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Home My WebLink About2013-12-16 ENR Packet AGENDA CITY OF MAPLEWOOD ENVIRONMENTAL AND NATURAL RESOURCE COMMISSION Monday,December 16, 2013 7p.m. Council Chambers -Maplewood City Hall 1830 County Road B East 1.Call to Order 2.Roll Call 3.Approval of Agenda 4.Approval ofMinutes: a.November 18, 2013 5.New Business a.New Member Orientation 6.Unfinished Business a.Tree Ordinance 7.Visitor Presentations 8.Commission Presentations 9.Staff Presentations a.Update on the Maplewood Residential Recycling Program b.Reschedule the January 20 and February 17, 2014, ENR Commission Meetings due to Martin Luther King Day and President’s Day Holidays. Proposed dates – Thursday, January 16 and Thursday February 20 c.Maplewood Nature Center Programs 10.Adjourn Agenda Item 4.a MINUTES CITY OF MAPLEWOOD ENVIRONMENTAL AND NATURAL RESOURCES COMMISSION 7:00p.m.,Monday,November 18, 2013 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 Johannessen. 2.ROLL CALL Randee Edmundson, CommissionerPresent Judith Johannessen, ChairPresent Ann Palzer, Vice ChairPresentat 7:03 p.m. Cindy Schafer, CommissionerPresent Dale Trippler, CommissionerPresent Ginny Yingling, CommissionerPresent Staff Present Shann Finwall, Environmental Planner Nick Carver, Assistant Building Official 3.APPROVAL OF AGENDA Staff added 9.c. -Commission Appointment. Commissioner Tripplermovedto approve the agenda as amended. Seconded by CommissionerYingling.Ayes –All The motion passed. 4.APPROVAL OF MINUTES CommissionerTrippler moved to approve the October 21,2013,Environmental and Natural Resources Commission Meeting Minutes assubmitted. Seconded by CommissionerEdmundson.Ayes –All The motion passed. 5.UNFINISHEDBUSINESS a.Green Building Code i.Assistant Building Official, Nick Carver gave the presentationon the green building code. November 18, 2013 1 Environmental and Natural Resources Commission MeetingMinutes In 2012 and 2011 the Environmentaland Natural Resources (ENR) Commission was introduced to theMaplewood Green Building Code. The main components of the code are the International Green Construction Code and the National Green Building Standards.Since the ENR Commission’s review of thecode the building inspection division partnered with the International Code Council to assist in the development of the National Green Building Standards for residential buildings and the International Green Construction Code for commercial buildings. OnSeptember 23, 2013, the Maplewood City Council adopted the Maplewood Green Code. Mr. Carver’s presentation included an update on the code since the ENR Commission’s last review, and the impacts it will have on City-financed buildings. b.Maplewood Recycling Program –Recycling Contract and Recycling Carts i.Environmental Planner, Shann Finwall reported onthe recycling contract and recycling carts. During the January 2013 ENR Commission meeting, the commission recommended that staff begin negotiations with Tennis for an extension of the recycling contract. Staff negotiated three contract scenarios including the use of the City’s existing recycling bins, contractor-supplied recycling carts, and City-supplied recycling carts. Since that time all three scenarios were presented to the City Council for review. The City Council expressed support for the conversion to recycling carts; however, there was not aconsensus on which cart scenario to choose -contractor-supplied or City- purchased carts. Becausethe recycling contract will expire at the end of the year, the City Council directed staff to finalize the contract with language that would allow for the switch to carts in the future (either contractor-supplied or City-purchased carts). On September 9, 2013, the City Council approved a contract with Tennis for City-wide residential recycling. The Contract extends recycling collection with Tennis for two more years (2014 and 2015) beginning January 1, 2014. Recyclables will continue to be collected curbside in the City’s existing recycling bins, with language in the contract that will allow the City to convert to recycling carts (either contractor-supplied or City-supplied) at any time during the term of the contract. Ms. Finwall’s presentation included an update on the recycling cart and contract scenariosand the City’s award of $100,000 from the Ramsey County Innovation Grant program for the purchase of recycling carts. The Commission had the following comments/questions regarding the various recycling contract options: Commissioner Trippler state he is in favor of the recycling carts if the city continues with single sortrecycling.He has two 18 gallon recycling bins and because he has recycling overflow he is thinking of using a third.Commissioner Trippler said he was surprised that there was so much participation and tonnage in the recycling cart pilot project.Because Maplewood has the lowest recycling rate of the 16 cities in Ramsey County, the City needs to work on increasing those recycling numbers. Recycling numbers drop in the winterbecause people don’t want to bring their bins out.He prefers having the city buy the recycling carts so the resident doesn’t have to pay for the carts year after yearon their bill. Also, it will allow the city to purchase carts that are the same color and style of carts so there is consistency. Commissioner Edmundson stated itis clear that recycling carts will make a difference in recycling rates and participation. Has the City considered every other week recycling pick up and a choice of recycling cart size? November 18, 2013 2 Environmental and Natural Resources Commission MeetingMinutes Commissioner Yingling stated that the city-purchased recycling carts would be the best scenariofor the residents.She agreed with Commissioner Edmundson about what size recycling cart should be offered to residents. She would like a 32 gallon recycling cart compared to the 65 gallon recycling cartdue to space limitations. Commissioner Shafer asked if it would be possible to have every other week trash pick and once a week recycling.Thismay make people recycle more and produce less waste. Commissioner Palzer asked if the term “profit sharing” in the city-purchased cart scenariois rubbing people the wrong way. If residents are being taxedfor a service that a private company and the City can make money on, it might be creating some negative images in the public’s mind. Perhaps the term should be “revenue share” rather than “profit share.” Commissioner Palzer stated that it would be most beneficial for the city to purchase the carts. Commissioner Edmundson asked if the city begins collecting compost, with that require a third cart? Commissioner Shafer said the Commission should also make a recommendation on the environmental aspect of the city purchasing the carts –the city will reuse the carts year after year.If the city leases the carts from a contractor new carts will have to be rolled out with each new contractor change. Commissioner Trippler moved to recommend to the city council purchase the recycling carts with Tennis Sanitation rolling out the carts under the current two-year contract (2014-2015). Seconded by Commissioner Yingling.Ayes –All The motion passed. This item goes to the city council on November 25, 2013. Tree Ordinance –To Be Continued in December2013 c. 6.NEWBUSINESS a.Annual Sustainability Report i.Environmental Planner Finwall gave the Annual Sustainability Report Chairperson Johannessen thanked staff for thehard work on this report. The commission members did not have any questions or comments regarding the annual sustainability report. 7.VISITOR PRESENTATIONS None present. 8.COMMISSION PRESENTATIONS None. November 18, 2013 3 Environmental and Natural Resources Commission MeetingMinutes 9.STAFF PRESENTATIONS a.Update on the Mississippi Critical Area Rulemaking i.Environmental Planner Finwall gave the updateon the Mississippi Critical Area Rulemaking.The 2013 Legislature required that the Department of Natural Resources (DNR) begin the rulemaking again after the deadline for the previous rulemaking expired in 2012. The DNR has met with all cities within the Critical Area,including Maplewood city staff, and have prepared draft rules based on that feedback. A final draft will be complete in the spring of 2014. Staff will present that document to the ENR Commission at that time. Once the new rules are in place, the City will be required to update our Critical Area ordinance to reflect the changes. b.Maplewood Nature Center Programs i.Environmental Planner Finwall presented the upcoming Nature Center Programs. For more information contact the Nature Center at (651) 249-2170. c.Commission Appointment i.Environmental Planner Finwall mentioned that the city council appointed a Deborah Fideldy as a new member to the ENR Commission. Ms. Fideldy will fill the vacant position left by Commissioner Mason Sherrill. 10.ADJOURNMENT Chair Johannessen adjourned the meeting at 8:26p.m. November 18, 2013 4 Environmental and Natural Resources Commission MeetingMinutes Agenda Item 5.a Environmental and Natural Resources New Member Orientation Date Revised: December 12, 2013 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 ENRCommission In 2004 the Maplewood City Councilcreated the Environmental Committee, formed as an ad- hoc committee responsible for advising the City Counciland 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 September11, 2005, the City Counciladopted 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 reportsfor 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. In an effort to reduce paper and mailingcosts, City staff recommends that the ENR Commissioners receive the packets via e-mail only if feasible. ENR Commissioner Responsibility Each commissioner should review the staff reports and visit the propertiesif applicable to form an opinion of theproject 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 Councilchambers at Maplewood City Hall, 1830 E. County Road B Quorum: A simple majority of the current membership of the commissioners constitutes a quorum. 1 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 CouncilThe chair will represent the ENR Commission at City Councilmeetings Meeting:where ENR Commission items are on the agenda. The chair will present the Commission’s recommendations and answer questions from the City Councilregarding the decision. If the chair is unavailable to attend the City Councilmeeting, the chair will appoint a representative from the commission. CommissionHandbook The City Counciladopted 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 Councilon March 8, 2010. ENRAnnual Report Each year theENR 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 Councilfor final approval. Contact Information Following is City staff contact information. Additional contacts can be found on the City’s http://www.ci.maplewood.mn.us/Directory.aspx. website at Melinda Coleman, Assistant City Manager/(651) 249-2055 melinda.coleman@ci.maplewood.mn.us Community Development Director 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, Environmental Technician(651)249-2305 chris.swanson@ci.maplewood.mm.us Tammy Young, Administrative Assistant(651) 249-2301 tammy.young@ci.maplewood.mn.us 2 City Council/Advisory Commissions and Boards Attached is a contact list for the City Counciland 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 www.gtn.org. throughout the month.For schedules for re-runs, visit the GTN website at 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 ENRmeeting 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 3 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. 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8LMWTYFPMGEXMSRGSZIVWXLIVYPIWSJ I\TVIWWMXWIPJERHJEWLMSREVIWYPX Agenda Item Discussion TEVPMEQIRXEV]TVSGIHYVIFEWIHSRQ] [LMPITIVQMXXMRKXLIQMRSVMX]XSEPWS *SVQEPQIIXMRKWRSVQEPP]LEZIE[VMXXIR ]IEVWSJI\TIVMIRGIGLEMVMRKQIIXMRKW I\TVIWWMXWIPJ FYXRSXHSQMREXI ERH TYFPMWLIHEKIRHEMRJSVQEPQIIXMRKW MRWXEXIERHPSGEPKSZIVRQIRX8LIWI JYPP]TEVXMGMTEXIMRXLITVSGIWW QE]LEZISRP]ERSVEPSVYRHIVWXSSH VYPIWLEZIFIIRWMQTPM´IHERHWPMQQIH EKIRHE-RIMXLIVGEWIXLIQIIXMRKMW HS[RJSVWXGIRXYV]QIIXMRKW]IX The Chairperson Should Take a KSZIVRIHF]XLIEKIRHEERHXLIEKIRHE XLI]VIXEMRXLIFEWMGXIRIXWSJSVHIVXS Back Seat During Discussions GSRWXMXYXIWXLIFSH]¬WEKVIIHYTSRVSEH [LMGL[IEVIEGGYWXSQIH QETJSVXLIQIIXMRK%RHIEGLEKIRHE ;LMPIEPPQIQFIVWSJXLIKSZIVRMRK ©6SWIRFIVK¬W6YPIWSJ3VHIVªEVIWYT MXIQGERFILERHPIHF]XLIGLEMVMRXLI FSH]WLSYPHORS[ERHYRHIVWXERHXLI TSVXIHF]XLIJSPPS[MRKJSYVTVMRGMTPIW JSPPS[MRKFEWMGJSVQEX VYPIWSJTEVPMEQIRXEV]TVSGIHYVIMXMW 6YPIWWLSYPHIWXEFPMWLSVHIV8LI XLIGLEMVTIVWSR GLEMV [LSMWGLEVKIH *MVWXXLIGLEMVWLSYPHGPIEVP]ERRSYRGI 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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 CityCouncil ^ƚĂĨĨ>ŝĂŝƐŽŶ͗<ĂƌĞŶ'ƵŝůĨŽŝůĞϲϱϭ͘Ϯϰϵ͘ϮϬϬϮ<ĂƌĞŶ͘'ƵŝůĨŽŝůĞΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ ŽƵŶĐŝůƉĞƌƐŽŶRebeccaCave 2020ProsperityRd.;,ͿWŚŽŶĞ͗651.773.7059rebeccacave1@hotmail.com dĞƌŵǆƉŝƌĞƐ͗12/31/2013Maplewood,MN55109;ͿWŚŽŶĞ͗ rebecca.cave@ci.maplewood.mn.us ;tͿWŚŽŶĞ͗ ŽƵŶĐŝůƉĞƌƐŽŶKathleenJuenemann 721MtVernonAveE;,ͿWŚŽŶĞ͗651.771.3670 dĞƌŵǆƉŝƌĞƐ͗12/31/2013;ͿWŚŽŶĞ͗ Maplewood,MN55117 kathleen.juenemann@ci.maplewood.mn.us ;tͿWŚŽŶĞ͗ DĂǇŽƌWillRossbach 1386CountyRoadC;,ͿWŚŽŶĞ͗651.484.5427 dĞƌŵǆƉŝƌĞƐ͗12/31/2013Maplewood,MN55109;ͿWŚŽŶĞ͗ will.rossbach@ci.maplewood.mn.us ;tͿWŚŽŶĞ͗ ŽƵŶĐŝůƉĞƌƐŽŶBobCardinal 2497AdeleSt.;,ͿWŚŽŶĞ͗651.765.8600 dĞƌŵǆƉŝƌĞƐ͗12/31/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ bob.cardinal@ci.maplewood.mn.us ;tͿWŚŽŶĞ͗ ŽƵŶĐŝůƉĞƌƐŽŶMarvinKoppen 1998RipleyAve.E;,ͿWŚŽŶĞ͗651.770.5391marvkoppen@comcast.net dĞƌŵǆƉŝƌĞƐ͗12/31/2015MaplewoodMN55109;ͿWŚŽŶĞ͗ Marvin.koppen@ci.maplewood.mn.us ;tͿWŚŽŶĞ͗ CommunityDesignReviewBoard ^ƚĂĨĨ>ŝĂŝƐŽŶ͗DŝŬĞDĂƌƚŝŶϲϱϭ͘Ϯϰϵ͘ϮϯϬϯDŝĐŚĂĞů͘DĂƌƚŝŶΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ ŚĂŝƌMattLedvina 1173LakewoodDrS;,ͿWŚŽŶĞ͗651.578.1658 dĞƌŵǆƉŝƌĞƐ͗4/30/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ Mattledvina@comcast.net ;tͿWŚŽŶĞ͗ BillKempe 3010FurnessCt.N.;,ͿWŚŽŶĞ͗wckempe@yahoo.com dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗651.226.7933 ;tͿWŚŽŶĞ͗ JasonLamers 2621KnollwoodCt.N;,ͿWŚŽŶĞ͗jason.lamers@yahoo.com dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗612.940.7362 LeoBurger 1807GervaisCourt;,ͿWŚŽŶĞ͗651.777.6659 dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ AnanthShankar 2460KingAve;,ͿWŚŽŶĞ͗651.730.5966rojiananth@aol.com dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗651.290.1938 Environmental&NaturalResourcesComm ^ƚĂĨĨ>ŝĂŝƐŽŶ͗^ŚĂŶŶ&ŝŶǁĂůůϲϱϭ͘Ϯϰϵ͘ϮϯϬϰ^ŚĂŶŶ͘&ŝŶǁĂůůΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ JudithJohannessen 1610WoodlynAve,#3;,ͿWŚŽŶĞ͗651.738.0879mmej0879@msn.com dĞƌŵǆƉŝƌĞƐ͗9/30/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ CynthiaSchafer 2317BoxwoodAve.;,ͿWŚŽŶĞ͗enrcindy@gmail.com dĞƌŵǆƉŝƌĞƐ͗9/30/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ sŝĐĞŚĂŝƌRandeeEdmundson 1396CountyRoadCEast;,ͿWŚŽŶĞ͗Edmundson.randee@gmail.com dĞƌŵǆƉŝƌĞƐ͗9/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ DaleTrippler 2691BarclaySt;,ͿWŚŽŶĞ͗651.490.1485 dĞƌŵǆƉŝƌĞƐ͗9/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ DeborahFideldy 1708KennardSt.;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗9/30/2016Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ Page1of4 Thursday,December12,2013 AnnPalzer 2497StillwaterRoadE.;,ͿWŚŽŶĞ͗annpalzer@yahoo.com dĞƌŵǆƉŝƌĞƐ͗9/30/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ GinnyYingling 673DorlandRd;,ͿWŚŽŶĞ͗ginny.yingling@gmail.com dĞƌŵǆƉŝƌĞƐ͗9/30/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ HeritagePreservationCommission ^ƚĂĨĨ>ŝĂŝƐŽŶ͗'ŝŶŶǇ'ĂǇŶŽƌϲϱϭ͘Ϯϰϵ͘ϮϰϭϲsŝƌŐŝŶŝĂ͘'ĂǇŶŽƌΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ JohnGaspar 1594MarySt.;,ͿWŚŽŶĞ͗651.773.9253john@naiarchitects.com dĞƌŵǆƉŝƌĞƐ͗4/30/2014MaplewoodMN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ BrendaRudberg 2419OakridgeLaneE;,ͿWŚŽŶĞ͗651.578.0726brudberg@comcast.net dĞƌŵǆƉŝƌĞƐ͗4/30/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ PeterBoulay 1100CountyRoadC;,ͿWŚŽŶĞ͗651.490.3251 happypebbl@hotmail.com dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ LeonardHughes 1601WoodlynnAve.;,ͿWŚŽŶĞ͗leonardhughesmhpc@ymail.com dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗952.412.5629 ;tͿWŚŽŶĞ͗ RobertCreager 2317Case;,ͿWŚŽŶĞ͗651.578.0658 dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ sŝĐĞŚĂŝƌRichardCurrie 1937KenwoodDrW;,ͿWŚŽŶĞ͗ r.e.currie@worldnet.att.net dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55117;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ FrankGilbertson 1102LakewoodDriveS.;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ Housing&EconomicDevelopmentCommi ^ƚĂĨĨ>ŝĂŝƐŽŶ͗DŝĐŚĂĞůDĂƌƚŝŶϲϱϭ͘Ϯϰϵ͘ϮϯϬϯDŝĐŚĂĞů͘DĂƌƚŝŶΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ GaryKloncz 613SterlingSt.S.;,ͿWŚŽŶĞ͗651.578.7108Garykl@comcast.net dĞƌŵǆƉŝƌĞƐ͗9/30/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ sŝĐĞŚĂŝƌͬ^ĞĐƌĞƚĂƌǇBethUlrich 2574BrookviewDr;,ͿWŚŽŶĞ͗ulrichhome@yahoo.com dĞƌŵǆƉŝƌĞƐ͗9/30/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ ƵƐŝŶĞƐƐZĞƉWarrenWessel 2311CaseAve.E.;,ͿWŚŽŶĞ͗wwessel@cbburnet.com dĞƌŵǆƉŝƌĞƐ͗9/30/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ DennisUnger 2975WalterST.;,ͿWŚŽŶĞ͗ungerslaw@comcast.net dĞƌŵǆƉŝƌĞƐ͗9/30/2015MaplewoodMN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ ŚĂŝƌƵƐŝŶĞƐƐZĞƉMarkJenkins 830NewCenturyBlvd.S.;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗9/30/2016MaplewoodMN55119;ͿWŚŽŶĞ͗ mark@jenkinsweb.net ;tͿWŚŽŶĞ͗612.701.2019 ƵƐŝŶĞƐƐZĞƉJenniferLewis 4194HomewoodAve;,ͿWŚŽŶĞ͗JeLewis@simon.com dĞƌŵǆƉŝƌĞƐ͗9/30/2016;ͿWŚŽŶĞ͗651.770.3863 WhiteBearLake,MN55110 ;tͿWŚŽŶĞ͗763.286.3139 Page2of4 Thursday,December12,2013 JoyTkachuck 1088GordonAve;,ͿWŚŽŶĞ͗joy.tkachuck@optumhealth.com dĞƌŵǆƉŝƌĞƐ͗9/30/2016Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ HumanRightsCommission ^ƚĂĨĨ>ŝĂŝƐŽŶ͗<ĂƌĞŶ'ƵŝůĨŽŝůĞϲϱϭ͘Ϯϰϵ͘ϮϬϬϮ<ĂƌĞŶ͘'ƵŝůĨŽŝůĞΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ JonBrandt 2837SouthlawnDrive;,ͿWŚŽŶĞ͗6517775004Jonwbrandt@gmail.com ;ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗5/1/2014Maplewood,MN55109 ;tͿWŚŽŶĞ͗ NateDanielson 1256DennisSt.North;,ͿWŚŽŶĞ͗763.220.2326nate.danielson.hrc@gmail.com dĞƌŵǆƉŝƌĞƐ͗5/1/2014Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ SarahDeeny 2138ArcadeSt.;,ͿWŚŽŶĞ͗651.699.9082 dĞƌŵǆƉŝƌĞƐ͗5/1/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ sarah.deenyhrc@gmail.com ;tͿWŚŽŶĞ͗651.481.0090 YayaDiatta 1140SterlingLaneN.;,ͿWŚŽŶĞ͗ diattay@yahoo.com dĞƌŵǆƉŝƌĞƐ͗5/1/2015Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗651.266.9080 JulieXiong 2264PhylisCourtEast;,ͿWŚŽŶĞ͗xiong.hrc@gmail.com dĞƌŵǆƉŝƌĞƐ͗5/1/2015Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ MauriceFortin 1601WoodlynnAve.;,ͿWŚŽŶĞ͗moefortin@hotmail.com dĞƌŵǆƉŝƌĞƐ͗5/1/2016Maplewood,MN55109;ͿWŚŽŶĞ͗612.807.7130 ;tͿWŚŽŶĞ͗ JeffreyKringle 1986FifthStreetEast;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗5/1/2016St.Paul,MN55119;ͿWŚŽŶĞ͗ durarabo@yahoo.com ;tͿWŚŽŶĞ͗ Park&RecreationCommission ^ƚĂĨĨ>ŝĂŝƐŽŶ͗:ŝŵdĂǇůŽƌϲϱϭ͘Ϯϰϵ͘ϮϭϮϭũĂŵĞƐ͘ƚĂǇůŽƌΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ CraigBrannon 2927WalterSt;,ͿWŚŽŶĞ͗651.490.5064brannon@ti.com dĞƌŵǆƉŝƌĞƐ͗4/30/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ TerriMallet 2231IdeCourt;,ͿWŚŽŶĞ͗651.773.5590 dĞƌŵǆƉŝƌĞƐ͗4/30/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ NikkiVillavicencio 1844E.ShoreDr.;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗4/30/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ RhodaErhardt 2379SnowshoeCourtEast;,ͿWŚŽŶĞ͗651.730.9004rperhardt@erhardtproducts.com dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ MatthewProm 390MaryLaneSouth;,ͿWŚŽŶĞ͗612.567.7661mattjprom@gmail.com dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ MikeWilde 2538HazelwoodSt.N;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗4/30/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗612.227.8425 RickBrandon 1622CountyRoadCE.;,ͿWŚŽŶĞ͗ ;ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55109 ;tͿWŚŽŶĞ͗ Page3of4 Thursday,December12,2013 RonCockriel 943CenturyAve.N.;,ͿWŚŽŶĞ͗651.738.7233maplewoodmatters@yahoo.com dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ sŝĐĞŚĂŝƌKimSchmidt 1800PhalenPl;,ͿWŚŽŶĞ͗phalenplace@yahoo.com dĞƌŵǆƉŝƌĞƐ͗4/30/2016Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗651.468.5482 PlanningCommission ^ƚĂĨĨ>ŝĂŝƐŽŶ͗dŽŵŬƐƚƌĂŶĚϲϱϭ͘Ϯϰϵ͘ϮϯϬϮdŽŵ͘ŬƐƚƌĂŶĚΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ ŚĂŝƌƉĞƌƐŽŶLorraineFischer 1812FurnessSt;,ͿWŚŽŶĞ͗651.777.5037 dĞƌŵǆƉŝƌĞƐ͗12/31/2013Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ PaulArbuckle 2550ClarenceSt.;,ͿWŚŽŶĞ͗651.484.1453arbybuckle@msn.org dĞƌŵǆƉŝƌĞƐ͗12/31/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗651.494.9302 JohnDonofrio 2569HillwoodDr.E.;,ͿWŚŽŶĞ͗ JohnTDonofrio@gmail.com dĞƌŵǆƉŝƌĞƐ͗12/31/2014Maplewood,MN55119;ͿWŚŽŶĞ͗651.331.0041 ;tͿWŚŽŶĞ͗ DonnLindstrom 3079WalterSt.;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗12/31/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ AlvinBierbaum 222CrestviewDrive;,ͿWŚŽŶĞ͗651.330.9088alvinbierbaum@q.com dĞƌŵǆƉŝƌĞƐ͗12/31/2015Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ AllanIge 1745ClarenceSt.;,ͿWŚŽŶĞ͗ yemlsoby@hotmail.com dĞƌŵǆƉŝƌĞƐ͗12/31/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ DaleTrippler 2691BarclaySt;,ͿWŚŽŶĞ͗651.490.1485 dĞƌŵǆƉŝƌĞƐ͗12/31/2015Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ sŝĐĞŚĂŝƌƉĞƌƐŽŶTusharDesai 2973EdwardSt;,ͿWŚŽŶĞ͗651.484.2132 dĞƌŵǆƉŝƌĞƐ͗12/31/2016Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ YayaDiatta 1140SterlingLaneN.;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗12/31/2016Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ BillKempe 3010FurnessCt.N.;,ͿWŚŽŶĞ͗wckempe@yahoo.com dĞƌŵǆƉŝƌĞƐ͗12/31/2016Maplewood,MN55109;ͿWŚŽŶĞ͗651.226.7933 ;tͿWŚŽŶĞ͗ PoliceCivilServiceCommission ^ƚĂĨĨ>ŝĂŝƐŽŶ͗dĞƌƌŝĞZĂŵĞĂƵǆϲϱϭ͘Ϯϰϵ͘ϮϬϱϰdĞƌƌŝĞ͘ZĂŵĞĂƵǆΛĐŝ͘ŵĂƉůĞǁŽŽĚ͘ŵŶ͘ƵƐ ^ĞĐƌĞƚĂƌǇJamesMeehan 3029BartelmyLane;,ͿWŚŽŶĞ͗ dĞƌŵǆƉŝƌĞƐ͗12/31/2014Maplewood,MN55109;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗651.274.5342 LisaMarieLiddell 439OdayCircle;,ͿWŚŽŶĞ͗651.592.8126 dĞƌŵǆƉŝƌĞƐ͗12/31/2015Maplewood,MN55119;ͿWŚŽŶĞ͗ ;tͿWŚŽŶĞ͗ ŚĂŝƌDebraBirkholz 1989DuluthSt.;,ͿWŚŽŶĞ͗651.490.9759 dĞƌŵǆƉŝƌĞƐ͗12/31/2016;ͿWŚŽŶĞ͗ Maplewood,MN55109 ;tͿWŚŽŶĞ͗ Page4of4 Thursday,December12,2013 Agenda Item 6.a MEMORANDUM TO: Environmental and Natural Resources Commission FROM: Ginny Gaynor, Natural Resources Coordinator SUBJECT:Tree Ordinance (Shade Tree Disease) DATE: December 9, 2013 for December16, 2013ENR Commission Meeting INTRODUCTION In September and October 2013, the Environmental and Natural Resources (ENR) Commission began reviewingsections of the City’s tree ordinance.At the Decembermeeting, Commissioners will review the ordinance on Shade Tree Disease. BACKGROUND Shade Tree Disease Control is addressedin Maplewood City CodeSection 18, 38.31-38.37 (Attachment 1).The purpose of thisordinance is to manage epidemic diseases and pests of shade trees in the city. The ordinance names Dutch elm disease specifically but covers any “other epidemic diseases of shade trees,” such asoak wilt and emerald ash borer. The ordinance provides for inspection of trees on public and private landand condemnation of infected trees. Maplewoodcontracts a certified arborist to inspect public and private lands for Dutch elm disease, oak wilt, and emerald ash borer. The inspections are done primarily bydriving through neighborhoods (windshield survey) and stopping when dead or diseased trees are noticed. In addition, the inspector may visitareasthat are not visible from the street on foot, if the city is notified of disease or if there has been disease in the neighborhood. The city requires owners to remove condemned trees. For trees with oak wilt, the city also encourages, but does not require, residents to trench in order to severtree roots. The number of condemned trees fluctuates each year. Statistics for the past five years are presented below. To date, emerald ash borer has not been confirmed in Maplewood. 20132012201120102009 # elm 2221394881 condemned # oak TBA16393068 condemned 1 Background information onthe epidemic tree diseases and pests the city is most concerned about are available online: Dutch elm disease: www.mda.state.mn.us/plants/plantdiseases/dutchelm.aspx Oak wilt: www.dnr.state.mn.us/treecare/forest_health/oakwilt/infected.html Emerald ash borer: www.mda.state.mn.us/plants/pestmanagement/eab.aspx DISCUSSION Staff believes inspecting for epidemic tree diseases is essential for ensuring the long term well- being of Maplewood’surban forest.Weasked nine nearby cities about their disease tree programs. Five of the nine inspect for elm and oak disease on private land and four of the five require removal of condemned diseased trees. Compliance with the ordinancecreates a financial hardship for some homeowners. Costs vary by size of tree, condition, and surrounding structures and landscape, but a typical cost for a large tree in a yard is $600-$1000 to remove. On large lots with many oaks, it’s not unusual to have six to ten trees infected and condemned. Oneresident with a wooded lot has asked the cityto reconsider condemning diseased trees on private woodlots. There are several things to considerwhen reviewing the city’s approach to shade tree diseases. 1.What % of our trees are elm, oak, or ash?The tree inventory conducted in 2011 found our boulevard and park trees (no private trees or trees innatural areas) included: 4% elm, 5%oak, 21% ash. 69% of the elm inventoried werethe non-native Siberian elm, which is considered an invasive species. 2.Do we have many large elm remaining?In the 2011 tree inventory, of the 372 elm trees, 60% were over 12” in diameter. This includes 17 native elm trees over 30” in diameter and 24 non-native elm trees over 30” in diameter. 3.Should there be different treatment of diseased trees in manicured areas vs. natural areas?Anindividual boulevard or park tree may have great value. In natural areas, we typicallyvalue trees on a population level, not the individual level. But disease spreads in both manicured areas and natural areas. Having a policy of not inspecting and condemning trees in natural areasdoes not helpcontrolthe spread of disease. 4.Does removal of diseasedtrees adequately manage thedisease? Elm.It is estimated that communities with elm sanitation programs (removal of diseased elm) have about1%-3% loss of elm trees per year.Staff has not found data on loss of elms for communities without elm sanitation programs. Oak.Oakwilt is spread both above ground by spores carried through the air by beetlesand underground by spores moving through root grafts. Thus, removal of infected trees is often notvery effectiveif there are other oaks within 50’ of the infected tree. Trenching to sever tree roots will be essential for stopping the spread in many areas. To be truly successful 2 (and success is never guaranteed), neighbors often need to work together on removal and trenching across property lines to save a grove of oaks. Ash.Removal of trees infected with emerald ash borer will not stop the spread of the pest. However, removal will be necessary to slow the spread in the first several years of the infestation. 5.At some point, does compliance result in too big a financial burden for a landowner? Most residents with a singlecondemned tree are able to comply with the ordinance. Dead trees near structures will usually become hazard trees and will need to be taken down anyway. But residents with several condemned trees, may find they cannot afford to remove all their condemned trees.Several years ago Maplewood received a state cost- sharegrant that helped homeowners with the cost of removal and trenching for oak wilt, but this program is not longer available. A model ordinance prepared by the League of Minnesota Cities recommends communities have an appeal process ifthe cost will exceed $5000. Staff recommends the following changes to the Shade Tree Disease Control ordinance: 1.General–update to clarify purpose. 2.General–update to includeoak wilt and emerald ash borer. 3.General–update personnel indicated (city manager shall appoint tree inspector). 4.Section 38-34 –Indicate thatnuisance must be abated within specified time, but drop mention of specific number of days. 5.Section 38-36 –Consider elimination of this section. In addition, staff recommends the ENR Commission reviewthe sample ordinance from the League of Minnesota Cities (Attachment 2), to see if there are any issues addressed there that the Commission would like includedinMaplewood’sordinance. In particular, please consider whether Maplewood’s ordinance should include an appeal procedure (Subd. 13). Regarding Section 2on page 6of the sample ordinance, staff has concerns with specifying control measures in the ordinance and believes those should be policy decisions, since new research sometimes changes management recommendations. RECOMMENDATIONS Staff recommends that the Environmental and Natural Resources Commissions provide input onchangesto the Shade Tree Disease Control ordinance. Once general guidance is provided, staff will provide adraft Shade Tree Disease ordinance revisionfor the Commission’sreview. Attachments 1.Maplewood Shade Tree Disease Ordinance 2.League of Minnesota Cities SampleShade Tree Pest Ordinance 3 Attachment 1 - CODE OF ORDINANCES Chapter 38 - TREES ARTICLE II. SHADE TREE DISEASE CONTROL [2] ARTICLE II. SHADE TREE DISEASE CONTROL Sec. 38-31. Plant pest control program. Sec. 38-32. Inspections and investigations. Sec. 38-33. Public nuisances. Sec. 38-34. Removal of infected trees or wood. Sec. 38-35. Special assessments for unpaid nuisance abatement charges. Sec. 38-36. Treatment of elm trees near Dutch elm fungus infestation. Sec. 38-37. Permit for transportation of elm wood. Sec. 38-38. Interference with performance of duties imposed by article. Sec. 38-31. Plant pest control program. The city manager is hereby empowered to conduct a program of plant pest control pursuant to authority granted by Minn. Stats. § 18.022. The program is directed specifically at the control and elimination of Dutch elm disease fungus and elm bark beetles and other epidemic diseases of shade trees. (Code 1982, § 33-36) Sec. 38-32. Inspections and investigations. Under this article, the city manager: (1)Shall inspect all premises and places within the city as often as practicable to determine whether any condition described insection 38-31exists thereon. He shall investigate all reported incidents of infestation by Dutch elm fungus or elm bark beetles or any other epidemic diseases of shade trees; (2)May enter upon private premises at any reasonable time for the purpose of carrying out any of the duties assigned under this article; and (3)Shall, upon finding conditions indicating Dutch elm infestation or other epidemic diseases of shade trees, immediately send appropriate specimens or samples to the state commissioner of agriculture for analysis or take such other steps for diagnosis asmay be recommended by the commissioner. (Code 1982, § 33-37) State law reference— Authority for above section, Minn. Stats. § 18.022, subd. 6. Sec. 38-33. Public nuisances. (a)The following are hereby declared public nuisances whenever they may be found within the city: (1)Any living or standing elm tree or part thereof infected to any degree with the Dutch elm disease fungus Ceratocystis ulmi (Buisman) Moreau or which harbors any of the elm bark beetles Scolytus multistriatus (Eichh.) or Hylurgopinus rufipes (Marsh); Maplewood, Minnesota, Code of Ordinances Page 1 Attachment 1 - CODE OF ORDINANCES Chapter 38 - TREES ARTICLE II. SHADE TREE DISEASE CONTROL (2)Any dead elm tree or part thereof, including lugs, branches, stumps, firewood or other elm material from which the bark has not been removed and burned or treated with an effective elm bark beetle insecticide; and (3)Other shadetrees with epidemic diseases of shade trees. (b)It is unlawful for any person to permit any public nuisance, as defined in subsection (a) of this section, to remain on any premises owned or controlled by him within the city. (Code 1982, § 33-38) Sec. 38-34. Removal of infected trees or wood. Whenever the city manager finds with reasonable certainty that the infestation, as defined insection 38-33, exists in any tree or wood on any public or private place in the city, he shall notify the property owner and the person in possession, if different from the owner, on which such tree or wood stands, by certified mail or personal service, that the nuisance must be abated within a specified time, not less than five days from the date of mailing such notice or from the date of service. If the owner or occupant shall fail to remove the infected tree or wood from his property within the time specified in the notice, the city manager may order the work done either by the city's employees or by contract, and the cost of the work shall be billed against the owner or occupant. (Code 1982, § 33-39) Sec. 38-35. Special assessments for unpaid nuisance abatement charges. If the owner or occupant shall fail to pay the bill, as provided for insection 38-34, within 30 days, the council may then assess the amount due, plus interest, against the property as a special assessment under state law. (Code 1982, § 33-40) State law reference— Authority for special assessments, Minn. Stats. § 18.022, subd. 6. Sec. 38-36. Treatment of elm trees near Dutch elm fungus infestation. Whenever the city manager determines that any elm tree or elm wood within the city is infected with Dutch elm fungus, he may treat all nearby high value elm trees with an effective elm bark beetle destroying concentrate. Treating activities authorized by this section shall be conducted in accordance with technical and expert opinions and plans of the state commissioner of agriculture and under the supervision of the commissioner and his agents whenever possible. The notice requirements ofsection 38-34apply to treating operations conducted under this section. (Code 1982, § 33-41) Sec. 38-37. Permit for transportation of elm wood. It is unlawful for any person to transport within the city any bark-bearing elm wood, which is known by the city manager to be infected or suspected of being infected, without having obtained a permit from the city manager. The city manager shall grant such permits only when the purposes of this article will be served thereby. Maplewood, Minnesota, Code of Ordinances Page 2 Attachment 1 - CODE OF ORDINANCES Chapter 38 - TREES ARTICLE II. SHADE TREE DISEASE CONTROL (Code 1982, § 33-42) Sec. 38-38. Interference with performance of duties imposed by article. It is unlawful for any person to prevent, delay or interfere withthe city manager while he is engaged in the performance of duties imposed by this article. (Code 1982, § 33-43) FOOTNOTE(S): StateLaw reference— Plant and animal pest control, Minn. Stats. ch. 18; local pest control, Minn. Stats. §18.021 et seq.; shade tree disease control in the metropolitan area including Ramsey County, Minn. (Back) Stats. § 18.023 et seq. Maplewood, Minnesota, Code of Ordinances Page 3 Attachment 2 LMC–SSTPO EAGUE OF INNESOTAITIESAMPLEHADEREEESTRDINANCE SECTION ###.01: SHADE TREE PEST CONTROL. Subd. 1. Declaration of policy. The health of the trees in the city is threatened by shade tree pests, and the loss or ill health of trees growing upon public and private property substantially depreciates the value of property within the city and impairs the safety, good order, general welfare and convenience of the public. In addition to and in accordance with Minn. Stat. §§ 89.001, 89.01, and 89.51-.64, the provisions of this section are adopted as an effort to control and prevent the spread of these shade tree pests. Subd. 2. Jurisdiction. The city shall have control of all street trees, shrubs, and other plantings now or hereafter in any street, park, public right-of-way or easement, or other public place within the city limits, and shall have the power to plant, care for, maintain, remove, and replace such trees, shrubs, and other plantings. [Note: This may already be provided in another city ordinance.] Subd. 3. Declaration of a shade tree pest. The Council may by ordinance declare any vertebrate or invertebrate animal, plant pathogen, or plant in the community threatening to cause significant damage to a shade tree or community forest, as defined by Minn. Stat. § 89.001, to be a shade tree pest and prescribe control measures to effectively eradicate, control, or manage the shade tree pest, including necessary timelines for action. Subd. 4. Public nuisances defined. A shade tree pest, as defined by section XXX.02, occurring within a defined control zone is a public nuisance. Subd. 5. Shade tree pest nuisances are unlawful. It is unlawful for any person to permit any public nuisance as defined in this section to remain on any premises the person owns or controls within the city. The nuisance may be abated as provided in this section. Subd. 6. Tree inspector. The Council may appoint a tree inspector to coordinate the activities of the city relating to the control and prevention of damage by shade tree pests. The tree inspector will recommend to the Council the details of any program for the declaration, control, and prevention of shade tree pests. The tree inspector is authorized to enforce or cause to be enforced the tasks incident to such a program adopted by the Council. The term “tree inspector” includes any person designated by Council or the tree inspector to carry out activities authorized in this section. 1 Attachment 2 Subd. 7. Abatement of shade tree pest nuisances. (A) In abating a nuisance, defined by ordinance under section XXX.01, subdivision 3, the organism, condition, plant, tree, wood, or material identified as injurious to the health of shade trees shall be removed or effectively treated so as to destroy and prevent as fully as possible the spread of the shade tree pest. Such abatement procedures shall be carried out in accordance with the control measures and areas prescribed by section XXX.02, subdivisions 3, 10, and 14. (B) In addition, if the appropriate abatement procedure is removal, and the tree(s) and/or hedge(s) are within the limits of a highway in a rural area within the city’s jurisdiction, Minn. Stat. § 160.22 shall be complied with as necessary. Subd. 8. Reporting discovery of shade tree pest. Any owner or occupier of land or any person engaged in tree trimming or removal who becomes aware of the existence of a public nuisance caused by a shade tree pest as defined under subdivision 3 shall report the same to the city. Subd. 9. Registration of tree care firms. Any person, firm, or corporation that provides tree care, tree trimming, or removal of trees, limbs, branches, brush, or shrubs for hire must be registered with the Minnesota commissioner of Agriculture under Minn. Stat. §18G.07. Subd. 10. Inspection and application of control measures. (A) The tree inspector is authorized to inspect premises and places within the city to determine whether shade tree pests exist thereon and to investigate all reported incidents of shade tree pests. The tree inspector is authorized to take all reasonable measures to prevent the maintenance of public nuisances and may enforce the provisions relating to abatement in this section. Diagnosis of shade tree pests may be by the presence of commonly recognized symptoms; by tests as may be recommended by the commissioner of the Minnesota Department of Agriculture or the commissioner of the Minnesota Department of Natural Resources; or other reliable means. (B) Except in situations of imminent danger to human life and safety, the tree inspector shall not enter private property for the purpose of inspecting or preventing maintenance of public nuisances without the permission of the owner, resident, or other person in control of the property, unless the tree inspector has obtained a warrant or order from a court of competent jurisdiction authorizing the entry. (C) No person, firm, or corporation shall interfere with the tree inspector or with anyone acting under the tree inspector’s authority while engaged in activities authorized by this section. 2 Attachment 2 Subd. 11. Standard abatement procedure. Except as provided in subdivisions 12 and 14, whenever a tree inspector determines with reasonable certainty that a public nuisance, as described by this ordinance, is being maintained or exists on premises in the city, the tree inspector is authorized to abate a public nuisance according to the procedures in this subdivision. (A) The tree inspector will notify in writing the owner of record or occupant of the premises that a public nuisance exists and order that the nuisance be terminated or abated. The notice may be given in person or by mail. Failure of any party to receive the mail does not invalidate the service of the notice. A copy of the notice shall be filed with the city clerk. (B) The notice of abatement shall state that unless the public nuisance is abated by the owner or occupant, it will be abated by the city at the expense of the owner or occupant. The notice shall specify the control measures to be taken to abate the nuisance, and provide a reasonable amount of time to abate the nuisance. The notice will also state that the owner or occupant has the right to appeal the determination that a public nuisance exists by submitting a request in writing to the city clerk within seven (7) days after service of the notice, or before the date by which abatement must be completed, whichever comes first. (C) If no timely appeal is submitted, and the control measures prescribed in the notice of abatement are not complied with within the time provided by the notice or any additional time granted, the tree inspector or designated person shall have the authority to obtain permission or an administrative search warrant, enter the property, and carry out abatement in accordance with the notice of abatement. Subd. 12. High-cost abatement. If the tree inspector determines that the cost of abating a nuisance will exceed $5,000 based on a reasonable, good faith estimate, the written notice referred to in subdivision 11 must provide that if the nuisance is not abated within the reasonable amount of time provided, the matter will be referred to the City Council for a hearing. The date, time, and location of the hearing must be provided in the notice. Subd. 13. Appeal procedure. If the city clerk receives a written request for a hearing on the question of whether a public nuisance exists, the City Council shall hold a hearing within seven (7) calendar days following receipt by the clerk of the written request. At least three (3) days notice of the hearing shall be given to the individual who made the written request for the hearing. The Council may modify the abatement notice or extend the time by which abatement must be completed. Each owner, agent of the owner, occupant, and lienholder of the subject property or properties in attendance, if any, shall be given the opportunity to present evidence at the hearing. After holding the hearing, the City Council may issue an order requiring abatement of the nuisance. 3 Attachment 2 Subd. 14. Abatement procedure in event of imminent danger. (A) If the tree inspector determines that the danger of infestation to other shade trees is imminent, and delay in control measures may put public health, safety, or welfare in immediate danger, the tree inspector may provide for abatement without following subdivision 11 or 12. The tree inspector must reasonably attempt to notify the owner or occupant of the affected property of the intended action and the right to appeal the abatement and any cost recovery at the next regularly scheduled City Council meeting. (B) Nothing in this section shall prevent the city, without notice or other process, from immediately abating any condition that poses an imminent and serious hazard to human life or safety. Subd. 15. Recovery of cost of abatement; liability and assessment. (A) The owner of premises on which a nuisance has been abated by the city shall be personally liable for the cost to the city of the abatement, including administrative costs. As soon as the work has been completed and the cost determined, the city clerk or other official shall prepare a bill for the cost and mail it to the owner. Thereupon the amount shall be immediately due and payable at the office of the city clerk. (B) After notice and hearing, as provided in Minn. Stat. § 429.061 (which may be amended from time to time), the city clerk shall, on or before Sept. 1 next following abatement of the nuisance, list the total unpaid charges as well as other charges for current services to be assessed under Minn. Stat. § 429.101 against each separate lot or parcel to which the charges are attributable. The city council may then certify the charges against the property to the county auditor for collection along with current taxes the following year or in annual installments as the city council may determine in each case. 4 Attachment 2 Subd. 17. Penalty. (A) Any person, firm, or corporation that violates any provision of this section shall, upon conviction, be guilty of a misdemeanor. The penalty, which may be imposed for any crime that is a misdemeanor under this section, including Minnesota Statutes specifically adopted by reference, shall be a sentence of not more than 90 days, or a fine of not more than $1,000, or both. (B) Upon conviction of a misdemeanor, the costs of prosecution may be added. A separate offense shall be deemed committed upon each day during which a violation occurs or continues. (C) The failure of any officer or employee of the city to perform any official duty imposed by this section shall not subject the officer or employee to the penalty imposed for a violation. (D) In addition to any penalties provided for in this section, if any person, firm, or corporation fails to comply with any provision of this section, the City Council or any official designated by it may institute appropriate proceedings at law or at equity to restrain, correct, or abate the violation. Subd. 18. Severability. Should any part or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the ordinance as a whole or any part thereof other than the part held to be invalid. 5 Attachment 2 SECTION ###.02: DECLARED SHADE TREE PESTS, CONTROL MEASURES, AND CONTROL AREAS Subd. 1. Oak Wilt. Oak wilt disease (A) is a shade tree pest and is defined as any living or dead tree, log, firewood, limb, branch, stump, or other portion of a tree from any species of the genus Quercus existing within the control area defined that has bark attached and that exceeds three (3) inches in diameter or ten (10) inches in circumference and contains to any degree any spore or reproductive structures of the fungus Ceratocystis fagacearum. Control measures (B) that may be taken to abate oak wilt disease are: (1) Installation of a root graft barrier. A root graft barrier can be ordered installed to prevent the underground spread of oak wilt disease. The city will mark the location of the root graft barrier. The barrier disrupts transmission of the fungus within the shared vascular systems of root grafted trees. The barrier is created by excavating or vibratory plowing a line at least forty-two (42) inches deep between any oak tree infected with oak wilt disease and each nearby and apparently healthy oak tree within fifty (50) feet of the infected tree. (2) Removal and disposal of trees. (a) On property zoned for residential and commercial use. On property that is zoned residential and commercial the city may mark for removal trees that have the potential to produce spores of the fungus Ceratocystis fagacearum. After, and in no case before, the installation of the root graft barrier and no later than May 1 of the year following infection, all marked trees must be felled. The stump from such felled trees must not extend more than three inches above the ground or, if taller, must be completely debarked. If, however, after the city prescribes the location for a root graft barrier, the city determines that installation of the barrier is impossible because of the presence of pavement or obstructions such as a septic system or utility line, the city may mark for removal all oak trees whether living or dead, infected or not and located between an infected tree and the marked barrier location. These marked trees must be felled and disposed of no later than May 1 of the year following infection. The stump from such felled trees must not extend more than three inches above the ground or, if taller, must be completely debarked. (b) On all other property. On all other property, the city may mark for removal all oak trees whether living or dead, infected or not and located between an infected tree and the marked barrier 6 Attachment 2 location. These marked trees must be felled and disposed of no later than May 1 of the year following infection. The stump from such felled trees must not extend more than three inches above the ground or, if taller, must be completely debarked. All wood more than three (3) inches in diameter or ten (10) inches in circumference from such felled trees must be disposed of by burying, debarking, chipping, or sawing into wane- free lumber, or by splitting into firewood, stacking the firewood, and immediately covering the woodpile with unbroken four (4)-mill or thicker plastic sheeting that is sealed into the ground until Oct. 1 of the calendar year following the calendar year in which the tree was felled, or by burning before May 1 of the year following infection. Wood chips from infected trees may be stockpiled or immediately used in the landscape. control area (C)The for oak wilt disease is defined as: All lands within the boundaries of the city. [OR] All lands within the city identified on the oak wilt control area map dated XX XX XXXX and incorporated into this ordinance. [OR] All lands within the city within sections XXX and XXX. [OR] All lands within the area of the city bounded by XXXX and XXXX and XXXX and XXXX streets. [OR] All portions of the city that contain an average of XXX oak trees per acre as determined by an estimated inventory conducted by the city and recorded with the city clerk provided that no such portion shall contain less than one hundred sixty (160) acres. [OR] All lands within the city that are zoned for uses other than industrial and agricultural plus a buffer strip extending one-quarter mile beyond such lands into all adjoining lands within the city. 7 Attachment 2 Subd. 2. Emerald Ash Borer. Emerald ash borer (A)is a shade tree pest and is defined as an insect that attacks and kills ash trees. The adults are small, iridescent green beetles that live outside of trees during the summer months. The larvae are grub- or worm-like and live underneath the bark of ash trees. Control measures (B) that may be taken to abate emerald ash borer are those provided in the document,Minnesota Emerald Ash Borer Science Advisory Group Recommendations on Preparing for Emerald Ash Borer in Minnesota. [www.mda.state.mn.us/news/publications/pestsplants/pestmanagement/eab-recommends.pdf] Definition of control areas. (C)The control area for emerald ash borer is defined as: All lands within the boundaries of the city. [OR] All lands within the city identified on the emerald ash borer control area map dated XX XX XXXX and incorporated into this ordinance. [OR] All lands within the city within sections XXX and XXX. [OR] All lands within the area of the city bounded by XXXX and XXXX and XXXX and XXXX streets. [OR] All portions of the city that contain an average of XXX ash trees per acre as determined by an estimated inventory conducted by the city and recorded with the city clerk provided that no such portion shall contain less than one-hundred sixty (160) acres. [OR] All lands within the city that are zoned for uses other than industrial and agricultural plus a buffer strip extending one-quarter mile beyond such lands into all adjoining lands within the city. 8 Attachment 2 Subd. 3. Dutch Elm Disease. Dutch elm disease (A)is a shade tree pest and is defined as a disease of elm trees caused by the fungus Ophiostoma ulmi or Ophiostoma novo-ulmi, and includes any living or dead tree, log, firewood, limb, branch, stump, or other portion of a tree from any species of the genus Ulmus existing within the control area defined that has bark attached and that exceeds three (3) inches in diameter or ten (10) inches in circumference and could contain bark beetles or any spore or reproductive structures of the fungus Ophiostoma ulmi or Ophiostoma novo-ulmi. Control measures (B) that may be taken to abate Dutch elm disease are: (1) Use of fungicide. Fungicides may be effective in preventing Dutch elm disease when injected into living trees that do not already show symptoms of Dutch elm disease. Fungicide injections on private lands are optional and, if performed, are at the landowner’s expense. (2) Removal and disposal of trees. Prompt removal of diseased trees or branches reduces breeding sites for elm bark beetles and eliminates the source of Dutch elm disease fungus. Trees that wilt before July 15 must be removed within 20 days of detection [alternative: 30 days]. Trees that wilt after July 15 must be removed by April 1 of the following year. Diseased trees not promptly removed will be removed by the city at the landowner’s expense. Wood may be retained for use as firewood or saw logs if it is debarked or covered from April 15 to Oct. 15 with four (4)-mill plastic. The edges of the cover must be buried or sealed to the ground. [Refer to the USDA publication How to Identify And Manage Dutch Elm Disease (www.na.fs.fed.us/spfo/pubs/howtos/ht_ded/ht_ded.htm) for further details on management recommendations.] Definition of control areas. (C)The control area for Dutch elm disease is defined as: All lands within the boundaries of the city. [OR] All lands within the city identified on the Dutch elm disease control area map dated XX XX XXXXand incorporated into this ordinance. [OR] All lands within the city within sections XXX and XXX. 9 Attachment 2 [OR] All lands within the area of the city bounded by XXXX and XXXX and XXXX and XXXX streets. [OR] All portions of the city that contain an average of XXX elm trees per acre as determined by an estimated inventory conducted by the city and recorded with the city clerk provided that no such portion shall contain less than one-hundred sixty (160) acres. [OR] All lands within the city that are zoned for uses other than industrial and agricultural plus a buffer strip extending one-quarter mile beyond such lands into all adjoining lands within the city. 10 Attachment 2 Subd. 4. Gypsy Moth. Gypsy moth (A)is a shade tree pest and is defined as … Control measures (D) that may be taken to abate gypsy moth … Definition of control areas. (E)The control area for Gypsy moth is defined as: All lands within the boundaries of the city. [OR] … 11 Attachment 2 CITY OF _____________, MINNESOTA ORDINANCE #______ AN ORDINANCE AMENDING ORDINANCE #______, DECLARING ______ A TREE PEST AND PRESCRIBING CONTROL MEASURES FOR A DEFINED CONTROL AREA The City Council of the City of ___________, Minnesota, does ordain the following: Declaration of a shade tree pest. (A)Here a pest is declared and defined. Prescribed control measures (B).Here control measures are described. Definition of control areas. (C)Here a control area is defined. Effective date. (D) This ordinance shall be effective as of ________ [following 30 days publication of the Tree Pest Ordinance, Ordinance # ______]. This ordinance was introduced and moved for adoption by Councilmember _________. The motion for the adoption of the ordinance was duly seconded by Councilmember ________ and upon vote being taken thereon, the following voted in favor: _________________ _________________ _________________ And the following voted against the same: _________________ _________________ Whereupon said ordinance was declared duly passed and adopted by the City Council of the City of ___________, on the ___________ day of ___________. BY: ATTEST: Mayor City Administrator [Clerk][Clerk-Treasurer] 12