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2012-12-17 ENR Packet
AGENDA CITY OF MAPLEWOOD ENVIRONMENTAL AND NATURAL RESOURCE COMMISSION Monday, December 17, 2012 7 p.m. Council Chambers - Maplewood City Hall 1830 County Road B East 1. Call to Order 2. Roll Call 3. Approval of Agenda 4. Approval of Minutes: a. November 19, 2012 5. New Business a. New Member Orientation 6. Unfinished Business a. Wetland Ordinance Amendments 7. Visitor Presentations 8. Commission Presentations 9. Staff Presentations a. Reschedule January and February 2013 ENR Commission Meetings Due to Martin Luther King and President’s Day Holidays (Possible Dates – Thurs., Jan. 17; and Thurs., Feb. 21). b. Maplewood Nature Center Programs 10. Adjourn Agenda Item 4.a. MINUTES CITY OF MAPLEWOOD ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION 7:00 p.m., Monday, November 19, 2012 Council Chambers, City Hall 1830 County Road B East 1. CALL TO ORDER A meeting of the Environmental and Natural Resources Commission was called to order at 7:00 p.m. by Chair Edmundson. 2. ROLL CALL Randee Edmundson, Chair Present Judith Johannessen, Vice Chair Present Carol Mason Sherrill, Commissioner Present Ann Palzer, Commissioner Present Cindy Schafer , Commissioner Present Absent Dale Trippler, Commissioner Ginny Yingling, Commissioner Present Staff Present Shann Finwall, Environmental Planner 3. APPROVAL OF AGENDA Staff added 9.b. - ENR Commissioner Appointment under Staff Presentations. Commissioner Yingling added 8.a. - Fish Creek Update under Commission Presentations. Commissioner Johannessen moved to approve the agenda as amended. Seconded by Commissioner Mason Sherrill. Ayes – All The motion passed. 4. APPROVAL OF MINUTES Commissioner Yingling moved to approve the October 15, 2012, Environmental and Natural Resources Commission meeting minutes as submitted. Seconded by Commissioner Palzer Ayes – All The motion passed. 5. NEW BUSINESS a. Annual Sustainability Report i. Environmental Planner, Shann Finwall gave the annual sustainability report The Annual Sustainability Report is provided as an update on the city’s sustainability goals and to obtain comment and feedback on strategies needed to continue the mission. November 19, 2012 1 Environmental and Natural Resources Commission Meeting Minutes Staff listed 17 items that the ENR Commission worked on regarding environmental issues. Staff also discussed the Minnesota Green Step Cities, Blue Star City Award, Environmental Stewardship Award, Green Team activities, and environmental programs and education. Commissioner Mason Sherrill asked staff if the Tree City USA designation could be added to the list of accomplishments in the annual sustainability report. Commissioner Yingling suggested staff also include the City’s new solar panels that were installed on the Community Center and at City Hall. The commissioners thanked staff for a great job on the items that the commission worked on in 2012, especially staffs hard work and dedication to the solid waste management ordinance and standards and getting the new program running. This item goes to the city council on December 10, 2012. 6. UNFINISHED BUSINESS a. Wetland Ordinance Amendments i. Environmental Planner, Shann Finwall gave the report on the wetland ordinance amendments In September and October the ENR Commission reviewed the shoreland and wetland ordinances and directed staff to make changes to the regulations for wetlands adjacent lakes. Staff reviewed with the Commission the 40 properties that are affected by these regulations. The properties are located around Lake Oehrline, Beaver Lake, and Wakefield Lake. Aerial maps reflect that a majority of the properties have pre-existing nonconforming lawn areas to some degree. There are only seven properties with the required naturalized buffer and those are located on Beaver Lake. The Commission discussed the following: 1. Buffers for wetlands adjacent lakes should be the same as buffers for freestanding wetlands (Manage A-100 feet; Manage B-75 feet; Manage C 50 feet) 2. Exemptions should be built into the ordinance to allow encroachments for structures (additions, garages, boat houses, pools) into a “non-naturalized” buffer without a variance for properties located on wetlands adjacent lakes. 3. Maximum exemption should be as follows: Manage A-75 feet; Manage B-50 feet; Manage C – no exemption. 4. Mitigation for exemptions will include the planting of a native buffer. 5. Exemptions will be reviewed and approved by staff as part of the building permit. There would be an appeal process if staff denied. Staff will begin drafting the amendments to the wetland ordinance and bring them back to the Commission in December. 7. VISITOR PRESENTATIONS None. November 19, 2012 2 Environmental and Natural Resources Commission Meeting Minutes 8. COMMISSION PRESENTATIONS Fish Creek Update a. – Commissioner Yingling stated the Fish Creek fundraiser dinner scheduled for November 3, 2012, at the MCC was canceled due to lack of ticket sales. There will be another opportunity coming up possibly in January. More information will follow. 9. STAFF PRESENTATIONS a. Maplewood Nature Center Programs i. Environmental Planner, Shann Finwall gave an update on the programs at the Maplewood Nature Center. For information on programs there call 651-249-2170. Staff showed some photos of the new 2013 Calendar from the Friends of Maplewood. Contact the Maplewood Nature Center to purchase a calendar. b. ENR Commission Appointment i. Environmental Planner, Shann Finwall introduced the new ENR Commission member Cindy Schafer who was appointed by the City Council to complete Bill Schreiner’s term, expiring September 30, 2014. Commissioner Schafer gave a brief description of her experience and background and staff and the Commission welcomed her to the Commission. 10. ADJOURNMENT Chair Edmundson adjourned the meeting at 8:12 p.m. November 19, 2012 3 Environmental and Natural Resources Commission Meeting Minutes Agenda Item 5.a Environmental and Natural Resources New Member Orientation Date Revised: December 10, 2012 INTRODUCTION This orientation outlines the objectives, review process, responsibilities, and scope of authority of the Environmental and Natural Resources (ENR) Commission. It is intended to assist new commissioners and to update existing commissioners. ORIENTATION Origination of the ENR Commission In 2004 the Maplewood City Council created the Environmental Committee, formed as an ad- hoc committee responsible for advising the City Council and other commissions and boards on matters relevant to the environment. This includes such matters as recycling, solid waste, environmental education, water resources, wetlands, and storm water management. On September 11, 2005, the City Council adopted the committee as a full-fledged commission when it adopted the ENR Commission ordinance. ENR Commission Purpose/Objective The ENR Commission was formed to establish environmental priorities and to propose changes necessary to existing environmental ordinances which ensure that the city’s environmental assets are protected, preserved, and enhanced. Attached is a copy of the ENR Commission ordinance (Attachment 1) that explains in detail the ENR’s purpose/objective. Agenda Packets City staff will prepare an ENR Commission agenda packet the week before the scheduled meeting. The packets contain an agenda, minutes from previous meetings, and staff reports for each agenda item. City staff mails the packets to the ENR Commissioner’s homes so they receive them the Friday before the meeting. Staff also sends an e-mail with the agenda attached and a link to the packet once complete, normally on the Thursday prior to the meeting. ENR Commissioner Responsibility Each commissioner should review the staff reports and visit the properties if applicable to form an opinion of the project and become familiar with the proposal or item before the meeting. Meetings Meeting Dates: The third Monday of each month. Starting Time: 7:00 p.m. Meeting Location: City Council chambers at Maplewood City Hall, 1830 E. County Road B Quorum: A simple majority of the current membership of the commissioners constitutes a quorum. Cancellations/ Staff will inform the ENR Commission of meeting cancellations. Meetings Rescheduling: are canceled when we cannot get a quorum or if there are no items to review. Officers: A chairperson and vice chairperson shall be elected by the Commission at the first ENR Commission in January of each year, and will serve until their successors have been elected. City Council The chair will represent the ENR Commission at City Council meetings Meeting: where ENR Commission items are on the agenda. The chair will present the Commission’s recommendations and answer questions from the City Council regarding the decision. If the chair is unavailable to attend the City Council meeting, the chair will appoint a representative from the commission. Commission Handbook The City Council adopted a Commission Handbook to provide general information, rules, policies, and state statutes for commission members (Attachment 2). Rules of Procedure On December 21, 2009, the ENR Commission adopted the Rules of Procedure (Attachment 3). The Rules were approved by the City Council on March 8, 2010. ENR Annual Report Each year the ENR Commission submits an annual report to the City Council. The annual report includes actions and activities for the previous year and goals for the new year. Staff drafts the annual report for review by the ENR Commission during the meeting in February. The report is then forwarded to the City Council for final approval. Contact Information Following is City staff contact information. Additional contacts can be found on the City’s website at http://www.ci.maplewood.mn.us/Directory.aspx. Chuck Ahl, Assistant City Manager/Community (651) 249-2056 Development Director chuck.ahl@ci.maplewood.mn.us Shann Finwall, AICP, Environmental Planner (651) 249-2304 shann.finwall@ci.maplewood.mn.us Virginia (Ginny) Gaynor, Natural Resources Coord. (651) 249-2416 virginia.gaynor@ci.maplewood.mn.us Ann Hutchinson, Lead Naturalist (651) 249-2172 ann.hutchinson@ci.maplewood.mn.us Chris Swanson, Sustainability Intern (651) 249-2305 chris.swanson@ci.maplewood.mm.us Tammy Young, Administrative Assistant (651) 249-2301 tammy.young@ci.maplewood.mn.us City Council/Advisory Commissions and Boards Attached is a contact list for the City Council and all City Commissions and Boards (Attachment 4). Cablecast of ENR Meetings The City of Maplewood cablecasts ENR Commission meetings. The meetings are aired on the Government Television Network (GTN), Channel 16 live during the meetings and then re-run throughout the month. For schedules for re-runs, visit the GTN website at www.gtn.org. City Website The City of Maplewood has a website located at www.ci.maplewood.mn.us. The website is a good source of information. In addition to current city news and information, the website contains the city code of ordinances, information on upcoming ENR Commission meetings (including packets), and ENR meeting minutes. SUMMARY The City of Maplewood would like to welcome you as a new member of the ENR Commission. We look forward to working with you on ensuring the City’s environmental assets are protected, preserved, and enhanced. P\environmenta\environemental commission\orientation Attachments: 1. ENR Commission Ordinance 2. Commission Handbook 3. ENR Commission Rules of Procedure 4. City Council/Advisory Commission and Board Contact List MINUTES Attachment 1 MAPLEWOOD CITY COUNCIL 7:38 P.M. Monday, September 11, 2006 Council Chambers, City Hall Meeting No. 06-23 K. UNFINISHED BUSINESS 1. Ordinance to Establish Full Commission Status for the Environmental Committee (Second Reading) a. Environmental Manager Konewko presented the report. Mayor Longrie moved to adopt the following second reading of the ordinance to establish the Environmental and Natural Resources Commission as an advisory board to the city council as provided by the Minnesota Statute: MAPLEWOOD ORDINANCE NO. 872 DIVISION 4. ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION Sec. 18.180. Established The city council establishes for the city an environmental and natural resources commission as an advisory board to the city council, as provided in Minn. Stats. §§ 462.351-462.365. (Code 1982, § 25-17) Sec. 18-181. Advisory body; exceptions All actions of the advisory environmental and natural resources commission shall be in the nature of recommendations to the city council, and the commission shall have no final authority about any matters, except as the council may lawfully delegate authority to it. (Code 1982, § 25-18) State law reference - City environmental and natural resources agency to be advisory, except as otherwise provided by state statute or charter, Minn. Stats. § 462.354, subd. 1. Sec. 18.182. Composition; appointment; qualifications; terms (a) The environmental and natural resources commission shall have seven members appointed by the council. The members shall be residents of the city and may not hold an elected city public office. When possible, the council shall select commission members to represent the various areas of the city and to help meet the needs of the residents. (b) The city council shall appoint members of the environmental and natural resources commission for three-year terms. If the appointment is to fill a vacancy, the appointment would be to finish the unexpired part of the vacated terms. (Code 1982, § 25-19) Sec. 18.183. Chairperson and vice-chairperson. The environmental and natural resources commission shall elect a chairperson and a vice- chairperson at the first environmental and natural resources commission meeting in January each year. The chairperson shall be responsible for calling and presiding at meetings and shall have an equal vote with other members of the commission. If the chairperson is not at a meeting, the vice-chairperson shall assume the duties of the chairperson for that meeting. If the chairperson resigns from or is otherwise no longer on the environmental and natural resources City Council Meeting 09-11-06 1 commission, the vice-chairperson shall become the acting chairperson until the environmental and natural resources commission can hold an election for new officers. (Code 1982 § 25-20) Sec. 18.184. Vacancies. (a) Any of the following may cause the office of an environmental and natural resources commissioner to become vacated: (1) Death or removal from the city (2) Disability or failure to serve, as shown by failure to attend three meetings in any year, may be cause for removal by council majority, unless good cause can be shown to the council. (3) Resignation in writing. (4) Taking public office in the city. (b) Vacancies shall be filled by the council for the unexpired portion of the vacated term. (Code 1982, § 25-21) Sec. 18.185. Officers; meetings; rules of procedure. (a) The environmental and natural resources commission shall elect its own officers, establish meeting times, and adopt its own rules of procedure to be reviewed and approved by the city council. (b) All meetings of the environmental and natural resources commission shall be open to the public and published on the city’s website. (Code 1982, § 25-22) Sec. 18.186. Duties and responsibilities . In order to protect, preserve and enhance the environment of the City of Maplewood, the Environmental and Natural Resources Commission will: (1) Establish environmental priorities for the city in partnership with the City Council. (2) Recommend to the Community Design Review Board, Planning Commission and City Council changes necessary to existing policies, operating procedures and ordinances that control, protect, preserve and enhance the city’s environmental assets. (3) Recommend to the Community Design Review Board, Planning Commission and City Council new policies, operating procedures and ordinances that control, protect, preserve and enhance the city’s environmental assets. (4) Actively participate in and support the mission and goals of the Maplewood Nature Center and Neighborhood Preserves by promoting environmental awareness through educational programs, communications and co-sponsored activities. (5) Pro-actively promote greater use and appreciations of the city’s environmental assets. (6) Review the role of other city groups and how they might assist, support and advise the Environmental and Natural Resources Commission. (7) Sponsor environmental projects to enhance, repair, replace or restore neglected or deteriorating environmental assets of the city. (8) Develop educational programs and materials that foster the mission to the Environmental and Natural Resources Commission. (9) Develop and promote the use of “sustainable practices” for city policies and procedures. (Code 1982, § 25-23) City Council Meeting 09-11-06 2 Sec. 18.187. Compensation; expenses. All members of the environmental and natural resources commission shall serve without compensation. However, approved expenses of the environmental and natural resources commission shall be paid from available city funds. Sec. 18.188. Responsibilities of the Environmental Manager. Subject to the direction of the city manager, the environmental and natural resources commission and its chairperson, the environmental manager who reports to the city engineer shall: (1) Conduct all correspondence of the commission. (2) Send out all required notices (3) Attend all meetings and hearings of the commission. (4) Keep the dockets and minutes of the commission’s proceedings. (5) Keep all required records and files. (6) Maintain the files and indexes of the commission. (Code 1982, § 25-25) Sec. 18.189. Duties of city engineer, city attorney and other city employees. (a) The city engineer and the city attorney shall be available to the environmental and natural resources commission. The city engineer and attorney shall have the right to sit in with the commission at all meetings, but shall not be entitled to vote as members of the commission. (b) All city engineering department employees and other regular employees or personnel of the city shall cooperate with the environmental and natural resources commission and make them self available and attend meetings when requested to do so. (Code 1982, § 25-26) This ordinance shall be effective on October 1, 2006. Seconded by Councilmember Hjelle Ayes-All City Council Meeting 09-11-06 3 Attachment 2 6SWIRFIVKtW6YPIWSJ3VHIV 7MQTPI4EVPMEQIRXEV] 4VSGIHYVIWJSVXLIWX'IRXYV] 0IEKYISJ'EPMJSVRME'MXMIW 1-77-32 8SVIWXSVIERHTVSXIGXPSGEPGSRXVSPJSVGMXMIWXLVSYKLIHYGEXMSRERHEHZSGEG]XSIRLERGI XLIUYEPMX]SJPMJIJSVEPP'EPMJSVRMERW :-7-32 8SFIVIGSKRM^IHERHVIWTIGXIHEWXLIPIEHMRKEHZSGEXIJSVXLIGSQQSRMRXIVIWXWSJ 'EPMJSVRMEGMXMIW %FSYXXLI0IEKYISJ'EPMJSVRME'MXMIW%FSYXXLI%YXLSV )WXEFPMWLIHMRXLI0IEKYISJ'EPMJSVRME'MXMIWMWEQIQ(EZI6SWIRFIVKMWERIPIGXIHGSYRX]WYTIVZMWSVVITVIWIRXMRK FIVSVKERM^EXMSRXLEXVITVIWIRXW'EPMJSVRME¬WMRGSVTSVEXIHGMXMIWXLIXL(MWXVMGXMR=SPS'SYRX],IEPWSWIVZIWEWHMVIGXSVSJ 8LI0IEKYIWXVMZIWXSTVSXIGXXLIPSGEPEYXLSVMX]ERHEYXSRSQ]GSQQYRMX]ERHMRXIVKSZIVRQIRXEPVIPEXMSRWHMVIGXSVSJSTIVE SJGMX]KSZIVRQIRXERHLIPT'EPMJSVRME¬WGMXMIWIJJIGXMZIP]WIVZIXMSRWERHWIRMSVEHZMWSVXSXLIKSZIVRSVSJ'EPMJSVRME,ILEW XLIMVVIWMHIRXW-REHHMXMSRXSEHZSGEXMRKSRGMXMIW¬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©6SWIRFIVK¬W6YPIWSJ3VHIVª´VWXETTIEVIHMR;IWXIVR'MX] QEKE^MRIMR%YKYWXERH7ITXIQFIV Toorder additional copies of this publication,call (916) 658-8257 or visit www.cacities.org/store. 1400 K Street, Sacramento, CA 95814 (916) 658-8200 ©2003 League of California Cities.All rights reserved. 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[[[GEGMXMIWSVK SKU 1533 $5.00 Toorder additional copies of this publication,call (916) 658-8257 or visit www.cacities.org/store. ©2003 League of California Cities. All rights reserved. 1400 K Street Sacramento,CA 95814 (916) 658-8200 Fax (916) 658-8240 www.cacities.org 8LMWTYFPMGEXMSRMWTVMRXIH 0IEKYISJ'EPMJSVRME'MXMIW SRVIG]GPIHTETIV INFORMATION BRIEF Research Department Minnesota House of Representatives 600 State Office Building St. Paul, MN 55155 Deborah A. Dyson, Legislative Analyst 651-296-8291Revised: November 2008 Minnesota Open Meeting Law The Minnesota Open Meeting Law requires that meetings of governmental 1 bodies generally be open to the public. The Minnesota Supreme Court has articulated three purposes of the law: To prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed about a public board’s decisions or to detect improper influences To assure the public’s right to be informed To afford the public an opportunity to present its views to the public body 2 This information brief discusses the groups and types of meetings covered by the open meeting law, and then reviews the requirements of and exceptions to the law and the penalties for its violation. Contents Groups and Meetings Governed by the Open Meeting Law ...................................2 Requirements of the Open Meeting Law .................................................................5 Exceptions to the Open Meeting Law ......................................................................7 Penalties .................................................................................................................11 Advice ....................................................................................................................12 1 Minn. Stat. ch. 13D (recoded from Minn. Stat. § 471.705 in 2000). The Minnesota Open Meeting Law was originally enacted in Laws 1957, chapter 773, section 1. 2 Prior Lake American v. Mader, 642 N.W.2d 729, 735 (Minn. 2002) (citing St. Cloud Newspapers, Inc. v. District 742 Community Schools, 332 N.W.2d 1, 4 (Minn. 1983)). While the courts consistently say that the open meeting law is to afford the public an opportunity to present its views to the public body, there is no general right for members of the public to speak at a meeting. Some statutes, and perhaps some home rule charters, specify that a hearing on a particular matter must be held at which anyone who wishes to address the public body may do so. See, e.g.,Minn. Stat. § 117.0412, subd. 2. Copies of this publication may be obtained by calling 651-296-6753.This document can be made available in alternative formats for people with disabilities by calling 651-296-6753 or the Minnesota State Relay Service at 711 or 1-800-627-3529 (TTY). Many House Research Department publications are also available on the Internet at: www.house.mn/hrd/hrd.htm. House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 2 Groups and Meetings Governed by the Open Meeting Law The law applies to all levels of state and local government. The open meeting law applies to: a state agency, board, commission, or department when it is required or permitted by law to transact public business in a meeting; the governing body of any school district, unorganized territory, county, city, town, or other public body; a committee, subcommittee, board, department, or commission of a public body subject to the law; and the governing body or a committee of a statewide or local public pension plan. 3 “Public body” is not defined but the Minnesota Supreme Court has stated that “[i]n common understanding, ‘public body’ is possibly the broadest expression for the category of governmental entities that perform functions for the public benefit.” 4 In determining whether the open meeting law applies to a particular entity, one should look at all of the entity’s characteristics. For example, in a 1998 case, the Minnesota Supreme Court held that because the statute authorizing creation of a municipal power agency authorized an agency to conduct its affairs as a private corporation, it could hold closed meetings. The court held so 5 notwithstanding the statute that provides for municipal power agencies to be political subdivisions of the state. 6 The open meeting law and the Government Data Practices Act apply to the University of Minnesota Board of Regents, and the application of these laws to the university does not violate the university’s constitutional autonomy. 7 3 Minn. Stat. § 13D.01, subd. 1. 4 Star Tribune Co. v. University of Minnesota Board of Regents, 683 N.W.2d 274, 280 (Minn. 2004). 5 Southern Minn. Mun. Power Agency v. Boyne, 578 N.W.2d 362, 364 (Minn. 1998) (citing Minn. Stat. § 453.54, subd. 21, and discussing the factors that distinguish a public corporation from a private corporation). 6 Minn. Stat. § 453.53, subd. 1, ¶ (1) (The agency agreement shall state: “(1) That the municipal power agency is created and incorporated . . . as a municipal corporation and a political subdivision of the state, to exercise thereunder a part of the sovereign powers of the state;”). 7 Star Tribune Co., 683 N.W.2d 274. In 2002, Mark Yudof resigned from the presidency of the University of Minnesota. When finalists for the position had been selected but not announced, the Board of Regents closed a meeting to interview them, ensuring their privacy. The university asserted that its constitutional autonomy meant it was not subject to these laws. A number of newspapers sued, claiming that the university is subject to the open meeting law and data practices act, and that it violated both laws. The district court and court of appeals agreed with the newspapers, and the state supreme court affirmed those decisions. House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 3 The law generally applies to nonprofit corporations created by governmental entities. The list of groups covered by the open meeting law does not refer to nonprofit corporations created by a governmental entity. However, the law creating a specific public nonprofit corporation may specify that it is subject to the open meeting law. In addition, corporations 8 created by political subdivisions are clearly subject to the open meeting law. 9 Gatherings of less than a quorum of a public body are not subject to the law; a “meeting” is held when the group is capable of exercising decision-making powers. The Minnesota Supreme Court has held that the open meeting law applies only to a quorum or more of members of the governing body or a committee, subcommittee, board, department, or commission of the governing body. Serial meetings in groups of less than a quorum held in 10 order to avoid open meeting law requirements may also be found to be a violation, depending on the facts of the case. 11 A public body subject to the law should be cautious about using e-mail to communicate with other members of the body. Although the statute does not specifically address the use of e-mail, it is likely that the court would analyze use of e-mail in the same way as it has telephone conversations and letters. That is, communication about official business through telephone 12 conversations or letters by a quorum of a public body subject to the law would violate the law. Serial communication through telephone conversations or letters by less than a quorum with the intent to avoid a public hearing or to come to an agreement on an issue relating to official business could also violate the law. In a 1993 case, the Minnesota Court of Appeals held that the open meeting law was not violated when two of five city council members attended private mediation sessions related to city 8 E.g.,Minn. Stat. §§ 62Q.03, subd. 6 (Minnesota Risk Adjustment Association); 116O.03, subd. 5 (Minnesota Technology, Inc.); 116V.01, subd. 10 (Agricultural Utilization Research Institute); 116S.02, subds. 6 and 7 (Minnesota Business Finance, Inc.); 124D.385, subd. 4 (Minnesota Commission on National and Community Service may create a nonprofit but it is subject to the open meeting law); 128C.22 (State High School League); and Laws 1990, ch. 535,§ 2, subd. 6 (Lake Superior Center Authority). 9 Minn. Stat. § 465.719, subd. 9 (enacted by Laws 2000, ch. 455, art. 1, § 2, subd. 9). A 1986 attorney general opinion stated that the open meeting law did not apply to nonprofit corporations created by political subdivisions. Op. Att’y Gen. 92a-30, Jan. 29, 1986. The 1999 Legislature established a task force to recommend legislation in 2000, governing corporations created by political subdivisions. Laws 1999, ch. 186. Among other things, the 2000 legislation addressed the issue of application of the open meeting law, stating that the law applied and a corporation created by a political subdivision cannot be exempted from it. 10 Moberg v. Independent School Dist. No. 281, 336 N.W.2d 510 (Minn. 1983). 11 Id. at 518; see also Mankato Free Press Co. v. City of North Mankato, 563 N.W.2d 291, 295 (Minn. App. 1997). On remand to the district court for a factual finding on whether the city used serial interviews to avoid the open meeting law, the trial court found, and the court of appeals affirmed, that the serial meetings were not held to avoid the law. Mankato Free Press Co. v. City of North Mankato, 1998 WL 865714 (Minn. App. 1998) (unpublished opinion). 12 Moberg, 336 N.W.2d at 518. The Commissioner of Administration stated in a July 9, 2008, opinion that an e-mail sent to all members of a city council was effectively “printed material” that should be available to members of the public and also suggested that the legislature revise the statute to recognize the use of electronic and other types of communications. Minn. Dept. of Admin. Advisory Op. 08-15. House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 4 business. The court determined that the two council members did not constitute a committee or subcommittee of the council because the group was not capable of exercising decision-making powers. 13 The law applies to informational meetings. The Minnesota Supreme Court has held that the open meeting law applies to all gatherings of members of a governing body, regardless of whether or not action is taken or contemplated. Thus, a gathering of members of a public body for an informational seminar on matters currently facing the body or that might come before the body must be conducted openly. However, a 14 1975 attorney general opinion stated that city council attendance at a League of Minnesota Cities training program for city officials did not violate the open meeting law if the members did not discuss specific municipal business. Under a 2007 law, it appears that informational meetings 15 of the Legislative-Citizen Commission on Minnesota Resources may be closed. 16 The law does not cover chance or social gatherings. The open meeting law does not apply to chance or social gatherings of members of a public body. However, a quorum of a public body may not, as a group, discuss or receive information 17 on official business in any setting under the guise of a private social gathering. 18 The law does not apply to certain types of advisory groups. The Minnesota Court of Appeals has held that the open meeting law does not apply to certain types of advisory groups. In that case, a presidential search advisory committee to the 19 University of Minnesota Board of Regents was held not to be a committee of the governing body for purposes of the open meeting law. In reaching its holding, the court pointed out that no regents were on the search committee and that the committee had no power to set policy or make a final decision. It is not clear if a court would reach the same result if members of the governing body were also on the advisory committee. Depending on the number of members of the governing body involved and on the form of the delegation of authority from the governing 13 Sovereign v. Dunn, 498 N.W.2d 62 (Minn. App. 1993). 14 St. Cloud Newspapers, Inc. v. District 742 Cmty. Schools, 332 N.W.2d 1 (Minn. 1983). 15 Op. Att’y Gen. 63a-5, Feb. 5, 1975. 16 Minn. Stat. § 116P.08, subd. 5 (“(a) Meetings of the commission, committees or subcommittees of the commission, technical advisory committees, and peer review panels must be open to the public. The commission shall attempt to meet throughout various regions of the state during each biennium. For purposes of this subdivision, a meeting occurs when a quorum is present and action is taken regarding a matter within the jurisdiction of the commission, a committee or subcommittee of the commission, a technical advisory committee, or a peer review panel. (b) For legislative members of the commission, enforcement of this subdivision is governed by section 3.055, subdivision 2. For nonlegislative members of the commission, enforcement of this subdivision is governed by section 13D.06, subdivisions 1 and 2.” (emphasis added)). 17 St. Cloud Newspapers, Inc., 332 N.W.2d at 7. 18 Moberg, 336 N.W.2d at 518. 19 The Minnesota Daily v. University of Minnesota, 432 N.W.2d 189 (Minn. App. 1988). House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 5 body to the members, a court might consider the advisory committee to be a committee of the governing body. A separate law applies to the legislature. In 1990, the legislature passed a law separate from the open meeting law that requires all legislative meetings be open to the public. The law applies to House and Senate floor sessions 20 and to meetings of committees, subcommittees, conference committees, and legislative commissions. For purposes of this law, a meeting occurs when a quorum is present and action is taken regarding a matter within the jurisdiction of the group. Each house of the legislature must adopt rules to implement these requirements. Remedies provided under these rules are the exclusive means of enforcing this law. Requirements of the Open Meeting Law The primary requirement of the open meeting law is that meetings be open to the public. The law also requires that votes in open meetings be recorded in a journal and that the journal be open to the public. The vote of each member must be recorded on appropriations of money, except for payments of judgments and claims and amounts fixed by statute. A straw ballot to 21 narrow the list of candidates for city administrator and not made public was held to be a secret vote in violation of the open meeting law. 22 Open meetings must be held in a public place within the borders of the public body. 23 Meetings may be held by interactive television if specified conditions are met to ensure openness and accessibility for those who wish to attend. 24 Specific agencies have broader authority to hold meetings by telephone conference call or other electronic means as long as specified conditions are met to ensure openness and accessibility for those who wish to attend. In addition, a meeting of any public body may be conducted by telephone or other electronic means if a health pandemic or other emergency makes meeting in person impractical or imprudent and all of the same conditions as for other meetings held by telephone conference call or other electronic means are met, unless unfeasible due to the pandemic or emergency. In general, those conditions include the following: 20 Minn. Stat. § 3.055 (added by Laws 1990, ch. 608, art. 6, § 1). 21 Minn. Stat. § 13D.01, subds. 4 and 5. 22 Mankato Free Press Co., 563 N.W.2d at 295-96. 23 Quast v. Knutson, 150 N.W.2d 199, 200 (Minn. 1967) (school board meeting held 20 miles outside the jurisdiction of the school board at a private office did not comply with open meeting law; consolidation proceedings were fatally defective because the resolution by which the proceedings were initiated was not adopted at a public meeting as required by law). 24 Minn. Stat. § 13D.02.See alsoMinn. Stat. § 471.59, subd. 2 (joint powers board for educational purposes). House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 6 All members of the body can hear one another and can hear all discussion and testimony Members of the public at the regular meeting location can hear all discussion, testimony, and votes At least one member of the body, chief legal counsel, or chief administrative officer is present at the regular meeting location All votes are conducted by roll call The public body must allow a person to monitor the meeting electronically from another location. The body may require the person to pay for any documented additional costs the body incurs as a result of the additional connection The public body must give notice of the regular meeting location, of the fact that some members may participate by telephone or other electronic means, and of the right of the public to monitor the meeting from another location 25 The law requires public bodies to give notice of their meetings. In 1974, the Minnesota Supreme Court held that failure to give notice of a meeting is a violation of the open meeting law. The court has also held that it is a violation of the open meeting law 26 to conduct business before the time publicly announced for a meeting. 27 In 1987, the legislature spelled out the notice requirements in statute for regular, special, emergency, and closed meetings. Public bodies must do the following: Keep schedules of regular meetings on file at their offices 28 Post notice of special meetings (meetings held at a time or place different for regular meetings) on their principal bulletin board. The public body must also either mail notice to people who have requested such mailings, or publish notice in the official newspaper, at least three days before the meetings 29 25 Minn. Stat. §§ 13D.021 (health pandemic, other emergency); 35.0661 (Board of Animal Health during restricted travel for animal health reasons); 41A.0235 (Minnesota Agricultural and Economic Development Board); 41B.026 (Rural Finance Agency); 116J.68, subd. 5 (Small Business Development Center Advisory Board); 116L.03, subd. 8 (Minnesota Jobs Skills Partnership Board); 116L.665, subd. 2a (Governor’s Workforce Development Council);116M.15, subd. 5 (Urban Initiative Board); 116U.25 (Explore Minnesota Tourism Council); 129C.105 (Perpich Center for Arts Education); 248.10 (Rehabilitation Council for the Blind); 256.482, subd. 5b (Minnesota State Council on Disability); 256.975, subd. 2a. (Minnesota Board on Aging); 256C.28, subd. 7 (Commission of Deaf, Deaf-Blind, and Hard of Hearing Minnesotans); 268A.02, subd. 3 (State Rehabilitation Council and Statewide Independent Living Council); 326B.32, subd. 7 (Board of Electricity); 326B.435, subd. 7 (Board of Plumbing); 341.26 (Combative Sports Commission); 462A.041 (Minnesota Housing Finance Agency). 26 Sullivan v. Credit River Township, 217 N.W.2d 502 (1974). 27 Merz v. Leitch, 342 N.W.2d 141, 145 (Minn. 1984). 28 Minn. Stat. § 13D.04, subd. 1 (§ 13D.04, previously § 471.705, subd. 1c, was added by Laws 1987, ch. 313, § 1). 29 Minn. Stat. § 13D.04, subd. 2; Rupp v. Mayasich, 533 N.W.2d 893 (Minn. App. 1995) (bulletin board must be reasonably accessible to the public). A February 3, 2004, advisory opinion by the Commissioner of House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 7 Make good faith efforts to notify news media that have filed written requests (with telephone numbers) for notice of emergency meetings (special meetings called because of circumstances that require immediate consideration) 30 The same notice requirements apply to closed meetings. 31 For state agencies, absent any other specific law governing notice, publication requirements can be satisfied by publishing notice in the State Register. 32 The law requires relevant materials to be publicly available. The open meeting law requires that for open meetings, at least one copy of any printed material prepared by the public body and distributed or available to all members of the public body also be available in the meeting room for inspection by the public. This requirement does not apply to materials that are classified as other than public under the Government Data Practices Act. 33 Exceptions to the Open Meeting Law A closed meeting, except one closed under the attorney-client privilege, must be electronically recorded at the expense of the public body. Unless otherwise provided by law, the recordings must be preserved for at least three years after the date of the meeting. 34 The law does not apply to state agency disciplinary hearings. The open meeting law does not apply to any state agency, board, or commission when exercising quasi-judicial functions involving disciplinary hearings. 35 Certain meetings involving employee evaluation or discipline must be closed. A public body must close meetings for preliminary consideration of allegations or charges against an individual subject to its authority. If the members of the public body conclude that 36 discipline may be warranted as a result of those charges, further meetings or hearings relating to Administration stated that a public body’s actions at a special meeting are limited to those topics included in the notice of special meeting. Minnesota Department of Administration Advisory Opinion 04-004. 30 Minn. Stat. § 13D.04, subd. 3. 31 Minn. Stat. § 13D.04, subd. 5. 32 Minn. Stat. § 13D.04, subd. 6. 33 Minn. Stat. § 13D.01, subd. 6. 34 Minn. Stat. § 13D.05, subd. 1, cl. (d). 35 Minn. Stat. § 13D.01, subd. 2 (2); see also Zahavy v. University of Minnesota, 544 N.W.2d 32, 41-42 (Minn. App. 1996). 36 Minn. Stat. § 13D.05, subd. 2 (b). House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 8 the charges must be open. Meetings must also be open at the request of the individual who is the subject of the meeting. Statutes other than the open meeting law may permit or require closed meetings for certain local governmental bodies to conduct specific kinds of disciplinary hearings. For example, school board hearings held to discharge or demote a teacher are private unless the affected teacher wants a public hearing. 37 A public body may close a meeting to evaluate the performance of an individual who is subject to its authority. Before closing a meeting, the public body must identify the individual to be 38 evaluated. The public body must summarize the conclusions of the evaluation at its next open meeting. An evaluation meeting must be open at the request of the subject of the meeting. A meeting must be closed if an individual’s medical records governed byMinnesota Statutes, section 144.291 to 144.298, are discussed. 39 A meeting may be closed to discuss labor negotiations. The open meeting law permits a public body to hold a closed meeting to discuss strategy and proposals for labor negotiations conducted under the Public Employment Labor Relations Act. 40 The statute specifies procedures for tape-recording of these meetings, and for the recordings to become public when negotiations are completed. Another law permits the Commissioner of the 41 Bureau of Mediation Services to close negotiations and mediation sessions between public employers and public employees. These negotiations are public meetings, unless the commissioner closes them. 42 The law permits closed meetings based on a limited attorney-client privilege. In 1976, the Minnesota Supreme Court held that there is a limited exception, based on the attorney-client privilege, for meetings to discuss strategy for threatened or pending litigation. 43 In 1990, the legislature added the attorney-client exception to the open meeting law. Although 44 the statute is not limited, the court has since held that the scope of the exception remains limited in relation to the open meeting law. 45 37 Minn. Stat. § 122A.41, subd. 9. 38 Minn. Stat. § 13D.05, subd. 3(a). 39 Minn. Stat. § 13D.05, subd. 2. 40 Minn. Stat. § 13D.03, subd. 1. 41 Minn. Stat. § 13D.03, subd. 2. 42 Minn. Stat. § 179A.14, subd. 3. 43 Minneapolis Star & Tribune Co. v. Housing & Redevelopment Auth., 251 N.W.2d 620, 626 (1976). 44 Minn. Stat. § 13D.05, subd. 3(b) (added by Laws 1990, ch. 550 § 2). 45 Star Tribune v. Board of Ed., Special School Dist. No. 1, 507 N.W.2d 869 (Minn. App. 1993) review denied (Minn. Dec. 22, 1993). The court of appeals did not accept the argument that the statutory exception encompassed the full attorney-client privilege because that would result in the exception swallowing the rule in favor of open meetings. In 2002, the Minnesota Supreme Court restated that the attorney-client privilege exception only applies House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 9 The attorney-client privilege exception does not apply to a mere request for general legal advice. Nor does it apply when a governing body seeks to discuss with its attorney the strengths and weaknesses of a proposed legislative enactment (like a city ordinance) that may lead to future lawsuits because that can be viewed as general legal advice. Furthermore, discussion of proposed legislation is just the sort of discussion that should be public. 46 In order to close a meeting under the attorney-client privilege exception, the governing body must give a particularized statement describing the subject to be discussed. A general statement that the meeting is being closed to discuss pending or threatened litigation is not sufficient. 47 A meeting may be closed to address certain security issues. If disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses, a meeting may be closed to: receive security briefings and reports, discuss issues related to security systems, discuss emergency response procedures, and discuss security deficiencies in or recommendations regarding public services, infrastructure, and facilities. Before closing a meeting, the public body must refer to the facilities, systems, procedures, services, or infrastructures to be considered during the closed meeting. A closed meeting must be tape-recorded at the expense of the governing body, and the recording must be preserved for at least four years. Financial issues related to security matters must be discussed and all related financial decisions must be made at an open meeting. 48 when the purposes for the exception outweigh the purposes of the open meeting law. In that case, the city council was threatened with a lawsuit if it did not grant a request. The court found that the threat of a lawsuit did not warrant closing the meeting. Prior Lake American v. Mader, 642 N.W.2d 729 (Minn. 2002) (en banc). Cf.Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435 (Minn. App. 2005) (applying analysis of StarTribune and Prior Lake American, finding threats were sufficiently specific and imminent that confidential consultation with legal counsel appointed by city’s insurer to discuss defense strategy or reconciliation to address a threatened lawsuit justified closing the meeting). 46 Northwest Publications, Inc. v. City of St. Paul, 435 N.W.2d 64, 68 (Minn. App. 1989); Star Tribune, 507 N.W.2d at 872. 47 The Free Press v. County of Blue Earth, 677 N.W.2d 471 (Minn. App. 2004). 48 Minn. Stat. § 13D.05, subd. 3. House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 10 A meeting may be closed to discuss certain issues relating to government property sales or purchases. A public body may close a meeting to: determine the asking price for real or personal property to be sold by the government entity; review confidential or nonpublic appraisal data; and develop or consider offers or counteroffers for the purchase or sale of real or personal property. Before holding a closed meeting, the public body must identify on the record the particular property that is the subject of the closed meeting. The proceedings must be tape-recorded at the expense of the public body. The recording must be preserved for eight years after the date of the meeting and made available to the public after all property discussed at the meeting has been purchased or sold or the governing body has abandoned the purchase or sale. The property that is the subject of the closed meeting must be specifically identified on the tape. A list of members and all other persons present at the closed meeting must be made available to the public after the closed meeting. If an action is brought claiming that public business other than discussions allowed under this exception was transacted at a closed meeting held during the time when the tape is not available to the public, the court would review the recording of the meeting in camera and either dismiss the action if the court finds no violation, or permit use of the recording at trial (subject to protective orders) if the court finds there is a violation. 49 An agreement reached that is based on an offer considered at a closed meeting is contingent on approval of the public body at an open meeting. The actual purchase or sale must be approved at an open meeting after the notice period required by statute or the governing body’s internal procedures, and the purchase price or sale price is public data. 50 There is a narrow exception for certain meetings of public hospital boards. Boards of public hospitals and certain health organizations may close meetings to discuss competitive market activities and contracts. 51 On-site inspections by town board members are not subject to the law. The law does not apply to a gathering of town board members to perform on-site inspections, if the town has no employees or other staff able to perform the inspections and the town board is acting essentially in a staff capacity. The town board must make good faith efforts to provide notice of the inspections to the media that have filed a written request, including a telephone 49 Minn. Stat. § 13D.05, subd. 3, referring to § 13D.03, subd. 3. 50 Minn. Stat. § 13D.05, subd. 3. Property appraisal data covered by this law is described in Minnesota Statutes, section 13.44, subdivision 3. 51 Minn. Stat. § 144.581, subds. 4 and 5. House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 11 number, for notice. Notice must be by telephone or by any other method used to notify the members of the public body. 52 The law does not apply to meetings of the Commissioner of Corrections. 53 The law specifies how it relates to the Government Data Practices Act. Except as specifically provided, public meetings may not be closed to discuss data that are not public data under the Government Data Practices Act. Data that are not public may be 54 discussed at an open meeting without liability, if the matter discussed is within the public body’s authority and if it is reasonably necessary to conduct the business before the public body. 55 A portion of a meeting must be closed if the following data are discussed: Data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors or vulnerable adults 56 Active investigative data collected by a law enforcement agency, or internal affairs data relating to alleged misconduct by law enforcement personnel 57 Certain types of educational, health, medical, welfare, or mental health data that are not public data 58 Penalties The open meeting law provides a civil penalty of up to $300 for intentional violation. A person 59 who is found to have intentionally violated the law in three or more legal actions involving the same governmental body forfeits the right to serve on that body for a time equal to the term the person was serving. The Minnesota Supreme Court has held that this removal provision is constitutional only if the conduct constitutes malfeasance or nonfeasance and provided that the violations occurred after the person had a reasonable amount of time to learn the responsibilities of office. 60 52 Minn. Stat. § 366.01, subd. 11. 53 Minn. Stat. § 13D.01, subd. 2 (1). This exception does not make sense. Until 1982, the exception was for meetings of the corrections board—a multimember body. A 1983 instruction directed the revisor of statutes to change “corrections board” to “commissioner of corrections” throughout the statutes. Laws 1983, ch. 274, § 18. 54 Minn. Stat. § 13D.05, subd. 1. 55 Minn. Stat. §§ 13.03, subd. 11, 13.05, subd. 4, ¶ (e), and 13D.05, subd. 1. 56 Minn. Stat. § 13D.05, subd. 2 (a)(1). 57 Minn. Stat. § 13D.05, subd. 2 (a)(2). 58 Minn. Stat. § 13D.05, subd. 2 (a)(3). 59 Minn. Stat. § 13D.06. 60 Claude v. Collins, 518 N.W.2d 836, 843 (Minn. 1994) (discussing the constitutionality of provision relating to removal from office); see also Brown v. Cannon Falls Township, 723 N.W.2d 31, 41-44 (Minn. App. 2006) (discussing the statutory history and that since 1994 the statute has required three or more legal actions). House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 12 A public body may not pay a civil penalty on behalf of a person who violated the law. However, a public body may pay any costs, disbursements, or attorney fees incurred by or awarded against a member of the body in an action under the open meeting law if the member was found not guilty of a violation. 61 A court may award reasonable costs, disbursements, and reasonable attorney fees of up to $13,000 to any party in an action under the open meeting law. However, the following conditions apply: A court may award costs and attorney fees to a defendant only if it finds that the action was frivolous and without merit A court may award monetary penalties or attorney fees against a member of a public body only if the court finds there was an intent to violate the open meeting law The court must award reasonable attorney fees to a prevailing plaintiff if the public body was also the subject of a prior written opinion issued by the Commissioner of Administration, and the court finds that the opinion is directly related to the cause of action being litigated and that the public body did not follow the opinion. 62 The appropriate mechanism to enforce the open meeting law is to bring an action in district court seeking injunctive relief or damages. The statute does not provide for a declaratory judgment action. 63 The Minnesota Supreme Court has held that actions taken at a meeting held in violation of the open meeting law are not invalid or rescindable. 64 Advice Public bodies subject to the open meeting law may seek advice on the application of the law and how to comply with it from three sources: The governmental entity’s attorney The attorney general 65 The Commissioner of Administration 66 61 Op. Att’y Gen. 471-a, Dec. 31, 1992; Minn. Stat. § 13D.06, subd. 4 (c). 62 Minn. Stat. § 13D.06, subd. 4. 63 Rupp v. Mayasich, 561 N.W.2d 555 (Minn. App. 1997). 64 Sullivan v. Credit River Township, 299 Minn. 170, 176-177, 217 N.W.2d 502, 507 (Minn. 1974). 65 Under Minnesota Statutes, section 8.06, the attorney general is the attorney for all state officers and boards or commissions created by law. Under Minnesota Statutes, section 8.07, the attorney general, on request from an attorney for a county, city, town, public pension fund, school board, or unorganized area, gives written opinions on matters of public importance. House Research Department Revised: November 2008 Minnesota Open Meeting Law Page 13 An individual may seek advice from two sources: The individual’s attorney The Commissioner of Administration 67 Since 2003, an individual who disagrees with the manner in which members of a governing body perform their duties under the open meeting law may request the Commissioner of Administration to give a written opinion on the governing body’s compliance with the law. A governing body or person requesting an opinion of the Commissioner of Administration must pay a $200 fee if the commissioner issues an opinion. The commissioner may decide not to issue an opinion. If the commissioner decides not to issue an opinion, the commissioner must notify the requester within five days of receipt of the request. If the commissioner decides to issue an opinion, it must be done within 20 days of the request (with a 30-day extension possible for good cause and notice to the requester). The governing body must be allowed to explain how it performs its duties under the law. Opinions of the Commissioner of Administration are not binding, but a court must give the opinions deference. However, a governing body that follows an opinion is not liable for fines, attorney’s fees or any other penalty, or forfeiture of office. For more information about open meetings and other issues related to the government, visit the government operations area of our web site,www.house.mn/hrd/issinfo/gv_state.htm. 66 Minn. Stat. § 13.072, subds. 1 and 2. 67 Id.; see www.ipad.state.mn.us/opinions/index.html for access to prior opinions of the Commissioner of Administration or to find out how to request an opinion. GOVERNING & MANAGING INFORMATION Official Conflict of Interest 140A.3 May 2004 The League of Minnesota Cities provides this publication as a general informational memo. It is not intended to provide legal advice and should not be used as a substitute for competent legal guidance. Readers should consult with an attorney for advice concerning specific situations. © 2007 League of Minnesota Cities All rights reserved Conflict of Interest Highlights 1. What is a conflict of interest? A conflict of interest occurs when an individual has a personal interest in a ? decision about which he or she has the power to make. A prohibited personal interest may be contractual or non-contractual. It includes decisions in which personal involvement, gain or financial benefit exist for the decision-maker. The following elements must be considered: Contracts. Public officers may not have a personal financial interest in any sale, lease, or contract that they are authorized to make in their official capacities. Council members of home rule charter cities should consult their city charters for additional limitations. Incompatibility of offices. A public officer may not hold two positions if WKHSRVLWLRQV¶IXQFWLRQVDUHLQFonsistent with one another. Self-interest in non-contractual matters. Sometimes, elected officials find they have an interest in a non-contractual decision that the council will make. This type of interest is sometimes of a financial nature, but not always. These non-contractual matters may include such things as council decisions on zoning, local improvements, and the issuance of licenses. An interested councilmember should generally abstain from discussing and voting on these matters. 2. Who is subject to the conflict of interest law for contracts? All public officers who have the authority to take part in making any sale, lease or contract in their official capacity are subject to the conflict of interest law. A ³SXEOLFRIILFHU´FHUWDLQO\LQFOXGHVFRXQFil members. In some circumstances, it may also include non-elected officers and employees who are able to influence contracting decisions. 3. What are some common exceptions to the conflict of interest law for contracts? The statute generally prohibits city councils from entering into a contract if one of its council members has an interest in it. However, there are several exceptions to the law. The following actions are permitted under certain circumstances, even if they affect the personal interests of a councilmember: Designating a bank or savings association. Designating an official newspaper. League of Minnesota Cities 2 Contracting for goods or services that are not required to be competitively bid. Contracting with a volunteer fire department for payment of wages or retirement benefits to its members. Contracting for construction materials or services, if the contract is let by a sealed bid process and the city has a population of 1,000 or less. Contracting to rent space in a public facility to a public officer at a rate similar to that paid by other renters. Issuing a grant offered by a local development organization. There are several other less common exceptions that are described in Part III. A. 2. of this memo. 4. Is there a special procedure to use if a contract is permitted under one of the exceptions? If a contract with an official is permitted under one of the exceptions in the law, the following must generally be done: The council must approve the contract by unanimous vote. The interested officer should abstain from voting on the matter. There are additional requirements for some of the exceptions that are described in Part III. A. 2. of this memo. 5. Who is subject to the law regarding incompatibility of offices? All persons in elected offices must be aware of this law. In addition, many city ! employees and appointed officials may also need to be aware of this law. 6. When are offices incompatible? Generally, positions are incompatible when one or more of the following conditions exist: If one position: hires or appoints the other. performs functions that are inconsistent with the other. makes contracts with the other. approves the official bond of the other. Official Conflict of Interest3 If a specific statute or charter provision: states that one person may not hold two or more specific positions. requires that the officer may not take another position. requires that the officer devote full-time to the position. 7. What are common problems in applying the laws? Most questions seem to come from situations involving a non-contractual ? interest of a councilmember. These are some of the more common: Self-appointment. City officials may not generally appoint themselves to a position. Contracts with relatives of a councilmember. Generally, a contract with a FRXQFLOPHPEHU¶VUHODWLYHLVQRWSURKLELWHGXQOHVVWKHFRXQFLOPHPEHUKDVD ILQDQFLDOLQWHUHVWLQWKHUHODWLYH¶VEXVLQHVVRULQFRPH Zoning of a councilmember’s land. Generally, a city council is not prohibited from rezoning property owned by a councilmember. Because the rules for participating can vary on a case-by-case basis, cities should consult with their city attorneys before taking council action. Local improvements. A councilmember is probably not prohibited from petitioning for an improvement that will benefit his or her property. Because the rules for participating can vary on a case-by-case basis, cities should consult with their city attorneys before taking council action. Issuing licenses to councilmembers. Because the rules for participating can vary on a case-by-case basis, cities should consult with their city attorneys before taking council action. State rule prohibits a councilmember from voting on a liquor license application from a spouse or relative. 8. What happens if the city doesn’t follow the conflict of interest laws? Contracts. Any contract that has been made illegally is generally void. In addition, every public officer who violates the conflict of interest law can be found guilty of a gross misdemeanor, which has a penalty of a fine of up to $3,000 and imprisonment for up to one year. Incompatible offices. If a public officer accepts a position that is incompatible with his or her office, the first office is automatically vacated. League of Minnesota Cities 4 Non-contractual situations. Although the outcomes of these types of situations are less clear, a council decision could be reversed. There is also the potential of personal liability for the officials who are involved. 9. Where can cities get further information? The League of Minnesota Cities has several publications that discuss issues related to conflict of interest in moUHGHWDLO&DOOWKH/HDJXH¶V5HVHDUFK Department for further information, (651) 281-1200 or (800) 925-1122. Official Conflict of Interest5 Table of Contents Conflict of Interest Highlights......................................................................................................................2 Part I.Introduction...................................................................................................................................9 Part II.Prohibited gifts, economic disclosure, and political activities......................................................9 B.Prohibited gifts..........................................................................................................................9 C.Conflict of interest and economic disclosure in metropolitan-area cities with populations over 50,000 11 D.Statements of economic interest for trustees of public pension plans.....................................13 E.Lobbyist regulations....................................................................................................................14 F.Leave during political candidacy................................................................................................14 Part III.Conflict of interest in contracts...............................................................................................15 G.All cities..................................................................................................................................15 H.Statutory cities........................................................................................................................21 I.Home rule charter cities..............................................................................................................21 J.Specific kinds of contracts..........................................................................................................22 K.Contracts made in violation of the statutes.............................................................................26 Part IV.Conflict of interest in non-contractual situations....................................................................27 L.In general....................................................................................................................................27 M.Disqualifying interest factors..................................................................................................28 N.Specific situations...................................................................................................................29 O.Effect of disqualifying interest on action................................................................................34 P.Conflict of interest checklist.......................................................................................................34 Part V.Incompatibility of offices............................................................................................................35 Q.In general................................................................................................................................35 R.Elements of incompatible offices............................................................................................35 S.Violation of the incompatibility law...........................................................................................36 T.Specific offices............................................................................................................................36 Part VI.Model forms............................................................................................................................39 Official Conflict of Interest7 Part I. Introduction State law sets many standards for public officers. Some of the most important and misunderstood are the laws addressing conflicts of interest. There are several different laws of which public officials should be aware. Generally, these laws do the following: Prohibit public officials from accepting gifts. Require disclosure of conflicts of interest and economic reporting. Require certain reporting by lobbyists. Prohibit conflicts of interest. Prohibit officials from holding incompatible offices. As broad as these laws are, situations can arise that may not be clearly covered by them. While this document discusses the general principles behind these various laws, it is important to remember that the appearance of impropriety or of a conflict of interest can also be damaging to a FRXQFLOPHPEHU¶VLPDJHDQGWKHFLW\¶VUHputation, even if the act is not specifically prohibited by law. Part II. Prohibited gifts, economic disclosure, and political activities B. Prohibited gifts 1. All Minnesota cities, in general Minn. Stat. § 471.895.(OHFWHGDQGDSSRLQWHG³ORFDORIILFLDOV´PD\QRWUHFHLYHDJLIWIURPDQ\ ³LQWHUHVWHGSHUVRQ´$Q³LQWHUHVWHGSHUVRQ´LVDSHUVRQRUUHSUHVHQWDWLYHRID person or an association, who has a direct financial interest in a decision that a local official is authorized to make. This law applies to all cities in Minnesota. Official Conflict of Interest9 The law clearly applies to council members. However, since there is no GHILQLWLRQRIWKHWHUP³ORFDORIILFLDO´ it is not known if the law covers all city employees or just certain high level employees, such as city managers or administrators. Until further clarification of the law, the safest course of action is to assume the law applies to all employees, regardless of their duties. 2. Exceptions for all Minnesota cities The following types of gifts are permitted under exceptions to the gift law: Minn. Stat. § 471.895, subd. 3. Lawful campaign contributions. Services to assist an official in the performance of official duties. These types of services include such things as providing advice, consultation, information, and communication in connection with legislation and services to constituents. Services of insignificant monetary value. A plaque or similar item. These items are permitted if given to recognize individual services in a field of specialty or a charitable cause. A trinket or item of insignificant monetary value. Informational material of unexceptional value. Food or beverage given at a reception, meal or meeting by an organization before whom the recipient makes a speech or answers questions as part of a program. This exception is only available if the ORFDWLRQRIWKHUHFHSWLRQPHDORUPHHWLQJLVDZD\IURPWKHUHFLSLHQW¶V place of work. Gifts given because of the recipient’s membership in a group. However, the majority of the members of the group must not be local officials. In addition, the gift is only acceptable if an equivalent gift is given to the other members of the group. . Gifts between family members However, the gift may not be given on the behalf of someone who is not a member of the family. To national or multi-state organization conference attendees. The majority of dues paid to the organization must be from public funds, and the gift must be food or a beverage given at a reception or meal in which an equivalent gift is offered to all other attendees. 3. Metropolitan cities with populations over 50,000 League of Minnesota Cities 10 Minn. Stat. § 471.895; Metropolitan cities with a population over 50,000 are subject to an additional Minn. Stat. §§ law. Local officials in these cities are also prohibited from receiving gifts 10A.071; 10A.01, IURP³OREE\LVWV´$³OREE\LVW´LVGHILQHGDV subd. 21. Someone engaged in lobbying in the private or public sector; or, A city employee or non-elected city official who spends more than 50 hours in any month attempting to influence governmental action. Minn. Stat. § 10A.01, $³ORFDORIILFLDO´LVDQHOHFWHGRUDSSRLQWHGFLW\RIILFLDORUDFLW\HPSOR\HH . subd. 22 with authority to make, recommend or vote on major decisions on the expenditure or investment of public funds. C. Conflict of interest and economic disclosure in metropolitan-area cities with populations over 50,000 1. Conflict of interest disclosure Minn. Stat. § 10A.07.Elected and appointed officials of metropolitan cities with populations over 50,000 must disclose certain information if they will be involved in a decision that will affect their financial interests. The law affects elected or appointed city officials, or city employees with authority to make, recommend or vote on major decisions regarding the expenditure or investment of public funds. The law applies if the official or employee must make a decision or take an action that substantially affects his or her financial interests or those of a business with which he or she is associated. However, there is an exception if the effect is no greater for the interested business than for others in that business, occupation, or position. The interested official or employee must do the following: Prepare a written statement describing the matter requiring action or decision and the nature of the potential conflict of interest. Official Conflict of Interest11 Deliver a copy of the notice to his or her superiors. i. If the official is an employee, he or she must deliver a copy of the statement to his or her immediate superior. ii. If the official is directly responsible only to the city council, it should be given to the city council. iii. If the city official is appointed, written notice should go to the chair of the unit. If the potential conflict involves the chair, the written notice should go to the appointing authority (in most cases, the city council). iv. If the official is an elected official, the written statement should go to the presiding officer (the mayor, in most instances). v. If the potential conflict involves the mayor, the written notice should go to the acting presiding officer. ,IDSRWHQWLDOFRQIOLFWRILQWHUHVWDULVHVDQGWKHUHLVQ¶WWLPHWRFRPSO\ with the above requirements, the city official must orally inform his or her superior or the city council. 7KHHPSOR\HH¶VVXSHULRUPXVWDVVLJQWKHPDWWHUWRDQRWKHUHPSOR\HH who does not have a potential conflict of interest. Minn. R. 4515.0500. If there is no immediate superior, the city official must abstain from influence over the action or decision, if possible, in a manner prescribed by the Campaign Finance and Public Disclosure Board (Public Disclosure Board). If the city official is not permitted to abstain or cannot abstain, he or she must file a statement describing the potential conflict and the action taken. The city official must file this statement with the city council within a week of the action. 2. Statements of economic interest a. Information required Minn. Stat. § 10A.01, City officials in cities within the seven-county metropolitan area with . subd. 29 populations over 50,000 (as determined by the most recent federal census, a special U.S. census, an estimate by the Met Council, or the state Minn. Stat. § 10A.09, subds. 6a, 1. demographer) must file a statement of economic interest. The statement must EHILOHGZLWKWKHORFDORIILFLDO¶VJRYHUQLQJERG\DQGWKH3XEOLF'LVFORVXUH Board and must report the following information: Their name, address, occupation, and principal place of business. The name of each associated business (and the nature of that association). League of Minnesota Cities 12 Option-based, direct, or indirect interests in all real property within the state (except homestead property). Minn. Stat. § 10A.09, Interests in horse-race-track property or racehorses in or out of the state. subd. 5. Minn. Stat. § 10A.09, City officials can get a form for the disclosure of economic interests from the subd. 6; Minn. R. Public Disclosure Board. Officials must then file supplementary statements 4505.0900. each year by April 15, and a final statement upon leaving office. Minn. Stat. § There are similar additional requirements for elected officials of cities in 383B.053. Hennepin County with populations greater than 75,000. b. Time for filing An individual must file a statement of economic interest with the Public Disclosure Board by the following dates: Within 60 days of accepting employment as a local official; or, Within 14 days after filing an affidavit of candidacy or petition to appear on the ballot for an elective office. c. Notification Minn. Stat. § 10A.09, Upon receiving an affidavit of candidacy or a petition to appear on the ballot subd. 2. from someone who is required to file a statement of economic interest, the county auditor must notify the Public Disclosure Board. Likewise, an official who nominates or employs a city official who is required to file a statement of economic interest must also notify the Public Disclosure Board. The county auditor, or nominating/employing official, must provide the Public Disclosure Board with the following information: The name of the person required to file the statement of economic interest. The date of the affidavit of candidacy, petition or nomination. More information is The city official must also file the statement with the city council. The city available on the council must maintain these statements as public data. For more information, Campaign Finance and contact the Public Disclosure Board at (651) 296-5148. Public Disclosure %RDUG¶VZHEVLWHDW www.cfboard.state.mn. . us D. Statements of economic interest for trustees of public pension plans 1. Information required Official Conflict of Interest13 Minn. Stat. § 356A.06, Each member of the governing board of a public pension plan must file a subd. 4 (c). statement of economic interest with the plan. This includes the trustees of local relief association pension plans (both regular trustees and ex-officio trustees, such as the mayor and clerk). The statement must include the following: 7KHSHUVRQ¶VSULQFLSDORFFXSDWLRQDQGSODFHRIEXVLQHVV Whether or not the person has an interest of 10 percent or more in an investment security brokerage business, a real-estate-sales business, an insurance agency, a bank, a savings and loan, or another financial institution. Any relationship or financial arrangement that could give rise to a conflict of interest. 2. Time for filing Minn. Stat. § 356A.06, 7KHVWDWHPHQWPXVWEHILOHGDQQXDOO\ZLWKWKHSODQ¶VFKLHIDGPLQLVWUDWLYH subd. 4. officer. It must be available for public inspection during regular office hours DWWKHSHQVLRQSODQ¶VRIILFH,QIRUPDWLon must also be filed each year by Jan. 15 with the Public Disclosure Board. E. Lobbyist regulations Minn. Stat. § 10A.04.State law contains broad lobbyist reporting requirements. Lobbyists who attempt to influence the actions of metropolitan governmental units must report expenditures for these activities in addition to expenditures for state legislative and administrative lobbying activities. City employees and non-elected city officials who spend more than 50 hours Minn. Stat. §§ 10A.01, subd. 11; 10A.04, subd. in any month on lobbying activities must register and submit reports of 2. lobbying expenses to the Public Disclosure Board each year by Jan. 15 and June 15. These reports must include gifts and items or benefits valued at $5 or more Minn. Stat. § 10A.04, . subd. 4 (c) that lobbyists give to local officials, state lawmakers or other public office holders. Campaign contributions to a candidate are excluded from this particular reporting requirement. However, cities should note that even though the reporting requirement applies at the $5 amount, this does not See Part II - A - Prohibited gifts. necessarily exempt lesser amounts from the gift law. Associations that spend more than $500 for lobbying, or $50,000 or more to Minn. Stat. § 10A.01, subd. 33. influence public policy decisions at the metropolitan or state level, must also file spending reports. These reports must indicate the levels of total spending for both local and state lobbying activities. F. Leave during political candidacy League of Minnesota Cities 14 The extent to which a city can control the political activities of its employees 5 U.S.C. §§ 1502-3; Minn. Stat. § 211B.09. is unclear. State law prohibits public employees from using their official authority or influence to compel a person to apply for membership or become a member of a political organization, to pay or promise to pay a political contribution, or to take part in political activity. State law also prohibits a political subdivision from imposing or enforcing additional limitations on the political activities of employees. However, the Minnesota Supreme Court has held that a county could adopt a Martin v. Itasca County , 448 N.W.2d policy to require employees to take an unpaid leave during a political 368 (Minn. 1989). candidacy. The court also held that a county employee who was a candidate for a county office had no due process right to a hearing before being placed on unpaid leave. The court reasoned that a local government has an interest in prohibiting Minn. Stat. § 43A.32; 5 U.S.C. §§ 1501-2; 5 government employees from certain political activity. As a result, a U.S.C. § 7324. legislative body could prohibit a government employee from becoming a candidate for elective office to prevent potential conflict in the workplace between the employee and the supervisor-incumbent during the campaign, and also to prevent any coercion of fellow employees and subordinates to assist in the political campaign. For these reasons, the court stated that a local government could suspend, or even discharge, a government employee who seeks elective office. It is important to note that the court did not discuss whether such a policy Minn. Stats. §§ 10A.20, subd. 11; may also be applied to the incumbent who was running for re-election. The 211B.09-.10; 18 U.S.C. court also did not consider several statutes that appear to limit the restrictions §§ 600-601; 5 U.S.C. § HPSOR\HUVPD\LPSRVHRQWKHLUHPSOR\HHV¶SROLWLFDODFWLYLWLHV&LWLHVVKRXOG 1503. exercise caution when adopting a policy to regulate the political activities of employees. Part III. Conflict of interest in contracts G. All cities 1. In general Minn. Stat. § 471.87.Generally, public officers may not have a personal financial interest in a sale, lease or contract they are authorized to make in their official capacity. A ³SXEOLFRIILFHU´FHUWDLQO\LQFOXGHVDPD\RUDFRXQFLOPHPEHURUDQHOHFWHG official. In some circumstances, the designation may also include appointed officers and employees who are able to influence contracting decisions. Official Conflict of Interest15 The attorney general has advised that the conflict of interest law applies to A.G. Op. 90-E-5 (Nov. 13, 1969); A.G. Op. authorized DQ\FRXQFLOPHPEHU³ZKRLVWRWDNHSDUWLQDQ\PDQQHU´LQWKH 90e-6 (June 15, 1988). making of the contract. Simply abstaining from voting on the contract will not allow the contract to be made. The attorney general reasoned that if the Legislature had only wanted to prohibit a contract with an interested officer ZKRYRWHVRQWKHFRQWUDFWLWZRXOGQRWKDYHXVHGWKHZRUG³DXWKRUL]HG´ A literal reading of the statute might suggest that it does not apply to city A.G. Op. 90e-6 (June 15, 1988). officers who are unable to make a contract on behalf of the city. However, the attorney general has given the statute a broad interpretation, which could mean the statute affects more officials than just those who actually make the decision to enter into the contract. As a result, it may be wise to take a conservative approach regarding contracts with any city official. The clerk in a Standard Plan statutory city, or in a home rule charter city A.G. Op. 470 (June 9, 1967). having a similar plan of government, is a member of the council but occupies a peculiar position. He or she is subject to the conflict of interest statutes and may not be interested in a contract with the council. However, the council is allowed to impose duties on the clerk in addition to those assigned by statute, DQGWKHFRXQFLOPD\IL[WKHFOHUN¶VFRPSHQVDWLRQIRUWKRVHGXWLHV 2. Exceptions and the procedures to use them Minn. Stat. § 471.881.There are several important exceptions to the conflict of interest law on contracts. These exceptions apply to all cities, despite any other statutes or charter provisions. Generally, an exception may only be used when approved by unanimous vote Minn. Stat. § 471.88, 1989 Street subd. 1; of the council. In the past, it has been unclear whether this meant an Improvement Program interested officer should vote or abstain. However, a 1992 decision by the v. Denmark Township, Minnesota Court of Appeals suggests that an interested officer should abstain 483 N.W.2d 508 (Minn. App. 1992). from voting, even when not expressly required to do so under the law. The case dealt with a local improvement that was to be paid for with special 1989 Street Improvement Program assessments. Two members of the town board owned properties that would v. Denmark Township, be specially assessed. The two interested board members abstained from 483 N.W.2d 508 voting on whether the improvement should occur. The remaining three board (Minn. App. 1992). members approved the project. The township was challenged because the project had not received the required four-fifths majority vote of the board. However, the court said the two interested board members were correct not to have voted on the project since their interests disqualified them from voting. As a result, the remaining thrHHERDUGPHPEHUV¶YRWHVZHUHVXIILFLHQW to unanimously approve the project. An interested officer should disclose his or her interest at the earliest stage See Part IV - E - Conflict of interest and abstain from voting or deliberating on any contract in which he or she check list. has an interest. The remainder of the council must unanimously approve the contract. There are also additional requirements for some of the exceptions that are discussed below. League of Minnesota Cities 16 The following exceptions are allowed if the proper procedure is followed: The designation of a bank or savings association as an authorized Minn. Stat. § 471.88, subd. 2. depository for public funds and as a source of borrowing. No restriction applies to the designation of a depository or the deposit of public funds Minn. Stat. ch. 118A. in the depository as long as the funds are protected in accordance with state law. Procedure . The following must occur to use this exception: i. The council must approve the designation by unanimous vote. ii. The official who has an interest in the bank or savings association must disclose this fact, and it must be entered in the council meeting minutes. The official must make this disclosure when the bank or savings association is first designated or when the official is first elected (if that occurs later). The disclosure serves as notice of the interest and is only necessary once. iii. The interested officer should abstain from voting on the matter. The designation of an official newspaper or the publication of official Minn. Stat. § 471.88, subd. 3. matters in the newspaper. This exception applies only if the interested RIILFLDO¶VQHZVSDSHULVWKHRQO\SXEOLFDWLRQTXDOLILHGWREHWKHRIILFLDO Minn. Stat. § 331A.04. newspaper. Procedure . The following must occur to use this exception: i. The council must approve the designation by unanimous vote. ii. The interested officer should abstain from voting on the matter. A contract with a cooperative association of which the official is a Minn. Stat. § 471.88, subd. 4. shareholder or stockholder, but not an officer or manager. Procedure . The following must occur to use this exception: i. The council must approve the contract by unanimous vote. ii.The interested officer should abstain from voting on the matter. Official Conflict of Interest17 Minn. Stat. § 471.88, A contract for goods or services if competitive bids are not required by subd. 5. law. Generally, a city must use competitive bidding if the amount of a contract for the sale, purchase or rental of supplies, materials or Minn. Stat. § 471.345; See League research equipment or for the construction, alteration, repair or maintenance of Competitive memo real or personal property is more than $50,000. Bidding Requirements in Cities (130B1.3) for more information. See Part V - This exception appears to apply to contracts that do not have to be Incompatibility of competitively bid, like contracts for professional services or employment. A offices. city may want to seek a legal opinion if it is unsure about whether this exception applies to a particular situation. Procedure Minn. Stat. §§ 471.88, . The following must occur to use this exception: subd. 5; 471.89. i. The council must approve the contract by unanimous vote. ii.The interested officer should abstain from voting on the See Forms 1 and 2 for sample resolutions. matter. iii.The council must pass a resolution setting out the essential facts, such as the nature of thHRIILFHU¶VLQWHUHVWDQGWKHLWHP or service to be provided, and stating that the contract price is as low or lower than could be found elsewhere. See Form 3 for sample iv. Before a claim is paid, the interested officer must file an affidavit. affidavit with the clerk that contains the following: The name and office of the interested officer. An itemization of the commodity or services furnished. The contract price. The reasonable value. The interest of the officer in the contract. 7KDWWRWKHEHVWRIWKHRIILFHU¶VNQRZOHGJHDQG belief, the contract price is as low or lower than the price that could be obtained from other sources. Minn. Stat. § 471.89, v. In the case of an emergency when the contract cannot be subd. 2. authorized in advance, payment of the claims must be authorized by a resolution (see above) in which the facts of See Forms 2 and 3. the emergency are also stated. League of Minnesota Cities 18 Minn. Stat. § 471.88, A contract with a volunteer fire department for the payment of subd. 6. compensation or retirement benefits to its members. There is still some question as to whether this exception applies to both municipal and A.G. Op. 358-E-4 (Jan. 19, 1965); A.G. Op. independently operated fire departments. A literal reading of the statute 358-e-9 (April 5, suggests it applies only to an actual contract. Since cities do not usually 1971); A.G. Op. 90-E (April 17, 1978). contract with a municipal fire department, there is a possibility this exception may only apply to contracts with an independent fire department. However, the attorney general has issued mixed opinions, Also see Part V - some of which imply the exception can apply to both kinds of fire Incompatibility of departments. A councilmember should also consider whether serving the offices. city in two functions would result in incompatible offices. Procedure . The following must occur to use this exception: i. The council must approve the contract by unanimous vote. ii. The interested officer should abstain from voting on the matter. Minn. Stat. § 471.88, A contract with a municipal band for the payment of compensation to subd. 7. its members. Procedure . The following must occur to use this exception: i. The council must approve the contract by unanimous vote. ii.The interested officer should abstain from voting on the matter. Minn. Stat. § 471.88, Contracts between an import/export firm and an economic subds. 9, 10. development authority (EDA), port authority, or seaway port authority when a commissioner is employed by the firm. Procedure . The following must occur to use this exception: i. The authority must approve the contract by unanimous vote. ii.The interested officer must abstain from voting on the matter. Minn. Stat. § 471.88, Bank loans or trust services between a bank and a public housing subd. 11. authority, port authority, or EDA when the bank employs one of the commissioners. Procedure . The following must occur to use this exception: i. The authority must approve the contract by unanimous vote. ii. The commissioner must disclose the nature of those loans or trust services of which he or she has personal knowledge. iii. The disclosure must be entered into the meeting minutes. iv.The interested officer should abstain from voting on the matter. Official Conflict of Interest19 A contract for construction materials or services, or both, by sealed bid Minn. Stat. § 471.88, subd. 12. process if the city has a population of 1,000 or less and the sealed bid process is used. Procedure . The following must occur to use this exception: i. The council must approve the contract by unanimous vote. ii. The interested officer may not vote on the question of the contract when it comes before the governing body for consideration. A contract to rent space in a public facility at a rate equal to that paid Minn. Stat. § 471.88, subd. 13. by other members of the public. Procedure. The following must occur to use this exception: i. The council must approve the contract by unanimous vote. ii.The interested officer must abstain from voting on the matter. An application for a grant offered by a local development organization Minn. Stat. § 471.88, subd. 14. (HRA, EDA, community action program, port authority or private consultant). Procedure . The following must occur to use this exception: i. The authority must approve the application by unanimous vote. ii. The interested officer must abstain from voting on the matter. iii. The interested officer must disclose that he or she has applied for a grant. iv.The interest must be entered into the official minutes. A utility franchise agreement. Minn. Stat. § 471.88, subd. 15. Procedure. The following must occur to use this exception: i. The council must approve the franchise agreement by unanimous vote. ii. The interested officer must abstain from voting on any franchise matters. iii.7KHUHDVRQIRUWKHLQWHUHVWHGFRXQFLOPHPEHU¶VDEVWHQWLRQ must be recorded in the meeting minutes. Minn. Stat. § 471.88, An application for a federal or state grant. subd. 17. League of Minnesota Cities 20 Procedure. The following must occur to use this exception: i. The grant must be for housing, community, or economic development. ii. The interested officer must abstain from voting on measures related to the grant. Loans or grants from certain federal funding programs that benefit Minn. Stat. § 471.88, subd. 18. officers of small cities in St. Louis County. Procedure. The following must occur to use this exception: i. The city must have a population of 5,000 or less and be located in St. Louis County. ii. The city must be administrating a loan or grant program with community development block grant funds or federal economic development administration funds for property owners in the city. iii. The officer receiving the loan or grant must disclose in the official minutes that they have applied for the funds. iv. The interested officer mustabstain from voting on the application. A loan from an HRA to an HRA officer. Minn. Stat. §471.88, subd. 19. Procedure. The following must occur to use this exception: i. The loan must be from state or federal loans or grants administered by the HRA. ii. The public officer must first disclose as part of the official minutes that they have applied for the funds. iii. The public officer must abstain from voting on the application. H. Statutory cities Minn. Stat. § 412.311.Statutory cities must consider an additional law. The law provides that no member of a statutory city council may be directly or indirectly interested in any contract the council makes, except for the limited exceptions discussed previously. This law may apply to some situations where the general law does not. For example, even though the actual contract is not made with a councilmember, the fact that he or she has an indirect interest in it could violate this law. I. Home rule charter cities Official Conflict of Interest21 Minn. Stat. § 471.881.Many home rule charters contain provisions on conflict of interest in contracts. Some of these go beyond the statute to include any city official, even though the official has no part in making the contract. These charter provisions may apply to situations where the statute does not. However, the exceptions discussed previously apply to all cities, despite any other statute or city charter. (Because charter provisions vary from city to city, they are not covered in this document.) Some home rule charters contain provisions preventing all officers and employees from being interested in a contract with the city. Such a provision evidently applies to every city officer or employee whether or not he or she has a part in making contracts. J. Specific kinds of contracts A.G. Op. 90a-2 (April The unlawful interest statutes apply to all kinds of contracts, formal or 14, 1960); A.G. Op. informal, for goods and services. The statute applies not only when the city is 90E-5 (Aug. 30, 1949). the buyer, but also when the city is the seller. 1. Prohibited interest A.G. Op. 90E-1 (May The law would appear to prohibit a contract with a public official who has 12, 1976). had the opportunity to influence the terms of the contract or the decision of the governing body. Minn. Stat. § 471.88, Even when a contract is allowed under one of the exceptions, such as for a subd. 5. ³FRQWUDFWIRUZKLFKELGVDUHQRWUHTXLUHGE\ODZ´ZKLFKDSSHDUVWRLQFOXGH an employment contract), council members should be cautious. Employing a See Part V - Incompatibility of councilmember as a city employee may still be prohibited under the offices. ³LQFRPSDWLELOLW\RIRIILFHV´GRFWULQH A.G. Op. 90a-1 (May The attorney general has advised that a councilmember who holds stock in a 16, 1952). corporation that enters into a contract with the city has an unlawful interest and that a councilmember who is a subcontractor on a contract has an A.G. Op. 90b (Aug. 8, 1969). unlawful interest. The attorney general has also advised that a member of a governing body that receives a percentage of the money earned by a court- reporting firm for jobs done under a contract with the city has an unlawful interest. A.G. Op. 90-E-5 (Nov. On the other hand, the attorney general has advised that if a councilmember 13, 1969). is an employee of the contracting firm and his or her salary is not affected by the contract, the council may determine that no personal financial interest exists. Thus, such a contract may be made and enforced in a home rule charter city with no charter provisions prohibiting direct or indirect interest. Singewald v. The Minnesota Supreme Court has held that employment by a company the Minneapolis Gas Co., city contracts with may give a councilmember an indirect interest in the 274 Minn. 556, 142 contract. However, a more recent attorney general opinion concluded it is N.W.2d 739 (1966); A.G. Op. 90a-1 (Oct. 7, unclear whether mere employment always gives rise to a conflict of interest. 1976). League of Minnesota Cities 22 A.G. Op. 90a-1 (Oct. 7, The attorney general has said that factors other than employment may have 1976). to be considered to determine whether a prohibited interest is present. The attorney general concluded that a council may contract with a FRXQFLOPHPEHU¶VHPSOR\HULIWKHIROORZLQJFULWHULDDUHPHW The councilmember has no ownership interest in the firm. The councilmember is neither an officer nor a director. The councilmember is compensated with a salary or on an hourly wage basis and receives no commissions, bonus or other remuneration. The councilmember is not involved in supervising the performance of the contract for the employer and has no other interest in the contract. More difficult questions sometimes occur when a councilmember takes office after a city has entered into a contract. If no conflict of interest can GHYHORSEHWZHHQWKHFRXQFLOPHPEHU¶VSXEOLFGXW\DQGKLVRUKHUSULYDWH interest in the contract during the contract, the councilmember can probably serve. However, if a conflict of interest can develop, the interested member may be prohibited from serving on the council. The attorney general has issued mixed opinions concerning the legality of these types of situations. A.G. Op. (April 1, In an informal letter opinion, the attorney general said the director of a 1975) (informal letter malting company could assume office as a councilmember even though the opinion). city had entered into a 20-year contract with the company to allow it to use WKHFLW\¶VVHZDJHGLVSRVDOSODQW7KHcontract also fixed rates for service subject to negotiation of new rates under certain circumstances. The attorney general said the councilmember could continue to serve as long as no new negotiations were required. However, no new agreement could be entered into as long as the interested councilmember held office. A.G. Op. 90E-1 (May The law apparently prohibits making a contract with any public official who 12, 1976). has had the opportunity to influence its terms. The attorney general has advised that a former councilmember could not be a subcontractor on a municipal hospital contract if he was a councilmember when the prime contract was awarded. A.G. Op. 90a-1 (March However, in a different opinion, the attorney general advised that a 30, 1961). councilmember was eligible for city office even though the councilmember was entitled to commissions on insurance premiums payable by the city. In this instance, the insurance contract was entered into before the person became a councilmember. The assumption of office by someone with a personal financial interest in an already existing contract raises concerns about possible conflicts of interest during the performance of the contract. In doubtful cases, the person faced with a possible conflict of interest situation should seek a legal opinion before assuming city office. 2. Employment of elected official by city Official Conflict of Interest23 The League is often asked if an elected city official can also be employed by the city. There are several issues that must be considered to determine whether this is permissible. See Part V - First, it must be determined if the two positions are incompatible. If the two Incompatibility of positions are incompatible, the individual may not serve in both positions. offices . See Part III - A - If the two positions are not incompatible, it must then be determined if there Exceptions and the is an exception to the conflict of interest laws that allows the employment procedures to use them. contract to be made. Even if an employment situation does not result in a formal written contract, the employment arrangement might be viewed like a contract under the conflict of interest law. Minn. Stat. §§ 471.88, There is an exception to the conflict of interest law that allows a contract to subd. 5; ; 471.345See be made with an interested official if the contract is not required to be League research memo competitively bid. This exception appears to permit a city to hire an elected Competitive Bidding Requirements in Cities official as an employee, since contracts for professional services and (130B1.3) for more employment are not required to be competitively bid. A city may want to information. seek a legal opinion if it is unsure whether this exception applies to a Also see Part V - particular situation. Incompatibility of offices . It is also not clear whether this statutory provision provides an exception to A.G. Op. 358-e-4 (Jan. 19, 1965); A.G. Op. the common law incompatibility rules. The attorney general seemed to think 358-e-9 (April 5, that it did in a 1965 opinion that considered a situation involving a 1971); A.G. Op. 90-E councilmember serving as a city volunteer firefighter. However, later (April 17, 1978). attorney general opinions have not always been consistent in this interpretation, at least with regard to elected officials who are also firefighters. Although fact differences in these other attorney general Also see Part V - D - opinions may partially explain the different results, a city may still want to Offices that have been found incompatible. get an opinion from its city attorney or from the attorney general if it is considering whether a particular city position would be incompatible with an elected office. 3. Validity of contracts with relatives of city officials See Part IV - Conflict The conflict of interest laws do not address family relationships as of interest in non- constituting possible conflicts. The courts of other states generally have held contractual situations. that family relationship alone has no disqualifying effect on the making of a contract. There must be proof that a councilmember has a financial interest in the contract. Cases dealing with non-contractual situations are similar. In the cases dealing with non-contractual situations, the mere fact of family relationship, other than that of husband and wife, has not generally resulted in a disqualifying interest. League of Minnesota Cities 24 Minn. Stat. § 519.02. While it is easier to find that a councilmember has a personal financial interest in a contract with his or her spouse, a marital relationship alone may not make the contract invalid. In other states, courts have held that a public body is not prohibited from appointing the spouse of one of its members as ORQJDVXQGHUWKHVWDWHODZWKHVSRXVH¶VHDUQLQJVDUHKLVRUKHURZQSURSHUW\ A.G. Op. (June 28, $FRQWUDFWZLWKWKHFRXQFLOPHPEHU¶VVSRXVHLQDVWDWXWRU\FLW\PD\LQYROYHD 1928); A.G. Op. (July violation of the law if the councilmember has a direct or indirect interest in it. 14, 1939); A.G. Op. The attorney general has construed the law broadly to hold such contracts 90-C-5 (July 30, 1940). invalid. If the money earned under the contract is used to support the family, the councilmember derives some benefit. In this type of situation, the attorney general has held that there is an indirect interest in the contract on the part of the councilmember. Therefore, the contract is void. A.G. Op. 90-b (April 5, The law gives husbands and wives variousLQWHUHVWVLQWKHLUVSRXVH¶VHVWDWH 1955). The attorney general once held these interests alone would prohibit contracting with the spouse of a city official. However, in more recent opinions, the attorney general has taken the position that each case turns on its individual facts. In short, the mere fact of the relationship does not affect the validity of the contract. Minn. Stat. § 519.05. 8QGHUH[LVWLQJODZVSRXVHVDUHOLDEOHIRUHDFKRWKHU¶VVXSSRUWIRU necessities. If a spouse who contracts with the city uses the earnings from the A.G. Op. 90a-1 (Dec. contract individually and not to support the family, the contract probably 9, 1976). would not be invalid simply because the spouse is a councilmember. However, if the facts tend to show otherwise, the legality of the contract will be doubtful. The attorney general has advised local governing bodies to avoid the suspicion and criticism that may result from such contracts. Although a prohibited interest in contracts does not necessarily arise when the spouse of a city employee is elected councilmember, the opinion carefully avoids any statement about future action of the council on the existing employment relationship. Minn. Stat. § 363.03, It should be noted that the Minnesota Human Rights Act prohibits subd. 1(2). discrimination in employment based upon marital status. Cities should exercise caution when making inquiries into the marital status of employees Also see Part IV - C - Family connections. or applicants for city positions. 4. Sale of government-owned property a. In general Officers and employees of the state or its subdivisions are prohibited from Minn. Stat. § 15.054. selling government-owned property to another officer or employee of the state or its subdivisions. However, the law does not apply to the sale of items acquired or produced for sale to the general public in the ordinary course of business. In addition, the law allows government employees and officers to sell public property if the sale is in the normal course of their duties. Official Conflict of Interest25 b. Exceptions Minn. Stat. § 15.054.There are also exceptions to this prohibition. Personal property owned by the state or its subdivisions and no longer needed for public purposes can be sold to an employee (but not to an officer) under certain conditions. These conditions are: There has been reasonable public notice and the property is sold by public auction or sealed bid. The employee is the highest responsible bidder. The employee who buys the property must not be directly involved in the auction or sealed response process. There is no exception that allows the sale of city-owned real estate to a city officer or employee. K. Contracts made in violation of the statutes Minn. Stat. § 471.87. A public officer who violates the conflict of interest law is guilty of a gross misdemeanor and can be fined up to $3,000 and imprisoned up to one year. Minn. Stat. § 609.0341, Any contract made in violation of the conflict of interest law is generally subd. 1. void. Public officers, who knowingly authorize a prohibited contract even A.G. Op. 90a-1 (April though they do not receive personal benefit from it, may also be subject to 22, 1971). the criminal penalties of state law. City of Chaska v. :KHQDFLW\HQWHUVLQWRDFRQWUDFWWKDWKDVVXEMHFWPDWWHUEH\RQGWKHFLW\¶V Hedman, 53 Minn. 525, corporate powers, there will generally be no city liability for the contract. 55 N.W. 737 (1893); Even when the contract is within the FLW\¶VFRUSRUDWHSRZHUVDQ\FRQWUDFW Currie v. Sch. Dist. No. 26, 35 Minn. 163, 27 made in violation of the unlawful interest statutes is generally void. As a N.W. 922 (1886); result, such a contract cannot be the basis of a lawsuit. However, a city may Bjelland v. City of be enjoined from performing an illegal contract. Mankato, 112 Minn. 24, 127 N.W. 397 (1910). Stone v. Bevans, 88 If a contract is invalid, it does not matter that the interested councilmember Minn. 127, 92 N.W. did not participate in the vote or discussion. Likewise, it does not matter that 520 (1902); City of WKHLQWHUHVWHGFRXQFLOPHPEHU¶VYRWHZDVQRWHVVHQWLDOWRWKHFRXQFLO¶V Minneapolis v. Canterbury, 122 Minn. approval of the contract. It is the existence of the interest that is important. 301, 142 N.W. 812 Even if the councilmember acted in good faith and the contract was fair and (1913); Currie v. Sch. reasonable, the contract is generally void if it is prohibited because of a Dist. No. 26, 35 Minn. 163, 27 N.W. 922 conflict of interest. (1886); Singewald v. Minneapolis Gas. Co., 274 Minn. 556, 142 N.W.2d 739 (1966). League of Minnesota Cities 26 Stone v. Bevans, 88 When a prohibited contract is made with an interested councilmember, the Minn. 127, 92 N.W. councilmember may not recover on the contract. Nor may a councilmember 520 (1902). recover value on the basis of an implied contract. If a councilmember has already received payment, restitution to the city can be compelled. For example, if the mayor is paid for services to the city under an illegal contract, a taxpayer could sue to recover the money for the city. It does not matter that the mayor was not present at the meeting at which the agreement for compensation was adopted. Frisch v. City of St. If a councilmember has made an unlawful sale of goods to the city and the Charles, 167 Minn. goods can be returned, a court will probably order it and prohibit any 171, 208 N.W. 650 payment for the goods. This might be ordered when a lot has been purchased (1926); Mares v. Janutka, 196 Minn. 87, from a councilmember and no building has been erected on it, or if supplies, 264 N.W. 222 (1936). such as lumber, have been bought and not yet used. However, if the goods cannot be returned and if the contract was not beyond the powers of the city and there was no fraud or collusion in the transaction, the court will determine the reasonable value of the property and permit payment on the basis of the value received. In case of doubt, it is wise to assume a city cannot contract with one of its officers. If the contract is necessary, a legal opinion or court ruling should be secured before proceeding. The safest course of action is to assume that a contract prohibited under the conflict of interest statutes is void, whether or not the interested councilmember has participated in the transaction. Part IV. Conflict of interest in non-contractual situations L. In general While the laws discussed previously relate only to contracts with interested officials, courts throughout the country, including the Minnesota Supreme Court, have followed similar principles in non-contractual situations. Any official who has personal financial interest in an official non-contractual 56 Am. Jur. 2d Municipal action is generally disqualified from participating in the action. This is Corporations § 142. especially true when the matter concerQVWKHPHPEHU¶VFKDUDFWHUFRQGXFWRU ULJKWWRKROGRIILFH$QRWKHUVLWXDWLRQPD\EHZKHQWKHRIILFLDO¶VRZQ personal interest is so distinct from the public interest that the member cannot be expected to represent the public interest fairly in deciding the matter. Official Conflict of Interest27 In applying the disqualification rules in non-contractual situations, the courts have sometimes made a distinction between judicial and quasi-judicial acts on the one hand, and legislative and administrative acts on the other. However, this distinction has not been consistently applied in particular cases. In general, when an act of a council is judicial, no member who has a personal interest may take part. SoPHZRXOGDUJXHWKDWWKHPHPEHU¶V participation makes the decision voidable, even if his or her vote was not necessary to make the decision. Some of the cases discussed in the next section indicate how this distinction has been applied. When there is a disqualifying personal interest, the action is not necessarily void. In contrast to the rules regarding conflict of interest in contract situations, the official action may be valid if the disqualified official does not participate and the required number of non-interested council members approve the action. M. Disqualifying interest factors The Minnesota Supreme Court has listed several factors to consider in Lenz v. Coon Creek Watershed Dist., 278 determining if a disqualifying interest exists: Minn. 1, 153 N.W.2d 209 (1967). The nature of the decision. The nature of the financial interest. The number of interested officials. The need for the interested officials to make the decision. In one case, it Gonsalves v. City of Dairy Valley, 71 Cal. was held that when an administrative body had a duty to act on a matter Rptr. 255 (Cal. Ct. and was the only entity capable of acting on the matter, the fact that App. 1968). members may have had a personal interest in the result did not disqualify them from performing their duties. In that case, council members owned stock in a corporation seeking a special use permit. Other means available. Another relevant factoris whether or not other Lenz v. Coon Creek Watershed Dist., 278 means are available to ensure officials will not act arbitrarily to further Minn. 1, 153 N.W.2d their self interest, such as an opportunity for review. In one case, the 209 (1967). court took into account the fact that a decision by a board of managers Township Bd. of Lake could be appealed to the state water resources board. The court referred Valley Township v. to the same factor in another decision regarding a town board decision to Lewis, 305 Minn. 488, establish a road. In upholding the townERDUG¶VGHFLVLRQWKHFRXUWVDLG 234 N.W.2d 815 (1975). that the availability of appeal to the district court would adequately protect owners of the affected land from any possible prejudice. League of Minnesota Cities 28 N. Specific situations There is far from complete agreement among the various courts on the kinds of interest and the situations that prevent an interested official from taking part in non-contractual official actions. A summary of some of these situations follows: 1. Determination of an official’s right to office On the theory that no person should be the judge of his or her own case, courts have generally held that an officer may not participate in proceedings involving his or her status. Thus, city council members are probably prohibited from judging themselves on an offense in which the majority of the council participated. Likewise, GHWHUPLQDWLRQRIDFRXQFLOPHPEHU¶V residency may be one such issue from which an interested officer should abstain. 2. Self-appointment Minn. Stat. § 471.46. Generally, city officials may not appoint a councilmember to an elected position, even if he or she resigns before the appointment is made. However, Minn. Stat. § 415.15. a councilmember may be appointed to the position of mayor or clerk, but the councilmember may not vote on the appointment. Likewise, resigning council members may not vote on their successors. See Part V - In the situation of appointment to a non-elective position, the general rule is Incompatibility of that the official has a self-interest and he or she is disqualified from offices. participating in the decision. Whether the councilmember serving the city in a second function creates an incompatibility must also be considered. 3. Fixing official’s own compensation Minn. Stat. § 415.11. State law authorizes a council of any second, third or fourth class city in Minnesota to set its own salary and the salary of the mayor by ordinance. However, the change in salary cannot begin until after the next regular city election. Since every councilmember has a personal interest in determining his or her compensation, the need for interested officials to make the decision is determinative in this situation. A special situation is involved in settinJWKHFOHUN¶VVDODU\LQD6WDQGDUG3ODQ statutory city. In these cities, the clerk is elected and is thus a voting member RIWKHFRXQFLO7KHRWKHUIRXUFRXQFLOPHPEHUVPD\YRWHRQWKHFOHUN¶V compensation without any disqualifying self-interests. However, it is probably best for the clerk not to vote on his or her own salary. 4. Family connections Official Conflict of Interest29 A.G. Op. (April 14, In an informal letter opinion, the attorney general has advised that a 1975) (informal letter councilmember was not disqualified from voting on a rezoning because his opinion). father owned legal title to the tract in question. A.G. Op. 90a-1 (Dec. The attorney general has also advised that a prohibited interest does not 9, 1976). necessarily arise when the spouse of a city employee is elected mayor. The opinion carefully avoids any statement about future action of the council on the existing employment relationship. Minn. Stat. § 363.03, It should be noted that the Minnesota Human Rights Act prohibits subd. 1(2); Also see discrimination in employment based upon marital status. Cities should Part III - D - Validity exercise caution when making inquiries into the marital status of employees of contracts with relatives of city or applicants for positions with the city. officials. 5. Business connections Other types of business interests may also be prohibited, indirect interests A.G. Op. 430 (April 28, 1967). even though there is not a personal financial interest under the general law. The attorney general has advised that a housing authority commissioner had a conflict of interest when the commissioner was also a foreman who would aid a contractor in making a bid to the housing authority. In a different opinion, the attorney general found that a mayor or A.G. Op. 90e (Aug. 25, 1997). councilmember would not be disqualified from office because he was an employee of a nonprofit corporation that provided public access cable service to the city. However, the attorney general also concluded that the individual must abstain from participating in any actions related to the cable franchise. 6. Land issues Since a city council must deal with land matters, it is almost inevitable one of these decisions may affect property that is owned or used by one of its members. a. Local improvements and special assessments A councilmember owning land to be benefited by a local improvement is Petition of Jacobson, 234 Minn. 296, 48 probably not prohibited from petitioning for the improvement, voting to N.W.2d 441 (1951); undertake it, or voting to adopt the resulting special assessment. Although Lenz v. Coon Creek one Minnesota decision took a different view on a county ditch proceeding, it Watershed Dist., 278 Minn. 1, 153 N.W.2d seems to have been sharply limited as a precedent by a later case. The two 209 (1967). cases can also be distinguished on their facts. League of Minnesota Cities 30 The firstcase concerned a proposed county ditch that bypassed a county Petition of Jacobson, 234 Minn. 296, 48 ERDUGPHPEHU¶VSURSHUW\$OWKRXJKWKe board member participated in N.W.2d 441 (1951). preliminary proceedings before the board regarding the feasibility of the improvement, he did not attend the final hearing. The court vacated the FRXQW\ERDUG¶VRUGHUHVWDEOLVKLQJWKHSURSRVHGGLWFKVLQFHWKHSUHOLPLQDU\ proceedings may have had a substantial effect on later actions taken at the final hearing. The court also said the board member should not have participated in any of the proceedings regarding the project. The court in the second case found there was no disqualifying conflict of Lenz v. Coon Creek Watershed Dist., 278 interest when four of the five managers of a watershed district owned land Minn. 1, 153 N.W.2d that would be benefited by a proposed watershed district improvement 209 (1967). project. The court recognized the situation was similar to those where members of a city council assess lands owned by them for local improvements. As a result, the court found this potential conflict of interest did not disqualify the district board members from participating in the improvement proceedings. ,WLVSRVVLEOHDFRXQFLOPHPEHU¶VSURSHUW\RZQHUVKLSPLJKWUHVXOWLQDPRUH favorable treatment of that property in an assessment project. If that happened, the assessment might be challenged for arbitrariness and set aside whether or not the councilmember participated in the assessment proceedings. b. Zoning The attorney general has advised that a council is not prevented from A.G. Op. 59a-32 (Sept. 11, 1978). rezoning property owned by a councilmember or by his or her client. However, the councilmember may not participate in the council proceedings involving the rezoning. In an earlier opinion, the attorney general said it was a question of fact A.G. Op. 471-f (Sept. 13, 1963). whether a town board member had a disqualifying interest for having sold land that was the subject of rezoning. However, the attorney general appeared to assume that if the board member had a sufficient interest in the land, the member would be disqualified from voting on the rezoning. i. Property ownership Whether or not property ownership disqualifies a councilmember from participating in council action will depend, to some extent, on the amount of that interest compared to all land affected by the decision. At one extreme is adoption of a new zoning ordinance or a comprehensive revision of an existing ordinance that may have an impact on all property in the city. In this situation, the interest is not personal and the councilmember should be able WRSDUWLFLSDWH,IWKLVZDVQ¶WDOORZHd, no such ordinance could ever be adopted since all council members may be property owners. Official Conflict of Interest31 At the other extreme is the application for a zoning variance or special use SHUPLWDSSO\LQJRQO\WRDFRXQFLOPHPEHU¶VSURSHUW\,QWKLVLQVWDQFHWKHUHLV such a specific interest that it will probably disqualify the member from participating in the proceedings. However, the councilmember should still be able to submit the required application to the city. Between these two extremes are those proceedings affecting some lots or parcels, only one of which a councilmember owns. In such cases it is a question of fact whether the councilmember is disqualified from voting. If the councilmember chooses to vote, the council must decide whether the PHPEHUVKRXOGEHGLVTXDOLILHG²DGHFLVLon which is subject to review in the courts if challenged. There will be many situations where the right to vote is doubtful enough that an interested councilmember should refrain from participating. ii. Condemnation 7KHUHLVOLWWOHGRXEWDFRXQFLOPHPEHU¶VRZnership of land is so direct and Webster v. Bd. of County Comm’rs of significant as to preclude his or her participation in a resolution to condemn Washington County, 26 the land. The Minnesota Supreme Court has not ruled directly on this Minn. 220, 2 N.W. 697 question. However, it did not disqualify a county board member from (1897). participating in condemnation proceedings to establish a highway when the board member owned land adjoining the proposed highway. The court suggested the decision might have been different if the owner had been entitled to damages if the highway had gone through his property. iii. Church affiliation The Minnesota Court of Appeals held that a zoning board member who was Rowell v. Bd. of Adjustment of the City also a member of a church was not disqualified from voting on a zoning of Moorhead, 446 variance requested by that church. The court found the nature of the financial N.W.2d 917 (Minn. LQWHUHVWFRXOGQRWKDYHLQIOXHQFHGWKHYRWLQJERDUGPHPEHU7KHSHUVRQ¶V App. 1989). membership in the church, without evidence of a closer connection, was not a sufficiently direct interest in the outcome of the matter to justify setting DVLGHWKHERDUG¶V]RQLQJDFWLRQ c. Streets i. Establishing streets and highways It appears that a councilmember who owns land near an area where a street Webster v. Bd. of County Comm’rs of may be opened would not be prohibited from voting on the matter. The Washington County, 26 Minnesota Supreme Court has held that a county board member who owned Minn. 220, 2 N.W. 697 land adjoining a proposed county highway did not have a disqualifying (1897). interest preventing him from voting on the establishment of the highway. The ERDUGPHPEHU¶VLQWHUHVWZDVVLPLODUWRWKDWRIWKHUHVWRIWKHSXEOLFDQG differed only in degree. A different decision may have been reached had the KLJKZD\JRQHWKRXJKDQ\RIWKHFRPPLVVLRQHU¶V land. League of Minnesota Cities 32 The Minnesota Supreme Court also refused to disqualify a town board Township Bd. of Lake Valley Township v. supervisor that asked a landowner to circulate a petition for a road. The court Lewis, 305 Minn. 488, reasoned that by its very nature, the decision to establish a town road is of 234 N.W.2d 815 interest to all local citizens, including town board members, who often may (1975). be in the best position to be aware of the need for a road. The court also stated that the ability of affected property owners to appeal to the district court would adequately protect them from any possible prejudice. ii. Street vacation It is arguable that a street vacation is not essentially different from the A.G. Op. 396g-16 (Oct. See also, 15, 1957); establishment of a street, where abutting owners have been held not to have a Petition of Jacobson, disqualifying interest. However, the attorney general advised that a 234 Minn. 296, 48 councilmember who had an interest in property abutting a street proposed for N.W.2d 441 (1951). vacation could not participate in the vacation proceedings. 7. Urban renewal An interest in property subject to an urban renewal decision may be grounds for disqualification. However, when the property is within the area of a larger urban renewal program, but not in the project area subject to the decision, it is arguable the councilmember would not be disqualified from voting. Since there have been no Minnesota cases addressing this issue, councilmembers with these types of interests may wish to abstain from voting on these matters or seek an attorney general opinion regarding the legality of their participation. 8. Licenses Although there have been no Minnesota cases directly on the subject, it seems obvious that when a councilmember is an applicant for a license to be granted by the council, there is enough of a personal financial interest that the member should not take part in the decision on the application. If a general licensing ordinance is the subject of the action, even a A.G. Op. 218-R (April 29, 1952). councilmember who does not hold a license may have a possible conflict of interest that could disqualify him or her from voting. The attorney general said that a councilmember who was a part-time employee of a liquor licensee could not vote on the question of reducing the liquor license fee if it could be shown that the councilmember was personally interested. For example, if the fee reduction would affect the councilmHPEHU¶VFRPSHQVDWLRQRUFRQWLQXHG employment, he or she would obviously have a personal financial interest in WKHGHFLVLRQ+RZHYHUZKHWKHUDQLQGLYLGXDO¶VSHUVRQDOLQWHUHVWLVVXIILFLHQW to disqualify him or her from voting on the decision is a fact question that must be determined on a case-by-case basis. Official Conflict of Interest33 In a similar case, the Minnesota Supreme Court held that since a town board E.T.O., Inc. v. Town of Marion, 375 N.W.2d member owned property across from a bar that was subject to a liquor license 815 (Minn. 1985). renewal decision, he was disqualified from voting on the license renewal. The town board member stated his property had been devalued by $100,000 since the bar opened, and he was elected to the board based largely on his opposition to the bar. The court stated, ³$PRUHGLUHFWDGPLWWHGILQDQFLDO LQWHUHVWLVKDUGWRLPDJLQH´ A state rule prohibits a councilmember from voting on a liquor license for a Minn. R. § 7515.0430, subp. 5. spouse or relative. The rule does not deILQHZKRLVLQFOXGHGDVD³UHODWLYH´ so cities may need to consult with their city attorney for guidance in specific situations. O. Effect of disqualifying interest on action A contract that is prohibited due to a conflict of interest is generally void. Nodes v. City of Hastings, 284 Minn. However, actions taken in a non-contractual situation, where a 552, 170 N.W.2d 92 councilmember has a disqualifying interest, may be valid if the result would (1969). have been the same without the interestHGRIILFLDO¶VYRWH)RUH[DPSOHWKH Minnesota Supreme Court considered a case involving a decision by a three- member civil service commission to terminate a police officer for failing to SD\KLVILQDQFLDOGHEWV7KHFRXUWKHOGWKDWLWZRXOGKDYHEHHQD³EHWWHU SUDFWLFH´IRUWKHFRPPLVVLRQPHPEHUZKRhad been a creditor of the officer to have disqualified himself and abstained from voting. However, the court held that the interested commission mePEHUV¶SDUWLFLSDWLRQLQDXQDQLPRXV GHFLVLRQGLGQRWLQYDOLGDWHWKHFRPPLVVLRQ¶VGHFLVLRQ Council members who have a disqualifying interest in a matter are generally 1989 Street Improvement Project v. excluded when counting the number of councilmembers necessary for a Denmark Township, quorum, or for the number necessary to approve an action by a four-fifths 483 N.W.2d 508 vote, such as approving a special assessment. (Minn. App. 1992). P. Conflict of interest checklist Consult with the city attorney. Disclose the interest. i. Make disclosure at the earliest stage preceding the discussion. Make oral disclosure to the governing body or board. Make written disclosure. LL'RQ¶WSDUWLFLSDWHLQGLVFXVVLRQVOHDGLQJXSWRWKHGHFLVLRQ 'RQ¶WYRWHRUWDNHDQ\RIILFLDODFtion unless the city attorney decides there is no prohibited conflict of interest. League of Minnesota Cities 34 'RQ¶WLQIOXHQFHRWKHUV L'RQ¶WSDUWLFLSDWHLQWKHGLVFXVVLRQHLWKHUDWWKHWLPHRIWKHYRWHRU earlier. ii. Leave the room when the governing body is discussing the matter. Part V. Incompatibility of offices Q. In general The question of whether a city official can also serve the city in some other capacity is quite complicated. One must look at both the statutory law, and the common law that has been developed through Minnesota court decisions. All individuals in elected office are prohibited from holding incompatible offices. In addition, many appointed officials may need to consider this law if taking a position that may conflict with their city responsibilities. The common law doctrine of incompatibility applies to the functions of two SeeMcCutcheon v. City of St. Paul, 216 inconsistent offices. However, there is no clear definition of what constitutes N.W.2d 137 (1974). DQ³RIILFH´IRUWKHSXUSRVHRIWKLVODZ&HUWDLQO\LWZRXOGLQFOXGHDOOHOHFWHG offices. It may also include appointed offices such as city administrators, managers, and police chiefs. Generally, an office has greater responsibility, importance, and independence than mere city employment. State laws generally do not prevent a person from holding two or more State v. Sword, 157 Minn. 263, 196 N.W. governmental positions. However, without specific statutory authority, Kenney v. 467 (1923); government officials cannot hold more than one position if the functions are Goergen, 36 Minn. incompatible or if the jobs create a conflict between two different public 190, 31 N.W. 210 (1886). interests. Federal employees are generally prohibited from being candidates in local 5 U.S.C. §§ 7323(a)(3); 7322(2). (More SDUWLVDQHOHFWLRQV$QHOHFWLRQLVFRQVLGHUHG³SDUWLVDQ´LIFDQGLGDWHVDUH information about the elected as representing political parties. State employees generally can run Hatch Act (5 U.S.C. §§ for and hold local elected office as long as there is no conflict with their 7321-7326) is available at: regular state employment. The Minnesota Department of Employee Relations www.osc.gov/hatchact. will determine whether a conflict exists. htm). R. Elements of incompatible offices Positions are generally incompatible when one or more of the following conditions exist: Official Conflict of Interest35 If the holder of one position (or the group or board of which the person is a member): See Kenney v. Goergen, 36 Minn. i. Hires or appoints the other. 190, 31 N.W. 210 State v. Sword, (1886); ii. Sets the salary for the other. 157 Minn. 263, 196 N.W. 467 (1923); iii. Performs functions that are inconsistent with the other. Minn. Stat. § 471.46; A.G. Op. No. 256 iv. Makes contracts with the other. (1936); A.G. Op. No. 235 (1928); A.G. Op. No. 234 (1928). v. Approves the official or fidelity bond of the other. If a specific statute or charter provision: i. States that one person may not hold two or more specific positions. ii. Requires that the officer may not take another position. iii. Requires that the officer devote full-time to the position. S. Violation of the incompatibility law An individual generally can run for election to a position that is incompatible A.G. Op. 471-M (Dec. 11, 1957). with the position the person already holds without resigning from the first position. However, when an official qualifies for a second and incompatible position (by taking an oath and filing a bond, if necessary), he or she automatically resigns from the first position, which then becomes vacant. T. Specific offices It is important to remember that incompatibility depends on the nature of the offices and their relationship to one another. A city official who is considering seeking an additional office should obtain a legal opinion on the compatibility of the two offices. The attorney general has found the following offices to be incompatible: Councilmember and city treasurer A.G. Op. 358e-7 (March 5, 1965). Mayor and school board member A.G. Op. 358e-9 (Dec. 13, 1939). Mayor and municipal liquor store manager. A.G. Op. 218-R (Feb. 25, 1946). Councilmember and city attorney A.G. Op. 358e-3 (March 6, 1946). Councilmember and fire chief A.G. Op. 358-e-9 (April 5, 1971). League of Minnesota Cities 36 In 1965, the attorney general advised that a councilmember could also be a A.G. Op. 358-e-4 (Jan. 19, 1965); Minn. Stat. member of a volunteer city fire department under the exception to the § 471.88, subd. 6. conflict of interest law that permits contracts with a volunteer fire department for payment of compensation or retirement benefits. But in 1971, the attorney general advised that the fire chief of a municipal fire department A.G. Op. 358-e-9 automatically vacated the office of fire chief when he accepted a seat on the (April 5, 1971). city council. This opinion did not mention the exception listed in the conflict of interest law or the 1965 opinion. In 1978, the attorney general considered the issue again and advised that the A.G. Op. 90-E (April 17, 1978). exception to the conflict of interest law allows a councilmember to be a member of an independent volunteer fire department when a contract for compensation or retirement benefits is negotiated, as long as the procedural requirements for the exception are followed. The attorney general also explained that the reason for the different results in the two earlier opinions was because the 1965 opinion involved a fire department member who was not an officer and the 1971 opinion involved a fire department member who was the fire chief. In 1997, the Minnesota Legislature attempted to clarify the issue by creating Minn. Stat. § 412.152. a statute to offer some guidance regarding the positions of mayor and fire chief. The statute says that a statutory city mayor may also be the fire chief of an independent, nonprofit firefighting corporation that serves the city. Although the statute is specifically for statutory cities, home rule charter cities may be able to use it if their charters are silent on the matter. Basically, Minn. Stat. § 410.33. the statute says the mayor and fire chief positions are not incompatible as long as the following conditions are met: The mayor does not appoint the fire chief. The mayor does not set the salary or the benefits of the fire chief. Neither office performs functions inconsistent with the other. Neither office (in its official capacity) contracts with the other office. The mayor does not approve the fidelity bond of the fire chief. The statute remains unclear on several points, however. It does not address council positions other than the mayor. It also appears to be limited to independent, nonprofit fire departments, so city departments (whether volunteer or salaried) are not addressed. And although it outlines general criteria under which there will not be incompatibilities, there is still some vagueness regarding what functions between the two offices would be considered inconsistent. Because each city may have a different relationship with its fire department, a city may want to get a legal opinion from its attorney or from the attorney general before allowing a councilmember to serve as a volunteer firefighter with any sort of supervisory powers. The attorney general has found the following offices to be compatible: Official Conflict of Interest37 Councilmember and county treasurer A.G. Op. 358e-9 (Feb. 10, 1912). Councilmember and officer of nonprofit, public-access, cable-service A.G. Op. 90e (Aug. 25, 1997). provider Assistant county attorney and city attorney A.G. Op. 358e-3 (July 29, 1997). City attorney and charter commission member A.G. Op. No. 420 (1921). In conclusion, whether two offices are incompatible will depend upon the responsibilities of each of the offices and their relationship. A city with Compatibility of See questions may wish to contact the League at (651) 281-1200 or (800) 925- Offices (House 1122 for further information, or secure a legal opinion from its city attorney Research Information Brief). or the attorney general. The League has available a document that lists many of the different public offices/employment and whether they have ever been found to be incompatible. League of Minnesota Cities 38 Part VI. Model forms Form 1 Model resolution to contract with a councilmember (under Minn. Stat. §§ 471.88, subd. 5and 471.89, subd. 2) goods / merchandise / equipment / Whereas, the city of __________ desires to purchase the following ( servicesdescribe in detail ): (); name of interested officialoffice held by interested official And Whereas, () is the () of the city and will be financially interested in the contract; And Whereas, it is determined that the contract price of $______ is as low as, or lower than, the price at which the goods can be obtained elsewhere at this time; And Whereas, the contract is not one that is required to be competitively bid; Now be it resolved by the city of __________, Minnesota that the city clerk is directed to make the name of interested officer above-mentioned purchase on behalf of the city from () for a price of $______. It is also resolved that the mayor and city clerk are directed to issue an order-check to pay the claim on the filing of an affidavit of official interest by the interested official as required under Minn. Stat. § 471.89. This resolution is passed to comply with the provisions of Minn. Stat. §§ 471.87-.89. (day and date). Passed by unanimous vote of the city council on ________________ Mayor ________________ Clerk Official Conflict of Interest39 Form 2 Model resolution ratifying contract in emergency (under Minn. Stat. §§ 471.88, subd. 5and 471.89, subd. 2) day and dategoods / merchandise / Whereas, on (), the city of _________ purchased the following ( equipment / servicename of company or person with whom the contract was madespecify the ) from (): ( type of goods, merchandise, equipment, or services that were bought ); name of interested officialoffice held by interested official And Whereas, () was the () on this date and was personally interested financially in the contract; And Whereas, the purchase could not be authorized in advance because of the following emergency: specify emergency (); And Whereas, the contract price of $________ paid for such goods is as low, or lower than the price at which they could be obtained elsewhere at the time the purchase was made; And Whereas, the contract is not one that is required to be competitively bid; Now be it resolved by the city of _________, Minnesota that the above-mentioned purchase by the city and the claim of the vendor based on it are confirmed and the mayor and clerk are directed to issue an order-check to pay the claim on the filing of an affidavit of official interest by the interested officer as required under Minn. Stat. § 471.89. This resolution is passed to comply with the provisions of Minn. Stat. §§ 471.87-.89. (day and date) Passed by unanimous vote of the council on . ________________ Mayor ________________ Clerk League of Minnesota Cities 40 Form 3 Model affidavit of official interest in claim (under Minn. Stat. §§ 471.88, subd. 5and 471.89, subd. 3) STATE OF MINNESOTA ) COUNTY OF ____________) Name of interested officer I, (), being duly sworn state the following: office held by interested official 1) I am () of the city of _______, Minnesota. (day and date)goods / merchandise / equipment / services 2) On , the following () were furnished by name of business or individual with whom the contract was madespecify () to the city of ______: ( the type of goods, merchandise, equipment, or services that were purchased ). goods / merchandise / equipment / services 3) The contract price for such () was $_____ and their reasonable value was $______. goods / merchandise / equipment / services 4) At the time such () were furnished to the city, I had the (specify the nature of the personal financial following personal financial interest in this contract: interest ) To the best of my knowledge and belief the contract price is as low as, or lower than the price at which goods / merchandise / equipment / services ) could be obtained from other sources. the ( I further state that this affidavit constitutes a claim against the city for the contract price, that the claim is just and correct, and that no part of the claim has been paid. (signature of interested official) (month)(year) , . Subscribed and sworn to before me this ______ day of (signature of notary) Official Conflict of Interest41 Attachment 3 ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION RULES OF PROCEDURE Adopted by Environmental and Natural Resources Commission on October 7, 2008 Amendments made by the commission on December 21, 2009 Adopted by the City Council on March 8, 2010 We, the members of the Environmental and Natural Resources Commission of the City of Maplewood, Minnesota, created pursuant to Division 4, Sections 18.180 to 18.189 of the Maplewood Code of Ordinances, hereby adopt the following "Rules of Procedure," subject to the provisions of said Article, which is hereby made a part of these Rules: A. APPOINTMENTS The city council shall make appointments to the environmental and natural resources commission by following the current city appointment policy. B. MEETINGS 1. All meetings shall be held in the council chambers in Maplewood City Hall, 1830 E. County Road B, unless otherwise directed by the chairperson or staff, in which case at least 24 hours notice will be given to all commissioners. 2. Regular meetings shall be held at 7:00 p.m. on the third Monday of each calendar month, provided that when the meeting falls on a legal holiday, such meeting shall be rescheduled. 3. Special meetings may be held upon call by the chairperson or in his/her absence, by the vice chairperson, or by any other commissioner with the concurrence of a majority of the commissioners with at least 72 hours notice to all commissioners. C. COMMUNITY DEVELOPMENT AND PARKS DEPARTMENT In addition to carrying out the duties prescribed in city ordinance the environmental planner or a designated replacement shall: 1. Prepare the agenda for each meeting. 2. Act as technical advisor on any matter which comes before the commission. 3. Make written recommendations to the commission on matters referred to the commission. 4. Schedule any matter with the city council that has been reviewed by the commission that requires city council approval. -1- D. AGENDA 1. Copies of the agenda, together with pertinent staff reports and copies of the minutes of the previous meeting shall be made available to each member of the commission no later than three days prior to the next scheduled meeting. 2. The agenda format shall generally read as follows: a. Call to Order b. Roll Call c. Approval of Agenda d. Approval of Minutes e. Unfinished Business f. New Business g. Visitor Presentations h. Commissioner Presentations i. Staff Presentations j. Adjournment E. QUORUM 1. A simple majority of the current membership of the commissioners shall constitute a quorum. 2. Any action by the commission shall require a majority vote of the members present. F. ELECTION OF OFFICERS A chairperson and vice chairperson shall be elected at the first environmental and natural resources commission in January of each year and will serve until their successors have been elected. Nominations and members interested in serving as the chairperson or vice- chairperson shall be announced at the last meeting of the year. The chairperson will call for further nominations at the first meeting in January each year prior to the election. G. DUTIES OF THE CHAIRPERSON 1. In addition to the duties prescribed in the ordinance, the chair shall represent the commission at each city council meeting where a commission item is on the agenda, to present the commission’s recommendations and to answer questions from the city council regarding the decision. If the chair is unavailable to attend the city council meeting, the chair will appoint a representative from the commission. H. CHAIRPERSON AND VICE-CHAIRPERSON 1. The chairperson, vice chairperson, and such officers as the commission may decide shall be elected and assume duties according to the current ordinance. 2. In the absence of the chairperson, the vice chairperson shall perform all duties required of the chairperson. When both the chairperson and the vice chairperson are absent, the attending members shall elect a chairperson pro tem. -2- 3. If the chairperson resigns from or is otherwise no longer on the commission, the vice chairperson shall become the acting chairperson until the commission can hold an election for new officers. If the vice chairperson resigns or is otherwise no longer on the commission, the commission will elect a new vice chairperson at the next possible commission meeting. I. TEMPORARY COMMITTEES 1. The commission shall elect by a majority vote such standing committees and temporary committees as may be required and such committees will be charged with the duties, examinations, investigations, and inquiries relative to subjects assigned by the chair. 2. No standing or temporary committee shall have the power to commit the commission to the endorsement of any plan or program without the express approval of the commission. J. VACANCIES The environmental and natural resources commission positions shall be vacated or recommended to the city council for vacation according to the current environmental and natural resources ordinances. K. AMENDMENT OR SUSPENSION OF RULES 1. Any of the foregoing rules may be temporarily suspended by a majority vote of the commissioners present. 2. The "Rules of Procedure" may be amended at any regular meeting by a majority vote. L. RULES OF ORDER In all points not covered by these rules, the commission shall be governed in its procedures st by Rosenberg’s Rules of Order, Simple Parliamentary Procedures for the 21 Century. P:\PW\Works\Environemental\Environmental Commission\ENR Rules of Procedure -3- Attachment 4 All Active Commissioner Contact Info - Public Business & Economic Development Staff Liaison:Michael Martin651.249.2303Michael.Martin@ci.maplewood.mn.us Chair - Business RMark Jenkins 830 New Century Blvd. S.(H)Phone Term Expires:9/30/2013Maplewood MN 55119(C)Phon mark@jenkinsweb.net (W)Phone612.701.2019 Business Rep Jennifer Lewis 180 Hartman Circle(H)PhoneJeLewis@simon.com Term Expires:9/30/2013Minneapolis, MN 55342(C)Phon651.770.3863 (W)Phone763.286.3139 Gary Kloncz 613 Sterling St. S.(H)Phone651.578.7108Garykl@comcast.net (C)Phon Term Expires:9/30/2014Maplewood, MN 55119 (W)Phone Beth Ulrich 2574 Brookview Dr.(H)Phoneulrichhome@yahoo.com Term Expires:9/30/2014Mapelwood MN 55119(C)Phon (W)Phone Business Rep Warren Wessel 2311 Case Ave. E.(H)Phonewwessel@cbburnet.com Term Expires:9/30/2014Maplewood, MN 55119(C)Phon (W)Phone City Council Staff Liaison:Karen Guilfoile651.249.2002Karen.Guilfoile@ci.maplewood.mn.us CouncilpersonRebecca Cave 2020 Prosperity Rd.(H)Phone651.773.7059rebeccacave1@hotmail.com Term Expires:12/31/2013Maplewood, MN 55109(C)Phon rebecca.cave@ci.maplewood.mn.us (W)Phone Councilperson Kathleen Juenemann 721 Mt Vernon Ave E(H)Phone651.771.3670 Term Expires:12/31/2013Maplewood, MN 55117(C)Phon kathleen.juenemann@ci.maplewood.mn. (W)Phone us Mayor Will Rossbach 1386 County Road C(H)Phone651.484.5427 Term Expires:12/31/2013Maplewood, MN 55109(C)Phon will.rossbach@ci.maplewood.mn.us (W)Phone CouncilpersonBob Cardinal 2497 Adele St.(H)Phone651.765.8600 Term Expires:12/31/2015Maplewood, MN 55109(C)Phon bob.cardinal@ci.maplewood.mn.us (W)Phone Councilperson Marvin Koppen 1998 Ripley Ave. E(H)Phone651.770.5391marvkoppen@comcast.net Term Expires:12/31/2015Maplewood MN 55109(C)Phon Marvin.koppen@ci.maplewood.mn.us (W)Phone Community Design Review Board Staff Liaison:Mike Martin651.249.2303Michael.Martin@ci.maplewood.mn.us Vacant(H)Phone Term Expires:4/30/2013(C)Phon (W)Phone Ananth Shankar 2460 King Ave(H)Phone651.730.5966rojiananth@aol.com Term Expires:4/30/2013Maplewood, MN 55119(C)Phon (W)Phone651.290.1938 Chair Matt Ledvina 1173 Lakewood Dr S(H)Phone651.578.1658 Term Expires:4/30/2014Maplewood, MN 55119(C)Phon Mattledvina@comcast.net (W)Phone Vacant(H)Phone Term Expires:4/30/2015(C)Phon (W)Phone Jason Lamers 2621 Knollwood Ct. N(H)Phonejlamers@fiberweb.com Term Expires:4/30/2015Maplewood, MN 55109(C)Phon (W)Phone612.940.7362 Page 1 of 5 Tuesday, December 11, 2012 All Active Commissioner Contact Info - Public Environmental & Natural Resources Staff Liaison:Shann Finwall651.249.2304Shann.Finwall@ci.maplewood.mn.us Carol Mason Sherrill 2384 Nebraska Ave(H)Phone651.748.1633 carolmasonsherrill@yahoo.com Term Expires:9/30/2013Maplewood, MN 55119(C)Phon (W)Phone Ann Palzer 2497 Stillwater Road E.(H)Phoneannpalzer@yahoo.com Term Expires:9/30/2013Maplewood, MN 55119(C)Phon (W)Phone Ginny Yingling 673 Dorland Rd(H)Phoneginny.yingling@gmail.com (C)Phon Term Expires:9/30/2013Maplewood, MN 55119 (W)Phone Judith Johannessen 1610 Woodlyn Ave, #3(H)Phone651.738.0879 mmej0879@msn.com Term Expires:9/30/2014Maplewood, MN 55109(C)Phon (W)Phone Cynthia Schafer 2317 Boxwood Ave.(H)Phone Term Expires:9/30/2014Maplewood, MN 55119(C)Phon enrcindy@gmail.com (W)Phone Vice-ChairRandee Edmundson 1396 County Road C East(H)PhoneEdmundson.randee@gmail.com Term Expires:9/30/2015(C)Phon Maplewood, MN 55109 (W)Phone Dale Trippler 2691 Barclay St(H)Phone651.490.1485 Term Expires:9/30/2015Maplewood, MN 55109(C)Phon (W)Phone Heritage Preservation Commission Staff Liaison:David Fisher651.249.2320Dave.Fisher@ci.maplewood.mn.us Lucille Aurelius 1885 Manton St(H)Phone651.777.2917lucilleaurelius@gmail.com Term Expires:4/30/2013Maplewood, MN 55109(C)Phon (W)Phone Robert Creager 2317 Case(H)Phone651.578.0658 Term Expires:4/30/2013Maplewood, MN 55119(C)Phon (W)Phone Vice-Chair Richard Currie 1937 Kenwood Dr W(H)Phone651.771.2937r.e.currie@worldnet.att.net Term Expires:4/30/2013Maplewood, MN 55117(C)Phon (W)Phone Vacant(H)Phone Term Expires:4/30/2014(C)Phon (W)Phone Brenda Rudberg 2419 Oakridge Lane E(H)Phone651.578.0726brudberg@comcast.net Term Expires:4/30/2014Maplewood, MN 55119(C)Phon (W)Phone Peter Boulay 1100 County Road C(H)Phone651.490.3251happypebbl@hotmail.com Term Expires:4/30/2015Maplewood, MN 55109(C)Phon (W)Phone Leonard Hughes 1601 Woodlynn Ave.(H)Phoneleonardhughesmhpc@ymail.com Term Expires:4/30/2015Maplewood, MN 55109(C)Phon952.412.5629 (W)Phone Housing Redevelopment Authority Staff Liaison:Tom Ekstrand651.249.2302Tom.Ekstrand@ci.maplewood.mn.us Joy Tkachuck 1088 Gordon Ave(H)Phonejoy.tkachuck@optumhealth.com Term Expires:9/30/2013Maplewood, MN 55109(C)Phon (W)Phone Page 2 of 5 Tuesday, December 11, 2012 All Active Commissioner Contact Info - Public Vice-Chair/SecretarBeth Ulrich 2574 Brookview Dr(H)Phone ulrichhome@yahoo.com Term Expires:9/30/2014Maplewood, MN 55119(C)Phon (W)Phone Dennis Unger 2975 Walter ST.(H)Phoneungerslaw@comcast.net Term Expires:9/30/2015Maplewood MN 55109(C)Phon (W)Phone Tammy Wilde 2538 Hazelwood St.(H)Phonetammy.wilde@gmail.com Term Expires:9/30/2016Maplewood, MN 55109(C)Phon651.895.2085 (W)Phone Human Rights Commission Staff Liaison:Karen Guilfoile651.249.2002Karen.Guilfoile@ci.maplewood.mn.us Maurice Fortin 1601 Woodlynn Ave.(H)Phone moefortin@hotmail.com Term Expires:5/1/2013Maplewood, MN 55109(C)Phon612.807.7130 (W)Phone Jeffrey Kringle 1986 Fifth Street East(H)Phone Term Expires:5/1/2013St. Paul, MN 55119(C)Phon durarabo@yahoo.com (W)Phone Jon Brandt 2837 Southlawn Drive(H)Phone651-777-5004Jonwbrandt@gmail.com (C)Phon Term Expires:5/1/2014Maplewood, MN 55109 (W)Phone Nate Danielson 1256 Dennis St. North(H)Phone763.220.2326nate.danielson.hrc@gmail.com Term Expires:5/1/2014Maplewood, MN 55119(C)Phon (W)Phone Teresa Ryan Manzell 1741 Atlantic ST.(H)Phonegsquaredyouthadvocate@gmail.com Term Expires:5/1/2014Maplewood, MN 55109(C)Phon (W)Phone Vacant(H)Phone Term Expires:5/1/2015(C)Phon (W)Phone Julie Xiong 2264 Phylis Court East(H)Phonexiong.hrc@gmail.com Term Expires:5/1/2015Maplewood, MN 55119(C)Phon (W)Phone Park & Recreation Commission Staff Liaison:Jim Taylor651.249.2121james.taylor@ci.maplewood.mn.us Donald Christianson 1111 County Road C(H)Phone651.484.2529 Term Expires:4/30/2013Maplewood, MN 55109(C)Phon (W)Phone ChairBruce Roman 1713 Laurie Rd(H)Phone651.777.1422bruceroman@msn.com Term Expires:4/30/2013Maplewood, MN 55109(C)Phon (W)Phone Vice-Chair Kim Schmidt 1800 Phalen Pl(H)Phonephalenplace@yahoo.com Term Expires:4/30/2013Maplewood, MN 55109(C)Phon651-468-5482 (W)Phone Roy Adams 379 Ripely Ave.(H)Phone651.772.3575 Term Expires:4/30/2014Maplewood, MN 55117(C)Phon (W)Phone651.266.4859 Craig Brannon 2927 Walter St(H)Phone651.490.5064 Term Expires:4/30/2014Maplewood, MN 55109(C)Phon (W)Phone Page 3 of 5 Tuesday, December 11, 2012 All Active Commissioner Contact Info - Public Peter Fischer 2443 Standridge Ave(H)Phone651.770.4984 peter-kristi-fischer@comcast.net Term Expires:4/30/2014Maplewood, MN 55109(C)Phon (W)Phone Vacant(H)Phone Term Expires:4/30/2015(C)Phon (W)Phone Rhoda Erhardt 2379 Snowshoe Court East(H)Phone651.730.9004rperhardt@erhardtproducts.com Term Expires:4/30/2015Maplewood, MN 55119(C)Phon (W)Phone Therese Sonnek 1986 English St.(H)Phone Term Expires:4/30/2015Maplewood, MN 55109(C)Phon therese.sonnek@gmail.com (W)Phone Planning Commission Staff Liaison:Tom Ekstrand651.249.2302Tom.Ekstrand@ci.maplewood.mn.us Vacant(H)Phone Term Expires:12/31/2013(C)Phon (W)Phone Joseph Boeser 5803 Lake Avenue(H)Phonejtboeser@aim.com (C)Phon Term Expires:12/31/2013Wht Bear Twnsh, MN 5511 (W)Phone Vice-Chairperson Tushar Desai 2973 Edward St(H)Phone651.484.2132 Term Expires:12/31/2013Maplewood, MN 55109(C)Phon (W)Phone Chairperson Lorraine Fischer 1812 Furness St(H)Phone651.777.5037 Term Expires:12/31/2013Maplewood, MN 55109(C)Phon (W)Phone Vacant(H)Phone Term Expires:12/31/2014(C)Phon (W)Phone Paul Arbuckle 2550 Clarence St.(H)Phone651.484.1453arbybuckle@msn.org Term Expires:12/31/2014Maplewood, MN 55109(C)Phon (W)Phone651.494.9302 Lawrence Durand 2946 Chippewa Ave. N(H)Phonemollysprings@comcast.net (C)Phon612.865.1190 Term Expires:12/31/2014Maplewood, MN 55109 (W)Phone Alvin Bierbaum 222 Crestview Drive(H)Phone651.330.9088 alvinbierbaum@q.com Term Expires:12/31/2015Maplewood, MN 55119(C)Phon (W)Phone Dale Trippler 2691 Barclay St(H)Phone651.490.1485 Term Expires:12/31/2015Maplewood, MN 55109(C)Phon (W)Phone Stephen Wensman 1716 McKnight Lane, #53(H)Phonewensmanrla@gmail.com (C)Phon Term Expires:12/31/2015Maplewood, MN 55109 (W)Phone Police Civil Service Commission Staff Liaison:Terrie Rameaux651.249.2054Terrie.Rameaux@ci.maplewood.mn.us Secretary Debra Birkholz 1989 Duluth St.(H)Phone651.490.9759 Term Expires:12/31/2013Maplewood, MN 55109(C)Phon (W)Phone Page 4 of 5 Tuesday, December 11, 2012 All Active Commissioner Contact Info - Public James Meehan 3029 Bartelmy Lane(H)Phone Term Expires:12/31/2014Maplewood, MN 55109(C)Phon (W)Phone651.274.5342 ChairLisa Marie Liddell 439 Oday Circle(H)Phone651.592.8126 Term Expires:12/31/2015Maplewood, MN 55119(C)Phon (W)Phone Page 5 of 5 Tuesday, December 11, 2012 Agenda Item 6.a. MEMORANDUM TO:Environmental and Natural Resources Commission FROM:Shann Finwall, AICP, Environmental Planner SUBJECT: Wetland Ordinance Amendment DATE:December 12, 2012 for the December 17 ENR Commission Meeting INTRODUCTION The City Council adopted a wetland ordinance in December 2009. Because wetlands adjacent lakes are used by residents differently than freestanding wetlands, the City Council included reduced buffer requirements for these wetlands. The ordinance included a sunset clause which has the reduced buffers expiring at the end of 2012, or when the City revises the shoreland ordinance, whichever comes first. Since that time, the Department of Natural Resources has determined not to move forward with amendments to the State’s Shoreland Rules. If and when the State does amend the rules, the City would be required to modify our shoreland ordinance to reflect those changes. Until then staff recommends that any revisions to the regulations for wetlands adjacent lakes should be made in the existing wetland ordinance, not moved to the shoreland ordinance. BACKGROUND In November 2012 the Environmental and Natural Resources (ENR) Commission reviewed the private properties that would be affected by regulations for wetlands adjacent lakes. These included 40 residential properties located on three lakes (Beaver Lake, Lake Oehrline, and Wakefield Lake). The wetlands adjacent these lakes are classified as Manage A (Beaver Lake wetlands) and Manage B (Oehrline and Wakefield Lake wetlands). There are no private properties that are located on Manage C wetlands adjacent lakes. During the review, the ENR Commission directed staff to make the following changes to the wetland ordinance: 1. Buffers for wetlands adjacent lakes should be the same as buffers for freestanding wetlands (Manage A - 100 feet and Manage B - 75 feet). 2. Exemptions should be built into the ordinance to allow encroachments for structures (additions, garages, boat houses, pools) into a “non-naturalized” buffer without a variance for properties located on wetlands adjacent lakes. 3. Maximum exemption should be as follows: Manage A - 75 feet and Manage B - 50 feet. 4. Mitigation for these exemptions will include the planting of a native buffer. 5. Exemptions will be reviewed and approved by staff as part of the building permit. There would be an appeal process if staff denied the encroachment request. DISCUSSION Mitigation for Exemptions The ENR Commission determined that the best mitigation for a structure encroachment into a non-naturalized wetland buffer for wetlands adjacent lakes is the restoration of the buffer with native plantings. At a minimum, staff recommends at least a 10-foot wide buffer restoration for these projects. However, each exemption will pose a different wetland and buffer scenario. Some projects might have a partial (less than the City’s required buffer) naturalized or non- naturalized buffer. Others might have mowed grass up to the edge of the wetland. The width of the restored buffer could also be dependent on the width of the encroachment. As an example, the buffer restoration could be a minimum of 10 feet with one additional foot of restoration for each foot of encroachment past 10 feet. The maximum encroachment for Manage A and B wetlands adjacent lakes is 25 feet, so the maximum width of a buffer restoration would be 25 feet. In cases where there is already a 10-foot non-naturalized or native buffer, the property owner should be required to make improvements to that buffer, or increase the width of the buffer by 10 feet or additional amounts based on the size of the encroachment. Other Wetland Ordinances Changes Since the adoption of the wetland ordinance in 2009, staff has found a few areas of the ordinance that require modifications as follows: 1. Correct the stormwater pond definition. 2. Allow exemptions for the public maintenance of wetlands. This would include a project to improve drainage into or out of a wetland or a project that improved public safety. 3. Remove the requirement that wetland map changes require MnRAM studies which are approved by the watershed district. Incidental wetlands require a review by the watershed district, but not a MnRAM study. Therefore, the language should be modified to include the requirement that wetland changes require watershed district approval only. 4. For public or semipublic trails within a buffer, the required width of a boardwalk should be reduced from 12 feet down to 6 feet. 5. Modify variance regulations to meet new State statute. Recommendation During the December 17 ENR Commission meeting, staff will present the above-mentioned changes to the wetland ordinance for review and comment by the Commission. The amended ordinance will go to the Planning Commission and City Council for their review and approval early next year. Attachment: Amended Wetland Ordinance 2 Attachment 1 ORDINANCE NO. ______ AN ORDINANCE AMENDING THE ENVIRONMENTAL ARTICLE OF THE CITY CODE The Maplewood City Council approves the following changes to the Maplewood Code of Ordinances: This amendment revises the City Code dealing with wetlands. Additions are shown underlined and deletions are shown as stricken. Section 1. Findings. a. Wetlands serve a variety of beneficial functions. Wetlands help maintain water quality by filtering suspended solids and pollutants. They reduce flooding and erosion, provide open space for human interaction, and are an integral part of the city’s environment. Depending upon their type, size, and location within a watershed, they represent important physical, educational, ecological, aesthetic, recreational, and economic assets of the city. Properly managed wetlands are needed to support the city’s efforts to reduce flooding and to protect the public health, safety, and general welfare. b. Wetlands and buffers provide habitat for aquatic, semi-aquatic, and terrestrial wildlife, including rare, threatened, or endangered species. They provide breeding, nesting and feeding grounds for many forms of plant and animal life. Many species of wildlife require both wetlands and their associated upland buffers for survival. Protecting wetlands and buffers is essential for preserving the diversity of plant and animal species in the city. c. Streams are also significant elements of the city’s hydrologic system. Streams flow into wetlands and lakes, provide food and habitat for wildlife, provide open space, and are an integral part of the city’s environment. Like wetlands, streams are an important physical, ecological, aesthetic, recreational, and economic asset. d. Various existing state and federal laws restrict activities and development within wetlands and streams. The city finds that development adjacent to and surrounding wetlands may also degrade and pollute wetlands or accelerate the aging or elimination of wetlands and that development next to streams may degrade, pollute, or damage streams and, in turn, degrade other surface waters downstream. Regulating development and land use around wetlands and streams is therefore in the public interest. e. As defined and used herein, buffers are land areas adjacent to wetlands and streams that are deemed important for maintaining the health and valuable functions of such wetlands and streams. Restricting development of and land use in buffers recognizes that the surrounding upland impacts the quality and functions of wetlands and streams and, therefore, is in the public interest. f. Buffers planted with native or naturalized vegetation serve the following functions: (1) Stabilize soil and prevent erosion. 1 (2) Preserve and enhance the quality of surface water by reducing the input of suspended solids, nutrients, and harmful chemical substances that may adversely impact public health or aquatic habitat. (3) Filter suspended solids, nutrients, pollutants, and harmful substances so that they do not enter the wetland or stream. (4) Moderate water level fluctuations during storms. (5) Protect beneficial plant life and provide habitat for wildlife. (6) Provide shade to reduce the temperature of both stormwater runoff and the wetland, thereby helping to maintain the conditions for healthy aquatic life. (7) Reduce the adverse impacts of human activities on wetlands and streams and thereby preserve them in a natural state. g. In addition to regulating development and land use around wetlands, this ordinance is intended to educate the public (including appraisers, owners, potential buyers, and developers) about the importance of wetlands and streams and the functions of buffers and to encourage property owners who live adjacent to and/or near wetlands and streams to be responsible stewards by managing and enhancing the quality of buffers as hereinafter described. Section 2. Definitions. The following words, terms, and phrases when used in this ordinance shall have the meanings ascribed to them in this section, except where the context of the word, terms, and phrases clearly indicates a different meaning. Administratormeans the director of the community development department or other person or persons charged with the administration and enforcement of this ordinance. Alteration means human action that adversely affects the vegetation, hydrology, wildlife or wildlife habitat in a wetland, stream or buffer, including grading, filling, dumping, dredging, draining, paving, construction, application of gravel, discharging pollutants (including herbicides and pesticides), and compacting or disturbing soil through vehicle or equipment use. Alteration also includes the mass removal or mass planting of vegetation by means of cutting, pruning, topping, clearing, relocating, or applying herbicides or any hazardous or toxic substance designed to kill plant life. Alteration does not include the following activities in a buffer: a. Walking, passive recreation, fishing, or other similar low-impact activities. b. The maintenance of pre-existing, nonconforming lawn area. c. The removal of trees or vegetation that is dead, dying, diseased, noxious, or hazardous in a manner that does not cause the compacting or disturbing of soil through vehicle or equipment use. 2 d. The removal of noxious weeds by non-chemical methods, or by means of chemical treatment in accordance with application methods that prevent the introduction of toxic chemicals into wetlands and streams. e. The removal of non-native shrubs, such as buckthorn, if: 1. there is little chance of erosion; and 2. site is flat or generally has slopes less than 6 percent grade; and 3. cut and treat method of removal is used on shrubs more than one-half (½) inches in diameter (not pulling). f.Selectivemanagement of vegetation as follows: 1.Selective pruning of trees or shrubs in order to enhance their health. 2.Selective removal of tree saplings (less than 2 inches in diameter) in order to enhance wildlife value of the buffer. 3.Selective removal of non-native trees. 4.Selective removal of non-native weeds. 5.Selective seeding or planting of vegetation that is native to Minnesota. g. Installation of temporary fencing without footings. h. Projects within the buffer that are the subject of a wetland buffer management worksheet approved by the administrator. Best management practices (BMP’s) mean measures taken to minimize negative effects of stormwater runoff on the environment including, but not limited to, installation of rain gardens, infiltration basins, infiltration trenches, retention basins, filters, sediment traps, swales, reduction of impervious surfaces, planting of deep-rooted native plants, landscape and pavement maintenance. Buffers are land areas adjacent to wetlands and streams in which development and land use are restricted as set forth herein and in which the growth of native and naturalized plants and trees are to be preserved and encouraged in accordance with this ordinance. Clearingmeans the cutting or removal of vegetation. Enhancement means an action that increases the functions and values of a wetland, stream, or buffer. Erosion means the movement of soil or rock fragments, or the wearing away of the land surface by water, wind, ice, and gravity. Incidental wetland means a wetland which did not naturally occur, but was incidentally created by humans. means a pond or basin that captures stormwater and allows it to soak into the Infiltration basin ground. An infiltration basin will typically drain within forty-eight (48) hours of a storm event. 3 Lake means an area of open, relatively deep water that is large enough to produce a wave- swept shore. Lake shall also be defined as a “public water” as delineated and listed in the city’s shoreland ordinance (Article IX). Large-scale project means a vegetation maintenance, control, removal, mitigation or restoration project that will affect more than fifty percent (50%) of a buffer located on a piece of property. Lawn area means that area within a buffer with maintained landscape, including areas of mowed turf grass, gardens, play areas, work areas, patios, play structures, and nonpermanent structures. Lawn area does not include: (1) areas within a buffer consisting of native or naturalized vegetation; and (2) the land area that is outside of a buffer. Minnesota Routine Assessment Method (MnRAM)is a scientific methodology to assess the quality of wetlands. Mitigation means an action that reduces, rectifies, eliminates, or compensates for the alteration of a buffer or wetland. Native area means an area where native vegetation exists. Native vegetation means tree, shrub, grass, or other plant species that are indigenous to the Twin Cities metropolitan area and that could have been expected to naturally occur on the site. Native vegetation does not include noxious weeds. Naturalized area means an area where naturalized vegetation exists and does not include a lawn area. Naturalized vegetation means tree, shrub, grass, or other plant species that exists on a site naturally without having been planted or maintained as a lawn area. It may be a native or non- native species. Nonconforming lawn area means that area within a buffer with maintained landscape (lawn area) as of the date of adoption of this ordinance. Once a nonconforming lawn area is converted to native or naturalized buffer, it loses its legal nonconforming status and may not thereafter be treated as a nonconforming lawn area. Noxious weed means plants listed as prohibited noxious weeds in the Minnesota Noxious Weed Law. (See also weed.) Ordinary high water mark (OHWM) means a mark delineating the highest water level maintained for enough time to leave evidence upon the landscape. The ordinary high water mark is commonly that point where the natural vegetation changes from predominantly aquatic to predominantly terrestrial. Public watersmeans water basins assigned a shoreline management classification by the Minnesota Department of Natural Resources commissioner under Minnesota Statutes, sections 103F.201 to 103F.221, except wetlands less than 80 acres in size that are classified as natural environment lakes. Rain garden means an infiltration basin that is planted as a garden that allows water to infiltrate within forty-eight (48) hours of a storm event. 4 Restoration means restoring a wetland, stream, or buffer in whole or in part to a condition that is similar to that before development of the surrounding area. Selective means vegetation management done in a naturalized or native buffer, where a minimal amount of vegetation is altered, with the goal of improving ecological quality of the buffer and/or its ability to filter stormwater runoff. Semipublic means land that is maintained by a private organization for use by the general public. use. Setback means the minimum horizontal distance between a structure and the nearest edge of the wetland, stream, or buffer. Slope means the inclination of the natural surface of the land from the horizontal; commonly described as a ratio of the length to the height. Stormwater pond means a pond that has been created to capture stormwater runoff. It isa natural wetland. Stormwater is often piped into stormwater ponds but may also enter through sheet runoff. Stormwater pond edge means the normal high water level for a stormwater pond. Straight-edge setback is a measurement to determine the allowable setback of an addition to an existing house, garage, deck or driveway which is located closer to or within the required buffer. Straight-edge setback additions are measured by using the existing edge of the house, garage, deck, or driveway located nearest to the edge of a buffer, wetland, or stream and extending that line in a parallel direction. No portion of the addition can encroach closer to the edge of a buffer, wetland, or stream than the existing structure. Streammeans those areas where surface waters produce a defined channel or bed. A defined channel or bed is land that clearly contains the constant passage of water under normal summer conditions. Structure means anything constructed or erected that requires location on the ground or attached to something having location on the ground. Sustainable design means a development design which minimizes impacts on the landscape. Temporary erosion control means methods of keeping soil stable during construction or grading. Temporary erosion control measures include, but are not limited to, silt fencing, erosion control blankets, bale slope barriers, or other best management erosion control methods approved by the city. Variance means a deviation from the standards of this ordinance that is not specifically allowed. Vegetation means any plant life growing at, below, or above the soil surface. Weed means a plant which causes damage in some way to native vegetation or ecosystems. (See also noxious weed.) 5 Wetlandsmeans those areas of the city inundated or saturated by groundwater or surface water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas as defined. Where a person has removed or mostly changed the vegetation, one shall determine a wetland by the presence or evidence of hydric or organic soil and other documentation of the previous existence of wetland vegetation such as aerial photographs. This definition does not include lakes or stormwater ponds as herein defined. Wetlands adjacent to lakes means those areas of land or vegetation that have been classified as wetlands by an applicable Watershed District in accordance with the Minnesota Routine Assessment Method (MnRAM) system but which are attached to or part of the edge of a lake as defined herein. Wetland classes are defined as follows: a.Manage A wetlands are based on the “Preserve” wetland classification as defined in MnRAM. These wetlands are exceptional and the highest-functioning wetlands in Maplewood. b.Manage B wetlands are based on the “Manage 1” wetland classifications as defined in MnRAM. These wetlands are high-quality wetlands. c.Manage C wetlands are based on the “Manage 2” wetland classifications as defined in MnRAM. These wetlands provide moderate quality. d.Stormwater Pond– These are ponds created for stormwater treatment. A stormwater pond shall not include wetlands created to mitigate the loss of other wetlands. Wetland functions mean the natural processes performed by wetlands. These include providing wildlife food and habitat, maintaining the availability of water, purifying water, acting as a recharge and discharge area for groundwater aquifers, moderating the flow of surface water and stormwater, and performing other functions including but not limited to those set out in U.S. Army Corps of Engineers regulations. Wetland buffer management worksheet is a printed form available through the community development department which is required to be completed by a property owner who wishes to undertake certain activities in a wetland or stream buffer. The activities proposed by the property owner on the worksheet must be approved by the administrator prior to any work in the buffer. Wetland or stream edge means the line delineating the outer edge of a wetland or stream. The wetland edge shall be established using the Federal Manual for Identifying and Delineating Jurisdictional Wetlands dated January 10, 1989, and jointly published by the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers and the U.S. Soil Conservation Service, or succeeding publication that is adopted by the Federal Government. The applicable watershed district must verify this line. 6 Section 3. Applicability and Effective Date. Applicability. a. 1. This ordinance shall take effect after the city publishes it in the official newspaper. 2. Except as specified elsewhere in this ordinance, this ordinance shall apply to all real property which is located in a wetland, stream, or buffer or any person or use that would alter a wetland, stream, or buffer after adoption of this ordinance (December 14, 2009). 3. The city adopts the wetland classification map dated December 14, 2009, which is based on wetland classifications from the MnRAM studies and assigned by the applicable watershed district. Other wetland classification regulations are as follows: a. The city council will adopt changes to the wetland map which are based on MnRAM studies conducted and approved by watershed districts. b. Any wetland not currently assigned a classification based on MnRAM studies as of the date of the adoption of this ordinance (December 14, 2009) shall carry over the city’s April 24, 1995, wetland classifications and shall be assigned the following management classes: 1) Class 1 wetlands are defined as Manage A wetlands. 2) Class 2 wetlands are defined as Manage A wetlands. 3) Class 3 wetlands are defined as Manage B wetlands. 4) Class 4 wetlands are defined as Manage C wetlands. 5) Class 5 wetlands are defined as stormwater ponds. c. Wetlands adjacent tolakes will be regulated by this ordinance until December 31, 2012, or until the city adopts a new shoreland ordinance that includes the regulation of these wetlands, whichever occurs first. c.d. Appeals to the wetland classifications are within the jurisdiction of the applicable watershed district and shall be filed and heard pursuant to the administrative review process of that district. In the event that an appeal is granted, the city will recognize the results of that appeal for purposes of the classification of wetlands within the city. 4. When any provision of any ordinance conflicts with this ordinance, the provision that provides more protection for buffers, wetlands, or streams shall apply unless specifically provided otherwise in this ordinance. This also applies to the applicable watershed district regulations. 7 Exemptions. b. This section does not apply to the following property located in the city limits of Maplewood: 1. Property which is located within a buffer, but is separated from the wetland or stream by an existing road. 2. Buildings and structures not in conformity with the regulations prescribed in this ordinance as of its effective date shall be regarded as nonconforming and may continue. 3. Lawn areas not in conformity with regulations prescribed in this ordinance as of its effective date shall be regarded as nonconforming and may continue. A nonconforming lawn area will lose its legal nonconforming status if it is converted to native or naturalized buffer and may not thereafter be treated as a lawn area. Section 4. Buffer Widths and Requirements. Minimum buffers. a. The following are the minimum required buffer widths and structure setbacks: Buffer Wetland Classes Manage A Stormwater & Streams Manage B Manage C Pond Minimum Buffer Width 100 ft. 75 ft. 50 ft. 10 ft. Structure Setback from Edge of Buffer 0 0 0 10 ft. Buffer measurement. b.Buffers shall be measured from the wetland or stream edge. Buffers containing slopes. c. For new development or construction on slopes greater than eighteen percent (18%) that are within a buffer, the buffer width shall be increased to ten (10) feet beyond the apex of the slope. Extension of the buffer for steep slopes shall apply to all wetland classes. Buffers for wetlands adjacent tolakes. d.In light of the fact that lakes perform different functions than wetlands and streams and are used for different recreational purposes, wetlands adjacent to lakes and their designated buffers shall have alternative buffers. The following alternative buffers for wetlandsadjacent to lakes will apply until December 31, 2012, or until the city adopts a new shoreland ordinance that includes the regulation of these wetlands, whichever comes first. Wetland Classes (for Wetlands Adjacent toLakes) Buffer Manage AManage BManage C Minimum Buffer Width75 ft.50 ft.50 ft. 8 Average Buffers e.: Recognizing that there are instances where, because of the unique physical characteristics of a specific parcel of land, the averaging of buffer width for the entire parcel may be necessary to allow for the reasonable use of the land during a development or construction project. In such cases decreasing the minimum buffer width will be compensated for by increased buffer widths elsewhere in the same parcel to achieve the required average buffer width. 1. The average buffer standards set forth below may be applied based on an assessment of the following: a) Undue hardship would arise from not allowing the average buffer, or would otherwise not be in the public interest. b) Size of parcel. c) Configuration of existing roads and utilities. d) Percentage of parcel covered by wetland. e) Configuration of wetlands on the parcel. f) Averaging will not cause degradation of the wetland or stream. g) Averaging will ensure the protection or enhancement of portions of the buffer which are found to be the most ecologically beneficial to the wetland or stream. 2. The following are the average buffer widths: Buffer Wetland Classes Manage A & Streams Manage B Manage C . Minimum Buffer Width 75 ft50 ft. 50 ft. Average Buffer Width 100 ft. 75 ft. N/A 3. Average buffer measurement. Average buffer measurement shall be determined by averaging the buffer along the wetland edge situated on the subject property, not the entire wetland. 4. A mitigation plan is required for construction of development projects which meet the requirements described in Section 5.d. (Mitigation). 5. The appropriateness of using average buffers will be evaluated as part of the review of the contractor’s or owner’s development application. The average buffer used must be within the spirit and intent of this ordinance and must meet one or more of the requirements described in Section 7 (Best Management Practices). 9 6. The administrator must approve the average buffer. 7. If an average buffer is denied by the administrator, an applicant may appeal the denial by submitting a written appeal request to the administrator within fifteen (15) days of the administrator’s written denial of the average buffer. The administrator shall send appeals of average buffers to the environmental and natural resources commission for review. 8. If an average buffer is denied by the environmental and natural resources commission, an applicant may appeal the denial by submitting a written appeal request to the administrator within fifteen (15) days of the commission’s denial of the average buffer. The administrator shall send these appeals to the city council for final review. Section 5. Development and Construction. a. Unless an exemption applies, the following development and construction activities are not allowed in wetlands, streams, or buffers: 1. Alterations, including the filling of wetlands. 2. The construction of structures. 3. Projects which convert native or naturalized areas to lawn area. 4. The construction of stormwater drainage facilities, sedimentation ponds, infiltration basins, and rain gardens within a buffer. 5. Discharge of stormwater to a wetland not in compliance with the city’s stormwater management ordinance (Section 44-1245, or subsequent ordinances). Exemptions. b. This section does not apply to the following activities in a buffer: 1. Walking, passive recreation, fishing or other similar low-impact activities. 2. The maintenance of pre-existing, nonconforming lawn area. 3. The removal of trees or vegetation that is dead, dying, diseased, noxious, or hazardous in a manner that does not cause the compacting or disturbing of soil through vehicle or equipment use. 4. The removal of noxious weeds by non-chemical methods, or by means of chemical treatment in accordance with application methods that prevent the introduction of toxic chemicals into wetlands and streams. 5. The removal of non-native shrubs, such as buckthorn, if: a) there is little chance of erosion; and b) site is flat or generally has slopes less than 6 percent grade; and 10 c) cut and treat method of removal is used on shrubs more than one-half (½) inches in diameter (not pulling). 6.Selective management of vegetation as follows: a) Selective pruning of trees or shrubs in order to enhance their health. b) Selective removal of tree saplings (less than 2 inches in diameter) in order to enhance wildlife value of the buffer. c) Selective removal of non-native trees. d) Selective removal of non-native weeds. e) Selective seeding or planting of vegetation that is native to Minnesota. 7. Installation of temporary fencing without footings. 8. Projects within the buffer that are the subject of a wetland buffer management worksheet approved by the administrator. 9. Public maintenance of existing wetlands and buffers for purposes of drainage or public safety. The city may waive the requirements of this ordinance for the maintenance of wetlands and buffers for drainage or public safety purposes where it determines that there is a greater public need for the project than to meet the requirement of this ordinance. In waiving these requirements the city shall apply the following standards: a) The public entity performing the work shall replant all disturbed areas within the buffer. b) All necessary erosion control measures must be in place before maintenance. c) The city may require additional mitigation actions as specified in Section 5.d. (Mitigation). 10.9. Public or semi-public streets and utilities. The city council may waive the requirements of this ordinance for the construction or maintenance of public or semipublic streets and utilities through buffers where it determines that there is a greater public need for the project than to meet the requirement of this ordinance. In waiving these requirements the city council shall apply the following standards: a) The city may only allow the construction of public or semipublic utilities and streets through buffers where there is no other practical alternative. b) Before the city council acts on the waiver the planning commission and the environmental and natural resources commission shall make a recommendation to the city council. The planning commission shall hold a public hearing for the waiver. The city shall notify the property owners within five hundred (500) feet of the property for which the waiver is being requested at least ten (10) days before the hearing. c) Utility or street corridors shall not be allowed when endangered or threatened species are found in the buffer. 11 d) Utility or street corridors, including any allowed maintenance roads, shall be as far from the wetland as possible. e) Utility or street corridor construction and maintenance shall protect the wetland and buffer and avoid large trees as much as possible. f) The city shall not allow the use of pesticides or other hazardous or toxic substances in buffers or wetlands; however, in some situations the use of herbicides may be used if prior approval is obtained from the administrator. g) The owner or contractor shall replant utility or street corridors with appropriate native vegetation, except trees, at preconstruction densities or greater after construction ends. Trees shall be replaced as required by city ordinance. h) Any additional corridor access for maintenance shall be provided as much as possible at specific points rather than to the road which is parallel to the wetland edge. If parallel roads are necessary they shall be no greater than fifteen (15) feet wide. i) The city council, upon recommendation of the administrator, may require additional mitigation actions as a condition of granting the waiver. 11.10. Public or semipublic trails. The city may waive the requirements of this ordinance for the construction or maintenance of public or semipublic trails through buffers, and boardwalks in wetlands, where it determines that there is a greater public need for the project than to meet the requirement of this ordinance. In waiving these requirements the city shall apply the following standards: a) Trails shall not be allowed when endangered or threatened species are found to be present in the buffer. b) Buffers shall be expanded, equal to the width of the trail corridor. c) The owner or contractor shall replant all disturbed areas next to the trail in a timeframe approved by the city. d) All necessary erosion control measures must be in place before constructing a trail. The erosion control measures must also be maintained and inspected by the city to ensure that the wetland or stream is not compromised by trail construction activities. e) The trail must be designed and constructed with sustainable design methods. f) Boardwalks are allowed within the buffer and shall be a maximum of six (6) feet in width for semipublic use and twelve (12) feet in width for public or semipublic use. 12 g) The administrator may require additional mitigation actions as specified in Section 5.d. (Mitigation). Construction Practices c.. Special construction practices shall be required on projects or developments adjacent to wetlands and adjacent to and in their buffers. Special construction practices shall be approved by the administrator before issuance of a grading or building permit. Such practices may include, but are not limited to, grading, sequencing, vehicle tracking platforms, additional silt fences, and additional sediment control. They may also include the following: 1. Wetland Buffer Sign Standards: The city may require that a property owner or developer install wetland signs before grading or starting construction. The buffer will be identified by installing wetland signs on the boundary between a buffer and adjacent land. These signs shall mark the edge of the buffer and shall state there shall be no building, mowing, cutting, filling, or dumping beyond this point. These signs shall be installed at each lot line where it crosses a wetland or stream buffer, and where needed to indicate the contour of the buffer, with a maximum spacing of one-hundred (100) feet of wetland or stream edge. 2. Erosion Control Installation: Before grading or construction, the owner or contractor shall put into place erosion control measures around the borders of buffers. Such erosion control measures must remain in place until the owner and contractor have finished all development activities that may affect the buffer. 3. Erosion Control Breaches: All erosion control measures must be maintained and inspected to ensure compliance and protection of wetlands, streams, and buffers. The owner or contractor shall be responsible for all erosion/sedimentation breaches within the buffer and shall restore impacted areas to conditions present prior to grading or construction activities. 4. Erosion Control Removal: After completion of grading or construction, the contractor or owner may remove the erosion control measures only after inspection and approval by the city and the applicable watershed district to ensure the areas affected have been established per requirements. 5. Platting: When platting or subdividing property, the plat or subdivision must show the wetland boundaries as approved by the applicable watershed district. 6. It is the responsibility of the owner to alleviate any erosion during and after completion of grading or construction. The owner or contractor must remove erosion control measures after final approved inspection by the city and the applicable watershed district. Mitigation. d.Forlarge-scale projects or new development or construction, the city requires mitigation when a property owner or contractor has altered or will alter a wetland or buffer. The property owner or contractor shall submit a mitigation plan to the administrator for approval. In reviewing the plan, the city may require one or more of the following actions: 1. Reducing or avoiding the impact by limiting the degree or amount of the action, such as by using appropriate technology. 13 2. Rectifying the impact by repairing, rehabilitating, or restoring the buffer. 3. Reducing or eliminating the impact over time by prevention and maintenance operations during the life of the actions. 4. Compensating for the impact by replacing, enhancing, or providing substitute buffer land at a two-to-one ratio. 5. Monitoring the impact and taking appropriate corrective measures. 6. Where the city requires restoration or replacement of a buffer, the owner or contractor shall replant the buffer with native vegetation. A restoration plan must be approved by the city before planting. 7. Any additional conditions required by the applicable watershed district and/or the soil and water conservation district shall apply. 8. A wetland or buffer mitigation surety, such as a cash deposit or letter of credit, of one hundred and fifty percent (150%) of estimated cost for mitigation. The surety will be required based on the size of the project as deemed necessary by the administrator. Funds will be held by the city until successful completion of restoration as determined by the city after a final inspection. Wetland or buffer mitigation surety does not include other sureties required pursuant to any other provision of city ordinance or city directive. Section 6. Activities in Wetlands, Streams, and Buffers. Unless an exemption applies, the following activities are not allowed in wetlands, a. streams, or buffers: 1. Alterations, including the filling of wetlands. 2. The construction of structures. 3. Projects which convert native or naturalized areas to lawn area. 4. The construction of stormwater drainage facilities, sedimentation ponds, infiltration basins, and rain gardens within a buffer. 5. The discharging of stormwater to a wetland must comply with the city’s stormwater management ordinance (Section 44-1245, or subsequent stormwater ordinances). Wetland buffer management worksheet. b. A wetland buffer management worksheet is required for certain activities within a wetland and stream buffer: 1. The administrator must approve wetland buffer management worksheets. 2. If a wetland buffer management worksheet is denied by the administrator, an applicant may appeal the denial by submitting a written appeal request to the administrator within fifteen (15) days of the administrator’s written denial of the 14 average buffer. The administrator shall send appeals of average buffers to the environmental and natural resources commission for review. 3. If a wetland buffer management worksheet is denied by the environmental and natural resources commission, an applicant may appeal the denial by submitting a written appeal request to the administrator within fifteen (15) days of the commission’s denial of the average buffer. The administrator shall send these appeals to the city council for final review. Exemptions. c. This section does not apply to the following activities in a buffer: 1. Walking, passive recreation, fishing or other similar low-impact activities. 2. The maintenance of pre-existing, nonconforming lawn area. 3. The removal of trees or vegetation that is dead, dying, diseased, noxious, or hazardous in a manner that does not cause the compacting or disturbing of soil through vehicle or equipment use. 4. The removal of noxious weeds by non-chemical methods, or by means of chemical treatment in accordance with application methods that prevent the introduction of toxic chemicals into wetlands and streams. 5. The removal of non-native shrubs, such as buckthorn, if: a) there is little chance of erosion; and b) site is flat or generally has slopes less than 6 percent grade; and c) cut and treat method of removal is used on shrubs more than one-half (½) inches in diameter (not pulling). 6.Selective management of vegetation as follows: a) Selective pruning of trees or shrubs in order to enhance their health. b) Selective removal of tree saplings (less than 2 inches in diameter) in order to enhance wildlife value of the buffer. c) Selective removal of non-native trees. d) Selective removal of non-native weeds. e) Selective seeding or planting of vegetation that is native to Minnesota. 7. Installation of temporary fencing without footings. 8. Projects within the buffer that are the subject of a wetland buffer management worksheet approved by the administrator. 9. For properties that are zoned single or double-dwelling residential or are used as a single or double-dwelling residential use: a) The use, maintenance, and alteration of existing nonconforming lawn area for the purpose of outdoor enjoyment which may include gardening, nonpermanent structures (including such things as storage sheds under 15 120 square feet in area, swing sets and volleyball nets), impervious patios, or fire pits. b) Work within a wetland, stream, or buffer which was approved by the Minnesota Department of Natural Resources water permitting process and access to those areas by a trail which is limited to the width of the permit. Section 7. Best Management Practices. The city encourages and in some cases requires that best management practices be implemented to minimize negative effects of stormwater runoff on the environment and the loss of wildlife habitat when a property owner or contractor has altered or will alter a wetland, stream, or buffer. Best management practices may include the following: Restore buffer with native plantings a.. For large-scale projects or new development or construction refer to Section 5.d. (Mitigation). Manage weeds in buffer b.. Pursuant to state law, all weeds listed on the Minnesota noxious weed list must be controlled by the property owner. Owners are encouraged to control other weeds that are not on the noxious weed list but can threaten the health of a wetland. Submittal of a wetland buffer management worksheet is required for management of weeds within the native and naturalized areas of buffers, except for selective treatment. In addition, a management plan drafted by a professional experienced in wetland and stream restoration may be needed for large-scale projects or new development including: 1. Target weeds. 2. Appropriate management techniques, including the use of chemical treatment if approved by the administrator as part of the management plan. 3. Management schedule. 4. Erosion control and reseeding if management will create large areas of dead vegetation. 5. Cash escrow or letter of credit to cover 150 percent of the required work. Reduce stormwater runoff and/or improve the quality of stormwater runoff c. entering a wetland or stream . This may be achieved through the following strategies or other administrator approved best management practices for dealing with stormwater. These practices are to be located outside of the wetland buffer. 1. Reduce amount of pavement on site (i.e. fewer parking stalls, narrower driveways, shared parking with other businesses). 2. Use pervious pavement such as pavers or porous asphalt. 3. Use turf pavers or modified turf areas for overflow parking. 16 4. Install rain garden or infiltration basin. 5. Install rock trench or rock pit. 6. Install filter strip of grass or native vegetation. 7. Install surface sand filter or underground filter. 8. Install native plantings on site to reduce fertilizer use and improve infiltration. 9. Install a green roof on buildings. 10. Install grit chambers, sediment traps, or forebays. Section 8. Variances. Procedures. a.Procedures for granting variances from this ordinance are as follows: 1. The city council may approve variances to the requirements in this ordinance. 2. Before the city council acts on a wetland ordinance variance the environmental and natural resources commission and willmake a recommendation to the planning commission, who will in turn make a recommendation to the city council. The planning commission shall hold a public hearing for the variance. The city shall notify property owners within five hundred (500) feet of the property for which the variance is being requested at least ten (10) days before the hearing. 3. The city may require the applicant to mitigate any wetland, stream, or buffer alteration impacts with the approval of a variance, including but not limited to, implementing one or more of the strategies listed in Section 5.d. (Mitigation). 4. To approve a variance, the council must make the following findings as depicted in Minnesota Statutes., section 44-13: a) Strict enforcement would cause undue hardship because of circumstances unique to the property under consideration. The term "undue hardship" as used in granting a variance means the owner of the property in question cannot put it to a reasonable use if used under conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to his property, not created by the landowner; and the variance, if granted, will not alter the essential character of the locality.Economic considerations alone are not an undue hardship if reasonable use for the property exists under the terms of this ordinance. b) The variance would be in keeping with the spirit and intent of this ordinance. 5. The applicant for a variance shall submit, with the variance application and any other required materials, a statement showing how the proposal would meet the findings for variance approval. 17 Exemptions to Variances b.. Variances are not needed for the following: 1. A nonconforming single or double-dwelling residential structure which loses its nonconforming status as described in Minnesota Statutes, section 462.357, subdivision 1(e) is allowed to be rebuilt on its same footprint in its entirety (including foundations and decks) in the buffer if the new single or double- dwelling family residential structure meets the following conditions: a) Best management practices are implemented to help protect the wetland as described in Section 7 (Best Management Practices). The administrator approves the location and best management practices through the building permit process. b) All other applicable building ordinance requirements are met. 2. A nonconforming manufactured home which is located within a wetland buffer can be replaced with a new manufactured home without approval of a variance as long as the replacement meets with the requirements of Minnesota Statutes, section 462.357, subdivision 1(a). 3. Additions to a nonconforming single or double-dwelling family house, garage, deck, or driveway using the existing straight-edge setbacks to a wetland or stream if the following apply: a) Property that is zoned single or double-dwelling residential or is being used as a single or double-dwelling residence. b) There is no other reasonable alternative than encroachment toward the wetland or stream with the addition. c) The new addition of the house, garage, deck, or driveway is a minimum of twenty-five (25) feet from the wetland or stream edge. d) The process of constructing the addition does not cause degradation of the wetland, stream, or the existing buffer. e) Mitigation actions must be met as specified in Section 5.d. (Mitigation). 4. Buffer encroachments into nonnaturalized buffers for wetlands adjacent to lakes. In light of the fact that lakes perform different functions than wetlands and streams and are used for different recreational purposes, exemptions shall be allowed for structure encroachments into buffers for wetlands adjacent lakes. The following buffer encroachments and standards shall apply: a)Buffer encroachment. 1) Manage A: Twenty-five (25) foot encroachment (minimum seventy-five (75) foot buffer). 2) Manage B: Twenty-five (25) foot encroachment (minimum fifty (50) foot buffer). 18 3) Manage C: No encroachment allowed (minimum fifty (50) foot buffer). b) Standards. 1) The applicant must mitigate the encroachment to minimize negative effects on stormwater runoff on the environment and the loss of wildlife habitat as follows: a. Encroachments of ten (10) feet or less where no naturalized buffer exists, the applicant must mitigate the encroachment with a minimum of a ten (10) foot wide buffer with native plantings. b. Encroachments of more than ten (10) feet where no naturalized buffer exists, the applicant must mitigate the encroachment with a buffer with native plantings equal to the width of the encroachment. c. Encroachments where there is existing naturalized buffer (buffer area along the wetland edge that is not impacted by the encroachment), the applicant must restore the buffer with native plantings or increase the width of the buffer based on calculations as specified above in items 6.c.10.b.1. (a) and (b) above. 2) The appropriateness of allowing encroachments for structures into buffers of wetlands adjacent lakes will be evaluated as part of the review of the applicant’s development application. 3) The administrator must approve the buffer encroachment and wetland buffer restoration plan. 4) If an exemption to a buffer adjacent a lake is denied by the administrator, an applicant may appeal the denial by submitting a written appeal request to the administrator within fifteen (15) days of the administrator’s written denial of the exemption. The administrator shall send appeals of buffer exemptions to the environmental and natural resources commission for review. 5) If an exemption to a buffer adjacent a lake is denied by the environmental and natural resources commission, an applicant may appeal the denial by submitting a written appeal request to the administrator within fifteen (15) days of the commission’s denial of the exemption. The administrator shall send these appeals to the city council for final review. Section 9. Enforcement. The city reserves the right to inspect the site or property during regular city business hours or upon notice to the property owner or its designated representative one business day in advance 19 if the inspection is to occur at a different time for compliance with this ordinance during development or construction or alteration pursuant to an approved wetland buffer management worksheet or plan. The city shall be responsible for the enforcement of this ordinance. Any person who fails to comply with or violates any section of this ordinance may be charged with a misdemeanor and, upon conviction, shall be subject to punishment in accordance with misdemeanor level convictions as set by State Statute. The violator may be civilly fined and/or liable for restoration costs as well. All land use building and grading permits shall be suspended until the developer has corrected the violation. Each day that a separate violation exists shall constitute a separate offense. The city council approved the first reading of this ordinance on _________________________ The city council approved the second reading of this ordinance on ______________________ Signed: _______________________________ _______________________________ Will Rossbach, Mayor Date Attest: ________________________________ Karen Guilfoile, City Clerk 20