the mayor’s section. After further discussion and determining Section 2.07 stated a ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 4 vacancy would occur if an official ceased to be a resident of the city or ward, No. 2 was deleted from section 2.04. In addition, when reviewing Section 2.05 for ward councilmembers, the Commissioners felt that the second sentence in number 2 of that section should be removed. So it should read as follows: 2. A Ward Councilmember must be a resident of such ward. If the Ward Councilmember ceases to be a resident of the ward, then that office shall be declared vacant. However, a change in ward boundaries during the term of office shall not disqualify the Councilmember from completing the term. (Ref Ord 1034) Ms. Skogen said in Section 2.05, now Section 2.06, that redetermined was changed to redistricted to be consistent throughout the chapter and state law. Commissioner Findell said there was one additional change needed in the third sentence of number 3. There were no changes to Section 2.06 other than the renumbering due to the addition of the new section 2.04. Ms. Skogen stated in the new Section 2.07, the Commissioners had requested bullet points to make it easier to understand and added abandonment of office. Commissioner Nelson asked in Section 2.07 what abandonment of office meant. He wondered if the bullet points defined what abandonment meant. Commissioner Findell wondered if there should be a definition of abandonment. He said abandonment of office was not doing the job. Chairperson Reynolds said the Commissioners addressed abandonment at the last meeting after referring to the League of MN Cities Handbook Chapter 6. She cited the intent of an 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. She said the vacancies did not address failure to participate and that was why it was added. She said the failure to participate in council activities was not listed under vacancies, only that they fail to attend any council meetings for three consecutive months. Commissioner Nelson thought it should then be tied to continuous absence from the city for three months shall be considered an abandonment of office and a vacancy shall be declared. Chairperson Reynolds said the LMC Handbook said if a councilmember was unable to serve or attend council meetings for a 90 day period because of illness, absence from or refusal to attend council meetings, the council could, by resolution, declare the seat vacant and appoint an individual to serve the remainder of the unexpired term or until the absent councilmember is able to resume duties or attend council meetings. ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 5 Ms. Skogen said in the past there was a very sick individual who could not attend meetings and it left a lot of uncertainty. She thought maybe that’s why the language was changed. Chairperson Reynolds said they had discussed Chapter 412 of the MN Statutes. Ms. Skogen said that was the Chapter regulating statutory cities and Chapter 410 regulated Charter Cities. She said a charter would define how a vacancy would occur and could be more restrictive than statutory cities. Commissioner Findell said he thought abandonment still needed to be defined more. Ms. Skogen said Commissioner Nelson suggested adding the words abandonment to the end of the sentence “continuous absence from the City for more than three (3) consecutive months shall be an abandonment of office; Commissioner Crandall wondered if you could add the following: “failure to attend any council meetings or participate in council activities or council business for three (3) consecutive months.” Commissioner Granroos asked Councilmember Barnette, other than council meetings, if he had an office, took phone calls or other activities that he had to attend to as a councilmember. Councilmember Barnette responded he gets phone calls all of the time. Commissioner Granroos wondered if he weren’t responding if that would be an abandonment of office or failure to do your duty type situation. Councilmember Barnette said yes, he thought it would be. Ms. Skogen said voters also had an opportunity to vote out an individual if they were not doing their job. She said that a councilmember’s failure to do their duties could be considered a malfeasance of office and the voters could petition to recall that individual. Commissioner Findell said there was no description in this section about failure to do their duties so maybe that would be considered the abandonment. Chairperson Reynolds said a 1924 Attorney General opinion, while cautioning it is a question of fact, has indicated that failure to participate in council activities for three months is sufficient grounds for declaring the abandonment of office. To define abandonment of office, does it have to have something in front of it that says failure to participate in council activities for three months. Ms. Skogen said you would have to prove the individual did not participate and wondered how you could prove it. She said if they were attending, they would be on record as attending their meetings. How do you prove they are not participating? Commissioners Crandall and Findell said if they abstained from voting they would be on record. ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 6 Ms. Skogen said, other than being at their meetings, how could you prove they were not doing their duties as a councilmember. Chairperson Reynolds said the AG opinion said it was a question of fact and you would have to have proof. She said Ms. Skogen suggested the ability to recall a councilmember for malfeasance provided a different avenue than the vacancy route. There was further discussion and it was agreed the words abandonment of office would be removed from this section. Commissioner Kranz wondered about adding language about unexcused absence, citing Mayor Nee’s absence due to an illness. He asked if he missed any meetings and Councilmember Barnette said he did not miss his meetings. Councilmember Fitzpatrick had been sick and had missed a lot of meetings. He had not been replaced. Ms. Skogen said that left that ward without representation and that may be why there is no language for illness. She said she could do further research and provide that information to the Commissioners at the next meeting. Commissioner Findell said there was nothing in the Charter if a councilmember got sick, was unable to attend and then got better. There is nothing that would provide for a temporary replacement. Chairperson Reynolds said the City’s charter was more restrictive and did not have that language, but statutory cities would have that option. Chairperson Reynolds said she understood that at one time Councilmember Schneider was not attending meetings. Commissioner Braam said while he had not moved out of the city, he was transferred on business. Commissioner Nelson said they should remove the words “more than” be removed from the “continuous absence from the City for more than three (3) months”; so that it was consistent with the bullet point below it. NEW BUSINESS A.Discussion with City Manager Pertaining to Tax Levy Limit City Manager Wally Wysopal said at a recent council meeting, the City Council had a discussion about city’s long-term financial picture. The items discussed at the three budget cycles he has had with the Council have tied back to the ability to raise the levy and fees. He brought them information to help understand what Chapter 7, which provides taxation authority and ability to raise fees, and where the cap and fee limitation came from. Mr. Wysopal wanted to develop a discussion about that without immediately leaping to any statements about whether it should be retained, changed or modified in any way. We are taking a policy analysis approach to lead the discussion. It has been 16 years and it is a good time to analyze if it has done what it was originally set out to do. What do we know about it? ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 7 Why was it instituted? What are the goals or benchmarks and have they been met? What are we trying to achieve? By answer these questions we hope to develop an understanding of where to go from here. He is looking for input from the Charter Commission and the City Council. He developed some general questions to ask to develop some understanding about where to go from here. He said he understands some of the members were around when the restriction was approved and some of the members were not. He would like to have each member review the questionnaire and provide to Jake any suggestions or changes they might have before they send it out formally. In addition, he was wondering if there were other individuals, groups or policy makers in the City that they might think about including in the discussion phase. He said they do this all the time when they are looking at policies such as street reconstruction, parks programs, their hiring process, and others. This is policy review: What are we trying to achieve, what are the objectives? This provides an opportunity to set the parameters needed for research, complete the research, and to review the information. It is an invitation to participate, as a group and as individuals. Commissioner Kranz said he felt it was appropriate to get involved to find out why it was done, what could be done, and if it should be done. He hoped the city didn’t get to the stage of creating fees as new revenue to handle finances in the city. Mr. Wysopal said he is not going in with any preconceived notions or something to pull out of his back pocket. We need to understand if it is working. He respects what the Charter Commission does and thinks it is wonderful. He loved hearing the discussion this evening. It was like sitting back and listening to the founding fathers. Those are important things and he needs to be able to work within that environment. He was not trying to change it in any way other than what the policymakers want, but he does have some concerns about what the city will be able to do into the future and he does not want to provide the answer. Chairperson Reynolds said part of the language was changed in 1997 by ordinance 1102 prior to the 2000 restriction, and asked if he was looking to start only after 2000 petition or before. Mr. Wysopal said there had been levy limitations in the State of MN on cities and in Fridley in the Charter, but they used a different method at the time called a mill rate. He was not sure if there was a difference, but it is still part of the same question – what is the levy restriction and fee implementation trying to achieve. Chairperson Reynolds said it was to keep taxes low. If it got eliminated, then what would happen? Mr. Wysopal said he wasn’t here to argue about it. He said when you budget and work with it every day, there are things they have had to do that are what was in mind to begin with. To be specific, he did not think it was the idea that the city would go into debt for things most cities don’t do. For instance, the debt for the water utility, cities just don’t do that, but the ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 8 city had to do it and he had to authorize it. We can now paint the water hydrants, which hadn’t been done in 10 years. When you have to go into debt to do things, it raises yellow flags. Is this what was intended to do? Commissioner Nelson said it was all about controlling it and anything with high numbers had to go before the voters for approval, and that it wasn’t just a blank check for the council or staff to say we need to do this now so we are going to raise the levy by x%. Think it was that they wanted to make sure there was some control. They believed if it was something major that needed to be done and it was justified, the voters would approve it. If it wasn’t then the citizens have decided it wasn’t a priority for them. Mr. Wysopal said he was again asking if they wanted to participate. He was not trying to conceal anything, but when you are the only city in Minnesota that has such a restriction, you have to ask the question why us. Chairperson Reynolds said when they talked about Chapter 7 in the past; the Commission had looked at Mounds View and their restriction of the change in CPI plus 2%. She thought it was tabled at that time indefinitely. Mr. Wysopal said at that time the Charter Commission didn’t ask for any information from the City. In retrospect, he is glad they are having a discussion now and asking for input to provide information to understand if the restrictions are doing what was actually meant to do when it was adopted. For a perspective on the history of the levy restriction, Ms. Skogen said she would provide a link to the ad hoc minutes after the election to the Commissioners for their review. Ms. Skogen asked for the Commissioners to review the questions individually and provide any other questions they may have or any suggested changes or rephrasing to the current questions by Friday of next week so they could be tabulated into one final questionnaire to be sent out to all Commissioners and the City Council, as well as to others that might be important to answering the questions. FUTURE TOPCIS Old Business – Discussion of Chapter 2 New Business – Discussion of questionnaire/Chapter 7 ADOPTED 10-03-2016 CHARTER COMMISSION MEETING OF SEPTEMBER 6, 2016 PAGE 9 ADJOURNMENT: Commissioner Braam MOVED and Commissioner Reiland seconded a motion to adjourn the meeting. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON REYNOLDS DECLARED THE MOTION CARRIED AND THE MEETING WAS ADJOURNED AT 8:30 P.M. Respectfully submitted, Debra A. Skogen, MMC City Clerk/Staff Liaison Commissioner Donald Findell Secretary ADOPTED 10-03-2016