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11-16-2020 CITY OF FRIDLEY CHARTER COMMISSION MEETING NOVEMBER 16, 2020 CALL TO ORDER: Chairperson Nelson called the Charter Commission meeting to order at 7:00 p.m. ROLL CALL: Members Present: Commissioners Gary Braam, Nikki Karnopp, Ted Kranz, Bruce Nelson, Rick Nelson, Courtney Rathke, Barb Reiland, Pam Reynolds, Val Rolstad, and Avonna Starck Members Absent: Commissioners Kelli Brillhart, Donald Findell, Manuel Granroos, Richard Johnston, Cynthia Soule Others Present: Melissa Moore, Admin. Services Coord./Deputy City Clerk/Staff Liaison Dan Tienter, Finance Director/City Treasurer/City Clerk APPROVAL OF AGENDA MOTION by Commissioner Rolstad approving the meeting agenda. Seconded by Commissioner Braam. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. APPROVAL OF MINUTES Commissioner Reynolds suggested the Minutes be amended to add Barb Reiland as Secretary of the Charter Commission at the end of the Minutes. MOTION by Commissioner Braam approving the meeting minutes of October 5, 2020 as amended. Seconded by Commissioner Reiland. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. ADMINISTRATIVE MATTERS: 1. 2021 Proposed Calendar CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 2 Dan Tienter, Finance Director/City Treasurer/City Clerk, stated as outlined in the Memorandum they had an opportunity to have a conversation with Chairperson Nelson about the prospective dates for next year. A draft of those proposed meetings is included in the agenda packet. Last year, they did have some challenges where they doubled up on certain City Council meetings so they doublechecked just to make sure they did not conflict with Council meetings. One outlier th in the calendar is the January meeting, which was for the 11 so as to not conflict with a City Council meeting. Commissioner Rolstad stated September does not have anything and it is not listed in the “No Meetings”. thth Chairperson Nelson stated it is his understanding that since the 6 is Labor Day, the 13 is when the Council meets to discuss the budget or the levies. th Mr. Tienter stated since the 6th is a holiday, the 13 is the normal Council meeting and the thth Council normally holds a budget workshop on the 20. The meeting on the 27 is also a Council meeting. That is where they typically set the proposed budget levy for the year. Generally on those dates it is a little more challenging because of staff availability. Chairperson Nelson stated in some years they had been on the Tuesday after Labor Day. Does the Commission want to do that this year, too? Mr. Tienter replied, staff would prefer to have no meeting in September as it is a very busy month for them. They are in the throws of budget development at that point in time. Also, there are not many things outstanding on the Commission or scheduled for next year. It is possible they can even end up cancelling some of these meetings even though Chapter 10 is outstanding because the Commission has chosen not to take any action on that because of the FCC order and Supreme Court challenges. The next thing on the agenda for the Commission could be some type of an omnibus amendment where parallel references and other grammatical changes could be worked through the entire Charter. Mr. Tienter stated probably the next step is some kind of clean-up amendment where but just to bring the Charter into alignment. With that being the main task, he does not know if they need an additional meeting. Chairperson Nelson asked if the Commission is fine with the seven dates as recommended. MOTION by Commissioner Reynolds to approve the Calendar for 2021 with the addition of adding September to the “No Meeting” list. Seconded by Commissioner Braam. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 3 2. 2020 Annual Report Melissa Moore, stated the Chief Judge has changed. This is a draft and has not been sent. It is open for comments, suggestions, or changes. Chairperson Nelson stated this is for information purposes basically. Ms. Moore replied, that is correct. Just to satisfy the Statute requirement that is referenced in the letter. MOTION by Commissioner Rolstad approving the 2020 Annual Report. Seconded by Commissioner Reynolds. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. OLD BUSINESS: 3. Chapter 12 (Miscellaneous Provisions) Review Mr. Tienter stated as a reminder, several meetings were cancelled because of the COVID-19 pandemic. The Commission had been going through Chapter 12 methodically and they ended on section 12.08, deciding to strike the entire section. Minnesota Statute § 466 preempts any type of liability considered by the Charter. With that in mind, the Commission recommended to eliminate that section. Mr. Tienter stated the next is 12.09 for the recovery of judgments. As mentioned, staff does feel that the submission could remove this language. Staff could not find any other city charters that have anything similar to it. They also reached out to the City Attorney just to ask if there really was anything with the recovery for damages the City needed in order to protect itself. The response they got was essentially it was an odd section. Mr. Tienter stated he will read verbatim the City Attorney’s email: “The City cannot automatically declare the person or entity is liable to the City simply because the City was found liable in the lawsuit because of the actions of that person when that person or entity was not a party to the lawsuit. It seems that general indemnity principles will apply in this situation and that the City does not have the authority to change those principles by a Charter provision…” then it goes on to say they cannot find another city charter that has a similar provision. Mr. Tienter added just because an item may be unusual is not in and of itself a reason to put something in or take something out of the charter, but more importantly, because this language is most likely not enforceable. There are enjoiner rules that essentially the City could add or CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 4 pursue someone with other legal action. Ultimately, the City would have that power anyway regardless of what this charter section said or did not say, as it does have the opportunity as outlined in Section 1.02 to sue and be sued. Staff is recommending this language be eliminated as it is superfluous. Chairperson Nelson asked what does the Commission wish to do. Commissioner Reynolds stated she is not sure she understands the purpose of getting rid of it. It talks about if someone sues for “injury or damage caused by obstruction, excavation, opening or defect in any street, alley, or public ground caused or occasioned by the act of or admission or key person or corporation that the City has hired” basically. What happens if Joe Blow does the street and in the process of doing the street, he weakens something and creates a sinkhole, her car falls in, and she sues the City. The City does not have the right to sue the contractor or is that covered by an indemnity clause in the contract? Mr. Tienter replied, the section itself is not applicable just to whom the City may hire to accomplish certain public improvements of public right-of-ways or areas, it just applies to any person or corporation. He imagined there must have been some scenario at some point in time where somebody must have done something to a roadway that caused damage that the City added this type of language to protect the City. But to Commissioner Reynolds’ point, what will end up happening, is if it were someone who was hired by the City, the agreements and the contracts the City reaches would contain language for indemnity, damages, and liquidated damages, so there would always be an opportunity for the City to pursue a contractor that essentially was in breach or did not make a good faith effort on the part of their contract. That way the City would always have that right. They could always sue anyone who was working through a contract. Mr. Tienter stated in this situation, the section actually establishes the right to recover the amount for damages, and the Charter cannot create that right for the City. There are rules of judicial order and other State laws that dictate when someone is liable, and the City would have to proceed in normal order with a lawsuit through the court which is a right it already employs. The City has a broader stake in Chapter 1, which is the enabling chapter where the City can sue or be sued. Commissioner Reynolds asked why was it in there Chairperson Nelson replied, because probably when it was drafted several years ago, they had some local guy do some work where if they did not have a contract, this was their protection. Mr. Tienter replied, in discussion with the City Attorney, that was the explanation that was offered. From time to time, the City Attorney has encountered ordinances that cities have promulgated because of some kind of unique issue that occurred in a community. Pertaining to Fridley’s Charter, the suggestion from the Attorney is either, one, covered by broader powers CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 5 elsewhere in the Charter; ortwo, the City Charter does not actually create this type of right that is construed with the Charter currently. Commissioner Reynolds stated yes, but can the Charter say the City has to recoup a judgment? Mr. Tienter replied, ultimately the Charter could tell the Council to do certain things in certain ways, but in all likelihood, it would not be advisable to compel the Council to enjoin a legal proceeding. That would not be advisable because each of these situations have their own facts and circumstances, and perhaps, they even have a resolution before the City would file suit such as proceeding to mediation or sending a demand letter for compensation. Mr. Tienter stated oftentimes the City’s agreements have sections for liquidated damages where a per date penalty would attach for a contractor to say if it were breached. It depends, but in some situations, it ends up being a few hundred dollars a day for each individual occurrence. Let’s say a contractor was working on the road and had five different holes that were problematic for the City and they refused to essentially do anything about it. The City would say, okay, each individual hole is its own violation and they are going to attach damages to it per day. Mr. Tienter stated it is very rare to get to that point in the process where they are actually proceeding to that type of punitive action. Most of the time they want to correct it. They want to maintain a good working relationship with the City. Ultimately, this section does not provide the City with any greater protection or authorities. In fact in most situations, it likely cannot attach liability to pursue someone because damage has occurred on a City street or there has been some sort of failure. Everything has its own finding of fact and its own proceedings. Commissioner Reiland asked does this section protect the person whose car fell in the hole? Does the City pays them and the City works with its contractor? Mr. Tienter replied ultimately it would be for any action against the City, not necessarily an action against the contractor or an individual. In most situations if an individual were to sue the City, there are two things that would happen, first discretionary immunity would attach. The City has the right to take on legal liability if it decides to repair a road because the law recognizes the City is required to perform certain things. While there is no liability for the City even if a car fell in a hole, the City has a reasonable amount of time to repair the hole and make determinations about what order the holes need to be repaired. Secondly, typically it is not a determination of the Council or City staff if someone sues the City. Most of time these items are covered by the City’s insurance so it was paid by the League of Minnesota Cities Insurance Trust and like any other claim against any corporation or individual, the claim would go through a claims adjustment process whereby the City may eventually file a claim dependent on the individual circumstances and finding of fact. There is not any greater or less protection for someone if this section were in the Charter, or not. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 6 Commissioner Reiland stated it is like they really do not have a choice--just get rid of it or ignore it. Commissioner Reynolds stated they are going to ignore it if they do not get rid of it. It gets ignored because it cannot be enforced. Chairperson Nelson stated this would not be the first section where that has happened. How does the Commission feel about deleting it? MOTION by Commissioner Rathke to delete Section 12.09. Seconded by Commissioner Starck. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. Mr. Tienter stated staff have no comments regarding Section 12.10. It is fairly standard language and should remain in the Charter because it maintains the City’s rights and obligations that existed prior to the City being incorporated as a Home Rule municipality. Chairperson Nelson stated they will leave it then unless Commissioner Reiland, the grammatical guru, wishes to change it. Commissioner Reynolds stated there are a lot of commas there. Commissioner Reiland replied, there are a lot of commas. The only thing she would do is put it in two sentences rather than try and roll it up – if, and, and but. Leave a period after Village of Fridley and the City shall be subject then and continue with the rest. Chairperson Nelson asked whether people were okay with that? Commissioner Reynolds replied, yes. Commissioner Starck replied, yes. MOTION by Commissioner Reiland to approve the Section 12.10 with the changes suggested by Commissioner Reiland. Seconded by Commissioner Nelson. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. Chairperson Nelson stated as to Section 12.11, they had the one section they moved which is in the pink. Do they wish to change the body or just leave “as is”? CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 7 Mr. Tienter stated in the example language, there are two cities referenced, Anoka and Ramsey. He did check today and actually the City of Anoka’s language is exactly the same as the City of Ramsey. These are two examples that mirror the first section of 12.11. In the second half of 12.11 there are a few things to change. The first would be the middle of the section, fourth line down, “The City shall have all powers and authority granted by law of the State to municipalities to acquire property, . . ..”This language is actually already included in Section 1.02, which provides all of the broad powers of authorities to the City. It lists a number of things, including powers beyond the City’s corporate limits. In this way that particular language is redundant. It is in a more appropriate section of the Charter, the first chapter. This was addressed when the Charter Commission and Council approved the changes to Chapter 7 in 2018. Mr. Tienter read Section 7.02: “Nothing in this provision shall be construed to impair any general obligation the City may have in support of otherwise lawful indebtedness or similar obligation supported by the full faith and credit of the City, provided, however, that long-term, general obligation indebtedness shall not be used for the purpose of funding the routine and daily business operations of the City.” In this way, the first part of Section 12.11 is handled by Section 1.02 and the latter part is handled by Section 7.02. Staff would recommend that both of those would stay since they are addressed by more specific sections of the Charter and also chapters that are specific to the topics that are being addressed in 12.11. Ultimately, those revisions would be consistent with what they have seen at Ramsey and other communities. Commissioner Reynolds stated she does not see that language in Chapter 1. Mr. Tienter read from Section 1.02: “…may exercise such powers beyond its corporate limits as may be necessary for the effective exercise of any powers granted herein as now authorized by law.” Commissioner Reynolds asked, where is that at. Mr. Tienter replied, it is in Section 1.02, second page, near the bottom. Commissioner Reynolds read a portion of Section 1.02, “in addition thereto the City of Fridley may exercise all powers once it is ready, privileges exercised by...” Mr. Tienter stated there are more expansive and specific grants of power in Section 1.02. In many cases you can see the language varies. Commissioner Reynolds stated in that sentence she can see that it mimics Chapter 1 and then in the next sentence, “all powers by this section conferred shall be exercised conformingly to this Charter so far... And powers shall not authorize the City, to incur any bond or debt beyond its limitations.” Commissioner Reiland asked, is that in Chapter 1 also. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 8 Commissioner Reynolds replied, no, she believed he is saying something is in Chapter 7 but this language is specifically saying they cannot incur any bond or debt beyond the limitations of this Charter. Mr. Tienter stated right, and now Chapter 7 predates the last time this was addressed and more specific language about bond and indebtedness says the City can bond or create a debt for lawful purposes. The Charter does provide more specific language in Chapter 7 about making sure that bond or debt is supporting operating obligations. Mr. Tienter stated in that way, the Charter is more specific in the section as it relates to municipal financing and discusses the general nature of the way the City can issue debt and bond indebtedness. Mr. Tienter stated the limitations are imposed by State law which does have things like debt limits and caps that are used in State law that are a function of the cities and tax capacity. Essentially, the amount of tax based by the City. Commissioner Reynolds asked if Mr. Tienter is saying the language in 12.11 is superseded by the language in Chapter 7. Mr. Tienter stated he is not necessarily saying that it is superseded. Generally, the governing documents are more specific. Chapter 11 is a miscellaneous provision, and there are specific sections of the Charter, particularly in Section 7.02.1 which address the question of the City’s powers and authority regarding bond indebtedness and replace it with debt generally. It mirrors the language. It is similar in that it basically says that all powers that are conferred, but the City cannot do anything beyond bonded debt or other limitations imposed by the Charter. The Charter already has specific limitations so the addition of the language in 12.11 does not create any additional obligation, or protection because the City cannot do anything that is not in the Charter, and the Charter already has language about certain activities vis-à-vis bond indebtedness. Both in Chapter 12 but also in Chapter 7. Chapter 7 has more specific language that has been contemplated more recently than Chapter 12 with regard to bond indebtedness. In this way, the goal is to bring the two chapters into alignment and understand the amendments that have happened since this section was last amended. Commissioner Reiland asked if the only thing they would keep is the pink. Chairperson Nelson replied, the top part. Mr. Tienter stated, they would keep the first section; and would eliminate the line beginning, the City Charter shall have all powers, authority and rights authorized by law. That is covered by Section 1.02. They would eliminate the line after that because that is covered by Section 7.02.1. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 9 Commissioner Reynolds stated they would be keeping up to where it says, “provisions of this Charter.” Then “the City shall have the powers” that needs to go and “all powers” needs to go and then keep nothing herein. Chairperson Nelson replied, correct. Commissioner Reiland apologized and said she did not follow that. Commissioner Reynolds stated the last two sentences of the first paragraph of that paragraph would go. Commissioner Reiland asked, the “all powers”? Commissioner Reynolds replied, that one and the one above it. “The City shall”. But they would keep what is in the pink. They already decided to keep that. Commissioner Reiland stated so the first sentence and the pink. Chairperson Nelson replied, correct. MOTION by Commissioner Reiland that they keep the first sentence of 12.11 and move the sentence from 12.1 to 12.11 and the rest gets deleted. Seconded by Commissioner Karnopp. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED. Mr. Tienter stated at this time, staff have no recommendations about 12.12 or 12.13. They are both standard powers and comparable with other cities. Chairperson Nelson asked if there is anything people wish to revisit. Mr. Tienter stated staff has created a document showing the Commission’s step-by-step revisions of the chapter. Staff would then propose to mark up the chapter in draft form with redlines describing the additions and deletions and present it at their next meeting for final consideration. Assuming the Commission is comfortable with the revisions, the draft would follow the typical amended by ordinance process. There is no expectation the Commissioner has it at their next meeting or the one after, but staff would be presenting the rolled-up version of everything they have been talking about over the last few meetings so they have the opportunity to visualize the revision. Chairperson Nelson directeds staff to do such. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 10 Mr. Tienter asked whether the Commission would be comfortable with staff forwarding the marked-up version to the City Attorney for any comments or feedback. If there are recommendations on any language or comments or anything like that they would make the City Attorney’s changes a different color so they can understand the differences. Chairperson Nelson replied, that is why they usually have seven meetings but yes, staff can run it by the City Attorney. Chairperson Nelson stated Chapter 12 would be in rewritten format with potential input from the City Attorney. NEW BUSINESS: FUTURE MEETING TOPICS/COMMUNICATIONS: Mr. Tienter stated the City is in the process of migrating to a new agenda management system where it essentially allows them to prepare all of the communications to the advisory commissions and City Council in one standard format. Before they had been compiling in PDF and emailing documents. This is an online solution so Melissa Moore, Roberta Collins, and myself will all be coordinating the City Council and advisory commission agendas. This is the first time they have attempted to use it and are excited to use the Charter Commission as an example. It does look a little different. Commissioners will get an agenda with hyperlinks to individual items and the numbers at the top. Ultimately, they will keep the same agenda as far as the dialogue is concerned. The system is very robust so if they see things they want changed, let staff know. Mr. Tienter stated they do have a couple of new members. The League of Minnesota Cities offers a training for charter commissions. They can tele-conference into their meeting and provide just a general overview as to what is a charter, what makes a charter city different than a statutory city, what are the ways to amend a charter, etc. It could be a nice way to bring new members up to speed on how charter cities work and also a good refresher for the group. The League does not take a position on how the Charter should function, etc. It seemed like something appropriate for kind of the first meeting of the year. They will be transitioning and give them kind of a general update for any new members, if there are particular questions or thoughts from the Commission that they will need to address, staff can forward those. They are willing to tailor the meeting to whatever the Commission would like. It is a good opportunity for them to touch base. Chairperson Nelson stated it sounds good to him. Can old members attend if need be? Commissioner Reiland asked if they can open the update to anybody and not just to new member. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 11 Mr. Tienter replied they could hold a regular standard meeting if they like. The Commission could tell the League the amount of time they’d have to present. He would envision that would be a topic at a future meeting as opposed to an additional thing people would have to attend. Commissioner Reynolds stated she would like to look over Chapter 5. Chairperson Nelson replied, the last time they did was in 2013. Commissioner Reynolds stated she did not have any specific questions, but she did have it written down and is assuming there is something in there she was questioning. Chairperson Nelson asked the rest of the Commission if they are okay with reviewing Chapter 5? Commissioner Reiland replied yes. Mr. Tienter suggested that perhaps after they wrap up Chapter 12, the Commission could do some work planning to get a sense of what the Commission is interested in looking at. Commissioner Reynolds replied that is fine. She said a while back there was a list when they were filling the vacancy on the Council, and there were errors in the Charter in some sections. She asked whether they ever finished the discussion of it. Mr. Tienter replied there were some if he recalled parallel references that were incorrect in some sections. Commissioner Reynolds brought them to the attention of the City Manager and the Commission. In turn, staff forwarded it to the City Attorney. Mr. Biggerstaff stated generally his opinion when it comes to types of so-called, clerical errors, is to proceed through the amendment through ordinance because it is the cleanest process and in that way it is tied with the Chair. As he mentioned earlier, they can save this for a work session. One of the things they can look at is cleaning up and addressing those things where there are clerical errors. It is not uncommon when they proceed chapter to chapter for things to get missed in other chapters. Commissioner Reynolds replied, she thinks it just did not get changed. Mr. Tienter stated they can go back and look at it. Chairperson Nelson stated he knows they had discussion in the past, at least he believed they did, about when they go through like just looking at Chapter 1. It says, it was revised last on 10- 5-89 but he knows they have looked at it numerous times. Perhaps they just need to put something in the box, something like “Reviewed on January 2021”, so they do not just look at the date and think they have not looked at some of these chapters when they have and know there were no changes. Commissioner Reiland stated at the bottom they could put “reviewed” and the date. CHARTER COMMISSION MEETING OF NOVEMBER 16, 2020 PAGE 12 Commissioner Reynolds replied it was in the Bylaws where a reference to a “reviewed on” date was added. Mr. Tienter stated staff can doublecheck review dates. Earlier this year Melissa Moore did lead an exercise like that where they provided chapter sections with review dates. Ms. Moore will send the commission a list of chapters with the most recent review date. If any commissioners need updated chapters, they should communicate with Ms. Moore who will provide them hard copies. Chairperson Nelson stated here are meeting topics: Chapter 12 and the rewritten format, training for new members, review of Chapter 5, go through the whole Charter for grammatical errors, and review individual chapters to make sure they have the latest and the best chapters. He asked if any other commissioners had anything to add. Mr. Tienter stated Ms. Moore will send out the latest sections of the Charter so the Commission can take a look at their individual books and respond to her. ADJOURN: MOTION by Commissioner Reynolds to adjourn the meeting. Seconded by Commissioner Kranz. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON NELSON DECLARED THE MOTION CARRIED AND THE MEETING ADJOURNED AT 7:57 P.M. Respectfully submitted, Commissioner Reiland, Charter Commission Secretary Denise M. Johnson, Recording Secretary